Tuesday, February 5, 2008

The right to live as one desires?

   How far can or should government go in regulating the details of residential land use?  When does a regulation infringe on a resident’s “rights”?  I saw on TV this weekend a segment about the ongoing battle in Coral Gables, Fla., a tony suburb of Miami, over its detailed rules for residential living, which include restrictions on the paint hues of homes and, most pertinently, a ban on parking a pickup truck on the street or driveway overnight.  A short-term renter challenged the pickup rule and won –- the court concluding that the no-pickup rule infringed on his “rights.”  The vehicle rule was irrational, in part because it did not ban other large motor vehicles.  (Hmm  ... why would an affluent town ban pickups but not Ford Explorers?)   

Pickup    One problem with judicial decisions such as these is that they are ad hoc.  They lend little predictability as to whether a future court would find that an amorphous and specified “right” has been infringed upon, or where it will find the limits to the usual deference to a locality’s land use judgments.

   I suggest that one way to do so would be to create a model set of limits on how far governments can go in regulating residential land use for the “public welfare.”  A starting guideline would be the law of nuisance:  If a regulation is of the type that nuisance has traditionally regulated (noise, odors, disease, etc.), the law will stand.   If it fails to rise to this level, but is merely “desired” by neighbors for beenfits such as attractiveness -- such as with paint color or type of vehicle –- then the locality is entitled to no deference.  Still too unfocused?  Hey, it’s a start …

http://lawprofessors.typepad.com/land_use/2008/02/the-right-to-li.html

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