All Aboard Planning

Foundations of land use law

The police power, enabling acts, Dillon’s Rule and home rule, due process, equal protection, the First Amendment, cell tower siting, and the landmark zoning cases.

Lesson 8 of 40 · about 38 minutes

Learning objectives

  • Explain where local land use authority comes from: the police power, enabling acts, Dillon's Rule, and home rule.
  • Summarize Euclid and Nectow and the difference between facial and as-applied challenges.
  • Apply substantive and procedural due process and equal protection to land use decisions, and choose the level of review (rational basis, intermediate, or strict) a court would use.
  • Identify the leading cases on household definitions, group homes, discriminatory intent, and "class of one" claims.
  • Explain how the First Amendment limits sign, adult-use, and religious land use regulation, and how federal law limits local rules on cell towers.
  • Recognize legal doctrines planners meet in practice: ultra vires, ripeness, estoppel, and standing.

Key concepts

Where the power comes from

  • The police power is the inherent power of state governments to regulate private conduct to protect public health, safety, morals, and general welfare. The U.S. Constitution doesn't grant it; the states have always had it, and the Tenth Amendment reserves it to them. Zoning is an exercise of the police power.
  • Local governments have no inherent power. They exercise powers the state delegates to them, usually through enabling acts. Most states based theirs on two model acts drafted by an advisory committee of the U.S. Department of Commerce under Secretary Herbert Hoover: the Standard State Zoning Enabling Act (circulated in 1922, published in 1924, revised in 1926) and the Standard City Planning Enabling Act (1928). They were models, not federal laws: each did nothing until a state legislature adopted it.
  • Dillon's Rule, named for Iowa judge John F. Dillon, holds that a local government may exercise only the powers expressly granted by the state, those necessarily implied by that grant, and those essential to its purpose. When in doubt, courts construe local power narrowly.
  • Home rule states give cities (sometimes counties) broad authority over local affairs without a specific grant, subject to state law.
  • Preemption: state or federal law can override local rules. Examples include federal limits on regulating telecommunications towers, and federal fair housing and disability laws.
The state, drawn as a capitol, holds the police power. Enabling acts pass authority to cities. A thin arrow runs to a city under Dillon's Rule: only what's granted, implied, or essential. A thick arrow runs to a city under home rule: broad power over local affairs. A note says: no grant, no power; cities have none of their own.
Either way the power starts with the state. The difference is how much a city can do without pointing to a specific grant.Tap the figure to open it full size.

8 more sections follow in the full lesson.

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