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30 ELR 10395 | Environmental Law Reporter | copyright © 2000 | All rights reserved Land Use Regulation and Environmental JusticeCraig Anthony (Tony) ArnoldThe author is Associate Professor of Law and Director of the Center for Land Resources, Chapman University School of Law. Mr. Arnold received a B.A. from the University of Kansas, and a J.D. from Stanford University. This Article is reprinted in part, with modifications, from Craig Anthony (Tony) Arnold, Planning Milagros: Environmental Justice and Land Use Regulation, 76 DENV. U. L. REV. 1 (1998), with permission of the University of Denver College of Law. The Article has been updated and revised by the author and edited by ELR staff. The author is deeply grateful for (1) the helpful comments of Morton Gitelman, Susanna Kim, Guadalupe Luna, Kenneth Manaster, and Tracy Arnold-Chapman; (2) the research assistance of Stephen Cassidy, Scott Burkhalter, Michael Bailey, Darren Stroud, Randy Weichbrodt, Chris Erwin, Shirley Arnold, and Judy Gray; and (3) the resourcefulness of the staffs of the Chapman University Law Library, the Crown Law Library at Stanford Law School, and the Government Documents Library, California State University, Fullerton. Environmental justice has emerged as a major environmental law issue with almost no corresponding attention to the role that land use law can play in addressing environmental injustice or to the role that environmental justice will play in shaping land use law.1 This Article explores the relationship between environmental justice and land use regulation and planning—a relationship that lawyers, scholars, judges, and policymakers must increasingly understand. Environmental justice is about the growing awareness of, and response to, the distributional inequities of environmental hazards and locally unwanted land uses (LULUs) by race and class.2 In the 1980s and 1990s, grass-roots community organizers and civil rights activists, civil rights lawyers, government agencies, legal scholars, and other academics began to study and demonstrate that low-income people and people of color bear a disproportionately high burden of exposure to environmental hazards or LULUs, particularly in the neighborhoods in which they live and the environments in which they work.3 There have been five primary responses to this phenomenon, each with corresponding conceptions of, or ways of thinking about, the environmental justice problem4: (1) to study the evidence and causes of the distribution of environmental hazards and LULUs (evidentiary conceptions)5; (2) to organize politically against proposed [30 ELR 10396] or existing LULUs (power conceptions)6; (3) to vindicate the constitutional, statutory, or common-law rights of those affected disproportionately by environmental hazards or LULUs (legal conceptions)7; (4) to heighten enforcement of environmental laws (environmental conceptions)8; and (5) to seek or rely on market mechanisms to address the distribution problem (economic conceptions).9 Each of these dominant ways of thinking about environmental justice, like each set of tools used by environmental justice advocates, is largely reactive and remedial. It is hardly surprising that neighborhood groups, civil rights activists, progressive lawyers, and grass-roots environmentalists have responded to decades of dumping hazards and LULUs in minority and low-income communities with demands to stop and remedy the existing situations. However, there is a need and growing trend to consider the distribution of land use patterns generally by race and class and to use land use planning and regulation as proactive, prospective means of addressing environmental injustice.10 The recent controversy over the Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Interim Guidance),11 issued by the U.S. Environmental Protection Agency's (EPA's) Office of Civil Rights, illuminates the nature and limits of the dominant approach to environmental justice. The Interim Guidance provides processes and standards for administrative complaints about the disparate impact of environmental permits on minority communities.12 It allows for private citizens to challenge permits or proposed permits that arguably have a discriminatory effect on racial or ethnic minorities.13 The Interim Guidance has four characteristics that raise questions about its effectiveness as a primary environmental justice tool. First, the Interim Guidance is an application of civil rights law to environmental law and therefore has inherent limits.14 The authority for the Interim Guidance stems from Title VI of the Civil Rights Act of 1964.15 Environmental justice advocates turned to Title VI for remedying disproportionate siting of LULUs and environmental hazards in minority communities, after the Equal Protection Clause of the U.S. Constitution16 proved unfruitful.17 Litigants bringing claims under the Equal Protection Clause must prove intentional discrimination on the basis of race or ethnicity,18 which has been virtually impossible in environmental justice cases.19 Title VI, however, is a federal civil rights statute that essentially prohibits the federal funding of programs which discriminate on the basis of race or ethnicity.20 While litigants under Title VI itself must prove intentional discrimination, the U.S. Supreme Court has indicated that federal agencies may adopt implementing regulations which prohibit funding of programs with racially discriminatory effects or impacts.21 EPA regulations prohibit state and local agencies implementing federal environmental programs to use "criteria or methods" that have the effect of discriminating on the basis of race or national origin.22 The Interim Guidance establishes the means for environmental justice advocates to challenge the issuance, renewal, or modification of state environmental permits by agencies receiving federal funds.23 In particular, it establishes a process by which EPA's Office of Civil Rights (OCR) is to investigate complaints to determine if a permit creates a disparate impact on a racial or ethnic minority population.24 If OCR makes such a finding, the burden to rebut the finding or to mitigate or justify the impact shifts to the state permitting agency.25 Notably, the state permitting agency must prove there are no less discriminatory alternatives to achieve legitimate goals, instead of the [30 ELR 10397] complainant having to show existence of less discriminatory alternatives.26 The Interim Guidance also establishes a broad framework for evaluating whether a permit has a disparate impact. This framework rejects selection of a single precise technique for disparate impact analysis, instead embracing a "totality of the circumstances" evaluation.27 The OCR will consider cumulative impacts and patterns of disparate impacts by state permitting of other facilities, including those not owned or operated by the same entity holding or seeking the permit at issue.28 If the OCR finds disparate impact, it may require the state permitting agency to reject permits, modify permits, or impose conditions or alternative, and if the agency does not comply, it faces loss of federal funds.29 The Interim Guidance authorizes not only administrative complaints but also simultaneous private causes of action in federal court to enforce EPA's Title VI regulations, even if the complainants have not exhausted their administrative remedies.30 Interestingly, the President's Executive Order on Environmental Justice31—not the Interim Guidance—governs EPA's issuance of federal permits. Courts have held that the Executive Order is merely an internal directive and does not create legally enforceable rights32; therefore environmental justice advocates upset with federal decisions arguably having a disparate impact do not enjoy the same opportunities to challenge those federal decisions as they have concerning state permitting decisions. As a traditional civil rights response to environmental injustice, the Interim Guidance can remedy only racially disparate impacts of environmental permits, not impacts on low-income communities generally. As an innovative extension of civil rights law, the Interim Guidance risks viable legal challenges. For example, the Interim Guidance relies on a Third Circuit Court of Appeals case, Chester Residents Concerned for Quality Living v. Seif,33 as authority for the private cause of action to enforce Title VI regulation and the rejection of an exhaustion-of-administrative-remedies requirement.34 However, the Court granted certiorari in Chester and then vacated the judgment as moot when the state revoked the permit in question.35 Thus, although the Court did not resolve the issues in Chester, its granting of certiorari creates uncertainty about whether the Court would agree with the Third Circuit's holding on both the private cause of action and the lack of an exhaustion requirement.36 In addition, a burden on the defending state agency to establish the lack of less discriminatory alternatives conflicts with traditional disparate impact burden-shifting principles.37 Furthermore, EPA has, through the Interim Guidance, adopted bold, far-reaching policies with substantial impacts on state and local governments and private-sector businesses, without notice-and-comment rulemaking.38 The Interim Guidance lacks clear definitions of what constitutes disparate impact and what methodologies will be used to measure it.39 These various legal controversies over the authority for and scope of the Interim Guidance raise uncertainty about its viability as a tool for achieving environmental justice. The second problematic characteristic of the Interim Guidance is that it defines the remedy to environmental injustice as federal bureaucratic oversight of state environmental permitting under federal standards. This remedy requires that affected populations and grass-roots groups understand how to file a Title VI complaint with EPA and establish a prima facie case of disparate impact. It necessitates that they both take their fight to the federal level, instead of remaining at the local, grass-roots level, and abdicate their struggle to scientific and legal experts, instead of pursuing political responses. Many environmental justice advocates reject the very model of expert-run, risk-based, litigation-driven federal environmental policy-making embraced by the Interim Guidance.40 Moreover, the Interim Guidance fails to consider the disparate impacts and distribution of local land use policies. It gives no attention to zoning patterns or the empowerment of low-income and minority communities in local politics and private markets. Third, the Interim Guidance adopts a reactive strategy that promotes uncertainty for all involved.41 Instead of defining clear standards about which facilities and operations will be allowed in which communities, the Interim Guidance encourages ad hoc challenges to proposed or existing environmental permits. The results are: (1) affected communities and other environmental justice advocates are always reacting to specific projects rather than proactively establishing clear standards to protect their communities; (2) the momentum of an existing or even proposed facility can be difficult to stop; (3) state permitting agencies and facility owners/operators face substantial uncertainty about whether a proposed activity will be found to have an impermissible disparate impact, especially under the vague, ad [30 ELR 10398] hoc "totality of the circumstances" standard; and (4) a facility owner/operator can invest substantial amounts in a particular facility (including an established, long-permitted facility) and/or permit application only to have it unpredictably investigated and rejected under the Interim Guidance. The uncertainty resulting from a reactive, ad hoc system of challenging permits impedes both social equity and economic efficiency. Finally, the Interim Guidance—like many environmental justice issues—is politically controversial. It has been criticized by state and local government officials, business and industry interests, and environmental justice advocates.42 Some view the Interim Guidance as a heavy-handed interference with state environmental permitting; others resent EPA's decision not to seek widespread public input through rulemaking procedures; others believe that it will create an atmosphere of uncertainty and lead to economic hardship; some contend that it will contribute to suburban sprawl and discourage brownfields redevelopment; still others believe it does not go far enough to encourage environmental justice complaints.43 Given the criticism and controversy, Congress initially responded by eliminating funding for any new EPA environmental justice investigations beyond the six that it had already initiated, a ban that is to apply until EPA adopts a final guidance.44 EPA is attempting to craft a revised guidance, but it is unclear whether its fate will be different. These responses evidence the inherently political nature of environmental justice issues and suggest that "legal solutions" may be minimally effective, at best, unless there is political support behind them.45 The Interim Guidance, although a central focus of environmental justice policy and advocacy, reflects the limits typical of reactive, remedial conceptions of environmental justice. Wise advocates, advisors, and scholars, whether focused on grass-roots community groups, government policies, or business and industrial interests, will turn attention to the next frontier for environmental justice: land use planning by communities of color and low-income communities. Local neighborhoods will not be merely late participants in using existing rules to stop (or attempt to stop) current proposals for unwanted land use, but also pre-siting participants in developing the rules that will determine what will and will not go in their neighborhoods. A land use planning/regulatory model of environmental justice is prospective and proactive. In addition, a land use planning/regulatory model of environmental justice addresses inequitable distribution of zoning patterns, not just environmental pollutants. As this Article documents, there are important differences in zoning patterns between high-income, low-minority communities and low-income, high-minority communities. In addition, there is an abundance of land use tools available to low-income neighborhoods of color that seek to change their land use patterns. Empirical Evidence of Inequitable Distribution of Land Use Regulatory Patterns Land Use Regulatory Patterns: The Ignored Environmental Justice Issue The five dominant conceptions of environmental justice—evidentiary, power, legal, environmental, and economic—have insufficiently considered land use planning and regulation. In addition to sparse attention to planning concepts and no attention to the strategic use of regulatory tools, very little systematic documentation of the unequal distribution of land use regulation on the basis of race and class exists.46 The use of zoning and other land use regulatory mechanisms (e.g., requirements of large lots, minimum floor space, and significant setbacks; low-density zoning; and restrictions on multi-family housing) to exclude low-income people who cannot afford large single-family homes on large lots (i.e., exclusionary zoning) has been well documented.47 Exclusionary zoning has had the effect of contributing to and perpetuating residential segregation not only by class but also by race.48 In addition, Yale Rabin has focused scholarly attention on expulsive zoning, the practice of local governments rezoning neighborhoods of color to allow incompatible and noxious land uses, thereby displacing (expelling) some residents and replacing them with new industrial and commercial activities that threaten the health, safety, quality, and character of the neighborhood.49 Rabin documented his analysis of expulsive zoning with 12 case studies of zoning changes in different cities nationwide that had the effect of displacing minority residents.50 However, Rabin's study did not attempt to quantify the distribution of zoning patterns in low-income neighborhoods of color and compare those distributions with zoning patterns of high-income white neighborhoods in the same cities. The distributional studies that have emerged in the environmental justice literature have focused on specific LULUs, not on land use regulatory patterns.51 This Article documents land use regulatory patterns—the [30 ELR 10399] percentages of area designated for different land uses—in 31 census tracts in 7 cities nationwide. Low-income, minority communities have a greater share not only of LULUs, but also of industrial and commercial zoning, than do high-income white communities. The study measures the percentages of area in census tracts that local zoning ordinances have designated for each type of land use. It contains data from 31 census tracts in 7 cities: Anaheim, California; Costa Mesa, California; Orange, California; Pittsburgh, Pennsylvania; San Antonio, Texas; Santa Ana, California; and Wichita, Kansas.52 The cities were selected on the basis of several criteria: 1. Geographic diversity: Pittsburgh is in the Northeast; Wichita is in the Midwest; San Antonio is in the South/Southwest; and Anaheim, Costa Mesa, Orange, and Santa Ana are on the West Coast. 2. Population diversity53: San Antonio, at a population of 935,933, is the 10th largest city in the United States. However, it is part of the 30th largest standard metropolitan statistical area, which has a population of 1,302,099. Thus, most of the population in the San Antonio metropolitan area is within the city of San Antonio itself. Pittsburgh, on the other hand, is the 40th largest city with a population of 369,879. Yet, it is within the 19th largest metropolitan area, containing a population of 2,242,798. A small percentage of the total Pittsburgh metropolitan area population resides within the city of Pittsburgh. Wichita is a medium-size city, ranking 51st in city population (304,011) and 75th in metropolitan area population (485,270). The four remaining cities—Santa Ana (population of 293,742), Anaheim (population of 266,406), Orange (population of 110,658), and Costa Mesa (population of 96,357)—are part of the second largest metropolitan area in the United States, covering more than 14.5 million people who live in Los Angeles, Orange, Riverside, San Bernadino, and Ventura counties. All four cities are in Orange County, which has a population of more than 2.4 million people. Thus, they are medium to small cities in a large metropolitan area. 3. Racial diversity: Two cities have very high percentages of people of color: Santa Ana has 76.6% people of color, predominantly Hispanic and Asian, and San Antonio has 63.6% people of color, predominantly Hispanic. Anaheim has 43.4% people of color, and Orange has 31.9% people of color. Both of these cities have significant Hispanic and Asian populations. Pittsburgh has 28.5% people of color, predominantly African American. Costa Mesa has 27.6% people of color, predominantly Hispanic. Wichita has 19.5% people of color, predominantly African American. 4. Land use development diversity: Pittsburgh is an old city that developed along natural features, particularly the convergence of three rivers. Wichita is a traditional midwestern grid-pattern city. San Antonio has an old but partially redeveloped core, barrios, and new suburban and outer-ring office development, but most of the greater metropolitan area lies within the city boundaries. The four California cities are mostly 20th century edge cities,54 parts of the Orange County metropolitan area which has no central core. 5. Spatial segregation by race and class: Each of the cities has at least one census tract with a high (or in one case, a moderately high) percentage of minorities and a high percentage of low-income persons, and at least one census tract with a low percentage of minorities and a low percentage of low-income persons, thus allowing for measurement of whether low-income communities of color bear a higher percentage of nonresidential zoning designations than white, wealthy communities. 6. Study feasibility: The author had means of readily obtaining the zoning maps and codes of each of these cities. Census tracts were chosen by reviewing 1990 U.S. Census Bureau data on the racial composition, median household income, and percentage of persons below the poverty level [30 ELR 10400] for all the census tracts of each city.55 Census tracts were chosen for being either significantly above or significantly below the racial and class composition of the city. All high-income, low-minority census tracts selected for this study had less than 50% of the respective city's percentages for people below poverty and people of color, except Anaheim Tract #219.04. This tract had 22.10% people of color, which was 50.9% of Anaheim's percentage people of color (43.4%), but less than 32% of Anaheim's high-minority census tracts (i.e., 874.02 and 874.03) that were studied. Thus, the percentage of people of color in tract #219.04 was significantly less than the percentage in Anaheim's high-minority tracts. In absolute, as opposed to relative, measures, all high-income, low-minority tracts in all cities had less than 27% people of color, and 8 out of the 12 tracts had 14% or less. The high-income, low-minority tracts had less than 8% people below poverty, and 9 out of 12 tracts had 4.5% or less. All low-income, high-minority tracts were more than 150% of their respective city's percentages of people below poverty and people of color, except for two tracts in San Antonio and three tracts in Santa Ana. These five exceptions had less than 150% of the respective city's percentages of people of color due to the high number of people of color in those cities. Each of the five tracts had more than 85% people of color, and three of the tracts had 92% or more. In absolute measures, all low-income, high-minority tracts in all cities had more than 45% people of color, and 16 out of the 19 tracts had more than 69%. All low-income, high-minority tracts had more than 15% people below poverty, and 13 out of 19 tracts had 33% or more. After data on the racial composition, median household income, and percentage of persons below the poverty level were gathered from the 1990 U.S. Census Bureau data for each census tract, the census tracts were identified on U.S. Census Bureau maps. Zoning maps for the areas corresponding to the census tracts were obtained from local zoning authorities. The census tract boundaries were correlated to the zoning maps. For each census tract, the areas of zoned land on the map were measured using fine hand measurement tools according to each land use designation (e.g., R-1, R-2, C-1, LI), and the percentage of the total area within the entire census tract zoned for each separate land use designation was calculated. The census data and percentages of each census tract designated for particular zoning are listed in the tables in the Appendix to this Article. However, data for aggregated zoning designations—single-family residential, multi-family residential, commercial, industrial, planned development, and other—are provided in the tables in this section, following the textual discussion of the data. The data shows that low-income, high-minority neighborhoods in the cities studied are subjects of more intensive zoning, on the whole, than high-income, low-minority neighborhoods. This conclusion is supported by data from across the various types of cities studied, regardless of the cites' geographic features, spatial development, population, political characteristics, and the like. With respect to industrial zoning, the most intensive land use, 13 out of 19 low-income, high-minority census tracts had at least some industrial zoning, and in 7 of those census tracts, the city had zoned more than 20% of the tract for industrial uses. In contrast, only 1 of the 12 high-income, low-minority census tracts contained any industrial zoning at all, only 2.84% of the tract. More specifically, Santa Ana tract #744.03, an area of 4,862 people, of whom 74.9% are Hispanic, is 90.54% zoned for industrial use. Nearly 70% of Orange tract #762.04, about 50% of both Pittsburgh tract #2808 and San Antonio tract #1105, and 36.59% of San Antonio tract #1307.85 are zoned for industrial use.56 Moreover, although the study did not include a quantified spatial distribution analysis of the industrial uses in comparison to the residential uses, a visual survey of the zoning maps reveals that industrial use designations are close to residential use designations, often either across the street or in the same block. The zoning of low-income neighborhoods of color for industrial uses places highly intensive activities near local residents' homes, creating the very sort of incompatibility of uses that zoning is designed to prevent.57 For example, among the "as of right" permitted uses in Pittsburgh tract #2808 are ammonia and chlorine manufacturing, automobile wrecking, blast furnace or coke oven, chemical manufacturing, iron and steel manufacturing and processing, air-plane factory or hangar, brewery, poultry slaughter, and machine shop, and among the conditional uses are atomic reactors, garbage and dead animal reduction, rubbish incineration, radio and television transmission and receiving towers, and storage of explosives and inflammables.58 The city of San Antonio allows acetylene gas manufacturing and storage, arsenals, blast furnaces, boiler works, cement or paving material mixing plants, creameries with on-premises live-stock, forge plants, metal foundries, paper and pulp manufacturing, rock crushers, junk storage, tar roofing manufacturing, and yeast plants, among others, in two of the census tracts studied.59 Although nearly two-thirds of Orange census tract #762.04 is zoned for industrial manufacturing (M2), the city requires many of the most intensive uses to obtain conditional use permits, thus at least theoretically allowing some level of monitoring and control of the impacts. Nevertheless, some of the conditionally permitted uses in [30 ELR 10401] Orange's M2 district are hazardous waste facilities, refuse transfer stations, blast furnaces and coke ovens, mineral extraction and production, and various types of chemical production.60 Santa Ana has zoned nearly 90% of census tract #744.03, containing nearly 5,000 residents, for light industrial activity. Although Santa Ana's light industrial zoning designation excludes hazardous and solid waste facilities and some hazardous industrial activities like acid manufacturing, gas and acetylene manufacturing, and metal smelters, it does not exclude large-scale industrial facilities that can overwhelm nearby residential uses, the use of toxic substances in light industrial activities, unsightly storage facilities and warehouses, or a high concentration of waste-producing facilities like automotive repair and service sites.61 Commercial uses are also located in greater concentrations in low-income, high-minority neighborhoods than in high-income, low-minority neighborhoods. In 10 out of the 19 low-income, high-minority census tracts, at least 10% of the area is zoned for commercial use, and in 7 of those tracts, at least 20% of the area is zoned for commercial use. In contrast, only 2 of the 12 high-income, low-minority census tracts had at least 10% of the area zoned for commercial use, and none had more than 20% commercial zoning. Although the term "commercial" conjures up images of office buildings and retail stores which may create parking and scale/shadow impacts on neighboring residences but generally do not pose health hazards, the cities studied allow in their various commercial districts uses that are far more intensive than offices and stores. For example, nearly 50% of Wichita tract #41 is zoned Central Business District, in which limited and general manufacturing, vehicle storage yards, warehousing, welding and machine shops, and vehicle repair uses are allowed by right, and solid waste incinerators, mining and quarrying, rock crushing, and oil and gas drilling are conditional uses.62 In about 30% of San Antonio tract #1307.85, permitted uses include electroplating, brewery, chicken hatcheries, poultry slaughter and storage, machine shop, and certain kinds of manufacturing, such as ice cream, ice, brooms, mattresses, paper boxes, candy, cigars, and refrigeration.63 Santa Ana's General Commercial (C2) districts may contain automotive garages, blueprinting and photo-engraving businesses, metal shops, automotive equipment wholesalers, research laboratories, farm products wholesalers, and tire recapping businesses, and the Central Business (C3) district may contain all of these land uses except automotive garages.64 These "commercial" land uses may involve storage and processing of hazardous or toxic materials, generation of large amounts of waste, emission of fumes, odors, and airborne particulates, and imposition of large, unsightly structures on local neighborhoods. Zoning codes burden low-income communities of color with intensive use designations. When one combines commercial and industrial uses and rounds the combined figure to the whole percent, at least one-quarter of the area in each of 11 census tracts, all of them low-income, high-minority,65 is zoned for 1 of these 2 intensive uses, even though nearby parcels are zoned for residential uses. On the other hand, high-income, low-minority neighborhoods are the beneficiaries of single-family residential zoning and open-space zoning. Over 75% of the area in each of six high-income, low-income tracts studied is zoned for single-family residences. If open space, a country club, and a private university (with significant open space) are included with single-family residential zoning, 11 of the 12 high-income, low-minority tracts have more than 75% of their respective areas zoned for these low-intensity land uses. The remaining tract, Costa Mesa #638.02, has more than 75% of the tract zoned for low-intensity land uses if the definition of low-intensity land uses includes not only single-family residences but also a private school, a post office, a fire station, and parks, all of which are highly compatible with single-family residential uses and rarely, if ever, considered LULUs. In other words, all of the high-income, low-minority tracts have at least three-quarters of the total land uses in each tract designated as nonintensive land uses. In contrast, the only low-income, high-minority census tract with more than 75% of the area zoned for single-family residential or open-space uses is Pittsburgh census tract #2609.98—1 tract out of 19. Although zoning for single-family residences or open space may preclude affordable housing needed by low-income people, the contrast in zoning patterns highlights the disparate impact of zoning designations on low-income people of color.
Table 2: Costa Mesa, California, Percent of Census Tracts by Aggregated Zoning Designations
Caveats and the Call for Further Studies The data presented here simply shows that land use regulatory patterns are not evenly distributed in seven cities between high-income white neighborhoods and low-income minority neighborhoods. A greater percentage of low-income high-minority neighborhoods are zoned for commercial and industrial uses, which are more intensive than residential. Readers should take caution not to read more into the study than it provides. The study does not address whether race or income is more important in the uneven distribution of land use regulation.67 It does not attempt to isolate the race and income variables, and statistically correlate the results to either. Nor does it compare high-income white tracts with high-income minority tracts, low-income white tracts with low-income minority tracts, high-income minority tracts with low-income minority tracts, or high-income white tracts with low-income white tracts. And it certainly does not examine the land use patterns of middle-class tracts or moderately mixed-race tracts. The study does not attempt to correlate zoning patterns with the presence of any particular LULUs or environmental hazards. It is possible that a census tract with significant industrial and commercial zoning could have no hazardous waste sites, for example. It is also possible that a census tract that is zoned primarily single-family residential could contain a major LULU, like a solid waste dump. These scenarios would probably be rare, and the neighborhoods with more intensive land uses would likely have more LULUs or environmental hazards.68 However, this study does not address the issue. This study is not a longitudinal study.69 It does not analyze when the current zoning patterns emerged, if and how zoning patterns changed over time, and how the racial and class composition of the census tracts changed over time. In other words, we do not know if the cities engaged in expulsive zoning by changing the zoning to permit intensive uses in low-income, minority neighborhoods,70 or if low-income, minority people moved to industrial or mixed-use neighborhoods because of cheaper housing costs, residential segregation, discrimination in private markets, proximity to work, or similar reasons.71 The study does not attempt to identify causes of the inequitable distributions of land use regulation. The possibilities are far-ranging: intentional discrimination by government decisionmakers, institutional discrimination imbedded in the land use regulatory system, market forces, personal choices about priorities and values, lack of political power or resources, or most likely some complex and variable combination of many or all of these. Land use patterns are built on dozens or even hundreds of decisions—both public and private—made over a long period of time as a result of the interaction of various political, social, and economic forces. The failure to isolate one or more causes does not preclude identification of a distributional problem or attempts by neighborhood groups and environmental justice activists to change existing land use patterns. Finally, this study does not establish a national pattern. The number of cities studied, seven, is simply too small to prove that zoning in the United States is inequitable with respect to race and class. Furthermore, it is meaningless to compare zoning in a census tract in one city with zoning in a census tract in another city, because the zoning is a result of decisions made by local land use regulatory authorities, which differ from city to city. In fact, this study shows that San Antonio zoned census tract #78 primarily single-family residential with a small amount of multi-family residential and a significant amount of commercial zoning, whereas Wichita zoned census tract #8 almost entirely multi-family residential with a little commercial zoning, and Orange has a large amount of industrial zoning in census tract #762.04. All of these census tracts are low-income communities of color. Therefore, land use regulation does not inevitably lead to high levels of commercial and industrial zoning in low-income and minority neighborhoods. Instead, comparisons must be between census tracts within each city, and a national trend would emerge only if a significant number of cities have inequitable zoning distributions. Perhaps most importantly, national trends are only marginally relevant to addressing overly intensive zoning (or expulsive zoning) of low-income communities of color. Instead, the existing patterns and the neighbors' concerns and land use goals are in-herently local (indeed, specific to the neighborhood in question) and the regulatory authority is local. Changes willoccur locality by locality, neighborhood by neighborhood, and not at a national level. Study of the race and class distribution of land use regulatory patterns is only in its infancy. Research should go in two somewhat divergent directions simultaneously to fill the knowledge gap. One direction is toward more comprehensive and more rigorous statistical studies of the distribution of zoning in many different types of census tracts in many different cities. These studies would validate the findings of this study across a broader sample of cities than the seven selected for this study. These studies could also establish which variables correlate most closely to various distributional patterns. Some of the variables that should be analyzed are race, median household income, percentage of tract residents below the poverty level, the degree of political participation among census tract residents, geographic and natural characteristics of the tracts, type of land use regulatory system, historical development patterns, size of city, whether suburban development is within the city's political boundaries or within separate political (and therefore zoning) jurisdictions, the citywide percentage of minorities and [30 ELR 10404] low-income people, and the citywide percentage of minority and low-income voters. A second direction for empirical research on zoning distribution is toward more detail-rich, longitudinal, qualitative case studies of land use histories of specific neighborhoods. These studies would identify how zoning for neighborhoods changed over time, how actual land uses and development in the neighborhoods changed over time, and what factors and forces influenced each.72 The case study method accounts for variations in land use decisions from locality to locality, and should include a synthesis of generalizable theories and the empirical context of specific examples.73 Nevertheless, this empirical study demonstrates that inequitable land use regulatory patterns exist. The current conceptions of environmental justice do not effectively address these patterns. Land Use Planning and Regulation: Another Vision of Environmental Justice Land Use Planning and Regulation Land use planning and regulation offer an alternative, or perhaps more accurately, an additional74 way of thinking about environmental justice than the five conceptions described above. Public planning and regulation of local land uses combine study, politics, and legal mechanisms. However, planning and regulation are, by their nature, primarily prospective, rather than remedial. Neighborhood residents that engage in land use planning and develop proposed land use regulations for their neighborhood are proactively seeking to prevent LULUs before the siting process ever begins. Furthermore, they are defining not only what they do not want in their neighborhood but also what they do want. Planning is the process of identifying goals for the future, developing policies or plans for achieving the goals, and fashioning specific mechanisms for implementing the plans.75 It also contains phases of pre-plan study and post-plan monitoring and feedback.76 The American Planning Association has defined planning as "a comprehensive, coordinated and continuing process, the purpose of which is to help public and private decision makers arrive at decisions which promote the common good of society."77 Some of the public interest goals served by planning, at least theoretically, are health, safety, convenience, efficiency, natural resource conservation, environmental quality, social equity, social choice, amenity, and morals.78 Planning has historically meant many different things. At one time, the emphasis was on physical planning of street layouts, building locations, the division of land for distribution, and overall city design.79 In the latter part of the 19th century and the first 5 to 7 decades of the 20th century, public planning or urban planning essentially went in two directions. Comprehensive planning was concerned with utopian visions of how cities in general, or specific cities, should look in the long run.80 More practical planning focused on specific problems that dominated the public agenda of the times: health and safety issues like public sanitation, tenement housing conditions, and sewage in the latter half of the 19th century81; aesthetic considerations of the "City Beautiful" movement at the turn of the century, such as parks, civic centers, streets, and transportation82; the economic and social problems presented by uncoordinated development and inadequate municipal services in the face of urbanization in [30 ELR 10405] the early 20th century83; and the problems of poverty, slums, and housing shortages and conditions from the 1930s through the 1960s.84 Today, however, planning generally means development of a short- or medium-range general plan for a city or region that is both comprehensive and rational, yet accounts for the reality of politics, market economics, and limited information.85 The comprehensive plan or general plan86 is designed to provide for orderly, efficient, and just local development and adequate services and infrastructure.87 Far from a static utopian vision, it is flexible and evolving. This Article focuses on land use planning, which is one of the elements of comprehensive planning. Comprehensive plans contain many different elements related to the general physical development of the city or region. For example, California requires that every general plan contain seven elements: land use, circulation, housing, conservation, open space, noise, and safety.88 Any general plan that does not sufficiently address each element is legally insufficient.89 However, all of the elements are interrelated, and land use is at the core of the planning process.90 Local public authorities implement their comprehensive plans primarily through land use controls, particularly subdivision regulations and zoning.91 Land use planning is also a central feature of district planning, which is the process of developing goals, policies, and specific plans for distinct neighborhoods or districts within a city or urban area and relating those specific plans to the larger (city, urban, or regional) comprehensive plan.92 Furthermore, the primary concerns of grass-roots advocates about the presence of LULUs in low-income neighborhoods and neighborhoods of color are land use concerns that require attention to local land use plans.93 This Article also focuses on land use regulation. Land use planning and land use regulation are analytically distinct, yet closely related parts of the land use control process in the United States: the plan articulates the general principles and policies that will guide local development and regulations, particularly zoning ordinances (or a zoning code that organizes the ordinances), and gives effect to those principles through detailed legal controls over private and public land use activity.94 The relationship between planning and regulation varies considerably from locality to locality. On one hand, zoning implements planning,95 and most state zoning enabling statutes require that local zoning be in accordance with a comprehensive plan.96 On the other hand, many plans are not reflected in zoning regulations and therefore are difficult to enforce,97 and many zoning regulations are adopted with very little real planning.98 Nonetheless, land use planning and land use regulation are intertwined in an imperfect, yet persistent symbiotic relationship. Land use regulations are legal mechanisms, often enacted by local government,99 that restrict the use of privately owned land in the interest of the public health, safety, morals, and welfare.100 Thus, land use regulation is an exercise of the state's delegated police power. Land use regulation has existed in the United States since the colonial period, when it was used to ensure orderly development of cities and to promote economic growth.101 Land use regulation also, from its early history, prevented incompatible, noxious uses from interfering with the private enjoyment of property, private property values, and public health and safety.102 In fact, the Supreme Court of the antiregulatory era used common-law nuisance doctrine to uphold the constitutionality of an early zoning ordinance in the landmark case, Village of Euclid v. Ambler Realty Co.103 The Court analogized regulatory prohibitions of nonresidential uses in residential neighborhoods and building structures that did not conform to height limits, construction standards, and setbacks to nuisance law restraints on valuable uses in inappropriate locations and circumstances.104 Furthermore, land use regulation has embodied social values, ranging from promotion of residential enclaves "where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people,"105 to the similar but more sinister attempts to exclude people who are different, particularly those who are people of color, low-income people, nontraditional families, the religious faithful, the mentally disabled, the homeless, prison parolees, and the like.106 Land use regulation also serves to protect the environment and conserve or allocate scarce natural resources,107 and to define the evolving boundaries of private property rights.108 The primary methods of land use regulation are zoning ordinances, subdivision regulations, building and design codes, and official maps.109 Subdivision regulations apply to any division of land into parcels, lots, or other smaller units, and allow localities to control the location and design of streets, drainage and sewers, utilities, parks and common areas, and other infrastructure.110 They also give the localities leverage to require subdivision developers to pay fees or donate land or facilities for this infrastructure.111 Building and design codes govern the construction, materials, design, architecture, signs, and other physical features of buildings.112 Local governments adopt official maps to indicate the publicly planned locations of streets, parks, public buildings, fire and police stations, and other community facilities. Zoning, however, is the core of land use regulation.113 Zoning divides the locality into geographic districts (zones) and imposes different land use controls on each district.114 These controls dictate allowable uses of land and structures, building bulks, lot size and shape, placement of buildings on lots, and density and intensity of land uses and structures.115 The traditional categories of land uses are residential, commercial, industrial, and agricultural, but modern zoning schemes are quite complex with many subcategories of uses, for example: overlay zones, incentive zoning, parking and sign regulations, performance and environmental standards, negotiated zoning techniques like planned-unit developments, transferable development rights, and many others.116 The planning and opposition models of environmental justice share some characteristics. Both are largely concerned withquestions of fairness (however defined) and goals of achieving safe and healthy communities. Both involve empirical, political, legal, environmental, and economic factors. Both attempt to prevent environmental hazards and LULUs in low-income and minority neighborhoods, albeit in different ways. And both are struggles for grass-roots participation in policymaking and in political, economic, and legal decisions that affect these neighborhoods. The models also differ in some important ways. In the opposition model, grass-roots activists react to existing LULUs or proposed sitings. In many cases, they may seek remedies for past or ongoing harms or government and corporate decisions that pose the risk of harm. Thus, the opposition model is largely reactive, retrospective, and remedial, although perhaps necessarily so. In the planning model, local residents develop land use plans and regulations that either address broader problems than a single LULU or reflect goals for future land use patterns in the neighborhood. To some extent, these plans and regulations capture an element of the community's self-identity (e.g., a high-density community of affordable housing; an historic neighborhood of single-family residences and small retail businesses; a neighborhood of single- and multi-family housing with many small parks and playgrounds and few through-streets; an area in which industrial activities remain on the east side of the river). These plans and regulations also are in place to govern future land use decisions, including proposals for LULU sitings. In these ways, the planning model is proactive, prospective, and visionary. Opponents of existing or proposed LULUs often are political outsiders, entering the decisionmaking process after relationships have been established between the facility owner or operator and government officials. Theirs is the struggle of people without power who are taking on and fighting established exercises of power. Some environmental justice activists reject government decisionmaking, economic markets, and the legal system as inherently subordinating and victimizing the poor and minorities. In many ways, low-income people and people of color who seek to influence land use planning and regulation start out similarly struggling against the powerful. Their goal, however, is to exercise power within the existing land use regulatory system. They want to participate in the process, empowered by their definition of land use goals and hopefully successful implementation of these goals through zoning and other regulations. They want to be participants at the land use negotiating table in matters that concern them, along with government officials, developers, property owners, environmentalists, and other interested people and groups. They want to serve on advisory boards, zoning commissions and boards of appeal, city councils, and other decisionmaking bodies. Finally, the opposition model identifies and seeks to exclude harmful activities and LULUs. The planning model identifies and seeks to allow (i.e., include) desirable land uses. The contrasts between these two models are summarized below: Characteristics of Two Models of Environmental Justice
Land use planning and regulation offer several advantages for achieving environmental justice goals. First, an owner or operator of a prospective LULU would have much more difficulty obtaining approval for siting the LULU in a minority or low-income neighborhood, if the comprehensive plan and zoning ordinances prohibited the LULU in that neighborhood than if they allowed the LULU, either by right or conditionally. Assume that a waste company wants to locate a hazardous waste incinerator in a low-income Hispanic neighborhood. If the city zoning code prohibits hazardous waste incinerators in every zone except I-3, and the zoning map does not designate any land in the target neighborhood as I-3, the waste company will need a zoning amendment, as well as use-specific environmental permits. If the city's comprehensive plan provides for nonindustrial uses only in the neighborhood or explicitly states that waste facilities are not appropriate for that neighborhood, the waste company also will need an amendment to the comprehensive plan. The waste company nonetheless might have enough political and economic power to obtain all the needed approvals, but it will face several obstacles. The zoning code text and map and the comprehensive plan will create a presumption that the hazardous waste incinerator is not appropriate for the neighborhood. This presumption will take on a certain legal and political reality. The waste company will have to expend more political capital to overcome the presumption. The neighbors will have more opportunities to defeat the incinerator. Not only might the federal or state environmental agencies deny the permits, but the local land use authority, perhaps more attentive to local neighborhood concerns, might deny the land use approvals. Furthermore, the neighbors will have more government approvals to challenge in litigation. If each approval is necessary to the siting of the project and a court were to hold any approval to be invalid, the project would fail. The neighbors can bring land use claims, as well as civil rights and environmental law claims, to challenge any objectionable land use approvals. For example, they can argue that rezoning to allow the incinerator is inconsistent with the comprehensive plan, irrationally allows a use that is incompatible with surrounding uses, constitutes spot zoning, and violates procedural requirements. When neighborhoods engage in land use planning and regulation, they create the rules with which prospective LULUs must comply, rather than merely reacting to specific LULU siting proposals that have already surfaced and obtained a certain amount of legitimacy before opposition can arise. These pre-established rules can make LULUs less likely to receive approval and challenges to any such approvals are more likely to be successful. Second, land use planning and regulation create greater certainty about what land uses will or will not be allowed in a neighborhood. When local land use regulations allow LULUs, either by right or conditionally, neighborhood residents face uncertainty about whether or not their neighborhood will be the object of a LULU siting proposal (or a proposal to site another LULU in their neighborhood if they already have one or more). Once a proposal has been made, neighborhood residents face the further uncertainty about whether or not they will be successful in defeating the proposal. Similarly, the owner or operator faces uncertainty about whether local residents will attempt to defeat the project [30 ELR 10408] as inappropriate for the neighborhood even though the local land use regulations permit it and the owner or operator has invested significant amounts in that specific site proposal. Both sides have significant economic costs (i.e., inefficiency), psychological costs (i.e., anxiety), and relational costs (i.e., suspicion and animosity) resulting from uncertainty about the propriety of the LULU in the neighborhood. However, if local residents have been involved in land use planning and development of regulations for their neighborhood and have carefully identified what uses are appropriate for what areas of their neighborhood, the level of certainty increases substantially. Proponents of LULUs may nonetheless seek amendments to or relief from applicable land use prohibitions, and neighborhood residents may nonetheless oppose LULUs permitted by the regulations. But in most circumstances, the content of the land use plans and regulations, when developed with meaningful neighborhood participation, provide generally reliable information on which both sides can make decisions. This information fosters efficiency, comfort, and trust. Third, land use planning and regulation improve the community's capacity to achieve its goals. Typically, members of neighborhoods have community goals that extend far beyond excluding a particular LULU from the neighborhood. They often have goals about parks and other recreational uses, open space, traffic patterns and safety, availability of grocery stores or medical facilities, maintenance of property and cleanup of nuisances, public infrastructure like streets, sidewalks, and drainage, public areas or commons, social or cultural centers, historic preservation, community identity, economic development, public transportation, and many other matters. Land use plans contain these goals, and land use regulations facilitate efforts to reach the goals by defining the permissible land uses in the neighborhood.117 In many ways, land use planning is like preventive medicine. Eating well, exercising regularly, developing a healthy emotional outlook, and avoiding harmful activities do not guarantee that you will never be sick, nor do they mean that you should not react to the initial signs of illness or existing health problems. Nevertheless, these proactive strategies certainly do reduce your chance of illness and make life healthier and more enjoyable. Similarly, land use planning and regulation will not always preclude the siting of LULUs or the need to oppose proposals or existing sites. However, communities that develop a healthy vision of their neighborhoods and enact that vision in land use regulations will more likely prevent LULUs and other environmental harms than if they had simply waited to react. The empirical evidence presented in this Article shows a wide difference in zoning patterns between low-income communities of color and high-income white communities.118 Whether caused by intentional discrimination, institutional inequities, market forces, or some other factor(s), these disparities indicate that low-income people of color have very little effective input into the land use planning and regulatory process. They also suggest that environmental justice advocates may want to consider additional strategies that focus on community-based planning initiatives and zoning proposals. Empirical Evidence of Land Use Planning in the Environmental Justice Movement The land use planning model of environmental justice is increasingly developing within the environmental justice community, as low-income neighborhoods of color seek to define and protect their communities through land use regulation. This section presents five brief case studies of grass-roots environmental justice land use strategies. These examples cover a range of goals and tactics, as well as locations: (1) rezoning to limit industrial and commercial uses in East Austin neighborhoods of Austin, Texas; (2) rewriting Denver, Colorado's, industrial zoning code by a North Denver community group; (3) the St. Paul, Minnesota, West Side Citizens Organization's seeking and obtaining passage of a citywide ordinance banning metal shredders; (4) the adoption of a comprehensive land use and development code by the Confederated Tribes of the Colville Reservation in Washington; and (5) involvement of grass-roots groups from San Antonio, Texas, barrios in the formulation of over-lay zoning to protect the Edwards Underground Aquifer. One approach seeks change to existing zoning either through rezoning of individual parcels or application of various "flexible zoning techniques"119 to the entire neighborhood. The East Austin area of Austin, Texas, is a good example. The residents of East Austin are primarily African American and Hispanic.120 The land uses are industrial, commercial, and residential uses interspersed among each other.121 The area was planned in 1928 as a "Negro district" that would host most of Austin's industrial uses next to housing for African Americans.122 The city's first zoning map in 1931 reflected this plan. In addition, Austin had cumulative zoning in East Austin until the mid-1980s, allowing residences to be built on property designated for residential uses (i.e., allowing the less intensive land uses in zones where more intensive uses were allowed).123 Thus, Austin engaged not in "expulsive zoning"—the assault on minority and low-income neighborhoods by zoning that allows intensive uses124—but in "repulsive zoning"—the intentional and simultaneous placement of people of color and intensive, even harmful land uses next to, or among, one another.125 Because local zoning allowed industrial uses on many parcels in East Austin, there have been few to no obstacles to [30 ELR 10409] land uses such as: at least two trash recycling plants, a power plant, a gasoline tank farm, and industrial facilities that use and emit hazardous and toxic substances.126 Responding to complaints by neighborhood residents about specific land uses and the overall pattern of industrial zoning, the city of Austin conducted a study in 1997 showing that the area has a significantly higher percentage of industrial zoning than other areas of the city.127 The zoning report complements an earlier study showing higher usage of hazardous substances in East Austin than in other areas of the city.128 Neighborhood residents demanded reform of the area's zoning, and the city council responded with two types of reform. The first is the designation of a large area of East Austin as the East Austin Overlay Combining District.129 Fourteen enumerated land uses and any land use for which a hazardous materials permit is required by the Austin Fire Department are defined as conditional uses if they are within the EA East Austin Overlay Combining District.130 The ordinance does not change the underlying zoning designation of any parcel. However, new industrial or commercial uses or changes to existing industrial or commercial uses in East Austin, if falling within the list of conditional uses, would require a permit from the Planning Commission under zoning procedures designed to give local residents an opportunity to study and object to the proposed uses.131 These procedures include notification of property owners and registered neighborhood associations living within 300 feet of a proposed site plan, and a public hearing at which concerned neighborhood residents could speak.132 The ordinance also contains a requirement that city staff report annually to the city council about both the impact of the ordinance on the local neighborhood (i.e., the number of conditional use permits approvedand denied, the change in the number of residential units constructed in the area, and other factors related to quality of life and the environment), and the impact of the ordinance on the property interests of industrial and commercial landowners (i.e., the change in the total appraised value of all affected development and other factors related to economic development and employment opportunities).133 In addition to the neighborhoodwide designation of certain uses as conditional uses, the city council rezoned individual parcels from industrial to either commercial or residential uses. For example, the city council rezoned the site of the BFI recycling plant in response to complaints about blowing trash, rats, noise, traffic, and a five-alarm fire, from limited industrial to limited office. Similarly, the city council rezoned the site of the Balcones recycling plant, of which neighbors complain about aesthetics, noise, and traffic, from limited industrial to residential.134 The rezoning does not automatically shut down the existing uses of these properties, but prevents expansion of their uses or any new industrial uses unless the new owner resumes the exact same land use activity within 90 days. Furthermore, the city council rezoned a number of residential lots to residential designation so that they cannot be converted to industrial or commercial use.135 Local residents, although critical of the lack of support from traditional environmental groups, contend that their primary concern is not with whether their industrial and commercial neighbors are polluters but instead is with the amount of industrial land use in their residential neighborhood.136 Revision of Denver Industrial Zoning Code In contrast to the East Austin activists, environmental justice advocates and leaders of low-income and minority neighborhoods in Denver, Colorado, took a different approach to saturation of those neighborhoods by industrial uses.137 They sought to rewrite the city's industrial zoning code, and the changes they achieved affected the entire city. In October 1987, a coalition of grass-roots groups, mixed-race but composed primarily of Hispanic residents of three neighborhoods (Elyria, Globeville, and Fwansea), formed an organization called "Neighbors for a Toxic Free Community." The group identified the archaic content of the industrial zoning code as one reason for the existence of so many LULUs in their neighborhoods. The coalition, armed with hard data on the saturation of LULUs in low-income minority neighborhoods, was successful in obtaining support from the local housing authority, schools, and political leaders, including a state senator. In 1989 and 1990, the activists and city officials developed several amendments to the industrial zoning code, which the city council approved unanimously. These amendments include requirements that industrial uses be separated from residences by buffers, that local residents be notified about and have an opportunity to comment on applications for industrial uses or hazardous materials storage, and that the Zoning Administrator have the authority to deny a permit based solely on the area's undue [30 ELR 10410] saturation with uses that manufacture, use, or store hazardous materials. In addition, an environmental review committee was established to review proposed land uses that involve hazardous materials and can withhold a permit if it agrees unanimously to do so. Despite limited enforcement, these amendments made a difference in one case. The Denver Board of Adjustment for Zoning Appeals reversed the Zoning Administrator's grant of a conditional use permit for Laidlaw Environmental Services to operate a solid waste transfer station in an I-2 zone.138 A neighborhood group, Park Hill for Safe Neighborhoods, with the help of the Sierra Club Legal Defense Fund and the Land and Water Fund, opposed the permit. The groups argued for the denial of the permit because of an undue concentration of neighborhood uses having hazardous substances, not merely releasing hazardous wastes. The Board of Adjustment agreed with their arguments,139 and a Colorado District Court affirmed the Board's decision.140 The court deferred to the Board's interpretation of the industrial zoning code undue concentration provision as reasonable, within its authority, and supported by the evidence.141 St. Paul Ban on Metal Shredders When the political and economic climate make it difficult for grass-roots environmental justice groups to seek comprehensive rezoning of neighborhood parcels (e.g., East Austin rezoning), neighborhoodwide zoning text amendments (e.g., East Austin overlay zoning), or citywide zoning text amendments (e.g., Denver revised industrial zoning code), the groups may focus on one particularly trouble-some land use. In the face of a proposed metal shredder to be located in the mixed-race, low-income West Side of St. Paul, Minnesota, local residents formed Neighbors Organized to Stop the Hazards of All Metal Shredders! (NO SHAMS!). The group proposed amendments to the city's zoning code text and comprehensive plan to prohibit large metal shredders anywhere in the city and to allow small metal shredders only at recycling processing centers. The city council adopted the amendments on September 24, 1997.142 The group felt that the political climate of concern for business development and activity would not support a complete rezoning of neighborhoods affected by industrial development along the river, as well as gentrification of those areas.143 However, the group also completed an environmental inventory of the neighborhood to be used in making its case for environmental justice, and will continue to address various environmental and land use issues facing West Side residents.144 Confederated Tribes of the Colville Reservation Land Use and Development Code One issue receiving little attention in the literature on environmental justice or land use regulation is how low-income and minority communities that lack zoning altogether address the lack of control over LULUs.145 The problem arises in rural areas and on Indian reservations.146 Some of the low-income and minority areas that have lacked land use codes and plans are establishing these plans. For example, the Confederated Tribes of the Colville Reservation adopted a comprehensive Land Use and Development Code in January 1991.147 The code establishes nine zoning districts, each with permitted uses, conditional uses, prohibited uses, density provisions (including setbacks), and off-street parking requirements.148 It provides governing authorities (e.g., Land Use Review Board, Planning Director, Land Use Administrator, and Colville Business Council) standards and procedures for special use and conditional use permits, major and minor subdivisions, nonconformities, appeals, variances, code interpretations, hearings, and enforcement.149 Comprehensive land use codes like the Colville Tribe's code allow the community to identify the land uses it desires, prohibit those it does not desire, and define where different land uses are appropriate before proposals for intensive uses ever arise. The tribe has used its land use code to prohibit development that would interfere with tribal subsistence hunting and fishing, but has encountered disputes concerning its jurisdiction over land owned by people who are not tribe members and over its jurisdiction to zone when the surrounding counties have no zoning.150 Tribal efforts increasingly focus on land use regulation to protect the environment and promote economic development. One study in particular highlights the variety of different regulatory schemes used by tribes.151 A proposed [30 ELR 10411] model tribal environmental review code also contains provisions for land use planning and regulation.152 Edwards Underground Aquifer Overlay Zone Finally, leaders of low-income and minority neighborhoods may become involved in land use regulation and planning for parts of the city other than their own neighborhoods and contribute their vision of the overall community's public interest. In particular, leaders of Citizens Organized for Public Service (COPS), and its sister organization, Metro Alliance, which represent the low-income, Hispanic South and West Sides of San Antonio, formed a coalition with environmentalists and neighborhood groups from the high-income, non-minority North Side to achieve the passage of zoning protections for the Edwards Underground Aquifer Recharge Zone.153 The Edwards Underground Aquifer is the ecologically sensitive source of drinking water for the San Antonio metropolitan area. The Recharge Zone is an area that allows water to percolate from the surface into the underground aquifer. Contamination from runoff on the surface in the Recharge Zone threatened the quality of water in the aquifer. On January 12, 1995, the San Antonio City Council approved new provisions to the Zoning Code that established an overlay zone restricting two types of development through per se prohibitions, conditional use permit requirements, and density limits: (1) general land development resulting in impervious cover—primarily buildings and paving—which contributes to runoff of chemicals and constrains the natural water filtering process of the recharge zone's soil; and (2) land uses involving hazardous or toxic substances or other potential pollutants that could contaminate the aquifer.154 The zoning amendments were the result of a compromise between development interests and environmental interests. They were supported by COPS, Metro Alliance, and other groups from low-income neighborhoods, even though these regulations would effectively prevent San Antonio's wealthy, non-minority Northwest Side from bearing its share of industrial and some commercial uses. The new overlay zone would also tend to make the area even more exclusive by limiting housing development and requiring large lots. The grass-roots social justice activists apparently believed that their constituents were unlikely to afford Northwest homes or have the political power to shift industrial uses to the Northwest, regardless of the overlay zone's additional restrictions. They instead were interested in keeping the San Antonio drinking water supply clean and plentiful, as well as forming an on-going, but loose working relationship with environmentalists to address the environmental conditions of the South, West, and East Side neighborhoods eventually. Even though the COPS/Metro Alliance leaders joined the policy negotiations late, they sought and obtained several important provisions. These provisions included deadlines for the agreement, the assistance of an outside environmental attorney to plan around potential legal constraints, and public input and review of development-restriction waivers that could be granted by the San Antonio Water System. With their own social justice and public participation goals, leaders of low-income Hispanic neighborhoods became significant players in San Antonio environmental and land use policy. Perhaps the best indicator of the long-term impact of this strategy was a series of neighborhood planning meetings to address the environmental conditions and land use goals surrounding watersheds in four low-income minority neighborhoods.155 Grass-roots groups are engaging in prospective, proactive policy development in San Antonio, as well as in Austin, Denver, St. Paul, and the Colville Reservation. Each community is pursuing a different strategy and a different configuration of goals, but all are using land use planning and regulatory tools. Land Use Regulatory Mechanisms The empirical evidence of low-income and minority communities' activism to change local land use policies reflects some of the range of local regulatory tools that are available for achieving environmental justice goals. Comprehensive plans, zoning ordinances and amendments to zoning ordinances, flexible zoning techniques, and exactions are legal mechanisms which can be used to implement communities' planning. Land use regulation not only concerns ethical choices made individually and socially,156 but it is also an evolving area of law, adaptable to new social problems and shifting social, economic, and political forces.157 To date, environmental justice scholarship has devoted little attention to exploring specific land use regulatory tools. The first land use regulatory mechanism is the comprehensive plan. Zoning regulations that implement low-income and minority neighborhoods' goals may be legally ineffective if they are not preceded by amendments to the city's comprehensive plan to reflect those goals. The zoning enabling legislation of most states requires that all zoning regulations be in accordance with a comprehensive plan.158 Although most courts do not require that a formal written plan precede zoning ordinances,159 many state statutes require local [30 ELR 10412] governments to adopt written comprehensive plans and prohibit zoning regulations that are not consistent with those plans.160 More importantly, many municipalities have adopted some form of comprehensive plan.161 To the extent that new zoning regulations reflecting low-income and minority neighborhoods' goals are inconsistent with the written comprehensive plan, a court might invalidate them as not in accordance with a comprehensive plan.162 Moreover, courts are more likely to uphold spot zoning—the rezoning of a small parcel of land for a use classification that differs from surrounding parcels—if the rezoning is consistent with a comprehensive plan.163 Comprehensive plans generally contain elements of land use, transportation, and community facilities, and may contain elements of community design, open space, noise, housing, recreation, and environmental factors.164 Low-income and minority communities that want to redefine land use, transportation, or recreation and open-space patterns in their neighborhoods should seek to amend their cities' comprehensive plans. Failure to do so could subject more specific zoning amendments to legal challenge as inconsistent with the land use or other patterns contained in the comprehensive plan. These communities may be able to take advantage of state statutory rights to participate in local planning165 and provisions that allow frequent amendment of plans.166 Despite the importance of comprehensive planning as a policy goal and a legal requirement, the crux of land use regulation for environmental justice will be the amendment of existing zoning codes. Most low-income and minority communities that suffer or risk exposure to environmental harms exist in areas with zoning classifications that currently permit intensive uses.167 Because people of color and the poor live near and among a higher proportion of industrial and commercial uses than do white, high-income people,168 an appropriate land use regulatory response would be for cities to change the permitted uses in those areas to correspond more closely to the residents' desired neighborhood environment, as well as their health and safety needs. Cities make two types of amendments to zoning regulations: zoning text amendments and zoning map amendments. Text amendments change the text of the zoning code169; map amendments change the zoning district designations of particular parcels or areas of the city.170 An additional mode of amendment is a comprehensive revision of both the text and the map, covering a large part of the city or regulatory jurisdiction.171 Text amendments change what uses, heights, densities, and the like are permitted in particular districts, but do not change which property is in what district.172 For example, a city council or county commission might amend the zoning code expressly to prohibit ready-mix concrete plants in I-2 (heavy industrial) districts,173 or to change quarrying and extractive-type activities from "of right" uses in agricultural districts to conditional uses.174 In each of these cases, the designations of districts on the map did not change, but what was allowed in those districts changed through amendments to the permitted, conditional, and excluded uses that applied to all parcels bearing those designations. In addition, text amendments might have jurisdictionwide (i.e., multi-district) applicability, as in the case of removing recycling operations from permitted uses in solid waste floating zones,175 or classifying all airports, both commercial and noncommercial, as conditional uses in any district.176 Residents of low-income neighborhoods and neighborhoods of color might use zoning text amendments to remove intensive uses from use districts in which those intensive uses are inappropriate in their view, without ever changing the district designation of any particular parcel. For example, a neighborhood with a checkerboard pattern of commercial uses might seek an amendment to the zoning code to [30 ELR 10413] prohibit electroplating, solid waste incinerators, and machine shops in commercial zones.177 No parcel would lose its commercial use designation, but the range of permissible uses for commercial parcels would shrink. Similarly, the neighborhood might ask the city to change a permitted "of right" use, such as metal foundries in industrial districts, to a conditional use, so that anyone seeking the use would have to obtain a conditional use permit and submit to certain conditions designed to protect the neighborhood. Zoning text amendments have some legal advantages over zoning map amendments. Because text amendments are generally applicable and thus often deemed "comprehensive" in nature, they receive greater deference as legislative acts and are presumed valid.178 Even after a landowner has received a special exception that permits it to use its property for an intensive land use like a concrete batching plant in a heavy industrial zone, a city may prevent the use by amending the zoning code to prohibit the use altogether in heavy industrial zones. The landowner has no vested right in the continuation of any existing zoning.179 Text amendments do not address whether particular uses are appropriate on particular parcels that have been singled out for attention; but instead text amendments are generally applicable determinations that certain uses are always incompatible with the other uses in a zoning classification, or always need the oversight that accompanies conditional use permits. Thus, they avoid the potential problems associated with "spot zoning" and "downzoning" that result from particularized treatment of individual parcels or small groups of parcels.180 However, local governing boards must follow required procedures and give affected parties proper notice and opportunity to be heard when adopting text amendments.181 In addition, changes to generally applicable zoning designations may arouse the opposition of many different affected land-owners citywide, thus making them difficult to achieve politically. Furthermore, a text amendment may be too blunt a tool for excising intensive uses that are interspersed throughout low-income and minority neighborhoods. For example, a solid waste incinerator might be appropriate for most, perhaps even nearly all, heavy industrial zoning designations in a city. A text amendment to make it an impermissible use in industrial zones would not directly address the underlying environmental justice problem of industrial zoning in a residential area of color. Zoning map amendments change the zoning district designation for a particular parcel, tract of land, or set of parcels.182 Although rezoning has been used to allow intensive uses in neighborhoods of color and low-income communities,183 grass-roots environmental justice activists might seek zoning map amendments to change more intensive use designations in their neighborhoods to less intensive use designations, a technique known as "downzoning."184 For example, a low-income minority neighborhood might contain several parcels zoned for heavy industrial use in close proximity to residences, schools, churches, health care facilities, and the like. Residents might seek to rezone some or all of these parcels for less intensive, yet economically viable, commercial uses. Even though downzoning may change the land use designations in low-income and minority communities to reduce threatsto the residents' health, safety, quality of life, and sense of community, owners of downzoned parcels are likely to challenge the rezoning. A majority of courts will deem a rezoning a legislative act and give it a presumption of validity.185 Thus, the landowner will have to prove that the zoning amendment was "arbitrary, capricious or unreasonable and having no substantial relation to the public health, safety or general welfare." However, Oregon,186 Idaho,187 and Kansas188 have treated rezoning as an administrative or quasi-adjudicative act, thus subject to greater judicial scrutiny. In addition, Maryland,189 [30 ELR 10414] Connecticut,190 Mississippi,191 Virginia,192 and New Mexico193 have required that governmental bodies support rezonings with evidence of either a substantial change in the character of the neighborhood where the rezoning occurred or a mistake in the existing zoning. The "change or mistake" rule is particularly problematic for low-income and minority neighborhoods, as it creates strong inertia for existing zoning patterns, which are inequitably distributed and often harmful to low-income people and people of color. Environmental justice advocates who seek land use changes are seeking to change local conditions by first changing zoning patterns. They often will not be able to support downzoning with changed conditions toward less intensive uses in the area because the area is likely to have deteriorated as a result of the existing zoning allowing more intensive uses.194 Instead, they will have to argue that the initial zoning was a mistake in that the local land use authority relied on invalid, or perhaps discriminatory, assumptions about the compatibility of industrial and commercial uses with nearby residential activities.195 Even in the majority of states where rezoning is legally presumed valid, courts as a matter of practice scrutinize downzoning carefully.196 A landowner may contend that the rezoning is impermissible spot zoning, or more precisely spot zoning in the reverse.197 Spot zoning involves zoning a small area of land differently than surrounding land, while spot zoning in the reverse entails zoning land more restrictively than the surrounding parcels.198 Spot zoning in the reverse, which is more relevant to the environmental justice goal of downzoning intensive uses in mixed use areas, is often struck down as arbitrary and capricious, an unjust discrimination against the downzoned parcel while surrounding parcels are not subjected to the same treatment.199 Environmental justice advocates must also take care to ensure that downzoning accords with, and does not facially conflict with, the comprehensive plan.200 Furthermore, owners of downzoned property who suffer economic loss to accommodate neighborhood residents' opposition to their uses of their property may claim that the local land use authority has unreasonably exercised its police power and has taken private property without just compensation. For example, a New York village rezoning of two parcels from business to residential, resulting in at least a 60% loss of value, was not only in violation of a comprehensive plan but also unjustifiably discriminatory.201 The court also noted that the downzoning occurred in the face of a specific proposal for a bowling alley and supermarket or discount house that received neighborhood opposition rather than as the result of pre-proposal comprehensive planning.202 Similarly, downzoning a parcel from commercial to residential use was unconstitutional when it resulted in a 92% diminution in the parcel's value and nearby residences could be protected from the impacts of the business use of the land by an existing buffer area.203 However, when the local residents and the land use planning authority can present sufficient evidence that downzoning is necessary to protect local residential neighborhoods, courts will likely uphold the downzoning.204 People of color and poor people are in something of a Catch-22. On one hand, zoning designations often reflect existing uses,205 which in the case of low-income and minority neighborhoods often consist of mixed, intrusive, intensive, and even expulsive uses. Environmental justice advocates want to change these zoning patterns. However, environmental injustice often exists in older neighborhoods, and as Ellickson and Tarlock observe, "although all use designations are potentially amendable, those in established neighborhoods are the least likely to be open for negotiation."206 Amendments to the zoning code and zoning map are means of redefining acceptable land uses, at least for the future, but they will be judged by their compatibility with surrounding uses and the character of the neighborhood,207 which often reflect the very uses that grass-roots groups are trying to change. Objectionable uses may be deemed compatible with nearby uses that are similarly intensive. In addition, landowners who are accustomed to the intensive characterization [30 ELR 10415] of their parcels and the neighborhood are likely to resist change. Low-income and minority neighborhood groups will be most successful in achieving valid rezoning of neighboring properties from more intensive to less intensive uses if they follow four guiding principles: (1) seek rezoning before controversial specific land use proposals arise; (2) carefully document the incompatibility of existing high-intensity use designations and their impact or potential impact on the health and safety of local residents, as well as community character; (3) seek rezoning for all neighboring parcels with similar use designations and similar impacts (do not leave a landowner the argument that only his or her property has been downzoned while neighboring parcels remain zoned for more intensive uses); and (4) do not downzone so greatly that the landowner suffers a substantial diminution in the property's value (leave the owner some economically viable use—for example, downzone from an industrial use to a commercial use, instead of all the way to a single-family residential use). Perhaps the most successful strategy of all would be a comprehensive set of amendments to the zoning text, the zoning map, and the comprehensive plan. These combined text and map amendments often create new zoning designations and apply them to existing parcels, and they often receive judicial approval because of their comprehensive nature.208 For example, if a group of neighborhood residents were concerned that interspersed light industrial zoning might permit manufacturing activity with the presence and use of toxic chemicals, the emission of noise and dust, and the like, but did not object to warehouse uses (permitted uses in light industrial zones), the group would have four options. First, they could seek a zoning text amendment to delete manufacturing as a permitted use in light industrial zones. This change, however, would seem to run contrary to the definition of light industrial activity as including at least some manufacturing and would likely develop opposition from manufacturers in other parts of the city whose property is zoned light industrial. Second, they could seek a zoning map amendment to downzone their area's light industrial property to commercial or residential. This would prevent manufacturing in the area, but it would also inefficiently and perhaps unjustly prevent owners of the downzoned parcel from using their land for warehouses, even though the residents have no objection to warehouses. Third, they could seek both a map and text amendment that would downzone the land to commercial but place warehouses among the permitted uses for commercial zones. However, warehouses might not be compatible with all other commercial uses, and residents and landowners in other parts of the city where there is commercial zoning might object to warehouses in their areas. Fourth, they could seek both a text amendment that creates a new "warehouse" zoning designation and a map amendment that rezones the light industrial properties to warehouse uses. The creation of new districts accommodates the particular land use compatibility needs of particular neighborhoods, such as low-income and minority communities that historically have suffered expulsive zoning and harmful land uses. It has the capacity to reflect changing social norms about what uses are deemed compatible and incompatible with other uses. It also increases the "supply" of zoning designations, perhaps avoiding inefficient and burdensome restrictions on land that result from attempts to avoid some uses in a particular classification's large number of permissible uses (which accompany a small set of use classifications). However, this method risks proliferation of particularized use designations and piecemeal zoning. Overly specialized zoning designations could limit both the local community and the private landowner in options for the property's use if the conceived use is no longer viable or desired or the property is to be sold. Nonetheless, communities may need to experiment with new zoning classifications in an attempt to achieve environmental justice.209 Beyond traditional zoning, localities and neighborhood groups who become involved in land use planning and regulation have a variety of more flexible techniques available to them. Perhaps the most commonly used mechanism is the conditional use or special exception.210 Zoning classifications contain uses that are permitted by right (i.e., without having to obtain any specialized permit) and uses that are completely prohibited. However, most zoning classifications also contain uses that are permitted in the zone only if the landowner obtains a permit and meets the standards or conditions listed in the zoning code for those uses.211 These uses are often compatible with other uses in the zone but are not necessarily compatible in every location or under every circumstance or without certain limitations and conditions.212 The terms "special permits," "special exceptions," and "conditional uses" are legally the same and are used interchangeably to refer to the same device.213 Conditional uses are not a means of excluding potentially harmful activities from areas zoned for them because the zoning code lists them as permissible if they meet certain conditions, thus presuming general compatibility. Instead, conditional uses are a means of imposing certain restrictions on uses that could become nuisances or unduly burdensome on the surrounding area if left unchecked.214 They also allow for greater public scrutiny of some land use proposals.215 Residents of low-income and minority neighborhoods cannot count on keeping out conditional uses just because the landowner has to obtain a permit. First, to even have a chance at preventing an unwanted conditional use,the local residents must watch for conditional use permit applications that affect their neighborhoods and become actively and effectively involved in opposing the applications that would have adverse impacts on their community.216 Second, the local [30 ELR 10416] land use regulatory authority might grant the permit despite neighborhood opposition. For example, the environmental justice cases of East-Bibb Twiggs Neighborhood Ass'n v. Macon Bibb Planning & Zoning Commission217 (concerning a landfill in Macon, Georgia) and Security Environmental Systems, Inc. v. South Coast Air Quality Management District218 (concerning a hazardous waste incinerator capable of burning more than 450 chemicals at a rate of two tons per hour) involved local grants of conditional use permits. Third, a landowner whose conditional use permit application has been denied is likely to obtain judicial reversal if he or she can show compliance with all the conditions in the zoning code for approval of a permit,219 or that the government decisionmaker responded primarily to neighbors' concerns without carefully weighing and addressing evidence of the project's impacts.220 However, environmental justice groups may be able to exercise more scrutiny over industrial and commercial uses that are not likely (politically or legally) to be prohibited altogether if the landowner is required to obtain a conditional use permit. In addition, they can seek to influence the conditions under which a permit may be granted, so as to reduce the negative impacts of the conditional use. Therefore, an environmental justice strategy might involve rewriting conditional use standards to require more buffers, more limits on pollution and nuisance-like activities, a smaller scale, and the like. Furthermore, one standard might require denial of the permit if there is an over-concentration of similar uses in a low-income or minority neighborhood.221 Finally, requiring conditional use permits for new industrial or commercial activity in a low-income or minority neighborhood that is disproportionately zoned for these uses might be an effective way of controlling further intrusion until comprehensive rezoning can occur.222 Overlay Zones and Special Districts Overlay zones are another way of imposing additional requirements on existing Euclidean zoning. "An outgrowth of Euclidean zoning, overlay zones in effect circumscribe an environmental area that is already subject to Euclidean regulation, and impose additional requirements thereon."223 The additional requirements are laid over the existing zoning, so that the land in the overlay district is subject to the underlying traditional zoning requirements and the special requirements associated with the overlay district. Overlay zones have been used for a wide range of purposes, including prohibitions or limits on development where natural conditions, such as seismic hazard, hillside slope, or flood hazard, make it unsuitable, where there are aesthetic or historic features to be preserved, where sensitive and valuable environmental areas exist that could be harmed by excessive development, and where certain activities in the area, like airplane flight patterns, make constraints on other activities necessary for safety or health.224 Overlay zones could be used to impose a variety of specific requirements on industrial and commercial land activities that occur in neighborhoods or areas inhabited by low-income people and people of color and that threaten the residents' health or the area's character and integrity. For example, environmental justice groups could seek overlays of "interface zones," which limit land uses and require certain mitigation and buffer measures to create buffers where higher intensity zoning borders upon lighter intensity zoning.225 They could also seek neighborhood conservation districts, designed to protect older neighborhoods from the harmful or expulsive effects of mixed zoning, and then impose on all neighborhood conservation districts certain land use limits designed to prevent those impacts.226 For example, the city of Waco, Texas, enacted an ordinance prohibiting the sale of automobiles on certain commercial property in neighborhood conservation districts, thus protecting these sensitive older areas from an arguably disruptive land use.227 Finally, environmental justice advocates might follow the lead of residents of East Austin and the Austin, Texas, planning staff and city council in developing an overlay zone for a low-income neighborhood of color that suffered a disproportionate amount of industrial and commercial uses and zoning designations.228 The East Austin overlay zone requires conditional use permits for any new industrial or commercial activity in the district.229 The specific additional requirements imposed on the overlay zone will vary from locality to locality, depending on the concerns identified by local residents. The concept of the overlay zone, however, allows these additional requirements to be imposed only where they will help to protect and promote the health of the neighborhoods and the residents, not in other parts of the city where overlay zones might have no or little impact on residential areas. This narrow geographic tailoring of additional land use regulations reinforces [30 ELR 10417] legal arguments that the regulations are designed to protect only those neighborhoods at risk of deterioration or environmental hazards without unnecessarily burdening land use in other areas. It also decreases the number of land-owners citywide who might be affected and therefore might be opponents. Performance zoning is a deceptively attractive option for residents of mixed use neighborhoods wanting to protect against environmental harms, but it contains the same limits inherent in federal and state environmental regulations. Performance zoning does not regulate land uses, but instead regulates the impacts of activities that occur on land.230 A performance zoning ordinance establishes certain performance standards for possible negative impacts on neighboring property, such as dust and smoke, noise, odor, vibration, toxic pollutants, runoff, glare and heat, and other nuisances (i.e., negative externalities).231 It prohibits any land use with impacts that exceed these levels which have been predetermined to be tolerable.232 There are two ways of classifying performance standards. One is to distinguish between standards related to development density, design, and preservation of natural resources—often associated with areas of new development—and standards related to the nuisance-like impacts of industrial activity, such as air, water, and soil pollution; noise; vibration; and odors—often in established industrial areas.233 Another classification distinguishes between what are known as "primitive" standards, which have only general definitions stemming from common-law nuisance concepts (e.g., prohibitions on emission of "any offensive odor, dust, noxious gas, noise, vibration, smoke, heat or glare beyond the boundaries of the lot")234 and "precision" standards, which are developed from scientific data and reflected in quantifiable measurements (e.g., limits on permissible decibel levels in designated octave bands per second or designated center frequency cycles per second).235 Nevertheless, all types of performance zoning ordinances supplement, as opposed to replace, traditional, use-based Euclidean zoning.236 And courts have largely upheld the validity of performance zoning standards both as reasonable means of protecting the public from nuisances and as sufficiently measurable according to a "reasonable person" nuisance standard.237 Performance zoning is essentially local environmental law. Except for the performance standards that prohibit all emissions,238 the standards permit some level of impact. The permissible level, then, is based either on what is generally defined as "objectionable," which is vague and difficult to enforce, or on scientific calculations of risk. In either event, the standards require legal or scientific expertise, regulatory oversight, and control of pollution through risk assessment, rather than pollution prevention—all characteristics of environmental law that environmental justice activists and scholars have criticized and low-income people and minorities distrust.239 If low-income and minority communities must endure industrial and intensive commercial uses, performance standards offer a locally available tool for prohibiting those activities from polluting and disrupting the neighborhood. However, performance standards do not address the problem of disproportionate industrial and commercial zoning in low-income and minority neighborhoods. Nor are they as certain to keep pollution out, given slippages in enforcement and the potential for either care-less or inadvertent emissions from heavy industrial activities, as prohibitions on industrial uses in these neighborhoods would be. Thus, at best, performance standards might be a fallback negotiating position for communities that, because of private property rights, economic and political forces, or other practical limits, cannot completely undo the legacy of intensive zoning. Buffer zones, like performance zoning, both help and hurt low-income people and people of color. Buffer zones are use designations that create a buffer or transition between a less intensive use, such as single-family residential, and a nearby more intensive use, such as commercial or industrial.240 The buffer zone exists between the two areas to minimize the impact of the more intensive use and the less intensive, more sensitive use.241 The most frequent type of buffer between single-family residential areas and industrial or commercial areas is medium- or high-density residential uses.242 In fact, in the famous case of Village of Arlington Heights v. Metropolitan Housing Development Corp.,243 in which the Supreme Court upheld the village's refusal to rezone land for low-income housing in an all-white Chicago suburb, the village's avowed purpose for its multi-family zoning designation was to serve as a buffer between single-family homes and commercial activities.244 Buffer zones are perhaps one of the major reasons why low-income and minority neighborhoods have so much industrial and commercial zoning: the multi-family housing, where many low-income and minority people live, is purposefully placed near the industrial and commercial uses to create a buffer that protects high-income, white, single-family neighborhoods. Zoning places large numbers of poor and minority people near intensive [30 ELR 10418] uses, because traditional zoning and planning theory values most the single-family residence, instead of the integrity and quality of all residential areas.245 However, low-income and minority neighborhoods need buffers to protect them from intensive industrial and commercial activity. Buffer zones can also include physical screening, landscaping, significant setbacks, open space, and even low-intensity commercial uses such as offices, shops, churches, and medical care facilities.246 Environmental justice advocates can use the concept of buffer zoning but redefine it to protect low-income and minority residences. Although neighborhood groups might want to avoid buffering against industrial activities with open-space uses that have recreational value and could attract children and others to play close to heavy industry, they could seek nonresidential buffer zones to separate themselves from potentially harmful or disruptive uses. This would be most successful in situations in which industrial or commercial zoning borders low-income or minority neighborhoods, instead of being interspersed throughout them. Floating zones are flexible zoning techniques that require particular scrutiny and monitoring by environmental justice groups to ensure that low-income communities and neigh-borhoods of color are not assigned harmful or burdensome floating uses. A floating zone is a land use district that has been created in the zoning code text but not yet designated on the zoning map.247 The zoning authority identifies a need for a particular type of use but may not be able to identify where in the locality that use should be placed or zoned. Rather than be limited by the rigidity of traditional Euclidean zoning, the authority creates a district without any specific location(s) on the map, but with a set of standards for determining appropriate locations. The zone "floats" until a landowner seeks to have it applied to his or her property via a rezoning of the property. Thus, there is a bifurcation of the creation of the zone and the application of the zone to any specific areas. It gives the local authority flexibility in responding to local land use needs. By and large, courts have upheld floating zones.248 Floating zones pose an uncertain threat to local residents and landowners, who do not know whether a neighboring property will be chosen for a floating zone use.249 If it is chosen for this designation, they may face (in some cases, literally!) an unexpected new use. Furthermore, floating zones appear to be used most often for either industrial uses or high-density residential uses.250 For example, in McQuail v. Shell Oil Co.,251 New Castle County, Delaware, applied an industrial floating zone to an undeveloped parcel which had been zoned residential, so that Shell Oil could build a refinery. Residents of low-income and minority neighborhoods may find that property zoned for nonintensive uses (e.g., residential) may be rezoned for industrial uses through the application of a floating zone at the request of the land-owner. In fact, parcels in these neighborhoods might be particularly attractive to industrial companies wanting to take advantage of floating zones for their activities: the land may be cheaper; local residents might not have the political power, information, or resources to oppose the rezoning; there would likely be other nearby industrial uses or industrially zoned property; and there might be proximity to transportation facilities like railroads, interstate freeways, waterways, and airports. In addition, the decision about whether or not to apply a floating zone to a particular parcel or tract will be made on the basis of criteria already established at the creation of the use initially. Therefore, grassroots environmental groups should pay particular attention to the existence of unmapped floating zones in local zoning codes and any possible requests to apply those zones in their neighborhoods. They will need to be politically active in opposing any unwanted floating zones, both in the text (the existence of the unmapped district altogether) and on the map (the application of the zone to land in their neighborhoods). However, opposition to particular applications of floating zones will be most successful when based on the articulated criteria, as well as political activity. A possibly not-so-obvious tool that could be part of a land use planning model of environmental justice is the local government imposition of exactions (i.e., conditions) on approvals of industrial and commercial development near residential areas. Exactions require the developer to provide the public either real property (land, facilities, or both) or monetary fees as a condition for permission to use land in ways subject to government regulation.252 These dedications and fees provide the public facilities necessitated by new development, including schools, parks and open space, roads, sidewalks, public utilities, fire and police stations, low-income housing, mass transit, day care services, and job training programs.253 There are five basic types of commonly imposed exactions: (1) on-site dedications, which consist of land and facilities [30 ELR 10419] within the developer's subdivision that the developer dedicates to the public; (2) off-site dedications, which consist of land and facilities outside the subdivision, yet dedicated by the developer; (3) fees-in-lieu-of-dedication, which are money contributions for the public provision of facilities that the developer otherwise would be required to dedicate; (4) impact fees, which capture from the private developer the public's costs of local capital-infrastructure and public-services needs caused by the development's impacts; and (5) linkages, which are facilities and/or fees provided by central-city commercial and industrial developers for the services necessitated by their specific development activities.254 Cities and counties use exactions extensively, determining the amount demanded "either according to a nondiscretionary, predetermined schedule, or through case-by-case negotiations."255 They usually impose exactions during the subdivision map approval process, because new subdivisions are significant sources of population growth that create the demand for additional public facilities and services.256 However, other zoning approvals, such as rezoning or conditional use permits, may trigger the expectation of exactions.257 Exactions potentially benefit low-income and minority neighborhood residents in two ways. First, if a city or county requires a developer of a new residential subdivision to provide or pay for streets, parks, schools, public utilities infrastructure, and the like, the costs are borne ultimately by the residents (i.e., new homeowner) of the subdivision, not the general tax base. Therefore, residents of existing low-income or minority neighborhoods are not contributing taxes to infrastructure frequently enjoyed by upper income whites in new suburban subdivisions. Furthermore, local tax revenues are not being diverted from services and facilities that support inner-city neighborhoods. Second, government agencies can use exactions to mitigate the environmental impacts of new or expanding development in low-income and minority areas. Already various federal, state, and local environmental regulatory programs require developers to dedicate land or pay fees to mitigate the environmental impacts of development in ecologically sensitive areas.258 A comprehensive environmental justice land use program, though, might include environmental impact fees and dedications for inner-city industrial and commercial development. The exactions would be based on the various environmental and social impacts of intensive uses and LULUs on the surrounding neighborhood(s), not just the publicly funded local infrastructure, and would be earmarked for ameliorating amenities in the affected neighborhood(s). For example, an unsightly industrial facility might have to dedicate land for parks and open space, or to pay fees for these features. Similarly, an operator of a proposed waste facility might be required to contribute to a fund to be used for monitoring pollution levels and resident health status, as well as future cleanups of contamination related to the facility. An exactions program would be most attractive to environmental justice advocates when either: (1) the local residents would not oppose the proposed land use if its adverse impacts were mitigated, or (2) complete prohibition of the proposed land use is politically or legally infeasible. The program, though, could apply only to new development or new activities, such as changes in existing uses, requiring development permits. In addition, it could not be used "to remedy existing infrastructure deficiencies, or to provide for operation and maintenance of facilities."259 Finally, the exactions program must be tailored to the impacts of the proposed developments. To survive a challenge under the Takings Clause of the U.S. Constitution,260 an exaction must bear an "essential nexus" to the legitimate government interest that forms the basis for regulating the development.261 It must also be roughly proportional in nature and extent to the impact of the proposed development.262 This two-part test applies to all land or facility dedication requirements and those impact fees imposed on an individualized, or ad hoc, basis.263 Uncertainty lingers over whether the Nollan v. California Coastal Commission (Nollan) "essential nexus" and Dolan v. City of Tigard (Dolan) "rough proportionality" requirements apply to legislatively adopted, formula-driven impact fees.264 The Nollan and Dolan standards appear to meet or exceed separate state constitutional tests requiring either a "reasonable relationship" or "rational nexus" between the exaction and the state interest in regulating the impacts of the development.265 A few state courts, however, require exactions to be tailored to impacts that are "specifically and uniquely attributable" to the proposed development, which is a higher standard than Nollan and Dolan.266 In any event, neighborhood groups urging local land use agencies to impose exactions on industrial [30 ELR 10420] and commercial development and LULUs should do studies on the impacts of these developments or otherwise attempt to specify, preferably in quantitative terms, the development's direct and indirect impacts on the neighborhood. These studies would support arguments that the conditions are properly tailored to the government interest in regulating adverse impacts of development. In addition, neighborhood groups would need to avoid using exactions to remedy existing or past development impacts. Limits to Land Use Regulations as Environmental Justice Tools Judicial Protections of Private Property Rights The land use regulatory model of environmental justice, while promising for many low-income communities of color, contains inherent limits. Among these limits are legal constraints on land use regulation that are largely designed to protect the private property rights of landowners. The well-established judicial presumption that zoning decisions are valid267 is eroding as courts, increasingly protective of private property rights and skeptical of local political processes, impose greater scrutiny on decisions about land use regulation.268 Even if the erosion of the presumption itself is more perceived than real, the courts are playing a greater role in reviewing land use controls.269 There are four primary areas of constraints relevant to achievement of low-income and minority neighborhoods' land use goals: (1) the reasonableness of the zoning decisions; (2) the impact on the property owner's economically beneficial use of the property; (3) a developer's expectations that zoning laws will not change once he or she has relied on initial approvals and begun the development; and (4) rights to continue a previously permissible land use once it has been prohibited.270 First, the constitutional doctrine of substantive due process requires that zoning bear a real and substantial relationship to the public health, safety, morals, or welfare, the traditional police power justifications for regulation.271 The courts will strike down land use controls or decisions that are arbitrary, capricious, or unreasonable.272 As discussed above,273 substantive due process claims often arise in situations of downzoning; the owner of the downzoned property will argue that the downzoning is arbitrary and capricious in its application to his or her property. The most important factors to courts in determining the validity of the downzoning are the reasons for the zoning change274; whether it appears to be designed to stop a specific land use proposal, instead of resulting from pre-proposal comprehensive planning275; whether surrounding parcels are treated similarly276; and the degree to which the downzoning decreases the property's value and interferes with reasonable expectations about the use of the property.277 Second, the Takings Clause of the Fifth Amendment278 limits the government's regulation of land use. The Supreme Court has developed several different tests depending on the government action respecting private property. The Nollan "essential nexus" and Dolan "rough proportionality" tests for the imposition of exactions are discussed above.279 Physical occupation of private property would be rarely relevant to the land use regulation model of environmental justice, and will not be discussed here.280 However, Supreme Court jurisprudence on regulatory takings is highly relevant. If a land use regulation denies a property owner all of the economically viable use of his or her property, a taking has occurred and compensation is due, unless the property owner's rights never included the right to whatever activity is being regulated, such as a public nuisance.281 If the landowner suffers a diminution in value less than 100% of the economically viable use of his or her property, courts will apply an ad hoc balancing test "that considers the economic effects of the regulation and the government's purpose."282 Courts uphold zoning regulations that greatly restrict the use of private property far more than they declare such regulations to be takings.283 Many of the cases in which government agencies must compensate landowners involve total bans on development.284 Some takings cases, however, involve downzoning that both limits the use and diminishes the value of the property. Where the property still has some significant value for the rezoned use, courts will find no taking, even if the diminution in value is substantial.285 Where the rezoned use is deemed economically unfeasible because the property is inappropriate for that use, though, a taking will have occurred. Often an important factor will be whether surrounding more intensive uses, such as industrial or commercial uses or major roads or freeways, make a less intensive zoning designation, like single-family residential, unreasonable, therefore rendering the property relatively useless.286 Another important factor is the regulatory climate when the landowner purchased the property, because a landowner who is on notice of increasing restrictions on land use relevant to his or her land may not have reasonable, legally protected expectations in the use(s) contemplated at the time of purchase.287 Finally, extraordinary delay in processing a developer's or landowner's application for a land use permit may constitute a temporary taking, entitling the landowner to compensation.288 Courts, however, give local agencies wide latitude to delay the grant of permits "reasonably," especially while studying the environmental impacts of proposed projects, considering public input, or negotiating project re-design or mitigation measures.289 Local governments may alternatively take a more comprehensive approach to delaying all or many land use proposals by imposing moratoria on development. Development moratoria—currently a tool more to control sprawling suburbia than to protect low-income and minority neighborhoods from intensive uses—are also likely to survive takings claims if they provide for economic uses of property, [30 ELR 10422] are of short duration, or demonstrably prevent harms to the public.290 Therefore, as low-income and minority neighborhood residents seek zoning changes in their communities they should: (1) avoid using designations for private property that completely prevent development, as in the case of open-space designations291; (2) seek compatible uses for contiguous parcels so that a single piece of land does not become a low-intensity island or peninsula in the midst of a sea of high-intensity uses292; (3) explicitly connect any zoning changes to traditional state nuisance law to the extent possible293; (4) identify economically viable permissible uses for property subject to new zoning scheme294; and (5) create a public record of potential regulatory change and dissatisfaction with neighborhood land use patterns so that the landowners would be on notice of possible future land use restrictions. In fact, the land use model of environmental justice envisions local communities identifying productive, yet healthy, safe, and compatible uses for land, not merely prohibiting unwanted land uses. Third, the doctrine of vested rights and equitable estoppel may prevent local governments from stopping a development proposal once the developer has obtained some approvals and relied on them in proceeding with the project.295 The issue might arise, for example, when a grass-roots group learns of a proposed chemical recycling plant in the neighborhood and influences the city either to rezone the property in question from light industrial use (which permits "recycling facilities") to commercial use or to amend the zoning code text to prohibit chemical recycling plants in light industrial districts. If the developer has already received some city approvals (e.g., a site plan approval, a conditional use permit, or a building permit), at what point does he or she have a vested right in the zoning that existed at the time he or she obtained the initial approvals? The area of vested rights and equitable estoppel has been termed "hopelessly muddled."296 The doctrine of vested rights, grounded in constitutional protections of private property rights against government interference, and the doctrine of equitable estoppel, or perhaps more precisely equitable zoning estoppel, grounded in equitable protections against unfair exercises of government zoning power, are distinct from each other only in theory; in practice, the concepts are treated interchangeably.297 In addition, the rules governing when a landowner has vested rights to proceed with development (or when a government regulator is estopped from preventing the development) vary considerably from state to state in ways that defy precise categorization.298 Conceptually, states can be divided into early vesting jurisdictions, which give the developer early certainty that zoning controls will not change in the midst of the multi-permit approval process, and late vesting jurisdictions, which require the developer to have obtained one of the later permits given just before the final building phase takes place, such as a building permit.299 However, cases vary so much, not only from state to state, but even within states, that the conceptual distinctions do not closely match actual case outcomes in any predictable way.300 A developer claiming vested rights or equitable zoning estoppel must establish three elements: (1) an official government act or omission that would suggest approval of the project; (2) good-faith reliance on the government action; and (3) substantial change in position or incurrence of extensive obligations and expenses toward developing the property.301 Depending on the jurisdiction and the facts of the case, some of the following government approvals might result in vested rights: approval of a site plan or planned unit development (PUD) when accompanied by a rezoning (e.g., to reflect the approved PUD use); approval of a plat or subdivision site plan; a conditional use (or special use) permit; a preliminary permit like a rough grading, clearing, paving, foundation, or public improvement permit; informal assurances and representations by local government officials; and arguably, conditional zoning by which the developer commits to certain conditions in exchange for a specific zoning designation.302 If the developer, in good faith, relies on the requisite approvals by expending substantial amounts of money or making significant physical changes to the land, any subsequent zoning changes that are inconsistent with the earlier approvals will be invalid.303 Therefore, environmental justice advocates who seek zoning changes in their neighborhood might not be able to stop developments and land uses for which the developer has already received some initial approval(s). Grass-roots groups will need to monitor closely the approvals that local officials are considering before they are made and the developer obtains vested rights. Neighborhood groups can avoid many of the problems with vested rights, though, by formally putting a developer on notice that they intend to seek a zoning change or other land use controls to prevent the development, and by giving the notice before the developer has spent substantial sums on the project post-approval. Fourth, the doctrine of nonconforming uses prevents a local government, when it makes a zoning change, from demanding [30 ELR 10423] the immediate discontinuance of a use that was lawful at the time of the zoning change, unless the use is a public nuisance.304 However, the government may require that the nonconforming use cease after a reasonable "amortization" period, designed to balance the public interest in landowner conformance with the zoning laws against private property rights, particularly in the opportunity to obtain a reasonable return on the landowner's investment.305 However, an owner of a nonconforming use can generally be prohibited from changing, extending, enlarging, or structurally altering the use, and will lose the right to the nonconformity if he or she abandons or discontinues the use or if the structures are totally destroyed.306 Therefore, environmental justice land use strategies might not effectively force changes in current actual land use patterns, but instead would do so over time, as nonconforming uses cease to exist or are required to terminate at the end of an amortization period. State Preemption of Local NIMBYism Another set of legal limits to land use regulation as an environmental justice tool is state preemption of local land use regulations and decisions that attempt to keep out LULUs. These laws are a response to the Not In My Backyard (NIMBY) phenomenon, in which local residents mount powerful and effective campaigns to prevent LULUs from being located near them.307 Environmental justice advocates have argued that NIMBYism by white and upper income communities has contributed to the siting of noxious uses in less politically and economically powerful neighborhoods inhabited by low-income people and minorities.308 However, just at the time when low-income and minority communities are trying to prevent LULUs and environmental hazards in their neighborhoods, state preemption laws designed to combat NIMBYism may hurt these environmental justice efforts. There are two basic types of LULUs subject to preemption efforts that seek to overcome local opposition to their siting. The first is hazardous waste management facilities, of which there are three approaches.309 One approach, "super review," occurs when the private developer of a hazardous waste facility chooses a potential site and applies for a permit from a state agency. The agency reviews the environmental impacts and presents all applications that meet state environmental criteria to a special siting board that gathers public input, but is primarily designed to neutralize public opposition and fear. A second approach is "site designation," under which the state agency—not the private developer—formulates a list of possible sites that are candidates for hazardous waste facilities. In addition to the "super review" or "site designation" approaches, some states have expressly prohibited localities from using land use requirements to burden the operation of hazardous waste facilities. This third approach, followed only in California and Florida, is known as "local control." Under this last approach, state law does not preempt local regulation of hazardous waste facility siting, and localities are free to enact strict land use regulations to keep out all hazardous waste sites. The other type of LULU siting that is protected from local opposition by state statutory or judicial exemption is the siting of certain residential facilities, such as group homes for the mentally disabled,310 halfway houses,311 and low-income housing.312 Federal law, such as the Americans With Disabilities Act (ADA),313 may also preempt residential zoning [30 ELR 10424] restrictions on group homes and facilities for people with disabilities.314 For example, the Ninth Circuit held that the ADA and § 504 of the Rehabilitation Act315 preempted a local zoning ban on substance abuse clinics in residential neighborhoods.316 The court required the city—in order to regulate such clinics—to show that the recovering heroin addicts who would be receiving methadone at a clinic would pose a significant risk to the health and safety of the neighbors that could not be mitigated.317 Thus, neighbors' statements of concern for their children's safety, increased crime, noise, and other negative impacts of substance abuse treatment facilities likely must be accompanied by evidence of significant safety risk.318 In general, state and possibly federal, preemption laws applicable to both waste facilities and social services facilities create some very real political and legal difficulties for grass-roots environmental justice groups. Even though state laws might override zoning controls that prevent hazardous waste facilities or other LULUs in low-income or minority neighborhoods, there are several important reasons to seek these zoning controls nonetheless. Zoning that does not permit a specified LULU (e.g., a hazardous waste facility) suggests to state regulators that the use is incompatible with surrounding land uses—a type of presumption in effect—whereas if the property is zoned to allow the LULU, the state regulators are more likely to believe that it is compatible with the neighboring land uses. If the local zoning allows the LULU, there may never be close scrutiny of its siting by any level of government agency, while an attempt by the locality to exclude it could put pressure on state regulators to find reasons to deny state permits. The zoning might also discourage potential developers or operators of LULUs from attempting to site the LULUs in that area. They might perceive that the neighborhood is politically active and opposed to such LULUs, which could lead to a costly and time-consuming approval process. They also might want to avoid a legal dispute to enforce the preemption. Furthermore, the very process of developing land use plans and regulations that reflect neighborhood goals and obtaining their enactment by local officials will tend to promote a more politically active and aware grass-roots group. The group could mobilize more quickly and effectively to oppose a LULU proposal, even if decided at the state level, than if the community were forming a group for the first time upon learning of the specific proposal. In addition, there are many LULUs that local residents might want to exclude and many beneficial land uses that they might want to include, beyond the few land uses that are the subject of state control. In other words, there are many LULUs that are not subject to state preemption and could be effectively precluded by local zoning. Even if a land use plan will not effectively protect against every LULU, it should address some of the inequities in the distribution of land use patterns, such as the high concentration of industrial and commercial uses in many low-income communities of color. Therefore, despite the obstacles presented by state preemption laws, local land use regulation can be an effective environmental justice tool. The final limits to land use regulation as an environmental justice strategy are political and economic. How successful, as a practical matter, will grass-roots neighborhood groups be in changing land use patterns in low-income communities of color? There is reason for a mix of sober realism and thoughtful optimism. At the most practical level, residents of some, or perhaps many, low-income and minority neighborhoods will encounter apathy, antipathy, or paternalistic cooptation by local planning staff and elected officials. Local government is likely to regard changes to existing industrial or commercial zoning as politically or fiscally inconvenient, especially when these uses cannot be relocated to higher income, lower minority areas without political conflict. Indeed, many local governments engage in "fiscal zoning," favoring industrial and commercial uses because these uses generate tax revenues without creating expensive demands for local services in the way that single-family residences do, particularly due to public school costs.319 However, single-family residential neighborhoods, particularly if occupied by upper income people, are desirable for other reasons than a pure analysis of marginal costs and revenues would indicate, but cities and counties might offset the costs of these neighborhoods by reducing expenditures on older neighborhoods where industrial and commercial uses have intruded: generally low-income and minority neighborhoods.320 Therefore, fiscal zoning practices can have a double negative effect on low-income communities of color: (1) the attraction of industrial and commercial uses to those areas, and (2) pressures on local governments to decrease public spending on physical infrastructure, schools, and other public services in those areas. In addition, owners of industrially or commercially zoned property will often oppose downzoning of those parcels, the imposition of additional controls via overlay districts or performance zoning, and demands of exactions. These landowners are likely to have financial and political capital to spend in seeking to defeat an environmental justice land use plan. The local community may not be united in its goals, and disagreement within the area could undermine strategies to allow only safe and healthy land uses compatible with local residences. In other words, some or all of a low-income minority neighborhood might embrace one or more LULUs or other intensive land uses, and this fact may be a political reality for opponents.321 Furthermore, development [30 ELR 10425] of a land use regulatory plan for a low-income neighborhood of color is likely to involve financial costs and volunteer effort, as well as sustained political activity in the form of organization, publicity, education, study, lobbying, electoral campaigning and voting, and perhaps even protest. Finally, the nature of the land use planning and regulatory model requires continual involvement in, and monitoring of, implementation. Developers, landowners, and LULU operators may seek conditional use permits, variances, and rezonings, among other changes or exceptions to whatever regulations the local residents have helped to shape. Failure of grass-roots environmental justice groups to participate effectively in these subsequent government decisions could undo all that the initial land use strategy had achieved. These practical concerns raise questions about the extent to which land use controls are inherently flawed. Some scholars imply that the combination of zoning's exclusionary nature and society's racism leads to segregation of races, exclusion of people of color from desirable areas, and placement of unwanted land uses in neighborhoods of color (i.e., expulsive zoning).322 Other scholars argue that zoning promotes balkanization by socioeconomic class and geography, resulting in suburban sprawl and protection of the economic interests of the development community (i.e., business interests, land developers, financial institutions, and the like) and/or suburban homeowners.323 Zoning can also be seen as a tool of parochial local interests that want to keep socially necessary LULUs out of their communities, in other words, a tool of NIMBYism—the worst of localism and pluralism, an impediment to the larger public good.324 According to some, land use controls inappropriately interfere with, or even supplant, the efficient workings of private markets and privately developed norms and agreements about land use.325 Others would argue that land use regulations are means for government capture of public benefits or power at the expense of private property or liberty.326 These critiques, in turn, raise questions about how local land use decisions are made. In other words, will low-in-come and minority neighborhoods have a fair and effective opportunity to influence the land use policies that affect them? The difficulty in answering this question stems from the lack of a single, coherent, comprehensive theory of local policymaking.327 If land use decisions are controlled primarily by local elites, who serve the private economic interests of either the development and business community or upper and middle income homeowners in areas zoned primarily single-family residential (i.e., suburban and suburban-like communities),328 low-income and minority people will likely remain "outsiders" with very little real influence over land use decisions. These decisions will continue to protect high-income, low-minority neighborhoods from nonresidential uses, while catering to industrial and commercial interests by placing those activities in the "subordinated" low-income and minority neighborhoods. Similarly, if local land use decisions typically reflect persistent societal racism,329 minority neighborhoods will continue to suffer a higher proportion of LULUs and intensive zoning patterns. According to this theory, local officials intentionally or subconsciously select these communities for greater burdens or tolerate private and institutional forces that exacerbate inequalities. If the primary model of land use decisionmaking is interest group pluralism,330 grass-roots groups from low-income and minority communities will fare much better than if only elite interests have captured the decisionmaking process. Grass-roots success will depend on the groups' abilities to organize, identify goals and strategies, exert pressure, persist in participating in land use decisions, and bargain effectively with other interest groups and government officials to obtain political benefits. There are, however, two normative sides to interest group pluralism. One view celebrates the diversity of interests that are represented in a blatantly political process of "demanding, wrangling, and influencing," and asserts that the roar of many groups seeking policies which benefit their members' interests reflects overall citizen preferences and prevents any single group from obtaining too much power.331 The other view is aghast at the "capture" of public policymaking and policy implementing bodies by well-organized special interest groups.332 It observes the vast differences in power and effectiveness among groups and the tendency for policy outcomes that serve private interests to the detriment of the collective good, whether that collective good is defined in terms of equity or efficiency or both.333 Although low-income and minority neighborhood groups seeking their visions of good land use policy will certainly add to the range of interests represented, they could find themselves outmatched in political and economic power by well-organized industrial and commercial interests. Furthermore, to the extent that they buy into pluralism as a dominant model, they may lose their [30 ELR 10426] "moral voice": their claims that changes in zoning patterns in their neighborhoods reflect just policy (i.e., are the "right" result), instead of merely the preferences of yet another group. Civic republican theory suggests that local policymaking is or should be a deliberative public discourse about the common good and a participatory process of developing civic virtue.334 Alternatively, local land use policies could be seen as the result of a negotiation "game," either between the developer and government officials, or among a range of interested parties, including the developer, the property owner(s) and possessor(s) (if different from the developer), neighbors of various types, environmental groups, various government agencies perhaps with competing or coextensive jurisdiction, and even scientific and legal professionals.335 One possible reason for competing theories about land use politics and decision making is that each explains some portion of a complex and variable reality. The process of land use regulation inevitably involves some type(s) of negotiation. But the identity and number of participants, their relative bargaining strength, their actual influence, whether the negotiation focuses more on positions or interests or principles, the role of external factors, the economic efficiency of the process (transaction costs) and outcomes (Pareto optimality), the fairness of the process (procedural justice) and outcomes (distributive justice), the impact on civic virtue, and other factors will likely vary widely from locality to locality and from decision to decision. Thus, it seems doubtful that the land use regulatory process inherently or inevitably excludes low-income and minority communities from effective participation. Despite the critiques of land use regulation, the land use model of environmental justice remains a useful approach to addressing environmental injustice and the goals of low-income and minority communities. First, land use controls—even if they could be characterized as flawed—are here to stay. Zoning and similar regulatory controls over land use are widely used in the United States, and there is little evidence that local governments pay much attention to academic criticisms of the institution of land use regulation.336 As this Article demonstrates, however, low-income neighborhoods of color do not enjoy the same zoning protections and benefits that high-income, non-minority neighborhoods enjoy. Unless courts will correct these inequities,337 which seems highly unlikely,338 the primary means of change will be political activity in attempting to influence land use decisions and zoning patterns. Second, land use regulation serves several important functions, including protection of neighbors against harmful or noxious activities on nearby land; comprehensive, areawide, coordinated planning of land uses and development patterns; protection of private property values from the impact of neighboring uses; prevention of development from placing greater burdens on public funds for infrastructure and services than the development generates in tax revenues; and protection of collective rights and interests in the character of the neighborhood.339 In addition, political pressures and the options of voice (participation) or exit (relocating to another jurisdiction) are effective constraints on the potential for abuse in the arena of land use regulation.340 Involvement of low-income and minority neighborhood residents in developing and implementing land use policies enhances these various goals or values of the land use regulatory system. Third, if, as Luke Cole has argued, environmental justice is an issue of power,341 the poor and people of color should be seeking power wherever it is exercised, including in the land use decisions that shape both the quality of their neighborhoods and their exposure to harmful or unwanted activities and pollutants. Furthermore, they will be able to exercise power more effectively with respect to land use decisions than with respect to environmental permitting decisions, because land use decisions are made at the local level to which grass-roots groups have greater access342 and are less scientifically and legally technical than environmental decisions. Layperson input tends to shape local land use regulation more than it shapes national environmental regulation. Most importantly, not only does land use planning and regulation theoretically embrace neighborhood-based citizen participation,343 but empirical evidence shows that citizen participation can make a difference,344 including in the arena of land use regulation and environmental justice. Early examples of environmental justice groups seeking local land use policies suggest that low-income and minority neighborhood residents can effectively organize, exercise [30 ELR 10427] power, make their voices heard, and influence policies about zoning and land use issues that affect them. Despite political and legal limitations, environmental justice groups actively seek and obtain changes to zoning laws to reflect the goals of neighborhood residents and a more equitable distribution of land use patterns. There are no easy answers or quick fixes to environmental injustice. It is a complex problem with empirical, political, legal, environmental, and economic dimensions. One model of environmental justice features opposition to existing or proposed LULUs and environmental hazards in low-income and minority communities. However, another model, presented in this Article, calls for these communities to become involved in land use planning and regulation. Through comprehensive planning, rezoning of inner-city neighborhoods, use of flexible zoning techniques and exactions, and political involvement in the shaping and negotiating of local land use policies, residents of low-income neighborhoods and neighborhoods of color can proactively define their visions for healthy communities. They also can seek to prevent would-be polluters and operators of LULUs and other intensive land uses from selecting sites in their communities initially. In the event that they still have to oppose siting proposals or seek changes to existing facilities, they have a stronger case that public policy supports their position. Local residents also may choose to allow or encourage development that meets their economic, social, and environmental goals. Land use planning and regulation foster choice, self-determination, and self-definition for local neighborhoods, not paternalism that insists that there is a single correct environmental justice goal.345 City: Anaheim, California; Census Tract # 219.04
City: Anaheim, California; Census Tract # 874.03
City: Pittsburgh, Pennsylvania; Census Tract # 1401.98
City: Pittsburgh, Pennsylvania; Census Tract # 2609.98
City: San Antonio, Texas; Census Tract # 1305
City: Santa Ana, California; Census Tract # 744.03
City: Wichita, Kansas; Census Tract # 8
2. See The First Nat'l People of Color Envtl. Justice Leadership Summit, Principles of Environmental Justice, Race, Poverty, & Env't, Fall 1991/Winter 1992, at 31-2 [hereinafter People of Color, Principles of Environmental Justice]; Vicki Been, What's Fairness Got to Do With It? Environmental Justice and the Siting of Locally Undesirable Land Uses, 78 CORNELL L. REV. 1001 (1993) [hereinafter Been, Fairness]; Gerald Torres, Introduction: Understanding Environmental Racism, 63 U. COLO. L. REV. 839 (1992). 3. See generally KENNETH A. MANASTER, ENVIRONMENTAL PROTECTION AND JUSTICE: READINGS AND COMMENTARY ON ENVIRONMENTAL LAW AND PRACTICE (1995); Robert W. Collin, Review of the Legal Literature on Environmental Racism, Environmental Equity, and Environmental Justice, 9 J. ENVTL. L. & LITIG. 121 (1994) (providing overview of legal literature); Carita Shanklin, Pathfinder: Environmental Justice, 24 ECOLOGY L.Q. 333 (1997) (exploring the breadth and depth of materials on environmental justice). See also infra notes 4-9. 4. For a more complete discussion of these conceptions, see Arnold, supra note 1, at 15-76. 5. See, e.g., ROBERT D. BULLARD, DUMPING IN DIXIE: RACE, CLASS, AND ENVIRONMENTAL QUALITY (1990) [hereinafter BULLARD, DUMPING IN DIXIE]; U.S. GENERAL ACCOUNTING OFFICE, SITING OF HAZARDOUS WASTE LANDFILLS AND THEIR CORRELATION WITH RACIAL AND ECONOMIC STATUS OF SURROUNDING COMMUNITIES (1983) [hereinafter GAO REPORT]; UNITED CHURCH OF CHRIST COMMISSION FOR RACIAL JUSTICE, TOXIC WASTES AND RACE: A NATIONAL REPORT ON THE RACIAL AND SOCIO-ECONOMIC CHARACTERISTICS OF COMMUNITIES WITH HAZARDOUS WASTE SITES (1987) [hereinafter UNITED CHURCH OF CHRIST REPORT]; Vicki Been, Analyzing Evidence of Environmental Justice, 11 J. LAND USE & ENVTL. L. 1 (1995) [hereinafter Been, Analyzing Evidence]; Vicki Been & Francis Gupta, Coming to the Nuisance or Going to the Barrios? A Longitudinal Analysis of Environmental Justice Claims, 24 ECOLOGY L.Q. 1 (1997) [hereinafter Been & Gupta, Coming to the Nuisance]; Paul Mohai & Bunyan Bryant, Environmental Injustice: Weighing Race and Class as Factors in the Distribution of Environmental Hazards, 63 U. COLO. L. REV. 921 (1992) [hereinafter Mohai & Bryant, Weighing Race & Class]. 6. See, e.g., CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS 9 (Robert D. Bullard ed., 1993) [hereinafter CONFRONTING ENVIRONMENTAL RACISM]; Luke W. Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law, 19 ECOLOGY L.Q. 619, 621 (1992) [hereinafter Cole, Empowerment]; Eileen Gauna, Federal Environmental Citizen Provisions: Obstacles and Incentives on the Road to Environmental Justice, 22 ECOLOGY L.Q. 1 (1995). 7. See, e.g., Denis Binder, Index of Environmental Justice Cases, 27 URB. LAW. 163 (1995); Luke W. Cole, Environmental Justice Litigation: Another Stone in David's Sling, 21 FORDHAM URB. L.J. 523 (1994) [hereinafter Cole, Litigation]; Luke W. Cole, "Wrong on the Facts, Wrong on the Law": Civil Rights Advocates Excoriate EPA's Most Recent Title VI Misstep, 29 ELR 10775 (Dec. 1999); James H. Colopy, The Road Less Traveled: Pursuing Environmental Justice Through Title VI of the Civil Rights Act of 1964, 13 STAN. ENVTL. L.J. 125 (1994); Gauna, supra note 6; Richard J. Lazarus, Pursuing "Environmental Justice": The Distributional Effects of Environmental Protection, 87 NW. U. L. REV. 787 (1994); Peter K. Reich, Greening the Ghetto: A Theory of Environmental Race Discrimination, 41 U. KAN. L. REV. 271 (1992). 8. See, e.g., Alice Kaswan, Environmental Justice: Bridging the Gap Between Environmental Laws and Justice, 47 AM. U. L. REV. 221 (1997). Robert Mata, Hazardous Waste Facilities and Environmental Equity: A Proposed Siting Model, 4 FORDHAM URB. L.J. 375, 391 (1994); Olga L. Moya, Adopting an Environmental Justice Ethic, 5 DICK. J. ENVTL. L. & POL'Y 215 (1996); A. Dan Tarlock, City Versus Countryside: Environmental Equity in Context, 21FORDHAM URB. L.J. 461 (1994). 9. See, e.g., Vicki Been, Locally Undesirable Land Uses in Minority Neighborhoods: Disproportionate Siting or Market Dynamics?, 103 YALE L.J. 1383 (1994) [hereinafter Been, LULUs]; Seth D. Jaffe, The Market's Response to Environmental Inequity: We Have the Solution. What's the Problem, 14 VA. ENVTL. L.J. 655, 658-59 (1995); Thomas Lambert & Christopher Boerner, Environmental Inequity: Economic Causes, Economic Solutions, 14 YALE J. ON REG. 195 (1997). 10. For a discussion of the need for proactive, prospective environmental justice strategies, see Gerald Torres, Environmental Burdens and Democratic Justice, 21 FORDHAM URB. L.J. 431, 456-59 (1994). 11. U.S. EPA, INTERIM GUIDANCE FOR INVESTIGATING TITLE VI ADMINISTRATIVE COMPLAINTS CHALLENGING PERMITS (Feb. 13, 1998) available at http://es.epa.gov/oeca/oej/titlevi.html (available from the ELR Document Service, ELR Order No. AD-3660) [hereinafter INTERIM GUIDANCE]. 12. See generally Maura Lynn Tierney, Environmental Justice and Title VI Challenges to Permit Decisions: The Interim Guidance, 48 CATH. U.L. REV. 1277 (1999). See also Jeffrey B. Gracer, Taking Environmental Justice Claims Seriously, 28 ELR 10373, 10374-75 (July 1998). 13. See INTERIM GUIDANCE, supra note 11, at 2-3. 14. See Binder, supra note 7, at 163 (recognizing the "coalescence of the environmental justice and civil rights movements in the overlapping area of environmental justice"). 15. 42 U.S.C. § 2000d (1994) (codifying Pub. L. No. 88-352, § 601, 78 Stat. 241, 252 (1964)). See INTERIM GUIDANCE, supra note 11, at 2-3 & n.1 (citing Title VI as authority). 16. U.S. CONST. amend. XIV, § 1. 17. See generally Colopy, supra note 7; Reich, supra note 7. 18. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977); Washington v. Davis, 426 U.S. 229, 239 (1976). 19. Cole, Litigation, supra note 7, at 538-39. 20. See 42 U.S.C. § 2000d (1994). 21. Alexander v. Choate, 469 U.S. 287, 293-94 (1985). 22. 40 C.F.R. § 7.35(b) (1997). 23. INTERIM GUIDANCE, supra note 11, at 2-3, 6-7. Permit renewals are treated as if they were new permit applications, even though there may be no new impacts. Id. at 7. 24. Id. at 3-5. 25. Id. at 4, 9-10. 26. Id. at 4. Compare, e.g., NAACP v. Medical Ctr., Inc., 657 F.2d 1322, 1336 n.7 (3d Cir. 1981) (discussing burden on plaintiff to show existence of less discriminatory alternatives when defendant offers legitimate reasons for its decision). 27. INTERIM GUIDANCE, supra note 11, at 7-9. 28. Id. at 8. 29. Id. at 3, 4-5, 6-7, 9-10. 30. Id. at 3. 31. Exec. Order No. 12898, 59 Fed. Reg. 7629 (1994), ELR ADMIN. MAT. 45075. 32. See Sur Contra la Contaminacion v. EPA, 202 F.3d 443, 30 ELR 20358 (1st Cir. 2000). 33. 132 F.3d 925, 28 ELR 20487 (3d Cir. 1997). 34. INTERIM GUIDANCE, supra note 11, at 4 n.9. See Chester, 132 F.3d at 929, 934-36, 28 ELR at 20490-92. 35. See Seif v. Chester Residents Concerned for Quality Living, 119 S. Ct. 22 (1998). 36. See Tierney, supra note 12, at 1296. The Court recently denied certiorari in another Third Circuit case involving the applicability of Title VI to disparate impact cases. 37. See Gracer, supra note 12, at 10374. See, e.g., NAACP v. Medical Ctr., Inc., 657 F.2d 1322, 1336 n.7 (3d Cir. 1981) (indicating that plaintiff alleging disparate impact has the burden to show legitimate goals can be accomplished with less discriminatory alternatives). 38. See Phillip J. Cooper, Executive Orders: Separation of Powers, Testimony Before the Subcommittee on Commercial and Administrative Law of the Committee on the Judiciary, U.S. House of Representatives, Oct. 28, 1999, available in 1999 WL 27596430 (criticizing adoption of Interim Guidance without rulemaking procedures); Due Process Lacking, Hazardous Waste News, June 21, 1999, available in 1999 WL 10303641 (describing Washington Legal Foundation attorney's contention that the Interim Guidance is illegal rulemaking without notice and comment). 39. See Gracer, supra note 12, at 10375 (criticizing vagueness of Interim Guidance standards); Vicki Ferstel, Agency Can't Gauge Environmental Justice, BATON ROUGE ADVOC., Mar. 18, 1999, at 11B (reporting failure of EPA's advisory committee on environmental justice to agree on the meaning of disparate impact). 40. Cole, Empowerment, supra note 6, at 635-54. 41. See generally Arnold, supra note 1, at 44-45, 48-49, 68-69, 71-72. 42. See generally Vicki Ferstel, EPA May Target State for Test Case, BATON ROUGE ADVOC., Aug. 23, 1999, at 1B; Gracer, supra note 12; William L. Kovacs, Review of Making Sense of Environmental Justice by Michael W. Steinberg, METRO. CORP. COUNS., Dec. 1999, at 39. Howard Payne, Environmental Justice a Dilemma for Cities, PITTSBURGH POST-GAZETTE, May 15, 1999, at A9. 43. Cole, Empowerment, supra note 6. 44. Ferstel, supra note 42. 45. See supra note 6. 46. But see, e.g., City of Austin Planning, Environmental & Conservation Services Department, Planning Division, East Austin Land Use/Zoning Report (visited October 21, 1998; last modified Mar. 6, 1997) http://www.ci.austin.tx.us/landuse/ea_text.htm (releasing study showing that the largely minority populated East Austin has a significantly higher percentage of industrial zoning than other areas of the city). The zoning report complements an earlier study showing higher usage of hazardous substances in East Austin than in other areas of Austin. Ralph K.M. Haurwitz et al., An Industrial Chokehold: Toxic Hazards Abound in East Austin, and It's No Coincidence, AUSTIN AM.-STATESMAN, July 20, 1997, at A1. 47. See PATRICK J. ROHAN, ZONING AND LAND USE CONTROLS §§ 3.01-3.02 (Eric Damian Kelly ed., Matthew Bender 1998); KENNETH H. YOUNG, ANDERSON'S AMERICAN LAW OF ZONING §§ 8.01-8.03 (4th ed. 1996); see also Dubin, supra note 1, at 741 & n.8 (stating that racially segregated residential patterns remain as a result of discriminatory zoning and land use planning). 48. ROHAN, supra note 47, § 2.01[1], at 2-6; Dubin, supra note 1, at 740-41 (discussing Yale Rabin's observation that residents that are not protected against expulsive zoning are often victims of reduced safety and quality of their neighborhoods). 49. Dubin, supra note 1, at 742; Rabin, supra note 1. 50. Rabin, supra note 1, at 108-18. 51. See, e.g., ROBERT D. BULLARD, INVISIBLE HOUSTON: THE BLACK EXPERIENCE IN BOOM AND BUST 71-72 (1987) (addressing garbage incinerators and landfills in Houston); GAO REPORT, supra note 5 (addressing major hazardous waste landfills in southeastern United States); ANN MAXWELL & DANIEL IMMERGLUCK, LIQUORLINING; LIQUOR STORE CONCENTRATION AND COMMUNITY DEVELOPMENT IN LOWER-INCOME COOK COUNTY NEIGHBORHOODS (1997) (addressing liquor stores in Chicago); UNITED CHURCH OF CHRIST REPORT, supra note 5 (addressing commercial hazardous waste facilities and uncontrolled toxic waste sites); Andy B. Anderson et al., Environmental Equity: Evaluating TSDF Siting Over the Past Two Decades, WASTE AGE, July 1994, at 83 (addressing commercial hazardous waste facilities and uncontrolled toxic waste sites); BRETT BADEN & DON COURSEY, THE LOCALITY OF WASTE SITES WITHIN THE CITY OF CHICAGO: A DEMOGRAPHIC, SOCIAL, AND ECONOMIC ANALYSIS (The Irving B. Harris Graduate School of Pub. Policy Studies, Univ. of Chicago Working Paper Series 97-2, 1997) (addressing Superfund, TSD, hazardous waste generating, and historical hazardous waste sites in Chicago); Been & Gupta, Coming to the Nuisance, supra note 5, at 9 (addressing commercial hazardous waste treatment storage and disposal facilities nationwide). 52. See infra Appendix. Unless expressly noted, information gained from this study and addressed in the following text is presented in the Appendix of this Article. All data in this section comes from the 1990 U.S. Census. Two census tracts analyzed fall outside the political jurisdiction of the applicable named cities but are completely surrounded by the cities: Terrell Hills, which is a separately incorporated city surrounded by the city of San Antonio, Texas, and is census tract #1204; and Eastborough, which is a separately incorporated borough surrounded by the city of Wichita, Kansas, and is census tract #74. For purposes of this study, these two "pocket" cities are treated as part of their respective ambient cities. For all practical purposes, these "pocket" cities are not suburban fringe cities, but instead are predominantly white, upper income neighborhoods within the ambient city's geographic and psychological boundaries. Because these neighborhoods are separately incorporated, their residents do not have to pay taxes to fund the ambient cities' urban programs and are not controlled by the land use and other municipal decisions of the ambient cities' governing bodies. However, these "pocket" city residents participate in the political, economic, and civic life of the larger ambient city. For a discussion of local political boundaries and race, see Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1843, 1843 (1994). 53. For rankings of cities by population, the populations of metropolitan areas, and rankings of metropolitan areas by population, see WEBSTER'S II NEW RIVERSIDE DESK REFERENCE 13-15, 77-78 (1992). 54. See JOEL GARREAU, EDGE CITY: LIFE ON THE NEW FRONTIER (1991) (discussing edge cities); JON C. TEAFORD, POST-SUBURBIA: GOVERNMENT AND POLITICS IN THE EDGE CITIES (1997) (discussing edge cities). 55. Census tracts are the most appropriate unit of analysis for environmental justice distributional studies. See Been & Gupta, Coming to the Nuisance, supra note 5, at 10-13; Been, Analyzing Evidence, supra note 5, at 4-5; Paul Mohai, The Demographics of Dumping Revisited: Examining the Impact of Alternate Methodologies in Environmental Justice Research, 14 VA. ENVTL. L.J. 615, 618-19 (1995); Rae Zimmerman, Issues of Classification in Environmental Equity: How We Manage Is How We Measure, 21 FORDHAM URB. L.J. 633, 652 (1994); John Fahsbender, An Analytical Approach to Defining the Affected Neighborhood in the Environmental Justice Context, 5 N.Y.U. ENVTL. L.J. 120, 121, 131, 138 (1996). 56. The population figures for these tracts are: Orange tract # 762.04: 3,413 people (66.7% Hispanic); Pittsburgh tract #2808: 3,072 people (87.8% African American); San Antonio tract #1105: 2,935 people (96.6% Hispanic); San Antonio tract #1307.85: 2,761 people (70.4% Hispanic and 20.0% African American). 57. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386 (1926); Fifth Annual Report of the Council on Environmental Quality 51-54 (1974), reprinted in ROBERT R. WRIGHT & MORTON GITELMAN, CASES ANDMATERIALS ON LAND USE 776 (5th ed. 1997). 58. PITTBSURGH, PA., ZONING CODE §§ 967.02, 967.05, 969.02, 969.05 (1996) (uses and use exceptions for M3 and M4 districts). 59. SAN ANTONIO, TEX., UNIFIED DEV. CODE § 35-3606 (1997) (permitted uses in L district). 60. ORANGE, CAL., MUN. CODE § 17.20.030 (Nov. 1996) (permitted industrial uses). 61. SANTA ANA, CAL., MUN. CODE §§ 41-472, 41-489.5 (1997) (uses permitted & excluded in M1 district). 62. WICHITA & SEDGWICK COUNTY, KAN., UNIFIED ZONING CODE § III-B.16(b) & (c) (Feb. 13, 1997) (permitted and conditional uses in CBD district). 63. SAN ANTONIO, TEX., UNIFIED DEV. CODE § 35-3605 (1997) (permitted uses in I, J, and K districts). 64. SANTA ANA, CAL., MUN. CODE §§ 41-377 & 41-395 (as of right uses in C2 and C3 districts). Nearly 20% of Santa Ana census tract #750.02 is zoned either C2 or C3. 65. These 11 tracts are nearly 60% of the low-income, high-minority tracts studied. No high-income, low-minority tracts had such high percentages of area devoted to commercial and industrial uses. 66. High median household income. 67. See Been & Gupta, Coming to the Nuisance, supra note 5, at 4-5 & n.14 (examining race, income level, and exposure to environmental hazards); Cole, Empowerment, supra note 6, at 622-30 & nn.8-18, 27 (referring to the studies examining the relationship between environmental hazards and socioeconomics); Mohai & Bryant, Weighing Race & Class, supra note 5, at 926, tbl.1 (listing studies). 68. See Robert D. Bullard, Residential Segregation and Urban Quality of Life, in ENVIRONMENTAL JUSTICE: ISSUES, POLICIES, AND SOLUTIONS 77 (Bunyan Bryant ed., 1995) [hereinafter Bullard, Residential Segregation]; cf. Richard Moore & Louis Head, Building a Net That Works: SWOP, in UNEQUAL PROTECTION: ENVIRONMENTAL JUSTICE AND COMMUNITIES OF COLOR 191, 195, 198 (Robert D. Bullard ed., 1994) [hereinafter UNEQUAL PROTECTION]. In addition, lack of zoning controls altogether may contribute to the presence of environmental hazards. Robert D. Bullard blames Houston's lack of zoning for the presence of environmental hazards in African American neighborhoods. See BULLARD, supra note 51, at 60-63; Robert D. Bullard, Endangered Environs: The Price of Unplanned Growth in Boomtown Houston, CAL. SOCIOLOGIST, 1984, at 85; see also supra note 46 (East Austin, Texas, zoning disparities mirror disparities in presence of hazardous substances). 69. See Been, LULUs, supra note 9, at 1384-85. 70. See Rabin, supra note 1, at 101-03. 71. See Been, LULUs, supra note 9, at 1385. 72. Studies of two communities of color that have been zoned for industrial uses reveal very different histories. East Austin, Texas, was planned in 1928 to be a "negro district" and to contain most of the city of Austin's industrial zoning, which was reflected in Austin's first zoning map in 1931. Local residents now seek rezoning to eliminate the industrial uses. See Scott S. Greenberger, City's First Zoning Map Plotted Neighborhood of Minorities' Hazards, AUSTIN AM.-STATESMAN, July 20, 1997, at A1. However, the Logan neighborhood of Santa Ana, California, was settled and developed as a primarily Mexican-American residential neighborhood and was zoned for residential use until 1929. When the Santa Fe Railroad was put through Santa Ana in the late 1920s, the neighborhood was mostly rezoned to heavy industrial (M-2) but remained almost exclusively residential until 1953. In 1953, the zoning code prohibited new residential development in the Logan neighborhood, which led to a mixing of industrial and commercial uses among the residential uses by the late 1970s. During the 1980s, zoning was determined parcel by parcel through a conditional use permit process until local residents asked for elimination of the zoning uncertainty associated with parcel-by-parcel decisions. Now, 59% of all landowners and 49% of all residential landowners prefer their properties to be zoned industrial. CITY OF SANTA ANA, LOGAN NEIGHBORHOOD LAND USE & ZONING REPORT 1-2, 5-6 (1998). 73. We are likely to understand the causes of environmental injustice only by engaging in context-specific, detail-rich, longitudinal (i.e., historical, over time) case studies that document all the factors that have gone into the existence of environmental hazards and LULUs in particular neighborhoods. The causes are more complex, interrelated, and perhaps insidious than aggregate data studies can show. For an excellent argument for the need to synthesize generalizable theories about the impact of law with detailed contextual case studies, see ROBERT C. ELLICKSON, ORDER WITHOUT LAW 1-11, 137-55 (1991). Ellickson's book is a particularly illuminating example of this synthesis. Another good example is Nancy Obermeyer's study of the siting of a nuclear generating facility adjacent to the Indiana Dunes National Lakeshore. NANCY J. OBERMEYER, BUREAUCRATS, CLIENTS, AND GEOGRAPHY: THE BAILLY NUCLEAR POWER PLANT BATTLE IN NORTHERN INDIANA (Univ. of Chicago Geography Research Paper No. 216, 1989). She related empirical case study research to organizational theory (i.e., Max Weber's theory of bureaucracy) to show how a regulatory agency is often captured by a powerful client to ensure the agency's organizational survival but occasionally reacts to an organized public group to reestablish the agency's public legitimacy. Id. 74. No single conception of environmental justice and injustice is correct, and no single strategy will be completely effective. See Torres, supra note 2 at 847. Each different model is yet "another stone in David's sling." Cf. Cole, Litigation, supra note 7. Furthermore, one commentator argues that it is rarely effective for environmental justice advocates to concentrate political activity in a single zone of politics (e.g., Congress, federal administrative official, media). ANDREW SZASZ, ECOPOPULISM: TOXIC WASTE AND THE MOVEMENT FOR ENVIRONMENTAL JUSTICE 164 (1994). Land use regulation is a local, prospective zone of politics for environmental justice activity. 75. See THE PRACTICE OF LOCAL GOVERNMENT PLANNING 10-11 (Frank S. So & Judith Getzels eds., 2d ed. 1988). 76. Id. 77. See American Planning Ass'n, Policies and Commentary, PLANNING, July 1979, at 24B. 78. See F. STUART CHAPIN JR. & EDWARD J. KAISER, URBAN LAND USE PLANNING 48 (3d ed. 1979). 79. See YOUNG, supra note 47, § 1.04, at 9-10; see also THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 20-26. 80. See ROBERT C. ELLICKSON & A. DAN TARLOCK, LAND-USE CONTROLS: CASES AND MATERIALS 362 (1981). 81. See YOUNG, supra note 47, § 1.04, at 10 (noting the reform movements centered on tenement conditions); see also THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 26-29 (describing the major cities' post-Civil War housing problems and related statutory responses). 82. See YOUNG, supra note 47, § 1.05, at 10-11 (explaining the aesthetic focus in urban planning from 1890-1910); see also THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 30-32, 61-64 (describing the creation of a park system and the emerging emphasis on aesthetics in urban planning during the turn of the century). 83. See YOUNG, supra note 47, § 1.06, at 11-12 (describing the "City Practical" movement); see also THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 32-38, 64-66 (discussing city planner's responses to the heavy urbanization of the early 20th century including zoning and planning enabling acts). 84. See YOUNG, supra note 47, § 1.07, at 12-13 (discussing "planning during the 1930s"); see also THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 38-46, 66-67 (discussing the socioeconomic concerns of urban planning in the mid-20th century). 85. See ELLICKSON & TARLOCK, supra note 80, at 362-63 (recognizing the shift by the late 1970s to responsive, short and mid-range planning); YOUNG, supra note 47, § 1.03, at 7 (defining "planning"). But see THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 13, 60 (stating that comprehensive or general plans should be long range and "slightly utopian" but acknowledging that static visions of a utopian future were not useful in describing how to reach those goals). Despite the textbook view of planning as long range and utopian, many planners are practical about the political, economic, and social environments in which they operate and adapt accordingly. See Anthony James Catanese, Learning by Comparison: Lessons From Experience, in PERSONALITY, POLITICS, AND PLANNING 179, 180-83 (Anthony James Catanese & W. Paul Farmer eds., 1978); William Fulton, Visionaries, Deal Makers, Incrementalists: The Divided World of Urban Planning, GOVERNING, June 1989, at 52. 86. Plans that are both general and comprehensive for a particular city or region, across the many elements related to physical development (e.g., land use, transportation, environment and natural resources, infrastructure, housing, historic preservation, and the like) have many different names: general plans, comprehensive plans, master plans, official plans, urban plans, city plans, development plans, growth management plans, policy plans, and many others. See THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 60 (discussing general development plans); Sabo v. Township of Monroe, 232 N.W.2d 584, 594 n.14 (Mich. 1975) (characterizing the terminology used to describe these documents). The term "comprehensive plan" is used in this Article. 87. See Sabo, 232 N.W.2d at 594 & n.14; YOUNG, supra note 47, § 1.03, at 6-8. 88. CAL. GOV'T CODE § 65302 (West 1987 & Supp. 1997). 89. See, e.g., Twain Harte Homeowners Ass'n v. County of Tuolumne, 188 Cal. Rptr. 233, 254-55 (Cal. Ct. App. 1982) (finding that county's general plan failed to meet land use element by not sufficiently stating building intensity); Save El Toro Ass'n v. Days, 141 Cal. Rptr. 282, 287-88 (Cal. Ct. App. 1977) (finding that city's zoning plan failed to contain all elements of open-space requirement). 90. See THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 13, 60, 72. 91. Fasano v. Board of County Comm'rs, 507 P.2d 23, 27-28 (Or. 1973). See generally THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 198-284 (describing subdivision regulation and zoning); YOUNG, supra note 47, § 1.12, at 18 (explaining the rationale behind, and the necessity of implementing plans through legal controls). 92. See THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 95-116 (describing the practice of district planning). 93. See generally Been, LULUs, supra note 9 (examining locally undesirable land uses in minority neighborhoods). However, members of minority and low-income communities may also have concern about lack of input into or disparate treatment by local plans for transportation, housing, use and protection of natural resources, neighborhood infrastructure, municipal services, availability of open space, and the like. See generally SANTOS V. GOMEZ & ARLENE K. WONG, PACIFIC INST. FOR STUDIES IN DEV., ENV'T, & SEC., OUR WATER, OUR FUTURE: THE NEED FOR NEW VOICES IN CALIFORNIA WATER POLICY 1 (Working Paper No. 97-02, 1997) (commissioned by Edge: Alliance of Ethnic and Environmental Organizations) (water); CHARLES M. HAAR & DANIEL WILLIAM FESSLER, THE WRONG SIDE OF THE TRACKS (1986) (municipal services); THE ECOLOGICAL CITY: PRESERVING AND RESTORING URBAN BIODIVERSITY (Rutherford H. Platt et al. eds., 1994) (valuable urban ecosystems in central cities); JUST TRANSPORTATION: DISMANTLING RACE AND CLASS BARRIERS TO MOBILITY (Robert D. Bullard & Glen S. Johnson eds., 1997) (transportation); MAXWELL & IMMERGLUCK, supra note 51 (liquor store concentration); Kenneth W. Bond, Toward Equal Delivery of Municipal Services in the Central Cities, 4 FORDAM URB. L.J. 263, 265-67, 286 (1976) (municipal services and infrastructure); Emily Gurnon, Toxic Soil Has Plans for Tiny Park on Hold, SAN FRANCISCO EXAMINER, Sept. 28, 1997, at D1 (open space and parks, and transportation). 94. See Fasano, 507 P.2d at 27; YOUNG, supra note 47, § 1.12, at 18-19. 95. See YOUNG, supra note 47, § 1.13, at 19. 96. Id. § 5.03, at 360; see also U.S. Department of Commerce, Standard State Zoning Enabling Act, § 3 (1926); Charles M. Haar, In Accordance With a Comprehensive Plan, 68 HARV. L. REV. 1154, 1154-56 (1955) (discussing the interelationship between state enabling acts and the comprehensive plan). See, e.g., CAL. GOV'T CODE ANN. § 65300 (West 1987). 97. See ELLICKSON & TARLOCK, supra note 80, at 362-63; YOUNG, supra note 47, § 1.12, at 18. 98. See YOUNG, supra note 47, § 1.13, at 19. 99. But see FRED BOSSELMAN ET AL., FEDERAL LAND USE REGULATION (1977) (depicting the increasing federalization of land use controls); Craig Anthony (Tony) Arnold, Conserving Habitats and Building Habitats: The Emerging Impact of the Endangered Species Act on Land Use Development, 10 STAN. ENVTL. L.J. 1, 2-3 (1991) (noting the centralization of land use regulatory powers by state and federal governments). 100. See DANIEL R. MANDELKER, LAND USE LAW § 2.32, at 53 (3d ed. 1993). 101. See John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252, 1257-80 (1996) (discussing the colonial governments many reasons for extensively regulating land use). 102. See MANDELKER, supra note 100, § 2.05, at 22; U.S. DEPARTMENT OF COMMERCE, STANDARD STATE ZONING ENABLING ACT, § 3 (1926). 103. 272 U.S. 365 (1926). 104. Id. at 387-90. 105. Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974). 106. Several casebooks describe exclusionary zoning and cite numerous articles documenting the practice. See, e.g., DAVID L. CALLIES ET AL., CASES AND MATERIALS ON LAND USE 431-34 (2d ed. 1994); ROHAN, supra note 47, § 2.01[1], at 2-3 to 2-6; id. §§ 3.04, at 3-171 & 3.05, at 3-221 to 3-320 (household membership, age, educational uses, housing for students, religious uses, and social welfare facilities, among others); Dubin, supra note 1, at 741 & n.8 (referencing scholarship on exclusionary zoning and racial segregation). 107. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1007-08, 22 ELR 21104-05 (1992) (South Carolina Beachfront Management Act prohibited development of oceanfront property to protect fragile ecosystem); Goddard v. Board of Appeals, 433 N.E.2d 98, 99 (Mass. App. Ct. 1982) (upholding ordinance requiring landowner to obtain special permit to develop in wetlands area); D & R Pipeline Constr. Co. v. Greene County, 630 S.W.2d 236, 237 (Mo. Ct. App. 1982) (approving of lot size requirements to prevent pollution of water reservoirs); Albano v. Mayor & Township Comm., 476 A.2d 852, 857 (N.J. Super. Ct. App. Div. 1984) ("Land use regulations should take into account ecological and environmental concerns."). See generally ELLICKSON & TARLOCK, supra note 80; LINDA MALONE, ENVIRONMENTAL REGULATION OF LAND USE (1990); A. Dan Tarlock, Local Government Protection of Biodiversity: What Is Its Niche?, 60 U. CHI. L. REV. 555, 574-83 (1993) (discussing environmental protection zoning); John M. Winters, Environmentally Sensitive Land Use Regulation in California, 10 SAN DIEGO L. REV. 693 (1973) (focusing on the environmental impact of certain California land use regulations). 108. See Lucas, 505 U.S. at 1033, 22 ELR at 21111-12 (Kennedy, J., concurring) (finding that expectations about private property rights and government regulation evolve as conditions change, including the fragility of ecosystems); Joseph L. Sax, Some Thoughts on the Decline of Private Property, 58 WASH. L. REV. 481, 481-82 (1983) (postulating that as land use regulation has become more restrictive, property owners rights are being redefined and adversely affected). 109. See ELLICKSON & TARLOCK, supra note 80, at 36 (including general plans, which are addressed hereinabove); YOUNG, supra note 47, § 1.12, at 18-19 (building and design codes in its list of primary land use regulatory mechanisms are not included). 110. THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 198-200. 111. Id. at 200. 112. See id. at 268. 113. Id. at 251. 114. Id. 115. ELLICKSON & TARLOCK, supra note 80, at 36; THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 251. 116. ELLICKSON & TARLOCK, supra note 80, at 56-57, 61; THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 251. 117. See THE PRACTICE OF LOCAL GOVERNMENT PLANNING, supra note 75, at 61, 73. Although some local neighborhoods overwhelmingly may seek residential zoning, others might lack consensus or might embrace industrial zoning as consistent with their vision of the neighborhood. See supra note 72 (comparing East Austin in Austin, Texas, with the Logan neighborhood in Santa Ana, California). Empowerment to define and seek land use goals is the objective. 118. See discussion hereinabove. 119. See infra notes 167-201 and accompanying text. 120. Scott S. Greenberger, A Legacy of Zoning Bias: East Austinites Seek to Reform Land Use Rules of 1931, AUSTIN AM.-STATESMAN, July 21, 1997, at A1. 121. Despite the presence of industrial uses, the neighborhood retains "a distinctive residential character," and "a remarkably rich social fabric thrives." Haurwitz et al., supra note 46, at A1. 122. Greenberger, supra note 120. 123. Id. 124. Rabin, supra note 1, at 101. 125. The inspiration for the label "repulsive zoning" comes from the quoted comment of Becky Helton, a librarian with the Austin History Center, which houses the 1928 city plan for Austin that was the genesis for East Austin's zoning injustices. See Greenberger, supra note 72, at A1. 126. Greenberger, supra note 120 (explaining that East Austin's land use planning did not control uses for land, such as building homes in industrial zones); Haurwitz et al., supra note 46, at A1 (claiming that minority communities live among more toxic waste sites and other environmental hazards than other neighborhoods); Eunice Moscoso & Ralph K.M. Haurwitz, PODER's Woes Bigger Than Springs, Birds, AUSTIN AM.-STATESMAN, July 21, 1997, at A4 (listing old tank farm site and fuel storage terminals as areas where more toxic chemical materials exist than anywhere else in the city). 127. See supra note 46 (discussing a city of Austin planning study). 128. Haurwitz et al., supra note 46, at A1. 129. AUSTIN, TEX., ORDINANCE 970717-F, § 13-2-190 (July 18, 1997). 130. Id. § 13-2-191(A)-(C). The 14 enumerated land uses are agricultural sales and services (except nurseries), basic industry, construction sales and services, general warehousing and distribution, kennels, light manufacturing, limited warehousing and distribution, recycling center, resource extraction, vehicle storage, building maintenance services, laundry services (except where the proposed use is 5,000 square feet or less), equipment sales, and equipment repair services. 131. Id. § 13-2-191(B). 132. Id. § 13-2-191(D); see also CITY OF AUSTIN, QUESTIONS AND ANSWERS: EAST AUSTIN OVERLAY DISTRICT (1997) (fact sheet on file with author). 133. AUSTIN, TEX., ORDINANCE 970717-F, Part 2 (July 1, 1998). 134. Greenberger, supra note 120; Kayte Van Scoy, Residents Say Recycling Plants Constitute Enviro-racism: Eastsider Decry BFI (posted at http://www.auschron.com/current/pols.council.html on June 2, 1997, but subsequently replaced) (on file with author). 135. Greenberger, supra note 120. 136. See Van Scoy, supra note 134 (contending that traditional zoning which alternated between industrial and residential all over the Eastside is behind the residents' protests); see also Haurwitz et al., supra note 46, at A1 ("East Austin residents do not want to evict all industry; that would be illegal, if not impossible. Rather, they want a more balanced land-usepolicy and a greater voice in decisions."). 137. Except where noted separately, all information concerning this case study is from two telephone interviews with Lorraine Granado of the Colorado People's Environmental and Economic Network (COPEEN) (July 21 and 22, 1997). 138. In re Board of Adjustment for Zoning Appeals of the City & County of Denver, Findings of Fact & Conclusions as to Law, No. 72-95 (Sept. 19, 1995). 139. Id. at 1-2. 140. Laidlaw Envtl. Servs., Inc. v. Board of Adjustments, No. 95-CV-4631 (Colo. Dist. Ct. July 2, 1996). 141. Id. at 2-3. 142. Development of the Anti-Shredder Movement, NO SHAMS! News-letter (Neighbors Organized to Stop the Hazards of All Metal Shredding! (NO SHAMS!), St. Paul, MN), May 3, 1997, at 1; City of St. Paul Dep't of Planning & Econ. Dev., Div. of Planning, REPORT BRIEF: Recommendations: Metal Shredder Zoning & Comprehensive Plan Amendments. 143. Telephone Interview with Lee Olson, NO SHAMS! (Aug. 9, 1997). 144. Id.; Letter from Sherilyn Young, NO SHAMS!, to Craig Anthony (Tony) Arnold (Aug. 10, 1997) (on file with author). 145. But see Jane E. Larson, Free Markets Deep in the Heart of Texas, 84 GEO. L.J. 179, 182 (1995) (discussing the lack of zoning and land use planning in Texas-Mexico border colonias). This statement assumes that there are areas that lack land use controls of any sort, not only public controls like zoning, but also private controls like covenants and effective mechanisms for enforcing nuisance laws. 146. See id. at 182, 197-99; Environment: A Survey of Twentieth-Century Issues, AM. INDIAN Q., June 1, 1995, at 423; Ralph Frammolino, Lawmakers and Indians Wage War Over Dump, L.A. TIMES, July 5, 1990, at B1. 147. CONFEDERATE TRIBES OF THE COLVILLE RESERVATION, LAND USE & DEV. CODE (Jan. 1991). 148. Id. ch. 50.3. 149. Id. ch. 50.4-50.9. 150. See John Craig, Non-Indian Launches Suit Over Authority of Tribe, SPOKESMAN-REV. (Spokane, Wash.), Mar. 17, 1998, at B1; John Craig, Ferry Considers Suing Tribe Over Zoning, Dispute Centers on Jurisdiction Over Property Owned by Non-Indians, SPOKESMAN-REV. (Spokane, Wash.), Dec. 20, 1997, at B3; John Craig, Governments Try to Settle Differences With Indians, Colville Tribes' Moratorium on Development Sparks Dispute, SPOKESMAN-REV. (Spokane, Wash.), Mar. 7, 1997, at B5; John Craig, Couples Sue County, Tribes Over Land-Use Regulations, SPOKESMAN-REV. (Spokane, Wash.), Apr. 21, 1994, at B3. 151. Sitkowski, supra note 1, at 259-69. 152. A Model Tribal Environmental Review Code (obtained from http://www.und.nodak.edu/telp/modelcode.html on June 27, 1997, but subsequently removed) (on file with author). 153. Tom Bower, Aquifer Rules Approved, SAN ANTONIO EXPRESS-NEWS, Jan. 13, 1995, at A1; Rick Casey, The Political Import of Aquifer Ordinance, SAN ANTONIO EXPRESS-NEWS, Jan. 15, 1995, at A2; Rick Casey, "Ms. Cuss," "Mr. Cool" Forge Safe Water Pact, SAN ANTONIO EXPRESS-NEWS, Nov. 6, 1994, at A2; Interview with Danielle Milam and Gene Dawson, Co-Chairs, San Antonio Water Quality Task Force (Mar. 28, 1996); Interview with Ruben Solis and Chavel Lopez, Southwest Workers Union (Mar. 26, 1996). Unless specifically noted, all information concerning this case study came from these three articles and two interviews. 154. SAN ANTONIO, TEX., ORDINANCE 81491 (Jan. 12, 1995). 155. Patrick Driscoll, Ideas Floated on Water and San Antonio's Future, SAN ANTONIO EXPRESS-NEWS, Mar. 10, 1996, at A1. 156. See TIMOTHY BEATLEY, ETHICAL LAND USE: PRINCIPLES OF POLICY AND PLANNING 4-5 (1994). 157. See WRIGHT & GITELMAN, supra note 57, at 1-14. 158. YOUNG, supra note 47, § 5.03, at 360. 159. E.g., Theobald v. Board of County Comm'rs, 644 P.2d 942, 949 (Colo. 1982); Furtney v. Simsbury Zoning Comm'n, 271 A.2d 319, 325 (Conn. 1970); Dawson Enters., Inc. v. Blaine County, 567 P.2d 1257, 1262 (Idaho 1977); Iowa Coal Mining Co. v. Monroe County, 494 N.W.2d 664, 669 (Iowa 1993); Nottingham Village, Inc. v. Baltimore County, 292 A.2d 680, 687 (Md. 1972); State ex rel. Chiavola v. Village of Oakwood, 886 S.W.2d 74, 78 (Mo. Ct. App. 1994); Kozesnik v. Township of Montgomery, 131 A.2d 1, 7 (N.J. 1957); Allred v. City of Raleigh, 173 S.E.2d 533, 536 (N.C. 1970), rev'd on other grounds, 178 S.E.2d 432 (N.C. 1971); Udell v. Haas, 235 N.E.2d 897, 901 (N.Y. 1968); Tulsa Rock Co. v. Board of County Comm'rs, 531 P.2d 351, 357 (Okla. Ct. App. 1974); Cleaver v. Board of Adjustment, 200 A.2d 408, 413 (Pa. 1964); Hadley v. Harold Realty Co., 198 A.2d 149, 152 (R.I. 1964); West Hill Citizens v. King County Council, 627 P.2d 1002, 1005 (Wash. Ct. App. 1981); Bell v. City of Elkhorn, 364 N.W.2d 144, 148 (Wis. 1985). But see Fasano v. Board of County Comm'rs, 507 P.2d 23, 28 (Or. 1973) (requiring proof that a change conforms to the comprehensive plan). 160. ARIZ. REV. STAT. § 9-462.01F (1995); CAL. GOV'T CODE § 65860 (West 1997); FLA. STAT. ch. 163.3194 (1990); IND. CODE § 36-7-4-201 (1995); KY. REV. STAT. ANN. § 100.213 (Michie 1993); ME. REV. STAT. ANN. tit. 30, § 4961-A(1)(A) (West 1996); NEB. REV. STAT. § 23-114.03 (1997); N.J. STAT. ANN. § 40:55D-62 (West 1991); OR. REV. STAT. § 197.010(3) (1989). 161. For a discussion of the increasing importance of both mandatory planning and written plans, see CALLIES ET AL., supra note 106, at 372-73. 162. Parks v. Planning & Zoning Comm'n, 425 A.2d 100, 103 (Conn. 1979); Green v. County Council, 508 A.2d 882, 891 (Del. Ch. 1986), aff'd, 516 A.2d 480 (Del. 1986); Moore v. Maloney, 321 S.E.2d 335, 338 (Ga. 1984); La Bonta v. City of Waterville, 528 A.2d 1262, 1265 (Me. 1987); Udell, 235 N.E.2d at 905. However, where courts find comprehensive plans in zoning regulations they may find that the amendment itself results in a plan that achieves the required planning goals. Id.; see, e.g., 1000 Friends of Or. v. Board of County Comm'rs, 575 P.2d 651, 656-57 (Or. Ct. App. 1978) (finding that compliance achieved where government demonstrates that the amendment results in a plan which conforms with planning goals). 163. Holmgren v. City of Lincoln, 256 N.W.2d 686, 691 (Neb. 1977); Watson v. Town Council, 805 P.2d 641, 645 (N.M. Ct. App. 1991); Cleaver, 200 A.2d at 415. 164. ROHAN, supra note 47, § 32A.04[1][b][ii], at 32A-41. 165. E.g., ARIZ. REV. STAT. § 9-461.05(E) (1995) (seeking maximum public participation); CAL. GOV'T CODE § 65351 (West 1997) (allowing opportunities for public involvement); KY. REV. STAT. ANN. § 100.193 (Michie 1993) (consulting with public and giving notice); R.I. GEN. LAWS § 45-22.2-9(c)(2) (1991) (giving public notice and soliciting comments); UTAH CODE ANN. § 17-27-303 (1995) (holding public hearing and giving reasonable notice). 166. See ROHAN, supra note 47, § 32A.04[1][b][vii], at 32A-47. 167. See supra section Data and Analysis. 168. Id. 169. ROHAN, supra note 47, § 39.01[1], at 39-3. 170. Id. 171. Id. 172. See, e.g., Marcus Assoc. v. Town of Huntington, 382 N.E.2d 1323, 1323 (N.Y. 1978) (upholding a text amendment of use restrictions applicable to certain districts which limited the number of occupants and uses of a building or premises); Town of Sandgate v. Colehamer, 589 A.2d 1205, 1207, 1213 (Vt. 1990) (holding that a text amendment which prohibited storage of inoperable cars after a certain period was valid). 173. Rockville Fuel & Feed Co. v. City of Gaithersburg, 291 A.2d 672, 673-74 (Md. 1972). 174. County Comm'rs v. Arundel Corp., 571 A.2d 1270, 1272(Md. 1990), vacated by Arundel Corp. v. County Comm'rs, 594 A.2d 95 (Md. 1991). 175. Free State Recycling Sys. Corp. v. Board of County Comm'rs, 885 F. Supp. 798, 802-05 (D. Md. 1994). 176. Von Lusch v. Board of County Comm'rs, 330 A.2d 738, 741 (Md. Ct. Spec. App. 1975). 177. See supra notes 58-61. 178. See Von Lusch, 330 A.2d at 742 (requiring that rezonings be supported by changed conditions or discovery of zoning mistake not applicable to text amendments); Layne v. Zoning Bd. of Adjustment, 460 A.2d 1088, 1089 (Pa. 1983) (deferring to zoning classifications in local zoning code unless "it is obvious that the classification has no substantial relationship to public health, safety, morals or general welfare" (emphasis added)). 179. Rockville Fuel & Feed Co. v. City of Gaithersburg, 291 A.2d 672, 675-77 (Md. 1972). 180. See infra notes 192-204 and accompanying text. 181. Free State Recycling Sys. Corp. v. Board of County Comm'rs, 885 F. Supp. 798, 806-08 (D. Md. 1994). 182. See, e.g., Orange Lake Ass'n v. Kirkpatrick, 21 F.3d 1214, 1217 (2d Cir. 1994) (rezoning several parcels totaling 150 acres from R-3 to R-2, thus changing density); Bartram v. Zoning Comm'n, 68 A.2d 308, 309-10 (Conn. 1949) (rezoning single lot from residential to business); Pierson Trapp Co. v. Peak, 340 S.W.2d 456, 457 (Ky. Ct. App. 1960) (rezoning 30-acre tract from residential to commercial); Valley View Indus. Park v. City of Redmond, 733 P.2d 182, 186-88 (Wash. 1987) (rezoning single parcel of nearly 27 acres from light industrial to agricultural). 183. Lake Lucerne Civic Ass'n v. Dolphin Stadium Corp., 801 F. Supp. 684, 688 (S.D. Fla. 1992) (rezoning land in predominantly African American neighborhood to commercial use for a stadium and extensive commercial development); RISE v. Kay, 768 F. Supp. 1144, 1148, 22 ELR 20200, 20202 (E.D. Va. 1991) (rezoning tract in predominantly African American area from agricultural to industrial to allow regional landfill). 184. E.g., McCuskey v. Canyon County, 851 P.2d 953, 955 (Idaho 1993) (downzoning single parcel from heavy industrial to rural residential); Palermo Land Co. v. Planning Comm'n, 550 So. 2d 316, 317 (La. Ct. App. 1989) (downzoning land from heavy industrial to light industrial to prevent expansion of solid waste landfill), overruled by Palermo Land Co. v. Planning Comm'n, 561 So. 2d 482, (La. 1990); City of Virginia Beach v. Virginia Land Inv. Ass'n, 389 S.E.2d 312, 312 (Va. 1990) (downzoning 403 acres from planned unit development to agricultural); Seabrooke Partners v. City of Chesapeake, 393 S.E.2d 191, 192-93 (Va. 1990) (downzoning 19 acres from multi-family residential to single-family residential); Valley View Indus. Park, 733 P.2d at 186-88 (downzoning single parcel of nearly 27 acres from light industrial to agricultural). 185. ROHAN, supra note 47, § 39.01[2], at 39-4; see, e.g., Arnel Dev. Co. v. City of Costa Mesa, 620 P.2d 565, 567 (Cal. 1980). But see, e.g., infra notes 205-06 and accompanying text. 186. See, e.g., Neuberger v. City of Portland, 603 P.2d 771, 777 (Or. 1979) (rezoning by city counsel was quasi-judicial function subject to review by court of appeals); Fasano v. Board of County Comm'rs, 507 P.2d 23, 26-27 (Or. 1973) (rejecting the position that judicial review of a rezoning was limited to a determination of whether it was arbitrary and capricious and further noting the courts would not view all zoning decisions as legislative acts to be accorded a presumption of validity). 187. See, e.g., Cooper v. Board of County Comm'rs, 614 P.2d 947, 950-51 (Idaho 1980) (holding that the board's determination on rezoning was a quasi-judicial act). 188. See, e.g., Golden v. City of Overland Park, 584 P.2d 130, 135 (Kan. 1978) (holding that a change of zoning which focused on a specific tract of land, rather than the entire city, was more quasi-judicial than legislative). 189. MD. ANN. CODE art. 66B, § 4.05[a] (1997); see, e.g., Wakefield v. Kraft, 96 A.2d 27, 30 (Md. 1953) (building in reliance on original zoning was not sufficient to prevail on claim where a mistake in original zoning ordinance or change in the neighborhood's character was enough to render rezoning proper). 190. See, e.g., Kimball v. Court of Common Council, 167 A.2d 706, 708 (Conn. 1961) (changing zones is improper unless new conditions or substantial changes have occurred in the area). 191. See, e.g., City of Biloxi v. Hilbert, 597 So. 2d 1276, 1280 (Miss. 1992) (holding that clear and convincing evidence must be given that either a mistake in the original zoning or a substantial change in the character of the neighborhood renders the rezoning justified). 192. See, e.g., Seabrooke Partners v. City of Chesapeake, 393 S.E.2d 191, 193 (Va. 1990) (holding that rezoning will be sustained if evidence is produced which demonstrates sufficient change in the circumstances of a parcel's neighborhood). 193. See, e.g., Davis v. City of Albuquerque, 648 P.2d 777, 779 (N.M. 1982) (holding that downzoning must be based on a showing of a mistake in the original zoning or change in the neighborhood). 194. See Rabin, supra note 1, at 111-12; Bullard, Residential Segregation, supra note 68, at 80-81. 195. See Boyce v. Sembly, 334 A.2d 137, 142 (Md. Ct. Spec. App. 1975). 196. See, e.g., Grimpel Assocs. v. Cohalan, 361 N.E.2d 1022, 1024-25 (N.Y. 1977) (holding that rezoning resulted in unconstitutional exercise of police power after considering evidence of traffic conditions and reduction in value to determine the suitability for the uses prescribed in the zoning ordinances). 197. See Osborne M. Reynolds Jr., "Spot Zoning"—A Spot That Could Be Removed From the Law, 48 WASH. U. J. URB. & CONTEMP. L. 117, 117-19 (1995). 198. Id. 199. See Viso v. State, 92 Cal. App. 3d 15, 22 (1979); City of Miami v. Schutte, 262 So. 2d 14, 17 (Fla. Dist. Ct. App. 1972). But see Buckles v. King County, 191 F.3d 1127 (9th Cir. 1999) (holding that landowners complaining of reverse spot zoning must raise the issue under the Takings Clause rather than under substantive due process principles and therefore must show denial of all economically viable use of the property). 200. See supra notes 158-62 and accompanying text. 201. Udell v. Haas, 235 N.E.2d 897, 905 (N.Y. 1968). 202. Id. at 903-04. 203. Grimpel Assocs. v. Cohalan, 361 N.E.2d 1022, 1024 (N.Y. 1977); see also Condor Corp. v. City of St. Paul, 912 F.2d 215, 223 (8th Cir. 1990) (holding that neighborhood opposition was not a sufficient basis for restricting intensive uses and that the city must establish evidence of incompatibility of uses); D'Addario v. Planning & Zoning Comm'n, 593 A.2d 511, 517 (Conn. 1991) (finding that downzoning two parcels from commercial to residential was a taking of private property for public use without just compensation when the downzoning reduced the value of both parcels by about 90% each). 204. Moviematic Indus. v. Board of County Comm'rs, 349 So. 2d 667, 669 (Fla. Dist. Ct. App. 1977) (noting the validity of downzoning from heavy industrial to single-family residential to protect ecological systems and residential, historic, and aesthetic character of neighborhoods); McGowan v. Cohalan, 361 N.E.2d 1025, 1027 (N.Y. 1977) (upholding a downzoning from industrial to residential as necessary to create buffer between residential and industrial uses). 205. ELLICKSON & TARLOCK, supra note 80, at 59. 206. Id. 207. La Salle Nat'l Bank v. City of Chicago, 125 N.E.2d 609, 613 (Ill. 1955). 208. See, e.g., Jafay v. Board of County Comm'rs, 848 P.2d 892, 898 (Colo. 1993). 209. "Incremental planning that adapts to change in an ad hoc manner is a fact of life." ROHAN, supra note 47, § 32A.04[1][b][vii], at 32A-47. 210. ELLICKSON & TARLOCK, supra note 80, at 61. 211. ROHAN, supra note 47, § 44.01[1], at 44-2. 212. Id.; see also Tullo v. Township of Millburn, 149 A.2d 620, 624-25 (N.J. Super. Ct. App. Div. 1959) (holding there was sufficient evidence that the statute and ordinance had been sufficiently met to justify a special exception for the construction of an outdoor pool at a private club). 213. ROHAN, supra note 47, § 44.01[1], at 44-3. 214. Id. § 44.01[4], at 44-11. 215. Id. 216. See MAXWELL & IMMERGLUCK, supra note 51, at 13. 217. 888 F.2d 1573 (11th Cir.), opinion amended & superseded on denial of reh'g, 896 F.2d 1264 (11th Cir. 1989). 218. 229 Cal. App. 3d 110 (1991). 219. See, e.g., Zylka v. City of Crystal, 167 N.W.2d 45, 49 (Minn. 1969); Bankoff v. Board of Adjustment, 875 P.2d 1138, 1142-43 (Okla. 1994). 220. See Cove Have v. Zoning Bd. of Review, 1999 WL 1334919 (R.I.). 221. The Denver Board of Adjustment reversed a grant of a conditional use permit for a solid waste transfer facility in an industrial (I-2) zone in a low-income neighborhood of color, in part because "the area in which the station is to be located has an undue concentration of uses which manufacture, use, or store materials which create environmental hazards." Board of Adjustment for Zoning Appeals of the City & County of Denver, Findings of Fact & Conclusions of Law, Case No. 72-95 (Sept. 19, 1995), at 2.a.i. 222. The East Austin Overlay District is an excellent example of this strategy. See AUSTIN, TEX., ORDINANCE 970717-F (July 1, 1997); CITY OF AUSTIN, QUESTIONS AND ANSWERS: EAST AUSTIN OVERLAY DISTRICT, supra note 132. 223. Robert J. Blackwell, Overlay Zoning, Performance Standards, and Environmental Protection After Nollan, 16 B.C. ENVTL. AFF. L. REV. 615, 616 (1989). 224. Id. at 632-34; CALLIES ET AL., supra note 106, at 61-62. 225. Blackwell, supra note 223, at 619 n.135. 226. "[A] neighborhood conservation district is an overlay district 'intended to encourage the continued vitality of older residential areas of the city, to promote the development of a variety of new housing of contemporary standards in existing neighborhoods, and to maintain a desirable residential environment and scale.'" Bell v. City of Waco, 835 S.W.2d 211, 214 (Tex. App. 1992) (quoting WACO, TEX. CODE § 4.2303(a) (1987)). 227. Id. at 213. 228. See discussion of East Austin zoning issues, supra. 229. See supra note 46; see also East Austin Due Rezoning, AUSTIN AM.-STATESMAN, July 1, 1997, at A18 (discussing proposed changes to zoning policies in East Austin); Ralph K.M. Haurwitz et al., An Industrial Chokehold, AUSTIN AM.-STATESMAN, July 20, 1997, at A1 (describing the effects of the proposed changes to remedy the incompatibility of zoning and actual use of East Austin). 230. ROHAN, supra note 47, § 40.01[7], at 40-6. 231. Id. 232. LANE KENDIG, PERFORMANCE ZONING (1980); ROHAN, supra note 47, § 40.01[1][c], at 40-6; CALLIES ET AL., supra note 106, at 63; Frederick W. Acker, Performance Zoning, 67 NOTRE DAME L. REV. 363, 364 (1991); Blackwell, supra note 223, at 616. 233. See generally KENDIG, supra note 232 (addressing performance zoning). 234. State v. Zack, 674 P.2d 329, 331 (Ariz. 1983) (quoting city ordinance). 235. Blackwell, supra note 223, at 638-39. 236. Id. at 616, 637. But see Acker, supra note 232, at 364 (urging performance zoning as a superior alternative to Euclidean zoning). 237. Zack, 674 P.2d at 332; Dube v. City of Chicago, 131 N.E.2d 9, 16 (Ill. 1955); DeCoals, Inc. v. Board of Zoning Appeals, 284 S.E.2d 856, 859 (W. Va. 1981). 238. E.g., DeCoals, 284 S.E.2d at 858 (stating text of ordinance provided that "no dust of any kind produced by the industrial operations shall be permitted to escape beyond the limits of the property being used."). 239. See generally Cole, Empowerment, supra note 6. 240. ROHAN, supra note 47, § 40.01[7], at 40-38. 241. Id. 242. Id. 243. 429 U.S. 252 (1977). 244. Id. at 256. 245. The practice of buffer zoning "presents the anomalous situation of putting more people next to commercial uses rather than fewer, [but] it is consistent with traditional theory which places the single-family use at the apex of the zoning pyramid. The courts have generally sustained the practice." ROHAN, supra note 47, § 40.01[7], at 40-38. 246. Id. 247. For discussions of floating zones and how they work, see CALLIES ET AL., supra note 106, at 69; WRIGHT & GITELMAN, supra note 57, at 855; Zoning—The Floating Zone: A Potential Instrument of Versatile Zoning, 16 CATH. U. L. REV. 85 (1966). 248. See, e.g., Lurie v. Planning & Zoning Comm'n, 278 A.2d 799, 811 (Conn. 1971); McQuail v. Shell Oil Co., 183 A.2d 572, 580 (Del. 1962); Beall v. Montgomery County Council, 212 A.2d 751, 762 (Md. Ct. Spec. App. 1965); Rodgers v. Village of Tarrytown, 96 N.E.2d 731, 733 (N.Y. 1951). But see Eves v. Zoning Bd. of Adjustment, 164 A.2d 7, 12 (Pa. 1960) (invalidating use of floating zone as antithetical to concept of zoning). 249. Herbert Goldman, Zoning Change: Flexibility vs. Stability, 26 MD. L. REV. 48, 51-52 (1966). 250. See McQuail, 183 A.2d at 574 (heavy industrial floating zone); Beall, 212 A.2d at 751 (multi-family high-rise residential floating zone); Huff v. Board of Zoning Appeals, 133 A.2d 83, 84-85 (Md. 1957) (restricted manufacturing floating zone); Costello v. Sieling, 161 A.2d 824 (Md. 1960) (tourist accommodation floating zones); Rodgers, 96 N.E.2d at 732 (multi-family residential floating zone); Eves, 164 A.2d at 8 (limited industrial floating zone); see also CALLIES ET AL., supra note 106, at 69 (using light industrial and multi-family housing uses for hypothetical about floating zones). 251. 183 A.2d 572, 574 (Del. 1962). 252. Vicki Been, "Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 COLUM. L. REV. 473, 478-79 (1991). 253. CALLIES ET AL., supra note 106, at 182; ROHAN, supra note 47, § 9.01, at 9-4, 9-5; Been, supra note 252, at 480. 254. Been, supra note 252, at 479-81. Been also includes "set-asides or inclusionary zoning programs," but notes that these programs are not universally regarded as exactions, but could be considered substantive zoning requirements. Id. at 481 & n.41. 255. Id. at 481 & nn.42 & 43. 256. ELLICKSON & TARLOCK, supra note 80, at 738; ROHAN, supra note 47, § 9.01 at 9-4; cf. Been, supra note 252, at 481 ("The practice of imposing exactive is fairly widespread, although exactions are most common in communities of growth areas."). 257. ELLICKSON & TARLOCK, supra note 80, at 738; David A. Dana, Land Use Regulation in an Age of Heightened Scrutiny, 75 N.C. L. REV. 1243, 1251 (1997). 258. See COLLABORATIVE PLANNING FOR WETLANDS AND WILDLIFE: ISSUES AND EXAMPLES (Douglas R. Porter & David A. Salvesen, eds. 1995); Thomas W. Ledman, Local Government Environmental Mitigation Fees: Development Exactions, the Next Generation, 45 FLA. L. REV. 835, 836 (1993). 259. ROHAN, supra note 47, § 9.01, at 9-5. 260. U.S. CONST. amend, V. 261. Nollan v. California Coastal Comm'n, 483 U.S. 825, 17 ELR 20918 (1987). 262. Dolan v. City of Tigard, 512 U.S. 374, 24 ELR 21083 (1994). 263. Ehrlich v. Culver City, 911 P.2d 429, 438-39 (Cal. 1996). But see Sintra, Inc. v. City of Seattle, 829 P.2d 765, 773 n.7 (Wash. 1992) (Nollan applicable only to physical exactions, not fees); Frank Michelman, The Jurisprudence of Takings, 88 COLUM. L. REV. 1600, 1608-09 (1988) (arguing that Nollan is concerned primarily with permanent physical occupation of land). 264. 483 U.S. 825, 17 ELR 20918 (1987) and 512 U.S. 374, 24 ELR 21083 (1994). Compare Ehrlich, 911 P.2d at 438-39 ("court must determine whether the factual findings made by the permitting body support the condition as one that is more or less proportional, in both nature and scope, to the public impact") with Amoco Oil Co. v. Village of Schaumberg, 661 N.E.2d 380, 390 (Ill. App. Ct. 1995) (in making a legislative determination, "the city demonstrated a 'rough proportionality' between the requirements and objectives"). 265. See Dana, supra note 257, at 1252-53; see, e.g., Ayres v. City Council, 207 P.2d 1, 8 (Cal. 1949); Wald Corp. v. Metropolitan Dade County, 338 So. 2d 863, 866 (Fla. Dist. Ct. App. 1976). 266. See Dana, supra note 257, at 1252-53; see, e.g., Pioneer Trust & Sav. Bank v. Village of Mount Prospect, 176 N.E.2d 799, 802-03 (Ill. 1961). 267. ROHAN, supra note 47, § 35.04(1)(c), at 37-38 ("It is well-settled in the law that a zoning ordinance, like other legislative acts, is entitled to a strong presumption of validity unless it is arbitrary or unreasonable on its face."); Daniel R. Mandelker & A. Dan Tarlock. Shifting the Presumption of Constitutionality in Land-Use Law, 24 URB. LAW. 1, 1-3 & n.1 (1992) (showing that often the presumption is extended to zoning bodies' administrative functions, as well as legislative functions). 268. See Mandelker & Tarlock, supra note 267, at 50 (supporting the proposition that zoning ordinances will be presumed to be constitutional); Michael Allan Wolf, Fruits of the "Impenetrable Jungle": Navigating the Boundary Between Land-Use Planning and Environmental Law, 50 WASH. U. J. URB. & CONTEMP, L. 5, 6-9 (1996) (showing the current judicial extention of the Fifth Amendment's Takings Clause, U.S. CONST. amend. V). 269. Jerold S. Kayden, Judges as Planners: Limited or General Partners?, in ZONING AND THE AMERICAN DREAM, supra note 1, at 223. Nonetheless, potential land use conflicts still overwhelmingly tend to be negotiated, rather than litigated. However, the nature, and perhaps outcomes, of these negotiations may reflect perceptions about whether the courts will favor regulators or property owners or interested neighborsor groups if agreement cannot be reached and the litigation option is exercised. See, e.g., Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 950-51 (1979). 270. See generally Goldblan v. Town of Hempstead, 369 U.S. 590, 591-92 (1962) (explaining the Court's interpretation of "reasonableness" regarding these elements). 271. See Goldblatt, 369 U.S. at 593 ("A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit."); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926) (declaring that before an ordinance can be declared unconstitutional, such provisions must be shown to be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare); F.H. Uelner Precision Tools & Dies, Inc. v. City of Dubuque, 190 N.W.2d 465, 469 (Iowa 1971) ("In principle, zoning of land for the public good is a proper exercise of the police power even though it works some onerous consequences on landowners."). Land use controls that do not substantially advance legitimate state interests may also be regulatory takings. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 17 ELR 20918 (1987) (reiterating that a restriction may constitute a taking if not reasonably necessary to effectuate a substantial government purpose); Agins v. City of Tiburon, 447 U.S. 255, 260, 10 ELR 20361, 20362 (1980) (stating that "an application of a general zoning law to a particular property effects a taking if the ordinance does not substantially advance state interests"). 272. Euclid, 272 U.S. at 395 (declaring that before an ordinance can be declared unconstitutional, such provisions must be shown to be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare); Nectow v. City of Cambridge, 277 U.S. 183, 187-88 (1928) (stating that the determination of public officers should not be set aside unless the action is an arbitrary or irrational exercise of power); Marks v. City of Chesapeake, 883 F.2d 308, 311-12 & n.4 (4th Cir. 1989) (emphasizing that the dispositive question is whether a local government's land use decision is arbitrary and capricious, and thus a deprivation of property without due process); Katobimar Realty Co. v. Webster, 118 A.2d 824, 829, 831 (N.J. 1955) (deviating from the rules of the constitutional and statutory zoning process in an arbitrary fashion is prohibited). 273. Supra notes 182-205 and accompanying text. 274. Moviematic Indus. Corp. v. Board of County Comm'rs, 349 So. 2d 667, 669 (Fla. Dist. Ct. App. 1977) (justifying zoning regulations that preserve ecological systems, residential or historical character of a neighborhood, or aesthetic appeal of a community); McGowan v. Cohalan, 361 N.E.2d 1025, 1027 (N.Y. 1977) (establishing the need for an adequate separation between areas of residential and industrial use). 275. See Nectow, 277 U.S. at 188 (showing that the zoning of the locus in question is not indispensable to the general plan); Katobimar, 118 A.2d at 829 (insisting that all property in like circumstances be treated alike). 276. Viso v. California, 92 Cal. Rptr. 580, 584-85 (Cal. Ct. App. 1979) (defining spot zoning); Miami v. Schutte, 262 So. 2d 14, 16-17 (Fla. Dist. Ct. App. 1972) (permitting apartment houses on land surrounding a parcel but denying apartments on that parcel does not make sense, and is spot zoning in reverse). 277. See supra note 203 and accompanying text; see also Nectow, 277 U.S. at 187 (giving an example of loss of a sales contract due to changed expectations regarding the use of the property). 278. U.S. CONST. amend. V ("nor shall private property be taken for public use, without just compensation"). 279. See supra notes 260-67 and accompanying text. 280. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 421-23 (1982) (addressing permanent physical occupation as a per se taking); Kaiser Aetna v. United States, 444 U.S. 164, 10 ELR 20042 (1979) (addressing government occupation of navigable waters in a private marina as a physical invasion short of permanent taking); Hendler v. United States, 952 F.2d 1364, 1375, 22 ELR 20646, 20650-51 (Fed. Cir. 1991) (stating that a permanent physical occupation of private property by the government constitutes a taking). 281. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 22 ELR 21104 (1992) (declaring that enforcement of regulations already in place on property does not constitute a taking, even if no beneficial value is left to the land). 282. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 8 ELR 20534 (1978) (identifying 3 factors: (1) "the economic impact of the regulation on the claimant"; (2) "the extent to which the regulation has interfered with distinct investment-backed expectations"; and (3) "the character of the governmental action"); see also Kavanau v. Santa Monica Rent Control Bd., 941 P.2d 851, 860 (Cal. 1997) (identifying 10 nonexclusive, ad hoc factors that courts have found relevant in evaluating noncategorical (i.e., non-Lucas) regulatory takings claims). Although the Dolan rough proportionality test, applicable to exactions and discussed supra notes 268-72 and accompanying text, does not apply to regulatory takings, a property owner's claim that the zoning regulation does not substantially advance a legitimate government interest is actionable. See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S. Ct. 1624, 29 ELR 21133 (1999); Steven J. Eagle, Del Monte Dunes, Good Faith, and Land Use Regulation, 30 ELR 10100 (Feb. 2000); John D. Echeverria, Revving the Engines in Neutral: City of Monterey v. Del Monte Dunes at Monterey, Ltd., 29 ELR 10682 (Nov. 1999). See also Agins v. City of Tiburon, 447 U.S. 255, 260, 10 ELR 20361, 20363-64 (1980). However, uncertainty exists as to whether the Agins "substantially advances" test is grounded in the Takings Clause or the Due Process Clause. 283. See, e.g., Wolf, supra note 268, at n.366. 284. See, e.g., Lucas, supra note 281 (showing that a denial of all economically feasible use of the land requires compensation without the usual inquiry as to the public interest being advanced); Suitum v. Tahoe Reg'l Planning Agency, 117 S. Ct. 1659, 27 ELR 21064 (1997) (leaving no productive or financially feasible use of the land constitutes a taking); Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 24 ELR 21072 (Fed. Cir. 1994) (maintaining that all economic use must be destroyed before there is a taking). 285. See Elias v. Town of Brookhaven, 783 F. Supp. 758, 761-62 (E.D.N.Y. 1992) (downzoning from commercial to residential); Ketchel v. Bainbridge Township, 607 N.E.2d 22, 26-27 (Ohio Ct. App. 1992) (restricting density that reduced value of property); HFH Ltd. v. Superior Court, 542 P.2d 237, 242 (Cal. 1975) (downzoning that reduced value of property by 80%); Turner v. City of Atlanta, 357 S.E.2d 802, 802-03 (Ga. 1987) (downzoning from commercial to office use, resulting in 67% reduction in property value); Marshall v. Town of Topsfield, 433 N.E.2d 1244, 1246 (Mass. App. Ct. 1982) (downzoning from retail to residential or community facilities). 286. See Cardon Oil Co. v. City of Phoenix, 593 P.2d 656, 658-59 (Ariz. 1979) (recognizing that merely decreasing property value does not constitute a taking); Grimpel Assocs. v. Cohalan, 361 N.E.2d 1022, 1023-24 (N.Y. 1977) (holding that depriving owner of all reasonable use of the land is necessary for a taking); Central Motors Corp. v. City of Pepper Pike, 409 N.E.2d 258, 276-77 (Ohio Ct. App. 1980) (showing that zoning of a property for an impossible use is unconstitutional). 287. See Good v. United States, 189 F.3d 1355, 30 ELR 20102 (Fed. Cir. 1999) (holding that one who buys property in a regulatory climate casting doubt on the ability to obtain development permits assumes the risk of permit denial and cannot expect compensation for regulatory takings). Good is discussed in Craig N. Johnston, 1999—The Year in Review, 30 ELR 10173, 10191-92 (Mar. 2000). 288. See Mills Land & Water Co. v. City of Huntington Beach, 89 Cal. Rptr. 2d 52 (Cal. App. 1999) (holding that 20-year delay in obtaining approval of a coastal protection program necessary to developer's development permit application was extraordinary and a temporary taking). 289. See Landgate, Inc. v. California Coastal Comm'n, 73 Cal. Rptr. 2d 841 (Cal. 1998) (upholding as "reasonable" a two-year delay in approving development permit despite illegal assertion of jurisdiction by agency); Guinnane v. City & County of San Francisco, 241 Cal. Rptr. 787 (Cal. App. 1987) (finding more than one year of government-attributable delay reasonable in light of statutory requirements to prepare detailed environmental impact report). But see Offen v. County Council for Prince George's County, 625 A.2d 424 (Md. App. 1993) (using zoning estoppel to remedy stalling tactics of local officials that did not meet legal tests for regulatory takings). 290. See Dwight H. Merriam & Gurdon H. Buck, Smart Growth, Dumb Takings, 29 ELR 10746 (Dec. 1999) (analyzing development moratoria under regulatory takings doctrine). But see Building Indus. Legal Defense Found. v. Superior Court, 85 Cal. Rptr. 2d 828 (Cal. App. 1999) (holding that city's adoption of interim moratoria on the processing of development applications exceeded its authority under a state statute permitting interim moratoria on approvals of land uses in conflict with proposed general plan amendments). 291. See Lucas, 505 U.S. 1003, 22 ELR 21104 (1992) (holding that the government cannot enact legislation that deprives an owner of all economic use of a property without compensation for that property). 292. See supra notes 204-05 and accompanying text. 293. See Lucas, 505 U.S. at 1004, 22 ELR at 21105 (restricting use according to state's property and nuisance laws does not require compensation). 294. Elias v. Town of Brookhaven, 783 F. Supp. 758, 761-62 (E.D.N.Y. 1992) (holding that leaving a property with a viable economic use does not constitute a taking, even though the use is different from that allowed under prior zoning). 295. Robert M. Rhodes & Cathy M. Sellers, Vested Rights: Establishing Predictability in a Changing Regulatory System, 20 STETSON L. REV. 475, 478 (1991). 296. Grayson P. Hanes & J. Randall Minchew, On Vested Rights to Land Use and Development, 46 WASH. & LEE L. REV. 373, 376-77, 382-83 (1989). 297. Id. at 382-83; Rhodes & Sellers, supra note 295, at 476. 298. Hanes & Minchew, supra note 296, at 379-80. 299. Id. at 379-80 & n.19. 300. Id. at 379-80 & n.18. 301. Id. at 388, 398, 400; Rhodes & Sellers, supra note 295, at 478. 302. Hanes & Minchew, supra note 296, at 388-98; Rhodes & Sellers, supra note 295, at 482-84. 303. Hanes & Minchew, supra note 296, at 398-400; Rhodes & Sellers, supra note 295, at 478-82, 486-89. 304. See Livingston Rock & Gravel Co. v. County of Los Angeles, 272 P.2d 4, 7 (1954) (approving revocation of a prior permit when the use was deemed to be detrimental to public health and safety or a nuisance); Oswalt v. County of Ramsey, 371 N.W.2d 241, 246 (Minn. Ct. App. 1985) (maintaining that existing nonconforming uses must be either permitted to remain or eliminated by the use of eminent domain); Dugas v. Town of Conway, 480 A.2d 71, 76 (N.H. 1984) (invalidating new zoning regulations that extinguished existing nonconforming uses as unconstitutionaldeprivation of vested property rights); Bachman v. Zoning Hearing Bd., 494 A.2d 1102, 1105 (Pa. 1985) (vesting property rights in lawful nonconforming uses unless they are a nuisance, abandoned, or extinguished by eminent domain). 305. Standard Oil Co. v. City of Tallahassee, 183 F.2d 410, 412 (5th Cir. 1950) (giving power to a municipality to extinguish an existing use by ordinance); City of Los Angeles v. Gage, 274 P.2d 34, 44-45 (Cal. Dist. Ct. App. 1954) (insisting that a nonconforming use be relocated or extinguished within five years); Harbison v. City of Buffalo, 152 N.E.2d 42, 45 (N.Y. 1958) (requiring the termination of nonconforming uses over a given period of time). 306. ROHAN, supra note 47, § 41.03(1), at 41-59. 307. Michael Dear, Understanding and Overcoming the NIMBY Syndrome, 58 APA J. 288 (1992); Orlando E. Delogu, "NIMBY" Is a National Environmental Problem, 35 S.D. L. REV. 198, 198 (1990); Michael B. Gerrard, The Victims of NIMBY, 21 FORDHAM URB. L.J. 495, 495 (1994); Michael Heiman, From "Not in My Backyard" to "Not in Anyone's Backyard!": Grassroots Challenge to Hazardous Waste Facility Siting, 56 APA J. 359 (1990). For a view that the NIMBY movement represents a valuable perspective on the public interest and that LULUs have uninternalized social costs, see Denis J. Brion, An Essay on LULU, NIMBY, and the Problem of Distributive Justice, 15 B.C. ENVTL. AFF. L. REV. 437 (1988). 308. BULLARD, DUMPING IN DIXIE, supra note 5, at 46, 108; Gauna, supra note 6, at 32-33. 309. The three major approaches are uniformly summarized in several law review articles, and the discussion here is a synthesis of these summaries. See Claire L. Hasler, The Proposed Environmental Justice Act: "I Have a (Green) Dream," 17 U. PUGET SOUND L. REV. 417, 456-57 (1994); Bradford C. Mank, Environmental Justice and Discriminatory Siting: Risk-Based Representation and Equitable Compensation, 56 OHIO ST. L.J. 329, 348-51 (1995); Rachel D. Godsil, Remedying Environmental Racism, 90 MICH. L. REV. 394, 402-07 (1991) Audrey Wright, Unequal Protection Under the Environmental Laws: Reviewing the Evidence on Environmental Racism and the Inequities of Environmental Legislation, 39 WAYNE L. REV. 1725, 1731-35 (1993). For an example of federal preemption of a local attempt to ban totally PCB disposal in a predominantly African American area, see Warren County v. North Carolina, 528 F. Supp. 276, 12 ELR 20402 (D.N.C. 1981). For an analysis of preemption doctrine from the perspective of local efforts to restrict the movement of nonhazardous waste to other jurisdictions (so-called flow control efforts), see John H. Turner, Solid Waste Flow Control: The Commerce Clause and Beyond, MISS. C.L. REV. 53, 107 (1998). 310. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985) (holding the denial of conditional use permit for mentally disabled to be a violation of Equal Protection Clause founded on "irrational prejudice"); see, e.g., Lanterman-Petris-Short Act, CAL. WELF. & INST. CODE § 5116 (Deering 1982) (designating a group home of six or fewer mentally disabled adults as residential use for zoning purposes). 311. E.g., Nicholson v. Connecticut Half-way House, 218 A.2d 383, 384-86 (Conn. 1966) (finding a halfway house for prison parolees a residential use). But see Bannum, Inc. v. City of Ft. Lauderdale, 157 F.3d 819 (11th Cir. 1998) (upholding denial of special use permit for ex-offender halfway house because city had legitimate interests in public safety and conservation of resources despite the influence of "the community's 'negative attitudes'"). 312. See MASS. GEN. LAWS ANN. ch. 40B, §§ 20-23 (1973) (authorizing the state to preempt local exclusionary zoning); see also Southern Burlington County NAACP v. Township of Mount Laurel, 456 A.2d 390, 410 (N.J. 1983) (Mount Laurel II) (holding that a county's zoning laws could not absolutely ban mobile homes); Southern Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713, 713 (N.J. 1975) (Mount Laurel I) (holding that zoning laws must allow for low- and moderate-income housing). 313. 42 U.S.C. §§ 12131-12165. 314. See Bay Area Addiction Research & Treatment v. City of Antioch, 179 F.3d 725 (9th Cir. 1999) (BAART). See also Groome Resources Ltd. v. Parrish of Jefferson, 52 F. Supp. 2d 771 (E.D. La. 1999) (holding that delay in approval of an Alzheimer's care group home violates the Fair Housing Act); Keys Youth Servs. v. City of Olathe, 52 F. Supp. 2d 1284 (D. Kan. 1999) (ruling that the Fair Housing Act's antidiscriminatory provisions prohibited city from limiting occupancy of group homes to eight or fewer disabled persons). 315. 29 U.S.C. § 794. 316. BAART, 179 F.3d at 729, 730-32. 317. Id. at 735-37. 318. Id. at 729 n.5, 736-37. 319. ELLICKSON & TARLOCK, supra note 81, at 738-39. 320. Id. at 740. 321. See, e.g., Kevin Gover & Jana L. Walker, Escaping Environmental Paternalism: One Tribe's Approach to Developing a Commercial Waste Disposal Project in Indian Country, 63 U. COLO. L. REV. 933, 936-42 (1992) (discussing a California Indian tribe's acceptance of the development of a solid waste facility on their land); Jeff Kass, Homes and Shops at Odds, L.A. TIMES, Sept. 4, 1997, at B3 (noting that some residents support business development in their communities to increase property values). 322. Dubin, supra note 1, at 741-44; Rabin, supra note 1, at 101. 323. MIKE DAVIS, CITY OF QUARTZ: EXCAVATING THE FUTURE IN LOS ANGELES 151-219 (1992); Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 COLUM. L. REV. 1, 3-5 (1990); Jerry Frug, The Geography of Community, 48 STAN. L. REV. 1047, 1047-48 (1996). 324. Orlando E. Delogu, The Dilemma of Local Land Use Control: Power Without Responsibility, 33 ME. L. REV. 15, 16-20 (1981); Delogu, supra note 307, at 198. 325. Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681, 682-87 (1973); Douglas W. Kmiec, Deregulating Land Use: An Alternative Free Enterprise Development System, 130 U. PA. L. REV. 28, 30-31 (1981). 326. RICHARD A. EPSTEIN, TAKINGS 263-73 (1985); ROBIN PAUL MALLOY, PLANNING FOR SERFDOM: LEGAL ECONOMIC DISCOURSE AND DOWNTOWN DEVELOPMENT 140 (1991); BERNARD H. SIEGAN, PROPERTY AND FREEDOM: THE CONSTITUTION, THE COURTS, AND LAND-USE REGULATION 179-201 (1997). 327. For a discussion of three different theories of environmental policy-making and their failure to encompass an environmental justice theory of political participation in environmental decisions, see Eileen Gauna, The Environmental Justice Misfit: Public Participation and the Paradigm Paradox, 17 STAN. ENVTL. L.J. 3 (1998) (discussing regulatory expertise, pluralism, and civic republican models). 328. JOE R. FEAGIN & ROBERT PARKER, BUILDING AMERICAN CITIES: THE URBAN REAL ESTATE GAME 2 (1990); DENNIS R. JUDD, THE POLITICS OF AMERICAN CITIES; PRIVATE POWER AND PUBLIC POLICY 1-9 (1984); DAVIS, supra note 323, at 151-219; Joe R. Feagin, Arenas of Conflict: Zoning and Land Use Reform in Critical Political-Economic Perspective, in ZONING AND THE AMERICAN DREAM, supra note 1, at 73, 84. 329. Dubin, supra note 1, at 741-44; Rabin, supra note 1, at 101; see also Ford, supra note 52, at 1843. 330. E.g., EDMUND M. BURKE, A PARTICIPATORY APPROACH TO URBAN PLANNING 29-32, 41 (1979) (contending that zoning furthers a social heirarchy); Mandelker & Tarlock, supra note 267, at 36 (reconstructing the role of democratic pluralism in land use litigation). 331. BURKE, supra note 330, at 27. 332. Mandelker & Tarlock, supra note 267, at 36. 333. Id. at 37. 334. STEPHEN L. ELKIN, CITY AND REGIME IN THE AMERICAN REPUBLIC 150-51 (1987); Frank Michelman, Law's Republic, 97 YALE L.J. 1493, 1503-05 (1988); Joseph P. Viterritti, Choosing Equality: Religious Freedom and Educational Opportunity Under Constitutional Federalism, 15 YALE L. & POL'Y REV. 113, 124 (1996). See generally BRUCE A. WILLIAMS & ALBERT R. MATHENY, DEMOCRACY, DIALOGUE, AND ENVIRONMENTAL DISPUTES: THE CONTESTED LANGUAGES OF SOCIAL REGULATION (1995); GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC (1969). 335. See Dana, supra note 257, at 1288, 1294; Bradley C. Karkkainen, Zoning: A Reply to the Critics, 10 J. LAND USE & ENVTL. L. 45, 81 (1994). 336. Karkkainen, supra note 335, at 46; Andrew J. Cappel, A Walk Along Willows: Patterns of Land Use Coordination in Pre-Zoning New Haven (1870-1926), 101 YALE L.J. 617, 618 (1991). 337. Dubin, supra note 1, at 782-800 (urging judicial protection of zoning in minority communities). 338. See Arnold, supra note 1, at 50-55 (discussing civil rights responses to environmental injustice). 339. WILLIAM A. FISCHEL, THE ECONOMICS OF ZONING LAWS: A PROPERTY RIGHTS APPROACH TO AMERICAN LAND USE CONTROLS 19(1985); Karkkainen, supra note 335, at 47-50; Larson, supra note 145, at 235; Cappel, supra note 336, at 618-19. 340. WILLIAM A. FISCHEL, REGULATORY TAKINGS 289 (1995). 341. Cole, Empowerment, supra note 6, at 642. 342. See Arnold, supra note 99, at 35-36; Barton H. Thompson Jr., The Search for Regulatory Alternatives, 15 STAN. ENVTL. L.J. viii, x-xi (1996) (arguing that the environmental justice movement, like private property rights movement, is about devolution of power from national and state levels to local community levels). 343. EDMUND M. BURKE, A PARTICIPATORY APPROACH TO URBAN PLANNING 13 (1979); MICHAEL FAGENCE, CITIZEN PARTICIPATION IN PLANNING 1-13 (1977); NEIGHBORHOOD POLICY AND PLANNING 3-5 (Phillip L. Clay & Robert M. Hollister eds., 1983); Karkkainen, supra note 335, at 83; Mandelker & Tarlock, supra note 267, at 1. 344. M. MARGARET CONWAY, POLITICAL PARTICIPATION IN THE UNITED STATES 152-57 (1985); Michael Barrette, City of Anaheim: Avon-Dakota-Eton Neighborhood Association, PLANNING, Mar. 1994, at 16; Mary Lou Gallagher, Gila River Indian Community Public Participation Program, PLANNING, Mar. 1993, at 12; Michelle Gregory, Champaign Neighborhood Wellness Action Plan, PLANNING, Mar. 1994, at 14; Scott Martelle, Don't Tread on Us: Community Activists Show How Democracy Works Berween Votes, L.A. TIMES, May 25, 1997, at B1. 345. Compare Eleanor N. Metzger, Driving the Environmental Justice Movement Forward: The Need for a Paternalistic Approach, 45 CASE W. RES. L. REV. 379, 385-88 (1994) (arguing for paternalistic protections of communities of color), with Gover & Walker, supra note 321 (discussing a California Indian tribe's deliberation and ultimate acceptance of the development of a solid waste facility on their land). 30 ELR 10395 | Environmental Law Reporter | copyright © 2000 | All rights reserved |