You Can Have It All: Less Sprawl and Property Rights Too
Volume 80, No. 4, Winter 2007
By Michael Lewyn [PDF]

In recent decades, the dominant form of American real estate development has been “sprawl”: automobile-oriented development, usually in suburban areas far from traditional urban cores. Much of the public debate over sprawl involves two competing visions of land use policy: the antisprawl “smart growth” vision and the libertarian “property rights” vision.

Smart growth advocates contend that sprawl has imposed a wide variety of social and environmental costs on Americans, such as pollution from increased auto emissions, loss of rural open space to suburban development, decay of older neighborhoods, and reduced economic opportunities for nondrivers. Smart growth advocates generally favor the creation of more pedestrian-friendly streets and neighborhoods, as well as redevelopment of cities and older suburbs. Some smart growth advocates also favor reducing sprawl through extensive regulations limiting suburban development.

By contrast, “property rights” advocates argue that, in a free society, property rights should trump public interests justifying land use regulation and accordingly assert that government should do nothing to discourage landowners from building houses and businesses in automobile-dependent suburbs. Property rights theorists (who tend to be conservatives and libertarians) sometimes assert that sprawl is an expression of consumer preference and thus should be beyond the reach of government regulation.

The purpose of this Article is to show that the aims of smart growth and property rights advocates are at least partially reconcilable, because the smart growth movement’s goals can be furthered through legal reforms that would reduce government regulation. So even if smart growth advocates and property rights advocates must agree to disagree about government regulations designed to limit sprawl, these apparent opponents can find common ground on a wide variety of land use-related issues.

Today, government regulations encourage sprawl in a variety of ways. Zoning, street design, and parking regulations discourage landowners from placing housing within walking distance of shops and jobs, force landowners to surround their buildings with parking lots, and mandate the construction of streets and highways that are too wide to be crossed comfortably on foot. If government reduced or eliminated these regulatory burdens, property owners would have more extensive rights, and American cities and suburbs would be more comfortable places for nonautomotive commuters. Such deregulation would further both the deregulatory goals of property rights advocates and the antisprawl goals of the smart growth movement.

Part II of this Article briefly outlines the history of sprawl, the smart growth movement, and the property rights backlash against that movement. Part III demonstrates how American land-use regulation promotes sprawl and proposes an agenda of legal reforms that enhances both property rights and smart growth, including both radical reforms designed to minimize government regulation and compromises that reflect the policy concerns justifying existing regulations. Finally, Part IV suggests that current regulations may frustrate consumer preferences for more pedestrian-friendly development.

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