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    03.01.12 David G. Trager Symposium Addresses Post-Zoning, Alternative Forms of Land Use Controls

    In February, the Law School held the David G. Trager Public Policy Symposium to address emerging issues in land use controls. In his introduction, Interim Dean Michael Gerber remarked that the Law School’s location places it at the leading edge of these issues in a borough that is the site of many important land use disputes and innovations. “Whether it is the development of Atlantic Yards for the New Jersey Nets basketball stadium, the rezoning and development of the Brooklyn Navy Yards, or the complex public and private partnerships developing the Brooklyn waterfront, land use innovations are happening in the Law School’s front, back, and side yards,” he said.

    Professor Christopher Serkin, an expert in land use and property law, who organized the event with Professors Gregg Macey and David Reiss, explained that the day’s discussion was designed to “provide a framework of exploration” for new forms of land use controls. Roughly 100 years ago, zoning emerged as a response to the vagaries and limits of nuisance law in controlling threats to public health and safety. Zoning offered promise as a tool for comprehensive planning even as it rebalanced private property rights. Much has been written on the subject, which has evolved to mediate between the rights of property owners and the interests of the public.

    Zoning is no longer the exclusive source of land use regulations, however. Governments in general and New York City in particular, have begun to rely on contracts and novel property transactions to control development in their jurisdictions. Through development agreements, restrictive declarations, community benefit agreements, transferable development rights, conservation easements, and other tools, zoning is both supplemented and supplanted by new techniques that challenge the traditional limits on government regulation.

    “Our interest here is in the regulation of development that push the boundaries or avoid traditional limits on municipal zoning,” Serkin explained. Likewise, Professor Gregg Macey asserted that “we hope to explore new ways of thinking and planning that meet multiple goals and long-standing concerns, leaving behind the gaps that traditional zoning initiatives have created.”

    Panelists included leading land use experts from around the nation, including Professors Richard Epstein, Vicki Been, Lee Fennell, Richard Briffault, and Rick Hills. One panel addressed the issues related to regulating and controlling property rights at a smaller scale than traditional lot-by-lot regulation, whether through easements, transferable development rights, or form-based codes. Another panel explored the creation of markets and pricing for land use preferences, whether creating space for bargains, or relying on taxes instead of top-down regulation. The final panel focused on new mechanisms for identifying and instituting community and sub-local preferences.

    Overall, key themes arose among the discussion: the use of markets and private ordering in the shadow of zoning; the emergence of new goals in land use regulation, beyond the traditional ones of separating incompatible uses and minimizing property conflicts; and the role of information in land use decision-making.

    Papers from the day’s symposium will be published in a forthcoming issue of the Brooklyn Law Review.