Assessing the Law’s Effects on Public Participation in Land Use Decisions

Laws govern public participation in land use decision-making. Concerns about public participation also inform the substantive development of land use and zoning law. Legislators and courts cite the importance (or, sometimes, the dysfunction) of public participation when crafting and applying rules about spot zoning, contract zoning, exclusionary zoning, and other components of the law of land use and zoning.

In short, public participation is shaped by law and the law is shaped by concerns about public participation. Much, however, is underexplored about the law in this realm, even as the practical implications of “local zoning [as] a fundamentally participatory process” are, today, the subject of heated debate. Changing public participation practices must take place in the shadow of legal requirements—or must explicitly engage in a program of law reform in order to change those requirements.

This chapter will first describe the legal requirements that govern public participation in land use and zoning processes. Next, it will consider how current law affects land use and zoning decisions. It will then use attempts to make public participation work in the COVID era to understand how existing laws can encourage or constrain reforms. The chapter concludes by considering broader efforts to reform public participation laws. Throughout, the chapter raises research questions that relate to the operation of current law and efforts to reform those laws.