Professor Ashira Ostrow's article "Judicial Review of Local Land Use Decisions: Lessons from RLUIPA," 31 Harv. J.L. & Pub. Pol'y 717 (2008), was highlighted in the November/December issue of Probate & Property, a publication of the Real Property, Trust and Estate Law Section of the American Bar Association.

EXCERPT

Discretionary Zoning Decisions. In 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) to require courts to apply strict scrutiny review to land use *31 decisions that affect religious land uses, as long as those decisions are made through “individualized assessments” of land use. 42 U.S.C. § 2000cc(a)(2)(C). In such situations, Congress reasoned that zoning officials have no standards governing their authority and are thus more likely to make discriminatory decisions. In her article, Judicial Review of Local Land Use Decisions: Lessons from RLUIPA, 31 Harv. J.L. & Pub. Pol'y 717 ( 2008), Prof. Ashira Pelman Ostrow argues that the rationale for RLUIPA justifies more searching judicial review of all zoning decisions affecting just one piece of land. She points out that no objective standards govern zoning of individual parcels; as a result, municipalities “zone individual parcels on a highly discretionary, case-by-case basis.” She reasons that because such standardless decision making is inherently lawless, judicial deference is pointless. It is well settled, however, that judges must defer to small-scale municipal zoning decisions. In Nectow v. City of Cambridge, 277 U.S. 183 (1928), the Supreme Court held that government should uphold such an action unless it “has no foundation in reason and is a mere arbitrary or irrational exercise of [police] power.” Id. at 187. Ostrow asserts that Nectow actually supports her proposed rule, because in Nectow the court “undertook a substantive review of the factual circumstances underlying the challenged zoning decision.” Thus, Ostrow cannot (and does not) reject rationality review; instead, she favors “rationality with bite”--that is, a standard under which judges uphold a fairly debatable zoning decision but analyze the factual record to make sure the zoning decision is in fact rational. Ostrow wisely dissects the arbitrariness of conventional zoning; however, it is not clear whether more searching judicial review will remedy the problem. If judges are bound by no standards other than “rationality,” why are their decisions likely to be wiser than those of municipal zoning officials?

Ostrow's article was also recently cited in 2 Am. Law. Zoning s 14:29 (5th ed. 2008), Neighboring Property Owners s 8:11 (2008) and 6-37 Zoning Law and Practice Supp. to @ 37-3.
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