Land Use Regulation and Good Intentions


This Essay surveys contemporary issues in American land use regulation. Its central claim is that, despite good intentions, regulations often have either been ineffective or exacerbated existing problems. The problems underlying regulation include contested understandings of private property rights, continual economic and social change, and a political process prone to ad hoc deal making. Together, they result in regulation that is conceptually incoherent and continually provisional.

The Essay briefly reviews how land use philosophy has changed from early nuisance prevention, through Progressive Era comprehensive planning, to modern views of regulation as transactional. It examines our regulatory takings framework for delineating between private property rights and legitimate government regulation. The Essay reviews such contentious issues as affordable housing. Finally, it asserts that, in the absence of a generally agreed upon understanding of land use goals, comprehensive grand bargains among factions and public-private partnerships would facilitate entrenchment and favoritism. The ensuing uncertainty and lack of housing opportunities in cities where workers would be most productive harms individual advancement and the national economy.