Yesterday, our ABA and Owners' Counsel of America colleague Dwight Merriam gave the keynote address at the 7th International Conference of the Academic Association on Planning, Law, and Property Rights, in Portland, Oregon. Dwight's presentation, "Getting Past "Yes or No" – Linking Police Power Decision-making with Just Compensation," centered on the idea that many of the frustrations in land use and environmental law might be avoided by the establishment of a compensation fund which would be drawn upon to offset the negative externalities of development proposals that otherwise might draw fire. So instead of objecting, landowners who suffer losses because of a project that will benefit the public -- a nearby wind farm, for example -- could obtain compensation.
Here's a summary of his presentation:
Land-use and environmental decision-making under the police power is usually a zero-sum game. When neighbors complain about the negative externalities of a development project, public decision-makers end up weighing the police power objectives of promoting the public health, safety, and general welfare against the private losses which may be substantial, yet small in comparison to the public benefit. Such decision-making characterizes many types of traditional developments, the siting of wind farms, development of low-level radioactive waste sites, and virtually all other activities with adverse off-site impacts, but which land uses are essential to the greater good. The same problem is inherent in public and private nuisance actions and protective legislation, such as right-to-farm laws. This presentation proposes a system by which those who suffer negative externalities would be able to make their claims to be compensated with funding provided by the beneficiaries of the development. In terms of public decision making, officials would no longer need to consider, or be biased in their decision-making by, the economic impacts on surrounding property owners, but would be able to make their determinations solely on the basis of whether the use is appropriate for the site.
We haven't made up our own mind about whether such an approach is feasible, although its underpinnings remind us of one of theories of development agreements which allow property owners and regulating authories to trade off for more than each might have obtained by simply applying the law. But the idea intrigues us, especially since, as Dwight correctly notes, the land use/environmental game these days is characterized as a "zero sum" situation where one side wins, the other loses, and there is very little chance for another outcome.
The PLPR conference has a fascinating lineup of similar speakers and topics with a focus on planning and property rights, much of it from an international perspective. And be sure to click on the photo above to see an enlarged version -- yes, Dwight's tie is a subway map of New York City.
