land use, First Amendment, secondary effects, zoning
In recent years, there has been a marked expansion in the types of uses, both commercial and nonprofit, that challenge land-use regulations on First Amendment grounds. This expansion is occurring for two reasons. First, "land use and the first amendment" is a developing area in the law. As is typical of developing areas in the law, litigants are encouraged to bring cases because the law is unsettled and they hope to create significant new rights. Second, a number of societal factors have coalesced to create a greater potential for conflict when government regulates the use of land. In part, this is occurring simply because we are an increasingly diverse society. Other factors besides increasing social diversity have given rise to increased conflict between land-use controls and the First Amendment. The near universal acceptance of aesthetics as a valid governmental objective in the past two decades has led to greater local efforts to control signs. The adoption of local historic preservation ordinances can create conflict because many of the significant historical structures in any community will be churches and synagogues. Finally, the increasingly litigious nature of society generally also contributes to the growing conflict. In this report, we review a number of significant state and federal cases in each of the areas noted above: regulation of newsracks; the application of zoning, eminent domain, and historic preservation ordinances to religious institutions; sign controls; and zoning regulation of adult businesses.
Alan C. Weinstein, Report of the Subcommittee on First Amendment and Land Use, 23 Urban Lawyer 659 (1991)