The People Paradox

U.S. land-use regulators are increasingly embracing mixed-land-use “urban” neighborhoods, rather than single-land-use “suburban” ones, as a planning ideal. This shift away from traditional regulatory practice reflects a growing endorsement of Jane Jacobs’s influential argument that mixed-land-use urban neighborhoods are safer and more socially cohesive than single-land-use suburban ones. Proponents of regulatory reforms encouraging greater mixing of residential and commercial land uses, however, completely disregard a sizable empirical literature suggesting that commercial land use generates, rather than suppress, crime and disorder, and that suburban communities have higher levels of social capital than urban communities. This Article constructs a case for mixed-land-use planning that tackles the uncomfortable reality that these studies present. That case is built upon an apparent paradox: in urban communities, people do not, apparently, make us safer. But they do make us feel safer. This “People Paradox” suggests that, despite an apparent tension between city busyness and safety, land-use regulations that enable mixed-land-use neighborhoods may advance several important urban development goals. It also suggests an often-overlooked connection between land-use and policing policies

Managing the Urban Commons

Over the past several decades, debates about the appropriate tools of commons management have played themselves out in a particularly illuminating way in the management of urban public spaces. Some commentators urge, a là Garrett Hardin, that government coercion is needed to restore order to the urban commons. Others urge the privatization or quasi-privatization of urban public-spaces. On the ground in American cities, these theoretical arguments have been translated into concrete policies, especially policing strategies (e.g., order-maintenance and community policing) and urban development strategies (e.g., business improvement districts). This is an opportune time to reexamine the commons-management questions raised by these policies. The current economic crisis is forcing cities to scale back law enforcement efforts, as well as limiting the financing available to fund sublocal investments in urban public spaces. It is possible that these pressures will lead the current urban-commons compromise to unravel — leading to less public regulation of urban public spaces, more pressure for private regulation, or both. Using these tensions as a starting point, this Essay, which was written for a Pennsylvania Law Review symposium on “New Dimensions in Property Theory,” reflects critically upon the optimal regulation of urban public spaces as well as the possibility of cooperative commons management arising in the absence of government coercion

The Order-Maintenance Agenda as Land Use Policy

Debates about the broken windows hypothesis focus almost exclusively on whether the order-maintenance agenda represents wise criminal law policy — specifically on whether, when, and at what cost, order-maintenance policing techniques reduce serious crime. These questions are important, but incomplete. This Essay, which was solicited for a symposium on urban-development policy, considers potential benefits of order-maintenance policies other than crime-reduction, especially reducing the fear of crime. The Broken Windows essay itself urged that attention to disorder was important not just because disorder was a precursor to more serious crime, but also because disorder undermined residents’ sense of security. The later scholarly explications of the broken windows hypothesis also emphasize the connection between restoring the perception of security and its reality. One reason that social norms scholars link disorder and crime is that disorder has a predictable effect on law-abiding citizens: those with financial resources move away from, or choose not to move into, disorderly neighborhoods; those without resources remain inside and avoid public places. Even if these reactions (somewhat surprisingly) do not lead to more crime in a community, they certainly disadvantage city neighborhoods vis-à-vis their suburban alternatives. Moreover, and importantly, the goals of reducing crime and of helping poor, inner-city residents feel better about, and more vested in, their communities are not necessarily coterminous; order-maintenance policies might achieve the latter without achieving the former. In other words, it might be the case that order-maintenance policies “work” even if they do not curb serious crime

Managing the Urban Commons

Over the past several decades, debates about the appropriate tools of commons management have played themselves out in a particularly illuminating way in the management of urban public spaces. Some commentators urge, a là Garrett Hardin, that government coercion is needed to restore order to the urban commons. Others urge the privatization or quasi-privatization of urban public-spaces. On the ground in American cities, these theoretical arguments have been translated into concrete policies, especially policing strategies (e.g., order-maintenance and community policing) and urban development strategies (e.g., business improvement districts). This is an opportune time to reexamine the commons-management questions raised by these policies. The current economic crisis is forcing cities to scale back law enforcement efforts, as well as limiting the financing available to fund sublocal investments in urban public spaces. It is possible that these pressures will lead the current urban-commons compromise to unravel — leading to less public regulation of urban public spaces, more pressure for private regulation, or both. Using these tensions as a starting point, this Essay, which was written for a Pennsylvania Law Review symposium on “New Dimensions in Property Theory,” reflects critically upon the optimal regulation of urban public spaces as well as the possibility of cooperative commons management arising in the absence of government coercion

The Public-Use Question as a Takings Problem

Government officials regularly use the power of eminent domain to benefit private entities, and just as regularly justify their actions with post hoc assertions about the need to promote economic development. In Hawaii Housing Authority v. Midkiff, the Supreme Court reaffirmed that the Fifth Amendment demands broad deference to a government\u27s decision to exercise the power of eminent domain. Midkiff makes clear that public use challenges are subject to rational basis review; so long as a taking can be justified by some conceivable public purpose, it will be upheld. Yet in recent years, a number of courts have put the government to its proof-requiring a demonstrated connection between the challenged taking and the particular purpose used to justified it. In so doing, these courts refused to allow the government to avail itself of the conceivability safety valve provided by rational basis review, a standard that requires approval of any taking that might serve the public interest in some theoretically possible way. In other words, these cases may have been wrongly decided. A central conclusion of this Article, however, is that they were not wrongheaded. This Article will show that the courts\u27 instincts were sound, and that Midkiff needs to be supplemented with precisely the kind of means-ends scrutiny employed in these recent cases. This conclusion proceeds from an analogy to a different kind of takings claim. While the public-use limitation on the takings power has been widely regarded as a dead letter at least since Midkiff (notwithstanding the abovementioned surprises), standards for evaluating so-called regulatory takings have evolved substantially. Importantly, after Nollan v. California Coastal Commission and Dolan v. City of Tigard, the government may not demand that a property owner cede title to property in exchange for regulatory approval unless it establishes that the exaction demanded is roughly proportional to the impact of the proposed development. Although the exactions cases did not overrule Midkiff, they may have something important to say about the public use problem. One federal court of appeals judge has suggested that considerable tension exists between the deference required in public use cases and the heightened scrutiny of exactions. Recent public use cases provide real-world evidence of this tension. Despite the fact that current law precludes inquiry into whether a compensated taking is calibrated to advance its asserted purpose, each these courts took pains to distinguish Midkiff so as to require the government to establish a means-ends connection similar to that demanded by Nollan and Dolan. This Article examines whether this jurisprudential move should be formalized - that is, whether a version of the means-ends review required of exactions should extend to public use cases. Specifically, it explores (1) whether the justifications for heightened means-ends scrutiny of exactions are present when the government acquires land by eminent domain, and, (2) what such scrutiny might look like in a public use case

Trouble Preserving Paradise?

Election day 2000 was not a good day for proponents of suburban growth controls. The overwhelming initial support for initiatives that proposed state-wide growth management plans in Colorado and Arizona withered in the face of vigorous opposition campaigns. And, pro-planning forces in Oregon woke up on Wednesday morning to learn that voters had approved a little-noticed initiative amending the state constitution to require compensation for partial takings - that is, for any reduction in the fair market value of property resulting from government regulation - thus throwing into question the future of the State\u27s widely touted model controlled-growth scheme. These election results fly in the face of conventional wisdom: Public opinion polls consistently show high levels of support for curbing suburban growth, with many Americans listing the ills of suburban sprawl as the most important issue facing their communities. What\u27s more, so-called smart growth initiatives enjoyed unprecedented success at the polls during the 1998 election cycle. Advocates were understandably disappointed with the results in Colorado and Arizona, where unprecedented growth has driven anti-sprawl sentiments to an all time high. At least on the surface, all three of these election results suggest that voters\u27 asserted support for growth controls may be thinner than advocates had hoped - or at least that it has limits. This essay uses the November election results to explore what those limits may be: Why did voters reject growth controls in Colorado and Arizona, and limit them in Oregon, despite repeated protestations that they strongly support them? What distinguishes the so-called smart-growth policies that enjoyed continued success at the polls? And, what does the discrepancy between successful and unsuccessful policies tell us about how people may react to future efforts to control the supposedly dreaded suburban sprawl

Ordering (and Order in) the City

Over the past two decades, the broken windows hypothesis by George Kelling and James Q. Wilson has revolutionized thinking about urban policy. This now-familiar theory is that uncorrected manifestations of disorder, even minor ones like broken windows, signal a breakdown in the social order that accelerates neighborhood decline. The response to this theory has been a proliferation of policies focusing on public order. Largely missing from the academic debate about these developments is a discussion of the complex and important role of property regulation in order-maintenance efforts. This Article attempts to fill that property law gap in the public-order puzzle by tackling the complicated relationship between property regulation and order-restoration efforts. Order maintenance, broken windows, land use, zoning, public order, urban developmen