The Long-Standing Requirement That Delegations of Land Use Control Power Contain "Meaningful" Standards to Restrain and Guide Decision-Makers Should Not Be Weakened

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Maine Law Review, ISSN: 0025-0651, Vol: 48, Issue: 1, Page: 49

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Delogu, Orlando E.; Spokes, Susan E.
land use; judicial oversight; judicial function; land use control power; meaningful standards; decision makers; delegation of land use control; Land Use Law; Property Law and Real Estate
article description
Some forty years ago, a leading land use scholar noted that “it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare.” Maine courts by and large have discharged this judicial function by consistently striking down unauthorized and overreaching local governmental land use decisions. Several recent cases, however, cast doubt on the Law Court's continuing commitment to guard against the parochial instincts of local land use decision-makers. There is speculation as to whether the Waterville Hotel line of cases retains the vitality it once had. It is the purpose of this Article to show the utility of, and the underlying legal theories that support, these twenty-five years of case law. The Authors will argue that both public and private interests, as well as fundamental principles of “ordered government,” are best served by a strong and substantive reaffirmation of the principles and lessons of Waterville Hotel, Cope, and Wakelin. In the area of land use, judicial watchfulness over the parochial instincts of local governments is needed today no less than it was more than twenty-five years ago when the warnings were first sounded.