Thursday, March 7, 2013
Ronit Levine-Schnur (Hebrew University) has posted Bargained Land Development and the Rationales of Land Use Law on bepress. Here's the abstract:
In the coming months, the United States Supreme Court will hand down its decision in Koontz v. St. Johns River Water Management District, a high-profile “takings” case that will set the precedent for what legal requirements govern land development negotiations between land owners and local authorities. This Article addresses an important normative gap in the legal theory that the Court will have to address: assuming that bargained agreements between municipalities and land developers is a necessary step in the land development process, what substantive legal principle should govern their legitimacy?
This Article draws upon the theory and practical realities underlying contemporary land use law to articulate a clear substantive legal construct for evaluating bargained land development. The efficiency and public policy rationales of this construct are then discussed. Ultimately, the questions to be considered are to what extent was the existing regulation changed to meet the developer’s request and to what extent this change enabled the developer to internalize urban surpluses. The level of discretion afforded to local governments in their negotiations with property owners will hinge upon the application of these considerations to the facts before the court.