Agenda - Planning Commission - 04/04/1995

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MARCH 1995 AMERICAN PLANNING ASSOCIATION Presumpt )n-_Sh,ft,ng. A Legdl Theory · that Mc y Tilt the · Planner's Playing Field By Stuar~ Meek, AICP In a path-breaking law journa article published just over tw~ years ago, two law professors advanced a provocative legal theory that challenges one of plannlng's conventional wisdoms: that local govern- ments should have the presumption of constitution- ality--an initial legal benefit of the doubt--in land-use litigation. This issue of Zon(n~ News summarizes the article s arguments and looks at the first application of the theory in the Florida courts. Professor Daniel R. Mandelker, AICP, of Washington University Law School in St. Louis, and Professor A. Dan Tarlock, of the Chicago-Kent College of Law, argued in a 1992 article in The Urban Lawyerthat, under certain circumstances, the burden of justification should shift away from the challenger to the local government itself. Their viewsI have alregdy influenced the Florida Supreme Court, which cited the article-- "Shifting the Presumption of Constitutionality in Land-Use} Law"--in a 1993 opinion that~ increases judicial scrutiny of local government zoning decisions that do not follow a comprehensive plan. The Meaning of Presumption The word presumption, note Mandelker and Tarlock, is "a technical term to allocate the burden of produong ev,dence,,~ but this is not the usual use of~ the term in land-use deci- sions." When courts USe the term, they mean the standards of judicial review that will be applied in analyzing a fact situation--"legal rules to promote the discov6ry of the' truth." Zoning contro- versies, they contend, are not disputes about the truth but about judgment. A shift in presumption alters the burden of .r justification, not the burden of producing evidence or persuading the' judge or jury. The article traces the origin of the traditional presump- tion to ~llage of Euclid v. Ambler Realty, 272 U.S. 365, the 1926 U.S. Supreme Court case that upheld the constitutionality of zoning. There, the Court held that the legislative judgment must stand if the .validity of the legislative classification is "fairly debatable." Under that constitutional standard, courts are generally unwilling to second-guess a zoning decision by a legislative body. But a famous footnote in'a 1938 Supreme Court case, United States v. Carolene Products Co., 304 U.S. 144, provides' the modern rationale for presumption-shifting. The footnote, Mandelker and Tarlock observe, "has had a major impact on constitutional theory, even though it has been cited hardly at all in land-use cases." It reads in part: "There may. be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution." The footnote adds that the Court would give "more searching judicial inquiry" whe~ "prejudice against 'discrete and insular' minorities.., tends serioUSly to curtail the operation of those political processes ordinarily to be relied upon to protect minorities." The authors believe the Carolene Products footnote was not directed solely at the protection of minorities, but at "any malfunction in the political process that distorts the political distribution of benefits and burdens." This broad interpretation, they maintain, would allow courts "to choose between economic winners and losers in the legislative process" by policing the degree of fairness. Presumption-shifing %nly requires government to come