Tuesday, February 5, 2008
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?)
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 …
This blog is an Amazon affiliate. Help support Land Use Prof Blog by making purchases through Amazon links on this site at no cost to you.
- Jamie Baker Roskie on Uber Goes to the State House Seeking Preemption of Local Government Control
- Stephen R. Miller on Why are building inspectors so often on the take?
- Josh Hightree on What makes people leave rural areas, and what makes them stay
- Jessica Shoemaker on What makes people leave rural areas, and what makes them stay
- Jamie Baker Roskie on Why are building inspectors so often on the take?
- New Land Use Articles on SSRN
- What to make of the fierce new debate over the efficacy of California's energy codes?
- The W&L Top 100 Law Review Rankings and the Land Use Law Scholar
- CFP: 2015 Future of Places Conference (lead-in to Habitat III) in Stockholm: Deadline of April 15
- Water Down Under: A Report from Australia by Barbara Cosens: Post 7: Conjunctive Management Down Under