Over the past month, there have been commentaries and letters to the editor addressing the ongoing debate about the state’s involvement in local land-use matters. Arguments that have been made in opposition to state involvement in these matters include: the pending legislation is contrary to the principle of home rule whereby decisions about land use and zoning are best made by appointed and elected officials who live in and know the affected communities; citizens will be unable to hold government accountable when the state officials making these decisions are not elected by those affected by the decisions; the legislation, if enacted, will bring more and more state intervention into local land use matters; and, the legislation demonstrates the state lacks trust in the local government and its ability to govern properly.
In my opinion, the arguments made in opposition to state involvement are largely specious and designed to either deflect from a discussion of the important state interests sought to be addressed in the legislation or because those advancing the arguments wish to abandon the state’s oversight of its delegated police power when such oversight is warranted. As I indicated in an earlier letter, the General Assembly delegated its police power in the land-use regulatory area to local governments as permitted by the constitution. The details and limits of this delegated authority are set forth in the enabling legislation for each local government authority. The one constant is the ability of the state to preempt local authority when important state interests are presented.
I suspect the frustration over the actions being taken by the General Assembly is likely, at least in part, due to the retroactive effect or application of some of the proposed bills that will overturn decisions that have already been made by local government. For obvious reasons, this is not the best way for the state to implement statewide policy and protect its interests. Typically, state legislation that seeks to preempt local government authority will be prospective. This is the better approach.
Home rule does not magically give local government the insight and ability to address myriad land-use issues presented in today’s complex society. Rather than taking diametrically opposing positions about jurisdiction and authority, the best approach to developing solutions is through good-faith cooperation, as has been suggested by Sussex Councilwoman Jane Gruenebaum. Consistent environmental protection standards throughout the state and requiring that development approval be strictly aligned with the availability of supporting infrastructure are two areas to start with.
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