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December 05, 2012


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I am not a property law scholar, but I have seen reports of land use decisions. While in law school I researched the nature and quality of zoning and land use decision-making by local authorities for two articles written by Prof. Melvyn Durchslag: “Forgotten Federalism: The Takings Clause and Local Land Use Decisions,” Maryland Law Rev. (2000), and “Euclid v. Amber Realty Seventy-Five Years Later: This is Not Your Father’s Zoning Ordinance,” Case West. Res. Law Rev. (2001).

What I found was that there was a relatively high level of rationality to the decision-making process.

David Bernstein

It's really news to you that zoning boards are subject to, e.g., political influence? This is, in fact, the easiest way for a politically-connected property developer to make money. Buy a large lot zoned single family and get a variance allowing three houses on the lot. Buy a plot of land zoned residential and get permission to develop it commercially. Buy a commercial lot zoned for eight stories and get permission to put a 12-story building on it. Etc.

Ralph D. Clifford

No, it is not news to me that zoning boards are subject to influence. That is exactly what I always emphasized in my classes as the justification for the substantial hardship standard. What my student's paper did was to make me want to re-evaluate whether or not this standard should be relaxed. If it doesn't work, are there other reasons that suggest that it should be relaxed?

For what it's worth, I have not found that the big changes you describe are easy to obtain. Where the substantial hardship standard doesn't seem to be completely binding are on the small problems, i.e., I want my house to be 6 inches closer to the street than the rules allow.

David Bernstein

If it were easy, then everyone would do it. It's those who have some combination of persistence, political influence, and in-depth knowledge of how to play the game who do it. (The changing a lot zoned from single family to allow three houses happened two blocks from my house. The first two owners failed to persuade the county to allow it, but the third somehow managed.)


There is considerable literature on this, and the problems with the ad hoc nature of variances. Relaxing the standard would make this substantially worse.

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