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II THE STRUCTURE AND PRACTICE OF CONTEMPORARY PLANNING

The Legal Basis of Planning

Planning, as discussed in this book, is an activity of government. It involves the exercise of powers vested in the government and the expenditure of public funds. It is limited by, among other things, the limitations of the powers of government. In this chapter we describe the legal framework and the legal limitations within which local and state governments act. In Chapter 6 we turn to the political framework.

THE CONSTITUTIONAL FRAMEWORK

The Constitution, although it has much to say about which powers and responsibilities are assigned to the federal government and which powers and responsibilities are delegated to state governments, is silent on the issue of how the powers of government are to be divided between state and substate units of government. In fact, a literal reading of the Constitution gives no indication that there are to be substate units of government at all: words like city, town, township, village, parish, or county are totally absent. (The word district is mentioned, though its meaning is not entirely clear.)

As a result, it was understood from very early in the history of the United States that substate units of government derive all of their powers from the state or, in a phrase that came into use some years later, are "creatures of the state." This understanding, which was articulated in a strict manner by Judge John F. Dillon in 1868, has become known as Dillon's rule.1 Briefly, the rule is that a substate unit of government has only those powers expressly granted to it by the state, or those powers that are directly and unarguably implied by those powers expressly granted to it by the state.

In the years after the Dillon decision, a number of states modified their constitutions with home rule provisions or passed home rule legislation. In these states, substate governments have any power that is not forbidden them by the state and not in conflict with the state constitution or other state legislation. Thus all states can be classified as either Dillon's rule states or as home rule states.2 The central point, however, is that regardless of whether the state is a Dillon's rule state or a home rule state, the powers of substate governments come from the state. This is equally the case under the only-those-powers-directly-permitted Dillon's rule form or under the those-powers-not-forbidden home rule form.

Obviously a state government cannot assign to a substate government powers that it itself does not have, but of those that it has, some will be assigned to substate units of government. In general, the structure of local governments and the powers and responsibilities of local governments are specified in charters, state-enabling laws, and state constitutions.

 
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