Institutions and Land-Use Conflicts: Harm, Dispute Processing, and Transactions
Duke, Joshua M., Journal of Economic Issues
Land-use conflicts arise from clashing beliefs about the social role of land and the ends to which land shall be put. These conflicts are then situated in socially constructed contexts, such as growth management, farmland preservation, tax assessment, and nuisance. For instance, farmers at the urban fringe view conflicts in terms of urban sprawl, development restrictions, and differential tax treatment; western ranchers challenge federal grazing restrictions on public land; urban property owners object to zoning and historical site designations; and developers see conflicts as jurisdictional disputes and struggles over impact fees. One senses that these conflicts share essential attributes beyond the obvious connection to the use of land, but analytically useful characteristics remain elusive and the scholarly debate has not begun to approach consensus. The principal claim in this paper is that each dispute, from any of the assorted categories of land-use conflicts, may be reframed as an analytically analogous series of economic transactions, referred to as land-use transactions.
The analysis of disputes is frequently framed as a struggle between private property owners and government. This also is thought to inform differing perceptions of freedom as opposed to "oppressive" government. As such, a land-use conflict is perceived to be a zero-sum game at best and a purposeful, ideological crusade over fundamental moral beliefs at worst. This framing of the issues at hand, together with the special place of land in the American psyche, usually leads to an emotional battle that obscures the central issues at stake and precludes appropriate dispute processing.
Framing conflicts as a landowner versus the government is wrong on at least two counts. Disputes involve conflicting claims about what institutions should be in place rather than disputes about whether it is justified for the government to take something from a private party. If the relevant institutions already existed--and private property rights thus were duly assigned--then there would be no conflict beyond one of enforcement. This paper seeks to clarify this distinction by more carefully defining the harm in actual conflicts (rather than enforcement conflicts) and then studying the processing of disputes about such harms. Second, private-property-owner-versus-government framing also fails to recognize that the true conflict exists between among landowners rather than government versus a single party. The government's role in restraining one party liberates others. Once again, at a most basic level, land-use conflicts are about assigning rights through institutions.
The inappropriate framing of land-use conflicts lies at the foot of much lingering incoherence in American land policy. Far too frequently, disputes are assessed topically, so that a wetlands conflict is analyzed as if distinct from a farmland preservation conflict. Rather than regard such conflicts within their usual contexts--zoning, regulatory takings, urban sprawl--it is more useful to view land-use conflicts as a metaphor for an underlying problem: the actions of one landowner hold perceived implications for others who may be, but need not be, owners of nearby parcels of land. In essence, this land-use "externality" captures the problem of cost being borne beyond the nominal boundary of the decision-making unit responsible for the actions under scrutiny. There is a divergence between costs borne privately and costs borne socially. In other words, the domain of unwanted implications transcends the socially legitimate domain of choice (Bromley 1989, 1991).
Unfortunately, the traditional economic explanations obscure as much as they reveal. This may be seen in their failure to offer resolution programs that adequately address the political side of land-use conflicts. For instance, the Pigovian solution does not consider political concerns and instead proposes that the land-use externality must always be resolved by altering "polluter," rather than "victim," behavior. …