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that it did not have the facilities for the project, and then point to Town B in another part of the region, which it contended was better suited to implement the project. It is not inconceivable that a developer would be bandied about the region in search of a place to build, with the corollary result that people would be bandied about the region in search of a place to live. Neglectful detourism is a pervasive practice, even in local zoning cases, 189 and it is quite probable that the practice ,189 would be continued and amplified by a regional approach.

Recently, a Ninth Circuit district court invalidated a zoning ordinance for the city of Petaluma, a suburb of San Francisco,190 which presented a neglectful detourism problem. The town's ordinance was very similar to that of Ramapo's, but instead of temporal limitations, Petaluma imposed numerical limitations of 500 units per year. The court, apparently straining for a rationale, found that the Petaluma ordinance violated the right to travel.191 It is equally apparent, however, that the Petaluma ordinance did not violate the right to travel, but rather the right to settle, and by contemporary standards the latter is not a fundamental right protected by the Constitution.192 The decision in Petaluma, though commendable in result, was not based on a particularly strong rationale.

Another method which could be used to alleviate some zoning abuses would be to eliminate standing requirements in local zoning cases. Such a maneuver would increase input in local zoning matters and would probably tend to strengthen an individual's case against the municipality. For example, the court might confer standing on members of a class action claiming that a municipality's land-use controls have prevented them from gaining access to that municipality. The court would do well to consider the exclusion of the class as a valid stake in the controversy. It must be remembered that standing itself is in most cases a relatively "soft" doctrine, and that courts often em

189. Id.

190. Construction Industry Ass'n of Sonoma County v. City of Petaluma, 375 F. Supp. 574 (N.D. Cal. 1974).

191. Id. at 581.

192. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973) and Village of Belle Terre v. Boraas, U.S. 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974).

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Petaluma held in effect that the city's ordinance penalized the right to travel by interfering with where a person may choose to settle. Although the case attempted to distinguish Belle Terre, the attempt was an artificial one at best, for by refusing to discuss the question at all, Belle Terre clearly implied that the right to travel is not involved in land-use matters.



ploy broad discretion on questions in this area.193


As far as the federal courts are concerned, however, the Supreme Court has apparently gone the other way. In Zahn v. International Paper Co.,194 the Court held that a class action would heretofore require a $10,000 interest for each litigant. While it is still unclear whether Zahn applies to only diversity cases, or to federal rights cases as well, it is apparent that the mood of the Court is against expanding standing. 195

Even if the doctrine of standing were to be expanded, in all probability its effect would be the same as the regional approach, in that it would merely provide courts with more facts upon which to base their decisions. As such, it would still have limited value in alleviating exclusionary practices.


Zoning has been shown to be grossly inadequate as a means of regulating land use and planning growth. On the other hand, for the more limited purpose of maintaining exclusionary barriers, zoning is highly effective. It is not helpful to bifurcate zoning into good and bad, and then attempt to eliminate bad zoning through better zoning laws. If the focus is placed upon what zoning does best (i.e., exclude), then a better zoning law would be one which is more exclusionary. It would be futile to attempt to institute a zoning law which does not exclude because zoning is exclusionary.

Ultimately, zoning's cost to society must be re-evaluated. Those values mentioned by Justice Douglas in Belle Terre196 (i.e., “family values, youth values, and the blessings of quiet seclusion, and clean air")197 should, in terms of access and opportunity, be available to all persons equally. Nevertheless, zoning laws have allowed those few198 who have attained such goals to exclude others. As long as the courts avoid a confrontation with zoning,199 access to land will be controlled by those special interests who seek to preserve the "blessings of quiet seclusion" at the expense of others.

193. E. BARRETT & P. BRUTON, CONSTITUTIONAL LAW 63 (4th ed. 1973).

194. - U.S. - 94 S. Ct. 505, 38 L. Ed. 2d 511 (1973).

195. As far as zoning is concerned, the attitude of federal courts towards class actions seems to be very negative. In two recent cases, Warth v. Seldin, 495 F.2d 1187 (2d Cir. 1974) and Evans v. Lynn, 376 F. Supp. 327 (S.D.N.Y. 1974), the courts found in effect that exclusion was not an injury which would sustain a class action.

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Much consideration should therefore be given to Justice Marshall's dissent in Belle Terre, in which he suggests that the first amendment operates as a limitation on zoning.

I think it clear that the First Amendment provides some limitation
on zoning laws. It is inconceivable to me that we would allow the
exercise of the zoning power to burden First Amendment freedoms,
as by ordinances that restrict occupancy to individuals adhering to
particular religious, political or scientific beliefs. Zoning officials
properly concern themselves with the uses of land- -with, for ex-
ample the number and kind of dwellings to be constructed in a cer-
tain neighborhood or the number of persons who can reside in those
dwellings. But zoning authorities cannot validly consider who
those persons are, what they believe, or how they choose to live,
whether they are Negro or white, Catholic or Jew, Republican or
Democrat, married or unmarried. 200

To bring zoning within the ambit of the first amendment would obliterate the police power shield that now protects zoning ordinances from the limitations of the fourteenth amendment.201 Such a restructuring would eliminate the favorable presumption which municipalities have enjoyed under fourteenth amendment analysis.

In Beauharnais v. Illinois,202 Justice Douglas indicated that extensive qualitative differences exist between first and fourteenth amendment rights, with great deference given to the former.

Free speech, free press, free exercise of religion are placed separate
and apart; they are above and beyond the police power; they are
not subject to regulation in the manner of factories, slums, apart-
ment houses, production of oil, and the like.203

Courts zealously guard what has come to be known as the "marketplace of ideas."204 Yet the economic marketplace is hardly protected at all. 205

The interesting point implicit in Justice Marshall's admonition is

200. U.S. at,


94 S. Ct. at 1544, 39 L. Ed. 2d at 807 (Marshall, J., dissenting). 201. See Karlin, supra note 1, at 6.

202. 343 U.S. 250 (1951).

203. Id. at 286 (Douglas, J., dissenting).

204. See Director, The Parity of the Economic Marketplace, 7 J. L. & ECON. 1 (1964). See also Coase, The Market for Goods and the Market for Ideas, 64 AMER. ECON. REV. 384 (1974).

205. In matters relating to business, finance, industrial and labor conditions, health and public welfare, great leeway is now granted the legislature, for there is no guarantee in the Constitution that the staus quo will be preserved against regulation by government.

Beauharnais v. Illinois, 343 U.S. 250, 286 (1951) (Douglas, J., dissenting) (citations omitted).




whether the distinction set forth by Justice Douglas is finally tenable. Professor Aaron Director argues against the distinction, emphasizing

the importance of the free market as an end in itself, as an important aspect of freedom to choose between alternatives. . . . In this context freedom means more than discussion and participation in government. It means responsibility, change, adventure, departure from accepted ways of doing things. It means freedom to choose one's ends as well as means for attaining them.206

Unlike Justice Sutherland's conclusion in Euclid that as life becomes more complicated the need to regulate increases, 207 it is perhaps more arguable that as life becomes more complicated the need for greater freedom grows.208 It is this notion which is underscored by Justice Marshall. Denials of opportunity and access, by-products of regulatory schemes, impinge on the values first amendment rights seek both to protect and enhance.

As institutionalized regulation grows, individual freedom is diminished. The fear is that one day we may find that even the marketplace of ideas has been rezoned for another use.

Edward M. Wolkowitz
Carole S. Helfert

Richard W. Swartz

206. Director, The Parity of the Economic Marketplace, 7 J. L. & ECON. 8-9 (1964). 207. See note 12 and accompanying text supra.

208. There would be no difficulty about efficient control or planning were conditions so simple that a single person or board could effectively survey all the relevant facts. It is only as the factors which have to be taken into account become so numerous that it is impossible to gain a synoptic view of them that decentralization becomes imperative.

HAYEK, supra note 12, at 48-49.


An account of the development, passage,

and implementation of state land-use legislation in Florida


Phyllis Myers

The Conservation Foundation
Washington, D. C.

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