Mustering the Missing Voices: A Collaborative Model for Fostering Equality, Community Involvement and Adaptive Planning in Land Use Decisions, Installment Two

Abstract

This paper is the second half of a two-part article on negotiated land use regulation. Following up on the first installment's detailed critique of the shortcomings that pervade the traditional command-and-control and prevailing bilateral negotiation models of land use regulation, this second installment advances a collaborative model of agreement-based land use regulation that proposes reshaping modern land use and development to address the theoretical and practical failures of existing approaches.

The proposed model seeks to cultivate improved land use regulatory processes and local democratic institutions through: nurturing agreement processes that are open, promote participation and oriented toward problem-solving; fostering agreements that allow for adaptability and aggregate accountability by providing for shared community implementation or monitoring of agreements; and positioning the land use planning professional as a community organizer, information gatherer and distributor, and facilitator of effective comprehensive planning, rather than the heretofore common but inappropriate roles of diviner of the public interest or agreement negotiator. The model ultimately seeks to foster local experimentation with various modes and amounts of public participation in order to nurture the active, sustained involvement on which the legitimacy of local land use regulation fundamentally relies.

The paper also discusses a number of potential challenges to the development of collaborative land use decision-making processes, arguing that despite these concerns, the proposed collaborative model has considerable promise in the local land use domain. In particular, the paper contends that some of the principal criticisms of collaborative processes initiated in the administrative law realm - including the practicability of multilateral dispute resolution and the diminished reliance on governmental expertise - may actually be strengths in local land use regulation. The paper thus calls for the incorporation of additional collaborative characteristics into local land use processes, both as a necessary response to existing, biased regulatory approaches and as a welcome return to fostering community participation as an essential source of legitimacy for local government decision-making.

Keywords: Land Use Regulation, Property, Zoning, Collaborative Governance, Collaborative Planning, Alternative Dispute Resolution, Development Agreements, Annexation Agreements, Negotiated Regulation, Planned Unit Development, Contract Zoning, Incentive Zoning, Comprehensive Planning, Negotiated Permitting

JEL Classification: K10, K11, K32, K30, K40, K29, K20