This article explores the origins, evolution and contemporary workings of the legal system that determines the use of land. In Part II, the development of zoning and comprehensive planning laws in the United States is traced, emphasizing the importance that zoning be “in conformance with” a comprehensive land use plan, a requirement meant to provide direction and purpose to land use regulation. This retrospect shows that, from the beginning, the framers of the nation's land use regime were indecisive. They failed to define a comprehensive plan, to detail what such a plan should contain, and to prescribe how planning should serve as the predicate for zoning. Decisions of New York's highest court that criticize the state legislature's failure to redress the enigmatic nature of the eighty year-old system are discussed, so that contemporary challenges may be addressed. Part III analyzes several New York cases that invalidate zoning regulations because of their failure to conform to a comprehensive plan. A checklist of the charges that property owners can bring successfully against land use regulations emerges from this discussion and highlights the special vulnerability of regulations that do not meet the historic “in conformance with” requirement. Part IV explores the notion that regulations can constitute “takings” in violation of the Fifth Amendment's guarantees and then describes how conformance with comprehensive planning insulates regulations from Fifth Amendment challenges, as well as from the historic checklist of charges discussed in Part III. The failure of the statutory law to make comprehensive planning mandatory, and to tie regulations closely to it, is rectified, to a degree, by the weight of the case law explored in this part. The decisional law creates a practical necessity that local governments adopt comprehensive land use plans, a partial accommodation of the statutory law's failure to do so. The argument is advanced that this judicial imperative to plan before restricting land use applies to all land use regulations, not just zoning. Part V discusses two emerging land use issues. The first involves the judicial requirement that local zoning, labeled “insular” by New York's highest court, must consider regional needs. The second is how the rapidly increasing number of federal and state laws that affect land use are to be coordinated with local land use regulations and conformed to the comprehensive plans that local regulations are to advance. How, for example, in the absence of any formal division of the state into planning regions, and without benefit of plans for those regions, can local plans consider regional needs? Without cogent regional plans, how can the plethora of local, state, and federal land use regulations be harmonized? By concluding with an analysis of the many constituent groups whose interests are compromised by the lack of a regional solution to the land use dilemma, the article ends with the unimaginative suggestion that New York can and should address these issues and, in that process, decide “where it wants to get to” regarding the use and preservation of its land.
John R. Nolon, Comprehensive Land Use Planning: Learning How and Where to Grow, 13 Pace L. Rev. 351 (1993), http://digitalcommons.pace.edu/lawfaculty/186/.