FEDERAL LAND USE INTERVENTION AS MARKET RESTORATION.

Although most land-use regulation in the United States remains local, the federal government has played an increasing role. Some federal intervention, particularly in the environmental area, has involved affirmative federal regulation superimposed on the local regulatory scheme. But other federal intervention operates differently by overriding local regulation to permit markets to operate. In addition to the Takings Clause, examples include the Religious Land Use and Institutionalized Persons Act, the Telecommunications Act, the Fair Housing Act, and the First Amendment's adult-use jurisprudence. In each of these areas, local regulation survives only if it leaves intact a sufficiently thick market for the uses federal law seeks to protect. To mount a successful challenge, the landowner must demonstrate that the local regulation would leave consumers without adequate access to federally protected uses. In evaluating the adequacy of markets for federally protected uses, municipal boundaries are sometimes, but not always, critical. When the concern is assuring access to religious facilities or adult uses, a municipality should be able to justify a reasonable ordinance, despite its exclusionary effects, by demonstrating the availability of reasonable access in neighboring communities. But when access to municipal facilities--particularly schools--is at issue, municipal boundaries are critical, and access in neighboring communities is unlikely to prove adequate. [ABSTRACT FROM AUTHOR]