119 Yale L. J. 1904 (2009-2010)
Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient suburban landscape. The second puzzle is how to address the intrametropolitan inequalities resulting from the fragmented distribution of regulatory authority without undercutting the beneficial effects of inter-jurisdictional competition. While this puzzle extends beyond property law, land use regulations are particularly problematic because they empower local jurisdictions to exclude unwanted residents. The difficulty is, however, that most proposed strategies to address this second puzzle threaten to undermine the efficiency gains that are produced when, as Charles Tiebout influentially predicted, local governments compete with one another for residents. By treating these two land use puzzles as property-entitlement problems, rather than regulatory-design problems, The Unbounded Home breaks free from standard land-use and local-government debates and offers novel solutions to address seemingly intractable difficulties. This review focuses on the two of Fennell’s proposals that, in my view, hold the most promise: First, the use of “entitlements subject to self-made options” or “ESSMOs”, to address local land use spillovers; and second, the reconfiguration of home-ownership to minimize owners’ incentives to demand that exclusionary land use policies. land use, Tiebout, regional government, zoning, covenants, urban development
Nicole S. Garnett,
Unbundling Homeownership: Regional Reforms from the Inside Out,
119 Yale L. J. 1904 (2009-2010).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/183