* Managing Editor, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW, 1999-2000. This article is dedicated to Mutti, in response to her countless newspaper clippings.
1 Black’s Law Dictionary 1618–19 (6th ed. 1990).
2 See, e.g., Joel Kosman, Toward an Inclusionary Jurisprudence: A Reconceptualization of Zoning, 43 CATH. U. L. REV. 59 (1993); Jane Jacobs, The Death and Life of Great American Cities (1961); James Howard Kunstler, Home From Nowhere: Remaking Our Everyday World for the 21st Century (1996).
3 See Kosman, supra note 2, at 60.
4 See Jesse Dukeminier & James E. Krier, Property 1021 (3d ed. 1993).
5 See Dukeminier & Krier, supra note 4, at 1047 (citing L.A. TIMES article reporting a Los Angeles city councilman’s voting four times in one month to permit more extensive development).
6 See Georgette C. Poindexter, Light, Air, or Manhattanization?: Communal Aesthetics in Zoning Central City Real Estate Development, 78 B.U. L. REV. 445, 446 (1998).
7 See Kunstler, supra note 2, at 109–49; Jacobs, supra note 2, at 222–69 passim.
8 See generally Dietrich D�rner, The Logic of Failure: Recognizing and Avoiding Error in Complex Situations (1996); Gary L. Blasi, What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory, 45 J. LEGAL EDUC. 313 (1995).
9 Cognitive Science is alternatively described as the study of decision-making. See Blasi, supra note 8, at 318. This Note alternates between the expressions problem-solving and problem-solvers and decision-making and decision-makers.
10 See Blasi, supra note 8, at 318.
11 See id. Blasi’s paper is meant to assist in reconstructing the practice and education of novice lawyers “who will eventually become better than [experts] are now.” Id. at 317.
12 See Blasi, supra note 8, at 342–43 (stating that empirical investigation has turned out data exploitable by Cognitive Science in areas as diverse as “Soviet agricultural policy, the sentencing of defendants by magistrates, the diagnosis of illness by physicians, financial planning for retirement, and the analysis of business problems” [citations omitted]); see generally D�rner, supra note 8 (adopting computer simulations to mimic the actions of complex systems, D�rner tests subjects who act as, among other things, mayors and factory managers, in order to identify what constitutes effective problem-solving).
13 American Law Inst., Standard State Zoning Enabling Act, reprinted in Model Land Dev. Code 210 (Tent. Draft No. 1, 1968) [hereinafter Standard Act]. The central sections of the Standard Act provide as follows:
Section 1. Grant of Power—Empowers municipalities to “regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence or other purposes.” Id. at 212–14.
Section 2. Districts—Permits division of municipalities into districts (zones) of appropriate number, shape, and area, and provides that regulations may vary from district to district. See id. at 214.
Section 3. Purposes in View—Requires that regulations be “made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout [the] municipality.” Id. at 214–15.
Section 4. Method of Procedure—Requires the enactment of procedures by which to establish, enforce, and change regulations. See id. at 215.
Section 5. Changes—Permits modification and repeal of regulations. See id. at 216–17.
Section 6. Zoning Commission—Requires appointment of a zoning commission to recommend district boundaries and regulations. See id. at 217.
Section 7. Board of Adjustment—Authorizes appointment of a board of adjustment to hear appeals and make special exceptions to regulations “in appropriate cases and subject to appropriate conditions and safeguards . . . ,” and also to permit “such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.” Id. at 218–20.
Section 8. Enforcement and Remedies—Declares that violations of regulations shall be misdemeanors punishable by fine or imprisonment; civil penalties are also authorized. See id. at 220–21.
Section 9. Conflict with Other Laws—Provides that in instances of conflict between zoning regulations and other laws controlling land use, the more stringent shall apply.
See id. at 221.
14 See Blasi, supra note 8, at 331. Blasi’s preface to his article is equally applicable here. He notes that “despite the proliferation of interdisciplinary ‘law and’ movements, there is as yet no defined discourse about the application of Cognitive Science to lawyering practice.” Id. at 320–21. This is no less true of legislative or administrative practice. As Blasi notes: “[a] substantial part of this essay is thus necessarily spent in bringing to an audience of lawyers and legal academics a subset of concepts and findings of Cognitive Science in a form that would doubtless seem extraordinarily oversimplified to an audience of cognitive scientists.” Id. at 321.
15 See D�rner, supra note 8, at 7–10.
16 See id. passim.
17 See id. at 43, 49, 71, 153; Blasi, supra note 8, at 328.
18 See D�rner, supra note 8, at 43; Blasi, supra note 8, at 328. While Blasi’s phases differ slightly in terminology from D�rner’s, the processes are essentially the same. For example, Blasi sets out the phases as: (1) identifying and diagnosing the problem; (2) generating alternative solutions and strategies; (3) developing a plan of action; (4) implementing the plan; and, (5) keeping the planning process open to new information and ideas. See id. at 328.
19 See Blasi, supra note 8, at 328.
20 See D�rner, supra note 8, at 21–27 (contrasting the problem-solving traits of effective problem-solving test subjects with ineffective problem-solving test subjects).
21 See id. at 43, 49; Blasi, supra note 8, at 328, 331.
22 See D�rner, supra note 8, at 43, 49; Blasi, supra note 8, at 328, 331. Blasi does not specifically use the term goal; rather, he discusses the identification of the problem and the generation of a solution. See Blasi, supra note 8, at 328, 331.
23 See D�rner, supra note 8, at 49–52.
24 See id. at 49–50.
25 See id. at 50.
26 See id.
27 See id.
28 See D�rner, supra note 8, at 50.
29 See id.
30 See id.
31 See id.
32 See id.
33 See D�rner, supra note 8, at 50.
34 See id.
35 See id.
36 See id.
37 See id.
38 See D�rner, supra note 8, at 50.
39 See id.
40 See id.
41 See id.
42 See 42 U.S.C. �� 7401–7671 (1994). The specific levels for these pollutants—sulfur dioxide, nitrogen dioxide, suspended particulates, carbon monoxide, ozone, and lead—are set at a “harm based” level because the mandated quality levels are set by reference to ambient levels of pollutants that would limit harm to human health and the environment to acceptable levels. See id. � 7409. Notably, while the Act initially looks to harm as a guide to determine acceptable levels of pollution, seeming to recognize that the avoidance of harm is a negative and general goal, the primary mechanism through which the Act ultimately takes effect for hazardous air pollutants is based on technology. See id.; see also Zygmunt J.B. Plater, et al., Environmental Law and Policy: Nature, Law, and Society 442, 446 (2d ed. 1998). The specification of a specific level of technology as a goal—in this case the maximum available control technoloy (MACT)—represents, in Cognitive Science terms, a positive, specific goal. See id.; D�rner, supra note 8, at 50.
43 See 42 U.S.C. �� 7401–7671; D�rner, supra note 8, at 50.
44 See D�rner, supra note 8, at 50. That is, had the Clean Air Act stipulated nothing more than that the air must be clean, and had not specified specific levels for various pollutants, it would not be clear when the air would count as clean enough. See 42 U.S.C. �� 7401–7671; D�rner, supra note 8, at 50.
45 See D�rner, supra note 8, at 50.
46 See id.
47 See id.
48 See id. at 50–51.
49 See id. at 51.
50 See discussion infra Section II.C.4.
51 See D�rner, supra note 8, at 50; discussion infra Section II.C.4. Instances of zoning include the granting of special exceptions and variances, as well as allowing cluster zoning, PUDs, and contract or conditional zoning. See discussion infra Section III.C.2.
52 See D�rner, supra note 8, at 50.
53 See 42 U.S.C. �� 7401–7671.
54 See id. To be sure, EPA sets the acceptable levels of these pollutants by considering health impacts. See id. Nevertheless, EPA’s specification of the levels which will not endanger the community’s health represents a shift from a fairly unclear goal to a clear goal. See id.
55 See discussion infra Section II.C.4.
56 See D�rner, supra note 8, at 51.
57 See id. at 51.
58 See 42 U.S.C. �� 7401–7671.
59 See id. � 7403(g).
60 See D�rner, supra note 8, at 52.
61 See id.
62 See id.
63 See id.
64 See Scott Allen, Gas Additive Is Found to Contaminate Water, Boston Globe, Nov. 23, 1998, at A1.
65 See id.
66 See id.
67 See id. MTBE has been detected in 23 public water supplies in Massachusetts and the US Geological Survey has reported finding MTBE in 20 percent of the wells it has monitored in areas using RFGs. See id.
68 In fairness, EPA does have an explicit goal not only not to worsen water conditions, but to improve them, under statutes such as the Clean Water Act and the Safe Drinking Water Act. See 33 U.S.C. ��  1251–1387 (1994); 42 U.S.C. � 300(f)-(j)(18) (1994). Still, the point is that in formulating goals, a decisionmaker must not ignore implicit goals. See D�rner, supra note 8, at 52. This is especially true for a regulatory agency as diverse in its regulatory scope as EPA. If, in enacting each of these statutes—i.e. goals—Congress and EPA do not at least consider the possible impacts on other realms, inconsistent goals will emerge. See id. at 57.
69 See D�rner, supra note 8, at 52.
70 See id. at 50–52.
71 See id. at 50.
72 See id.
73 See id. at 52.
74 See D�rner, supra note 8, at 74 (observing that “it is usually wise when correcting a deficiency to consider it within the context of its system.”).
75 See Blasi, supra note 8, at 342.
76 See D�rner, supra note 8, at 74.
77 See id. at 73.
78 See id. at 38.
79 See id.
80 See id.
81 See D�rner, supra note 8, at 40.
82 See id. at 74.
83 See id.
84 See id.
85 See id.
86 See D�rner, supra note 8, at 74.
87 See id.
88 See id.
89 See id.
90 See id. at 74–75.
91 See D�rner, supra note 8, at 75.
92 See id.
93 Aldo Leopold, A Sand County Almanac 214–20 (1948); see Rachel Carson, Silent Spring 54–57 (1962).
94 See D�rner, supra note 8, at 75.
95 See id.
96 See id.
97 See id.
98 See Plater, et al., supra note 42, at 692–93 (observing that “[i]n the snail darter case, when Justices, reporters or TVA’s minions asked, ‘What good is the snail darter?’ the citizens responded that it was a sensitive physical and legal barometer of the highly specific qualities of its habitat . . .”); see also Zygmunt J.B. Plater, The Embattled Social Utilities of the Endangered Species Act—a Noah Presumption, and a Caution against Putting Gas Masks on the Canaries in the Coal Mine, 27 ENVTL. LAW 845 (1997).
99 See D�rner, supra note 8, at 83.
100 See id. at 71–73, 75.
101 See id. at 79.
102 See id. at 76–78.
103 See id. at 76–77.
104 See D�rner, supra note 8, at 76–77.
105 See id. While analogical reasoning involves considering a newly encountered variable at a more abstract, conceptual level, another short-cut to understanding a system involves moving to a more particularized level of understanding. See id. at 77. This knowledge of the constituent elements of a system can provide insights into the structure of that system. See id.
106 See id. at 74, 79.
107 See id. at 77.
108 See id. at 50–52, 89–91.
109 See D�rner, supra note 8, at 89–90.
110 See Kunstler, supra note 2, at 54–55, 67–70.
111 See D�rner, supra note 8, at 90.
112 See id. As cognitive scientists have noted, rejecting previously held reductive hypotheses is not as simple as one might think because their simplistic explanations for what goes on in the world account not only for their popularity, but also their persistence. See id. at 91. When a problem-solver’s hypothesis yields what she believes to be the structure of a system, she will be reluctant to abandon her hypothesis where doing so will return her to an undifferentiated system of interacting variables linked in no immediately obvious hierarchy. See id. at 92. Such a lack of differentiation produces uncertainty, which, in turn, produces fear, entrenching the reductive hypothesis. See id. Decision-makers, therefore, avoid reductive hypotheses only when they are willing to change these hypotheses in response to conflicting or anomalous evidence. See id.
113 See D�rner, supra note 8, at 76–78.
114 See Blasi, supra note 8, at 337.
115 See D�rner, supra note 8, at 41–42, 94; Blasi, supra note 8, at 336–37.
116 See Blasi, supra note 8, at 343.
117 See id. at 343–44.
118 See id.
119 See D�rner, supra note 8, at 72–79. A question remains, however, as to when sufficient information concerning a given system has been gathered; in exceptionally complex systems, a decision-maker conceivably could gather information interminably, refining hypotheses about how the variables in the system interact. See id. at 78, 79. Generally, in the face of time constraints, ineffective, novice decision-makers will be less likely to gather information in the early phases of decision-making and will be more eager to act; effective, novice decision-makers, in contrast, will be more likely to gather information and less likely to act. See id. at 103. The initial inference, then, seems to be that a novice decision-maker should err on the side of more, rather than less, information. See id. Granted, this provides little help. Moreover, in the absence of time constraints, the tendencies of effective and ineffective novice decision-makers transpose, with the former tending to gather less information before acting; the latter, in turn, tend to gather too much information, leading to uncertainty and the desire for more information, yielding yet more uncertainty, a vicious circle which inhibits the decision-making process. See id. at 104. Finally, while expert decision-makers tend to act more quickly than novices in routine situations, in non-routine situations, novices tend to act more quickly than experts. See Blasi, supra note 8, at 344–45. Although it may be unsettling to realize that no amount of experience will provide an a priori answer as to how much information must be gathered before a decision-maker should execute a plan, effective decision-making requires decision-makers to revise hypotheses and correct actions. See D�rner, supra note 8, at 43, 78; Blasi, supra note 8, at 328.
120 See D�rner, supra note 8, at 43; Blasi, supra note 8, at 328.
121 See D�rner, supra note 8, at 109.
122 See Rybachek v. EPA, 904 F.2d 1276, 1282 (9th Cir. 1990).
123 See id.
124 See id.
125 See id.
126 See id.
127 See Rybachek, 904 F.2d at 1282.
128 See id. at 1282, 1289. Notably, EPA’s determination of BMP recognizes that such considerations are feasible, both technologically and economically, for those in the business. See id. at 1286–87.
129 See D�rner, supra note 8, at 79.
130 See id. at 154.
131 Id.
132 See id. at 155, 157–60.
133 See id. at 155; see also Blasi, supra note 8, at 345. Consider, for example, a fairly popular children’s game where participants must navigate a maze drawn on paper by drawing a line from the start of the maze to its exit. One reliable approach to navigating such mazes involves starting at the exit and working backwards to the beginning.
134 See D�rner, supra note 8, at 157.
135 See id.
136 See id.
137 See id.; see also Blasi, supra note 8, at 334.
138 See Plater, supra note 42, at 921.
139 See id.
140 See id. at 922.
141 See id.; see also D�rner, supra note 8, at 157.
142 See D�rner, supra note 8, at 158; Blasi, supra note 8, at 334.
143 See D�rner, supra note 8, at 158.
144 See id.
145 See id.
146 See id.
147 See id.
148 See D�rner, supra note 8, at 158.
149 See id.
150 See id. at 170–72.
151 See id. at 167–68.
152 See id. at 167.
153 See Kunstler, supra note 2, at 28–31. Kunstler also argues that the desire to have a manor, as exemplified in plantation homes in the South, likewise motivates the current zoning practice of sprawling out residences. See id. at 30.
154 See id. at 33.
155 See D�rner, supra note 8, at 159–60.
156 See id. at 159.
157 See id.
158 See id. at 177.
159 See id. at 43, 177; see also Blasi, supra note 8, at 328.
160 See D�rner, supra note 8, at 178.
161 See id.
162 See 272 U.S. 365 (1926). Both this case and the subject of zoning in general have been analyzed so frequently, in fact, that some have felt that “[w]riting about zoning in the 1990s . . . raises the question of what a person can productively add to the topic.” Kosman, supra note 2, at 60.
163 See Dukeminier & Krier, supra note 4, at 991; Lawrence M. Friedman, A History of American Law 678 (2d ed. 1985).
164 See Edward D. Landels, Zoning: An Analysis of Its Purposes and Its Legal Sanctions, 17 A.B.A. J. 163, 163 (1931) (arguing that zoning’s primary purpose is to protect value of property and utility of owner).
165 See, e.g., Miller v. Board of Pub. Works, 234 P. 381, 383 (Cal. 1925); City of Aurora v. Burns, 149 N.E. 784, 788 (Ill. 1925); Ware v. City of Wichita, 214 P. 99, 101 (Kan. 1923); State ex rel. Beery v. Houghton, 204 N.W. 569, 570 (Minn. 1925), aff’d, 273 U.S. 671 (1927); State ex rel. Twin City Bldg. & Inv. Co. v. Houghton, 176 N.W. 159, 161 (Minn. 1920) (Twin City II), rev’g on rehearing, 174 N.W. 885 (Minn. 1920); Wulfsohn v. Burden, 150 N.E. 120, 122 (N.Y. 1925).
166 See, e.g., Miller, 234 P. at 383; Burns, 149 N.E. at 788; Ware, 214 P. at 101; Houghton, 204 N.W. at 570; Twin City Bldg., 176 N.W. at 161; Wulfsohn, 150 N.E. at 122.
167 See, e.g., Miller, 234 P. at 383; Ware, 214 P. at 101; Houghton, 204 N.W. at 570; Twin City Bldg., 176 N.W. at 161; Wulfsohn, 150 N.E. at 122.
168 See, e.g., Miller, 234 P. at 383–84; Beery, 204 N.W. at 570; Twin City Bldg., 176 N.W. at 161; see also Spector v. Building Inspector, 145 N.E. 265, 267 (Mass. 1924) (discussing the “problems” that Milton sought to avoid).
169 See Burns, 149 N.E. at 788; City of Des Moines v. Manhattan Oil Co., 184 N.W. 823, 829 (Iowa 1921); Wulfsohn, 150 N.E. at 124. Some have argued that this dichotomy between the property rights of the individual and the community entirely ignored the claims of a third group, those effectively excluded from a community or its most desirable neighborhoods by the operation of a zoning ordinance. See, e.g., Kosman, supra note 2, at 87. Still, there is a notable exception to this dichotomizing tendency in the dissenting opinion filed by Chief Justice Brown of the Minnesota Supreme Court, which did take into account these third-party interests. See Twin City Bldg., 176 N.W. at 163–64 (Brown, C.J., dissenting).
170 See Burns, 149 N.E. at 788; Manhattan Oil, 184 N.W. at 829; Wulfsohn, 150 N.E. at 124. But see Willison v. Cooke, 130 P. 828 (Colo. 1913) (holding that, in such context, individual rights would prevail).
171 Some have argued that there were grounds for some alternative form of zoning, for example, the equal distribution of people within a municipality’s residential districts or the preservation of the opportunity to live in a community or district of one’s choice. See Kosman, supra note 2, at 87.
172 See William M. Randle, Professors, Reformers, Bureaucrats, and Cronies: The Players in Euclid v. Ambler, in Zoning and the American Dream 31, 31 (Charles M. Haar & Jerold S. Kayden eds., 1989).
173 See Arthur V.N. Brooks, The Office File Box-Emanations from the Battlefield, in Zoning and the American Dream, supra note 73, at 25 n.10 (quoting from the preamble to the Euclid zoning ordinance).
174 Id. at 6 (quoting from the preamble to the Euclid zoning ordinance). According to William Randle, Euclid’s ordinance grew directly out of the East Cleveland ordinance. See Randle, supra note 172, at 40.
175 See Ambler Realty Co. v. Village of Euclid, 297 F. 307, 308–09 (N.D. Ohio 1924), rev’d, 272 U.S. 365 (1926).
176 See id. at 309.
177 See id.
178 See id.
179 Id.
180 See Euclid, 297 F. at 314, 316, 317. The district court held:
Obviously, police power is not susceptible of exact definition. It would be more difficult, even if it were not unwise, to attempt a more exact definition than has been given. And yet there is a wide difference between the power of eminent domain and the police power; and it is not true that the public welfare is a justification for the taking of private property for the general good . . . A law or ordinance passed under the guise of the police power which invades private property as above defined can be sustained only when it has a real and substantial relation to the maintenance and preservation of the public peace, public order, public morals, or public safety. The courts never hesitate to look through the false pretense to the substance.
Id. at 314.
181 See id. at 312, 317. The court concluded:
The plain truth is that the true object of the ordinance in question is to place all the property in an undeveloped area of 16 square miles in a straight jacket. The purpose to be accomplished is really to regulate the mode of living of persons who may hereinafter inhabit it. In the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life.
Id. at 316.
182 See id. at 308 (commenting that “[t]his case is obviously destined to go higher”).
183 See Euclid, 272 U.S. at 389.
184 See id. passim.
185 Brief and Argument for Appellant, reprinted in 24 Landmark Briefs and Arguments of The Supreme Court of The United States 411, 501–03 (Philip B. Kurland & Gerhard Casper eds., 1975) [hereinafter Appellant Documents, 24 Landmark Briefs and Arguments].
186 See id. at 483–94.
187 See id. at 483.
188 See id. at 483–85. The appellant argued:
Under zoning, the territory is opened to the shop keeper or to the store- keeper only when and only as public consideration and general welfare and as the general trend dictate and the necessary enactment would naturally be noted only when the residence district becomes obsolete or has grown to be worn out or when it presents a situation where the general welfare would be better served if trades or factories or other uses were allowed to come in.
Id. at 486.
189 See Appellant Documents, 24 Landmark Briefs and Arguments at 485–90.
190 Id. at 490.
191 See id. at 490–91. As Euclid’s brief stated:
[M]odern tendencies are rapidly destroying and undermining the continuance of separate and individual homes and residences.
The best minds of America are exhorting Congress and the States to do all that is possible in order to stem and prevent this tendency. As each city grows, there are proportionately less families living in houses than in apartments and tenements and above stores. The bulwark and the stamina of this country has always been credited and conceded to the home owning tendencies of the American People.
Id.
192 See id. at 490–94.
193 See Brief and Argument for Appellee, 24 Landmark Briefs and Arguments 565, 565 [hereinafter Appellee Documents, 24 Landmark Briefs and Arguments].
194 See id. at 608–09 (citing Ambler Realty Co. v. Village of Euclid, 297 F. 307, 309 (N.D. Ohio 1924), rev’d, 272 U.S. 365 (1926)).
195 See id. at 592. The appellee argued:
How can it be said that this Ordinance is addressed to any of the well-known objects of the police power under such circumstances, for the Ordinance does not attempt to protect residences from the proximity of industrial undertakings, but only to protect certain sections of land from being occupied by both uses. This section conclusively shows that the Ordinance is not designed to protect the health, safety and comfort of the public.
Id.
196 See id. at 610–12.
197 Appellees contended that the ordinance “imposes upon the general welfare the burden of having the business and industry of the Village of Euclid and the City of Cleveland diverted to less favorable and less available lands in order to maintain the favorable character for certain residence property . . . [t]his property in the interest of the public welfare, should be devoted to those industrial uses for which it is needed and most appropriate.” Id. at 611.
198 See Appellee Documents, 24 Landmark Briefs and Arguments at 587–97.
199 See id. at 593.
200 See id. The appellee argued:
Manifestly, if the health, safety and comfort of a family require 5,000 square feet of lot area in one part of the Village of Euclid they require it in all parts of the Village. Conversely, if the health, safety and comfort of a family are adequately provided for by a minimum of 700 square feet of lot area in any part of the Village of Euclid, the same minimum will serve the same purpose in every part of the Village.
Id.
201 See id.
202 See id. at 646–49. The appellee challenged the Village’s use of its “police power”:
The ordinance is declared to be in fulfillment of a desire of the citizens of the village to “preserve the present character of said village” and to provide “for the general welfare of the citizens thereof,” which may or may not be for the general welfare, as that term is properly used; that is to say, the general welfare which is the basis of the police power does not necessarily mean the particular local and private welfare of the people, or of some of the people, resident within the accidental political limits of the village. The general welfare which recognizes the Village of Euclid as merely a constituent element of our general society and expects it to share the burdens, as it enjoys the benefits common to that society, is the general welfare upon which the police power rests.
Id. at 646.
203 Appellee Documents, 24 Landmark Briefs and Arguments at 648.
204 See id. Appellee argued:
[F]rom [the “most healthful and desirable” residence districts] all are excluded except those who are able to maintain the more costly establishments of single family residences. . . . No apartment house or two-family house can be erected in [these districts], and yet the men, women and children who, for reasons of convenience or necessity, live in apartment houses or in the more restricted surroundings of two-family residences are of all others most in need of the refreshing access to the lake or the better air of the wooded upland.
Id. at 648–49.
205 Id. at 652.
206 See Brief on Behalf of the National Conference on City Planning, The Ohio State Conference on City Planning, The National Housing Association, and The Massachusetts Federation of Town Planning Boards, Euclid (No. 31), 24 Landmark Briefs and Arguments 763, 763 [hereinafter Amicus Brief, 24 Landmark Briefs and Arguments].
207 See id. at 767. A “true” zoning ordinance was defined as an ordinance featuring “a comprehensive distribution of the whole or a major portion of the territory of the community among all the necessary uses of every kind, each with appropriate standards of height and occupancy, all worked out as a community plan for the promotion of the common health, safety and welfare.” Id. at 763.
208 See id. at 787.
209 See id. at 789.
210 See Amicus Brief, 24 Landmark Briefs and Arguments at 791.
211 Id. Bettman continued, in language which the Court itself may have adopted, see infra note 229, as follows:
[T]he man who seeks to place the home for his children in an orderly neighborhood, with some open space and light and fresh air and quiet, is not motivated so much by considerations of taste or beauty as by the assumption that his children are likely to grow mentally, physically and morally more healthful in such a neighborhood than in a disorderly, noisy, slovenly, blighted and slum-like district. This assumption is indubitably correct.
Id. As Bettman further articulated:
“Own your own home” is a slogan based on this realization of the advantages, in the way of health, which come from the home which has a surrounding or environment of sunlight, air, quiet, and cleanliness. Parents prefer to bring up children in such environment, not for any snobbish or aesthetic reasons, but because it promotes the health, mental, moral and physical, of the children.
Id. at 794.
212 Id. at 796.
213 Id. at 797.
214 Id. at 776; see also id. at 776–80.
215 See Amicus Brief, 24 Landmark Briefs and Arguments at 801. Bettman wrote:
Different classes of business and industries are segregated to districts adapted to their needs. Apartments and double houses are allotted to other territories while areas for single houses are always provided. The desirability of zoning laws in suburbs of large cities seems to be proven by the experience of many home communities where it has been tried. Retail business, manufacturing and nuisances are not allowed to creep into residential districts, destroying home values and undermining the elements of permanency and exclusiveness, which make residential districts desirable.
Id. (citation omitted).
216 See id. at 767, 777–80.
217 See Euclid, 272 U.S. at 386–87.
218 See id. at 390–91.
219 See id. at 386–87, 394.
220 See id. at 386–87. The Court explained:
Building zone laws are of modern origin. They began in this country about 25 years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.
Id. at 386.
221 See Euclid, 272 U.S. at 389, 391, 394.
222 See id. at 389.
223 See id. at 390.
224 See id. at 394.
225 See id.
226 Euclid, 272 U.S. at 394–95.
227 See id. at 394. The police power, while not explicitly mentioned, is implicit here. See id.
228 See generally Ambler Realty Co. v. Village of Euclid, 297 F. 307 (N.D. Ohio 1924), rev’d, 272 U.S. 365 (1926).
229 See Euclid, 272 U.S. at 389.
230 See id. at 389–90. Such uses include apartment housing. See id.
231 See id. at 394.
232 Id.
233 See id.
234 See Dukeminier & Krier, supra note 4, at 1005.
235 See id.
236 Id. A few states—most notably California, New Jersey, and Pennsylvania—have in recent years enacted tailor-made statutes that depart significantly from the Standard Act. See supra note 13; Dukeminier & Krier, supra note 4, at 1005. Even these examples, however, reflect the Standard Act’s continuing influence. See Dukeminier & Krier, supra note 4, at 1005.
237 Standard Act, supra note 13.
238 See Dukeminier & Krier, supra note 4, at 1007. “This plan is based on surveys and studies of the city’s present situation and future needs, the idea being to anticipate change and promote harmonious development. To require some sort of master plan and regulations ‘in accordance’ with it, as enabling legislation typically does, reflects the view that zoning itself is but a means of giving effect to a larger planning enterprise that has led to formulation of the comprehensive plan.” Id.
239 See Ward v. Montgomery Township, 147 A.2d 248, 252 (N.J. 1959)(holding that “[t]he zoning ordinance itself may bespeak the scheme; there need be no extrinsic guide”).
240 See generally Mott’s Realty Corp. v. Town Plan & Zoning Comm’n, 209 A.2d 179 (Conn. 1965).
241 See Town of Bedford v. Village of Mt. Kisco, 306 N.E.2d 155, 159 (N.Y. 1973) (holding that “[w]hat is mandated is that there be comprehensiveness of planning, rather than special interest, irrational ad hocery. The obligation is support of comprehensive planning, not slavish servitude to any particular comprehensive plan. Indeed sound planning inherently calls for recognition of the dynamics of change.”).
242 See Dukeminier & Krier, supra note 4, at 1009.
243 Id.
244 See id.
245 See id.
246 See id.
247 See Dukeminier & Krier, supra note 4, at 1009.
248 See id. While many zoning ordinances provide criminal penalties for proceeding without appropriate approvals, orders of compliance are the more commonly used enforcement tool. See id.
249 See Standard Act, supra note 13, � 7, at 218–20.
250 See Dukeminier & Krier, supra note 4, at 1009–10.
251 See id. at 1010; see also Standard Act, supra note 13, � 7, at 218–20.
252 See Dukeminier & Krier, supra note 4, at 1010; see also Standard Act, supra note 13, � 7, at 218–20.
253 See Dukeminier & Krier, supra note 4, at 1010.
254 See id.
255 See id.
256 See id.
257 See Kunstler, supra note 2, passim (arguing, inter alia, that Euclidean zoning has led to a lack of affordable housing); see also Jacobs, supra note 2, passim (arguing that such zoning inhibits socially and aesthetically desirable diversity).
258 See Dukeminier & Krier, supra note 4, at 1021.
259 See generally PA Northwestern Distribs., Inc. v. Zoning Hearing Bd., 526 Pa. 186 (Penn. 1991).
260 See id. at 191.
261 See id.
262 See id.
263 See PA Northwestern Distribs., 526 Pa. at 192.
264 See Standard Act, supra note 13, � 7, at 218–20.
265 Id.
266 Id.
267 See Daniel R. Mandelker, Delegation of Power and Function in Zoning Administration, 1963 WASH. U. L.Q. 60, 62–63.
268 See id.
269 See id.
270 See id.
271 See id.
272 See Mandelker, supra note 267, at 62–63.
273 See Standard Act, supra note 13, at � 7, at 218–20.
274 See generally Cope v. Inhabitants of Brunswick, 464 A.2d 223 (Me. 1983).
275 See Standard Act, supra note 13, at 217.
276 See generally Fasano v. Board of County Comm’rs, 507 P.2d 23 (Or. 1973).
277 See Donald G. Hagman & Julian C. Jergensmeyer, Urban Planning and Land Development Control Law 168–69 (2d ed. 1986). Notably, “spot zoning is found invalid where some or all of the following factors are present: 1. a small parcel of land is singled out for special and privileged treatment; 2. the singling out is not in the public interest but only for the benefit of the landowner; 3. the action is not in accord with a comprehensive plan.” Id.
278 See Dukeminier & Krier, supra note 4, at 1046–50, 1055–56, 1063–64.
279 See id. at 1055.
280 See id.
281 See id.
282 See id.
283 See Dukeminier & Krier, supra note 4, at 1055.
284 See generally Judith Wegner, Moving Toward the Bargaining Table: Contract Zoning, Development Agreements, and the Theoretical Foundations of Government Land Use Deals, 65 N.C. L. REV. 957 (1987).
285 See Dukeminier & Krier, supra note 4, at 1063–64.
286 See id.
287 See id.
288 See id.
289 See Cheney v. Village 2 at New Hope, Inc., 241 A.2d 81 (Pa. 1968).
290 See Dukeminier & Krier, supra note 4, at 1064.
291 See id.
292 See id. at 1065.
293 See id.
294 See id. at 1064.
295 See Dukeminier & Krier, supra note 4, at 1065.
296 See id.
297 See D�rner, supra note 8, passim.
298 See id.
299 See id.
300 See Standard Act, supra note 13, ��  6, 7.
301 See id. This assumes that those who interact most frequently with those requesting permits will most frequently consider the status of zoning. See id.
302 See id.
303 See Village of Euclid v. Amber Realty Co., 272 U.S. 365, 386–87 (1926).
304 See id.
305 See D�rner, supra note 8, at 50–51.
306 See id. at 50.
307 See id.
308 See id.
309 See id.
310 See D�rner, supra note 8, at 50.
311 See id. at 51.
312 See generally Euclid, 272 U.S. at 365.
313 See id. at 386–87.
314 See D�rner, supra note 8, at 50.
315 See id. at 50.
316 See Euclid, 272 U.S. at 394.
317 See id.
318 See id.; D�rner, supra note 8, at 50.
319 See Jerry L. Mashaw, et al., Administrative Law: the American Public Law System Cases and Materials 362–63 (4th ed. 1998).
320 See id.
321 See D�rner, supra note 8, at 49.
322 See, e.g., I.N.S. v. Chadha, 462 U.S. 919 (1983) (holding that legistative action will only have legal effect where it satisfies the constitutional requirements of bicameralism and presentment, thereby invalidating a plethora of single house and joint resolutions).
323 See generally Standard Act, supra note 13.
324 Id. � 3, at 214–15.
325 See id.
326 Granted, it may not initially be clear that these individualized decisions represent part of the goal formulation phase of problem solving, and not part of the implementation of the resulting plan. Still, insofar as the most general goal of Euclidean zoning as provided by the Supreme Court in Euclid is to protect the health, safety and welfare of the population, every action taken in specific furtherance of this general goal may be alternatively described either as an implementation of this general goal or as a narrowing of this general goal. For example, the granting of a variance by a board of adjustment under the Standard Act ultimately represents an attempt to protect the health, safety and welfare of the population. Alternatively described, the board has set a more specific goal, namely, achieving some benefit—or avoiding some evil—which the variance achieves.
327 See Euclid, 272 U.S. at 395; see generally Standard Act, supra note 13.
328 See D�rner, supra note 8, at 50–51.
329 See Euclid, 272 U.S. at 389; see generally Standard Act, supra note 13.
330 See infra Section III.B-C.
331 See generally Standard Act, supra note 13.
332 See id., �� 2–3, at 214–15.
333 See id., �� 1–3, at 212–15.
334 See id., �� 2–3 at 214–15.
335 See id., � 1, at 213.
336 See Standard Act, supra note 13, � 5, at 216–17.
337 See id. (stating that the legislature holds the power to amend, supplement, change, modify, or repeal the zoning regulation).
338 See D�rner, supra note 8, at 43. While D�rner never says this explicitly, it is clear from his discussion that there is one individual (or group of individuals) who undertakes each phase of the decision-making process. See id.
339 See D�rner, supra note 8, at 77.
340 See Standard Act, supra note 13, � 5, at 216–17.
341 See id.
342 See Kunstler, supra note 2, at 43, 64–65.
343 See id. at 65.
344 See D�rner, supra note 8, at 74.
345 See Standard Act, supra note 13, � 1, at 213.
346 See id., � 5, at 216–17.
347 See id.
348 See Dukeminier, supra note 163, at 1009–10.
349 See id. at 1010–11.
350 See id. at 1008.
351 See id. at 58–61; see also Richard Lacayo, The Brawl Over Sprawl, Time, Mar. 22, 1999, at 48. Specifically, in a Time/CNN telephone poll of 1,024 adult Americans taken on January 20 and 21, 1999 by Yankelovich Partners Inc., participants were asked which is more important: (1) the ability of individuals to do what they want with land that they own; or (2) the ability of government to regulate development for the common good. See id. Sixty-nine percent of the participants chose the former over the latter. See id. Twenty-five percent of the participants chose the latter. See id.
352 See Lacayo, supra note 351, at 48.
353 See Administrative Law, supra note 321, at 29, 210–13.
354 See generally Standard Act, supra note 13.
355 It should be noted that, even if there were no new constraint on the ability of a zoning commission or board of adjustment to implement a plan, to the extent that they are limited in what goals they may set and what general systematic model they may conceive, their ability to plan and implement action is constrained. See id.
356 See Cope v. Inhabitants of Brunswick, 464 A.2d 223, 227 (Me. 1983).
357 See Standard Act, supra note 13, � 7, at 218; Commons v. Westwood Zoning Bd. of Adjustment, 410 A.2d 1138, 1142 (N.J. 1980).
358 See Standard Act, supra note 13, � 7, at 218.
359 See id.
360 See Dukeminier, supra note 163, at 1063–64.
361 See Plater, supra note 42, at 57–60 (citing Sax, Property Rights and the Economy of Nature, 45 STANFORD L. REV. 1433 (1993)).
362 See Cope, 464 A.2d at 227.
363 See, e.g., Industrial Union Dept. v. American Petroleum Inst., 448 U.S. 607 (1980) (holding that Secretary of Labor exceeded the powers granted to him in the Occupational Safety and Health Act of 1970, implicitly rejecting the view held by then-Justice Rehnquist in the dissent who argued that the fairly broad delegation of powers in that act was an abdication of legislative power).
364 See, e.g., Trade Act of 1974, 19 U.S.C. ��  2101–2495; see also Thomas M. Franck & Michael J. Glennon, Foreign Relations and National Security Law, 416–17 (2d ed. 1993). In trade agreements, Congress delegates its own Article I, � 8 ability to regulate commerce with other nations to the President. See 19 U.S.C. � 2112. It prevents the executive from abusing this delegation by setting conditions precedent, one of which is that whatever trade agreement he negotiates will be subject to just such an up or down vote. See 19 U.S.C. � 2191(f), (g).
365 See Darby v. Cisneros, 509 U.S. 137, 153 (1993) (holding that courts will show “appropriate deference to Congress’ powers to prescribe the basic procedural scheme under which a claim may be heard in a Federal court requires fashioning of exhaustion principles in a manner consistent with congressional intent and any applicable statutory scheme” (quoting McCarthy v. Madigan, 503 U.S. 140, 144 (1992))).
366 See id.
367 See Johnson v. Robison, 415 U.S. 361, 373–74 (1974).
368 See Administrative Procedure Act, 5 U.S.C. � 701(a)(1)(stating that agency actions will be reviewable “except to the extent that . . . statutes preclude judicial review); Johnson, 415 U.S. at 373–74 (holding that while Administrative Procedure Act � 701(a)(1) may allow statutes to block review by expressly denying it, blocking Constitutional claims will require “clear and convincing” evidence on Congress’ part, since this is, itself, a constitutionally questionable move).
369 See Johnson, 415 U.S. at 373–74.
370 See D�rner, supra note 8, at 43.
371 See id.
372 Black’s Law Dictionary 1618–19 (6th ed. 1990).