Deregulating Land Use: An Alternative Free Enterprise Development System

Land use controls have proliferated within the last fifty years.' 3 Complex land use problems 14 quickly generated a host of equally complex solutions.Indeed, the progression from the common law of nuisance to detailed building and housing codes, 5 zoning laws,' 6 subdivision controls,' 7 and environmental impact regulations s has 13 American local municipalities, up until the late nineteenth century, enacted practically no formal land use controls.LAND USE CONTROLS: PRESENT PROBLEMS AND FuTURE REFORm 3 (D.Listokin ed.1974) [hereinafter cited as LAND USE CONTROLS].Unreasonable uses of land were generally regulated through the common law of nuisance.1 R. ANDERSON, AmmrsucAN LAw or ZoNmNr § 1.02 (2d ed.1976).'4 Recognition of the complexity presented by land use issues can be traced to Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), in which Justice Sutherland stated: Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. . . .Such regulations are sustained, under the complex conditions of our day .... ld.386-87.15 Building and housing codes primarily deal with the material makeup and habitability of a structure; however, they interrelate with other land use controls, such as height and setback provisions, on the issue of safety.See generally 1 P. RoHAN, ZONING AND LAND USE CONTROLS § 1.02 [6][c] (1978).Although building codes can be criticized for excessive specification and inflexibility, the policy of establishing a threshold level of safety cannot be faulted.The alternative system preserves building code regulation, with the general endorsement of the efforts aimed at uniformity and the substitution of performance for specification standards.See infra notes 205-06 and accompanying text.16Zoning-in America was patterned after the late nineteenth century experience in Germany, and the first comprehensive ordinance was that adopted by New York City in 1916.See 1 R. ANDERSON, supra note 13, § 1.02; 1 J. METzEN-BAUm, LAw or ZoNING 12-15 (1955).'7 Subdivision control began as an attempt to clarify land titles for assessment and conveyancing purposes.