Hopperton, Robert J.

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 57 | Issue 1 Article 3Winter 1982Land-Use Controls: Cases and Materials. ByRobert C. Ellickson and A. Dan Tarlock.Robert J. HoppertonUniversity of ToledoFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Land Use Law Commons, and the Legal Writing and Research CommonsThis Book Review is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationHopperton, Robert J. (1982) "Land-Use Controls: Cases and Materials. By Robert C. Ellickson and A. Dan Tarlock.," Indiana LawJournal: Vol. 57: Iss. 1, Article 3.Available at: http://www.repository.law.indiana.edu/ilj/vol57/iss1/3BOOK REVIEWLAND-USE CONTROLS: CASES AND MATERIALS. By Robert C.Ellickson and A. Dan Tarlock. Boston, Mass.: Little, Brown andCompany, 1981. Pp. xli, 1093. $25.00.ROBERT J. HOPPERTON*A land use casebook that is stimulating, refreshing, and fun, thatdemonstrates intelligence and a high order of sophistication about thereal world, that provides the necessary tools for both legal and economicanalysis of land use controls, that is organized coherently, and that iswritten well and with humor-is there such a casebook? Last May, asI pondered book selection for my summer term Land Use Planning class,I concluded that, although the field was getting crowded, none of the en-tries stood out. Certainly none met all these criteria.Somewhat reluctantly, I chose Planning and Control of Land Develop-ment by Daniel R. Mandelker and Roger A. Cunningham,' a book whichI had used recently and for which I have a healthy respect. It containsan excellent and comprehensive selection of current cases, a helpful, well-organized treatment of the planning process, and enormously informativeand complete notes. In addition, it is not still fighting the thirty-year-oldbattle of the comprehensive plan with twenty-year-old cases.2 It does notcontain seemingly endless notes with the "what result?" question,3 nordoes it present six chapters and more than two hundred pages onplanning,4 which inevitably leave students bored and restive. Finally, itdoes not have a curious sequence that places cases on growth controlbefore cases on zoning.5 For all its virtues, however, the Mandelker andCunningham text is bland and conventional and generates few sparks.As I was about to submit my book order, a new casebook, Land-UseControls: Cases and Materials by Robert C. Ellickson and A. Dan Tarlock,arrived in the mail. The preface was intriguing:* B.A. 1963, Baldwin-Wallace College; M.A. 1969, University of Toledo; J.D. 1972, OhioState University. Professor of Law, University of Toledo.1 D. MANDELKER & R. CUNNINGHAM, PLANNING AND CONTROL OF LAND DEVELOPMENT (1979).Contrast C. HAAR, LAND-USE PLANNING passim (3d ed. 1976).For examples of extensive notes of this sort, see id.Contrast D. HAGMAN, PUBLIC PLANNING AND CONTROL OF URBAN AND LAND DEVELOPMENT19-285 (2d ed. 1980).5 Contrast R. WRIGHT & M. GITELMAN, CASES AND MATERIALS ON LAND USE (3d ed. 1982).R. ELLICKSON & A.D. TARLOCK. LAND-UsE CONTROLS (1981).INDIANA LAW JOURNALThe first generations of land-use casebooks, starting in the late1950s, reflected the notion that substantial governmental interven-tion in the private land market was desirable and that the primaryfunction of the law should be to facilitate this intervention. Our ex-perience teaching land-use controls for over ten years has led us tobe dissatisfied with this outlook. The reader of this book will findthat our approach is revisionist in that the premises underlying publicland-use controls are rigorously questioned at every opportunity.Moreover, we believe most existing casebooks do not satisfactorilyexplore the practical problems which confront attorneys involved inmodern land-use disputes. Therefore a second basic objective of thiscasebook is thoroughly conventional: to make an accurate and com-prehensive exposition of the current law of public and private land-use controls.'The thought of so irreverent an undertaking as a "revisionist casebook"that questioned old verities and deities left me a bit unsettled. Never-theless, I read on:To lay bare this land-use control system, we have relied heavily,although by no means exclusively, on the tools of welfare economics.We have done so for two reasons. First, we believe that it ispedagogically useful to compel the student to evaluate the strengthof the case for public intervention. Second, much of the "law" of publicas well as private land-use controls consists of poorly reasoned judicialopinions and statutes which yield few insights and unifying themes.We have found that the perspective of welfare economics often helpsto explain otherwise mystifying doctrines, and to reveal alternativemethods for resolving land-use conflicts. In short, we have chosen toview the land-development industry as a regulated industry, and haveasked the question so often heard today in other regulatory contexts:Is the current regulatory system justifiable?8The tools of welfare economics, the question of whether the currentsystem is justifiable, and a combination of the theoretical and practicalmight enliven the dog days of the summer term. I was tempted, eventhough a previous collaborative effort by Professor Tarlock9 was poorlyorganized, miserably captioned, and mechanically weak. These days ofderegulation and supply-side economics, however, suggested that this newoffering would be thought-provoking and topical for both teacher and stu-dent. With modest expectations, I selected the Ellickson and Tarlockcasebook. Moreover, to provide the authors their best chance to exposethe inefficiencies and inequities in the present land use system, I assign-' Id. at xxxiv.8Id.I E. HANKS, A.D. TARLOCK & J. HANKS, CASES AND MATERIALS ON ENVIRONMENTAL LAWAND POLICY (1974).[Vol. 57:83BOOK REVIEWed without omissions their first eight chapters for my four-hour, one-quarter summer course.The results were most satisfying. Land-Use Controls: Cases andMaterials far outstripped my expectations. It is a superior, eminentlyteachable casebook that meets the criteria listed at the beginning of thisreview. Although the book has weaknesses, it is probably the best entryin the land use field.The book is well structured; its divisions, classifications, and sequencesare coherent. Moreover, Ellickson and Tarlock obviously learned valuablelessons from Norman Williams,"0 for they arranged their analyses of zon-ing into chapters of landowner rights and neighbor rights, an organiza-tional and analytic technique that makes the welter of land use planninglaw comprehensible. They also emphasize the differences in land usejurisprudence from state to state, as Williams does," thus enablingstudents to see, for instance, that land use planning in California is fardifferent from that in Illinois. In addition, placing the chapter on "Plan-ning, Planners, Plans" after chapters on landowner rights and neighborrights works much better for students than the conventional placement"of planning materials in the initial chapter or two of a casebook. Thisearly exposure to actual controls, which theoretically are guided by a landuse plan, clarifies and enlivens the elusive ideas of planning and cdm-prehensive plans. The authors' sound design is enhanced by excellentclassification and sequencing of topics within chapters. For example, thematerial on "deals" between local governments and private developersis particularly well done. The authors achieve additional clarity throughconsistently informative and accurate topic headings.The authors' excellent thematic development is another strength. Im-portant topics are introduced and then re-examined in different contexts.For instance, the concept of damages as a neglected remedy appears inChapters Four, Six, and Eight as the authors make a case that the mostpervasive error in American land use jurisprudence was the failure ofthe Supreme Court in Neetow v. City of Cambridge13 to grant more thanan injunction.14 The repetition of such themes adds measurably tocoherence.The authors' principal theme is their critique of public regulation, acritique employing the tool of welfare economics. Repetitive treatmentand clear exposition make this economic analysis comprehensible to10 N. WILLIAMS, 1 AMERICAN LAND PLANNING LAW 71-79 (1974).n Id at 114-76.See, e.g., C. HAAR, supra note 2; D. HAGMAN, supra note 4.13 277 U.S. 183 (1928)." See also Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86YALE L.J. 385. 490-93 (1977).1982lINDIANA LAW JOURNALnoneconomists and trigger thoughtful questions and comments fromstudents as well as a high degree of class participation. Again, the authorssucceed where other casebooks in the land use area either fail or do noteven try.Especially interesting in view of the authors' basic inquiry-whetherthe regulatory system is justifiable-is Chapter Six, "Alternatives toPublic Regulation: Nuisance Litigation, Covenants, and Government In-centives." This chapter, which develops the theme of the greater effi-ciency supposedly to be obtained through private systems of land usecontrols, partially fails; the authors' case for private systems is unper-suasive. As Professor Ellickson conceded in 1973, little empirical researchtested his intuitive estimates. 5 The empirical research apparently hasnot yet been done. Two important pragmatic considerations also are ig-nored: the' criticism that private land use controls lack the definitivedevelopment permission necessary to developers 6 and the likelihood thatprivate controls always will be politically unpopular. Political rejectionseems likely because even the free-market, supply-side advocates in placessuch as Palo Alto probably are unwilling to exchange zoning's protection'of their residential property for the "efficiencies," but uncertain protec-tion, of private controls. Finally, this chapter, which is admittedly notan in-depth treatment of protective covenants, 7 has a weakness typicalin such presentations: it inadequately distinguishes covenants fromequitable servitudes -a distinction which may be crucial to clarifying muchin this confusing area."Besides the strengths already mentioned, coverage is generally morethan adequate. I found no need for supplementary cases or statutes. Onthe other hand, overzealous editing of important cases such as SouthernBurlington County NAACP v. Towmship of Mount Laurel" and Golden v.Planning Board of Town of Ramapo" and of Justice Hall's dissent inVickers v. Township Committee" is a serious weakness. Students lose toomuch when such cases are so heavily edited. Even a turgid opinion suchas Ramapo can be overedited, and elimination of so much of Mount Laurelthat students get no sense of its structure and reasoning is unfortunate.These weaknesses, however, are offset by inclusion of other interesting11 Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land UseControls, 40 U. CHI. L. REV. 681, 781 (1973).16 See Krasnowiecki, Abolish Zoning, 31 SYRACUSE L. REV. 719, 721 (1980).17 See R. ELLICKSON & A.D. TARLOCK, supra note 6, at 614., For a skillful casebook treatment of covenants and equitable servitudes, see J. CRI-BET & C. JOHNSON, CASES AND MATERIALS ON PROPERTY 637-78 (4th ed. 1978).1 67 N.J. 151, 336 A.2d 713, appeal dismissed, 423 U.S. 808 (1975)., 30 N.Y.2d 359, 285 N.E.2d 291,334 N.Y.S.2d 138, appeal dismissed, 409 U.S. 1003 (1972).21 37 N.J. 232, 252-70, 181 A.2d 129, 140-50 (1962) (Hall, J., dissenting), appeal dismissed,371 U.S. 233 (1963).[Vol. 57:83BOOK REVIEWand stimulating selections such as "How They Assembled the Most Ex-pensive Block in New York's History,"' "The Battle of Russian Hill, "2and Chapter One, "The Land Development Process," which add spice andvariety with a purpose. Finally, laced throughout the book is a knowledgeof current events and trends that provides enjoyable, informative reading.Ellickson and Tarlock have produced an admirable work that is substan-tively stimulating and stylistically engaging, one that makes for animated,refreshing, and enjoyable classroom experiences. They write well, theyorganize clearly, and they have a sense of humor. Their welfare economicscritique provides a timely, critical analysis of planning and land use regula-tions that students find interesting, thought-provoking, and sometimesconvincing. No student, and perhaps no teacher, will finish this casebookwith quite the same views after being repeatedly challenged by ProfessorsEllickson and Tarlock.12 R. ELLICKSON & A.D. TARLoCK. supra note 6, at 1014-23 (excerpts from Hellman, HowThey Assembled the Most Expensive Block in New York's History, NEW YORK, Feb. 25,1974,at 31).21 R. ELLICKSON & A.D. TARLoCK, supra, note 6, at 334-37 (excerpts from Emch, The Battleof Russian Hill, San Francisco Sunday Examiner & Chronicle, Feb. 13, 1972, CaliforniaLiving Magazine, at 6).1982]

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