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Editor: Stephen Clowney
Univ. of Kentucky College of Law

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Monday, February 11, 2013

Is New Urbanism the End of Land Use Law?

Jonathan Zasloff of UCLA asks why there's very little case law on form-based land use codes:

One can understand that in several ways, I suppose.  You could infer that New Urbanism just leaves less room for legal disputes than traditional Euclidean zoning.  For example, there is no need to worry about non-conforming uses, use variances, or conditional use permits with Form-Based Codes because those codes do not regulate uses to begin with.  Certainly many advocates of New Urbanism might make this argument; they would argue that New Urbanist codes, based upon building form and the transect, are more certain than traditional Euclidean zoning and also more protective of private property precisely because they leave more discretion in the market.  They are right about the general point, but it is hard to argue that any legal framework simply eliminates legal disputes — if it did, it would either be the first such system to do so or rely upon a sort of coercion wholly at odds with New Urbanism.  (Not too many land use disputes under Stalinist land use, but that surely did not reflect an advantage of the system).

Alternatively, you could argue, as many critics of New Urbanism do, that its land use philosophy is essentially a boutique product, suitable for Berkeley, Boulder, or Austin, but not for “real” American places.  Thus, it is not prevalent enough to generate cases.  This argument runs aground on facts.  New Urbanism does not work everywhere, but it is hard not be impressed by the wide variety of American communities that are adopting it.

Steve Clowney

http://lawprofessors.typepad.com/property/2013/02/is-new-urbanism-the-end-of-land-use-law.html

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Comments

I looked at Jonathan's list of locales that did this. Many links did not work, and most places looked less than inviting. Perhaps form-based is just another name for we're just desperate for something, make us an offer. But one fancy place on the list was in Mountain View, CA. EPA gave kudos for its smart growth, and the EPA's description indicated that the (very nice) high density residential development was the product of considerable negotiation: http://www.epa.gov/smartgrowth/case/crossing.htm
So don't throw out the Euclid-oriented materials just yet.

Posted by: Bill Fischel | Feb 13, 2013 12:25:10 PM

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