Police Power and the Public Trust: Prescriptive Zoning Through the Conflation of Two Ancient Doctrins

Abstract

The close historical affinity between the Public Trust doctrine and police power supports a more expansive view of zoning. The doctrines’ kindred public interest spirit can empower localities to adopt dynamic, proactive, prescriptive zoning ordinances that promote community character. To do so, municipalities must self-define their unique community assets and ambiance through an openly developed comprehensive plan that honestly memorializes development patterns and sets forth community goals. If public interest is at the heart of the comprehensive plan, localities may consider an expansion of the police power as justified in order to zone and nurture communtiy character more justified than zoning which relies on the classic Euclidean general welfare criteria. A combination of the police power, infused with the Public Trust, and a candid comprehensive plan, could allow localities to adopt zoning ordinances that preserve and promote the unique set of intangibles that attract people to a community in the first place.