Deregulating Land Use: An Alternative Free Enterprise Development System

Abstract

Both federal and state courts have applied a fairly liberal standing analysis, allowing developers to maintain a suit against restrictive zoning ordinances and outcomes. See, e.g., Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 260-64 (1977) (granting developers standing to represent their own interests, but leaving unresolved the question whether developers have standing to represent potential tenants); Home Builders League v. Township of Berlin, 81 NJ. 127, 131-35, 405 A.2d 381, 383-85 (1979) (granting standing to nonprofit developers and to public advocate's offce, while rejecting the potentially restrictive view of Arlington Heights). 4 See infra text accompanying notes 57-66. 5 See infra text accompanying notes 46-56. [Vol. 130:28 6See infra text accompanying notes 67-77. T See infra notes 15-19 and accompanying text. 8 See infra text accompanying notes 78-101. 9 See infra text accompanying notes 102-34. 10 See infra text accompanying notes 135-40. 11 See infra text accompanying notes 141-42.-2 See infra text accompanying notes 304-47. 19811 S2 UNIVERSITY OF PENNSYLVANIA LAW REVIEW I. THE EXISTING LAND USE ALLOCATION SYSTEM-STRUCTURE, OBJECTIVES, AND SHORTCOMINGS Land use controls have proliferated within the last fifty years.' 3 Complex land use problems 14 quickly generated a host of equally complex solutions. Indeed, the progression from the common law of nuisance to detailed building and housing codes, 5 zoning laws,' 6 subdivision controls,' 7 and environmental impact regulations s has 13 American local municipalities, up until the late nineteenth century, enacted practically no formal land use controls. LAND USE CONTROLS: PRESENT PROBLEMS AND FuTURE REFORm 3 (D. Listokin ed. 1974) [hereinafter cited as LAND USE CONTROLS]. Unreasonable uses of land were generally regulated through the common law of nuisance. 1 R. ANDERSON, AmmrsucAN LAw or ZoNmNr § 1.02 (2d ed. 1976). '4 Recognition of the complexity presented by land use issues can be traced to Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), in which Justice Sutherland stated: Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities.. .. Such regulations are sustained, under the complex conditions of our day .... ld. 386-87. 15 Building and housing codes primarily deal with the material makeup and habitability of a structure; however, they interrelate with other land use controls, such as height and setback provisions, on the issue of safety. See generally 1 P. RoHAN, ZONING AND LAND USE CONTROLS § 1.02[6][c] (1978). Although building codes can be criticized for excessive specification and inflexibility, the policy of establishing a threshold level of safety cannot be faulted. The alternative system preserves building code regulation, with the general en...

Spatial Spillovers of Land Use Regulation in the United States

“…However, imposed corrections for market externalities, like regulation, carry the traditional risk of creating more inefficiencies than the remedy solves (Jr., 1987;Nelson, 1989). Land use regulation which restricts use of private property may reduce private land use efficiency to a greater extent than any realized gains from negative externality reductions (Ellickson, 1973;Siegan, 1977;Nelson, 1980;Fischel, 1987;Kmiec, 1981). Early alternative proposals, described by Ottensmann (1998), range from private contracts (Nelson, 1980), sellable zoning entitlements (Fischel, 1987), or nuisance laws (Siegan, 1977).…”

Hardin’s legacy as a need for a ‘commoning turn’ in planning

“…The Tragedy is also used to indicate market failure from the neoliberal perspective. Kmiec (1981) proposes the deregulation of land uses in the USA, contending that zoning and subdivision controls should be eliminated and replaced by a free enterprise development system allowing private decisions to determine the desired type, location and design of land development. However, Kmiec cited the Tragedy not to support privatization but to denote that some form of public control is necessary in order to avoid the tragedy.…”

The case against zoning

“…On the other hand, there is also a strong academic and philosophical literature which makes the case that while private zoning is fully compatible with deontological rights and utilitarian practicality, the public version thereof is highly problematic. For example, see Albin (2010), Benson (1981); Block (1980Block ( , 1981aBlock ( , 1981bBlock ( , 2014a; Camplin (2010); Fedako (2006Fedako ( , 2019; Friday (2018aFriday ( , 2018b; Hollenbeck (2013), Hornberger (2018); Kmiec (1981), McMaken (2017); Navabi (2019), Nino (2018); O'Neill (2009); Siegan (1970and Terrell (2000).…”