Tuesday, March 14, 2006
Welcome to a source of commentary and news about the law of land use and community development. I’m the editor, Paul Boudreaux, who teaches at Stetson University College of Law, Tampa Bay, Florida.
This blog addresses the construction of our communities, both literally and figuratively. It concerns where we live, how we live, with whom we interact, and how we interact. The biggest component of this law is “land use” law. This seemingly narrow topic has many components, however. For example, the United States is the first nation in which a majority of people live in a suburban environment of single-family houses, from which nearly all travel is made (and made often) by private automobile. How has law encouraged this “American Dream” and how is law attempting to curb what critics now call “sprawl”? In many law schools, the course is still referred to as “land use planning,” as if it were merely a dry set of rules about how government develops zoning plans and issues building permits. This is no longer the case, of course. Land use law now encompasses myriad other aspects of the construction of our communities.
First, land use law is inextricably bound to issues of racial and class segregation. The promise of our anti-discrimination laws, as set forth in Brown v. Board of Education and the statutes of the 1960s, was of an integrated society. But the suburbanization of housing, shopping, and work has made it possible for many Americans to interact only with persons of like race and class, as never before. Has land use policy undermined the promises of the civil rights laws?
Second, community laws are revolutionizing how Americans relate to the Bill of Rights. About half of all new homes are governed by a homeowners association, which can tell residents what color the house can be painted, whether the homeowner can post a political sign, and who can live in the house. A free-market opinion is that these associations are healthy reflections of the desire of Americans to control their surroundings, through voluntary agreements. On the other hand, critics holler that the associations are an insidious manifestation of suburbanites’ fear of the “other.” Which is accurate? Indeed, I maintain that community law affects human happiness, on a daily basis, more than any other aspect of American law.
Third, land use is an essential component of environment law. Some analysts say that our pollution laws may have gone as far as they can, at least conceptually, in regulating pollution from industry. What law has not tackled, however, is the regulation of the average citizen’s use of his and her land. Regulating pollution from fertilized lawns and nutrient-laden farms raises quandaries of property rights and personal autonomy, as well as thorny problems of trying to insinuate federal goals into matters that have traditionally been local.
Fourth is transportation. If we are indeed approaching the “end of oil,” what will happen to our neighborhoods, which have been constructed, in part by zoning laws that favored low density, so that the only feasible way in and out is through the private automobile?
If land use law is so important, why do relatively few law students take the course (even though huge numbers of lawyers practice land use law)? And why are so many people, include academicians, still a little fuzzy about what it encompasses? Part of the reason is that it land use law remains predominantly local; it is created largely by county, town, and city governments. Because there are few federal laws – the Fair Housing Act is a chief exception – the sweep of the importance of land use law is often overlooked. Because of this factor, the blog will contain a lot of news – stories from the press about how local governments are regulating land use and the community and how citizens and markets are responding. Land use law is the lifeblood of local politics. These news stories are often a much better source than court opinions of good information about how community law is changing.
In sum, this blog will address a cornucopia of interrelated issues in the law of land use and community. I hope you find the entries to be food for thought. Bon appetit!