By Sara C. Bronin. Full text here.
Thirty-seven years ago, a book called The Quiet Revolution in Land Use Control argued that states would soon take over localities’ long-held power over land use regulation. In the authors’ view, this quiet revolution would occur when policymakers and the public recognized that certain problems—like environmental destruction—were too big for localities to handle on their own. Although the quiet revolution has not yet occurred, this Article suggests that it will, and should, occur alongside the ever-growing green-building movement. This movement presents practical and ideological challenges to our current system of regulating land use. This Article examines those challenges, which occur primarily as a result of the “locality”—the local administration and enforcement—of “traditional” land use laws such as zoning ordinances and design controls. It uses the green building example to rebut the post-quiet-revolution scholarly presumption that land use is, or should be, an inherently local function.
Currently, traditional land use regulation takes place at the local level. As written and enforced, zoning and design controls laws create unnecessary conflict between the desire to live in safe, attractive, and culturally rich communities and the desire to make those communities environmentally responsible. This tension raises the question: how should our traditional land use laws change in light of growing evidence of the negative externalities of conventional construction?
This Article argues that the dominant mode of land use regulation nationwide bars the reforms that environmentalists and the building industry have worked together to develop. Given the failures of local governments to facilitate green building, it argues that when the consequences of land use laws exceed local boundaries, “extralocal” regulation should be considered. Instead of either a regional or national approach, this Article takes up the quiet revolution’s rallying cry that states should play a stronger role in shaping the way traditional land use laws respond to green building.