Wireless Telecommunications, Infrastructure Security, and the NIMBY Problem

This article explores the clash between federal policies encouraging wireless communications services and the application of local land use regulations to the siting of telecommunications towers. It concludes that Congress’s effort to strike a balance in the Telecommunications Act of 1996 between local concerns on one hand and national commerce and homeland security on the other has proved vague in content and susceptible to procedural thickets that might make local parochialism impervious to challenge. The article suggests statutory changes, including time limitations and the creation of presumptions and safe harbor rules, that might better balance infrastructure development needs with local autonomy

Land Use Regulation and Good Intentions

This Essay surveys contemporary issues in American land use regulation. Its central claim is that, despite good intentions, regulations often have either been ineffective or exacerbated existing problems. The problems underlying regulation include contested understandings of private property rights, continual economic and social change, and a political process prone to ad hoc deal making. Together, they result in regulation that is conceptually incoherent and continually provisional. The Essay briefly reviews how land use philosophy has changed from early nuisance prevention, through Progressive Era comprehensive planning, to modern views of regulation as transactional. It examines our regulatory takings framework for delineating between private property rights and legitimate government regulation. The Essay reviews such contentious issues as affordable housing. Finally, it asserts that, in the absence of a generally agreed upon understanding of land use goals, comprehensive grand bargains among factions and public-private partnerships would facilitate entrenchment and favoritism. The ensuing uncertainty and lack of housing opportunities in cities where workers would be most productive harms individual advancement and the national economy