Why New Urbanism is the Bane of the Legal Profession

It's not how complicated or divisive New Urbanist-based land use regulations are that's driving the legal profession nuts. It's the opposite. There just aren't many New Urbanist rulings in the casebook, explains Jonathan Zasloff.
February 9, 2013, 11am PST | Jonathan Nettler | @nettsj
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Zasloff explores the possible reasons why "[a] quick check in the Westlaw 'ALLCASES' database yields only one result for the phrase 'Form-Based Code' and none of the results for 'transect' has anything to do with the New Urbanist land use concept."

It's not that there hasn't been enough proliferation of New Urbanist-based regulations to to generate cases, he argues, but that "New Urbanism squeezes a lot out of the uncertainty and over-regulation out of the Euclidean system, but cannot get rid of it.  Euclidean zoning might be necessary to handle these uncertainities [sic]."

"In other words," he concludes, "while New Urbanism coding can serve as a replacement for a lot of Euclideanism, it cannot eliminate it entirely — not because we are addicted to Euclidean forms, and not because we are dumb, but because lots of the world is uncertain, and cities will have to grapple with that.  Conditional use permits and variances aren’t about the flawed ideology of early-20th century planners, but about the world’s inevitable uncertainty.  If this is right, then land use casebooks will still emphasize Euclidean zoning, because that’s where the disputes are and necessarily will be."

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Published on Wednesday, February 6, 2013 in Legal Planet
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