Is the Future of Development Regulation Based in the Past? toward a Market-Oriented, Innovation Friendly Framework

This paper presents an alternative framework for development review and local planning that is more open and consistent with promoting innovation in housing and land use. The current approach is a “closed system” framework, where innovations can be adopted only if they were anticipated in the local comprehensive plan or a political majority can be convinced to support the proposal. The alternative framework, rooted in the American legal tradition of natural rights, builds in a presumption in favor of innovation in land use and housing subject to specific limits and qualifications. The new system is “open ended” in that innovations are encouraged as long as they do not limit the rights of other property owners or the community and impacts are mitigated. The new framework has the practical advantages of recognizing the dynamic nature of urban development, promoting innovation, and subjecting land-use regulation to objective, performance-based measures.