Pretextual Takings and Exclusionary Zoning: Different Means to the Same Parochial End

Abstract

Historically, local governments have utilized zoning ordinances as means to exclude undesirable land uses from their borders. A number of states have addressed the issue of exclusionary zoning by passing legislation that prohibits or severely curtails such ordinances. However, towns have begun to utilize different means to effectuate the same parochial objective. The towns will simply condemn the land under the subterfuge of the preservation of open space. This Article will discuss the history of land use controls, such as exclusionary zoning and condemnation, and demonstrate how they are used as a means to perpetuate NIMBYism. In particular, this Article focuses on condemnation due to the deference accorded the legislature by the courts. Four possible solutions are presented, but an objective, bipartisan land use review committee at the state level is the most effective solution