Document Type

Article

Publication Title

Notre Dame Law Review

Volume

82

Publication Date

2006

Keywords

Social network, community, New York City, community garden, New Urbanism, Smart Growth, urban commons

Abstract

One of the goals of land use (and pollution control) law is to force the internalization of these costs. This otherwise economic view of land use law is also rooted, however, in an ecological understanding of urban land use. Legal scholars writing over three decades ago successfully argued, based upon the ecological facts of life, that "[p]roperty does not exist in isolation" because the effects of its uses flow outside of the boundaries of ownership. The notion that property is inextricably part of a network of social and economic relationships, and that its impacts traverse legally defined boundaries and relationships, is now deeply enshrined in our regulation of public and private land. This Article highlights a category of social costs that remain largely exogenous to the norms underlying our system of land use controls. Scholars from various disciplines have long recognized the centrality of social capital to, and the resources it purchases for, the governance, health, and sustainability of urban communities." Legal scholars have yet to fully grapple with the costs imposed on the social networks and ties, or social fabric of a community, arising from land use and development decisions. This Article asks how, if at all, these costs are accounted for, or integrated into, land use regulation and policy. Social capital in this Article refers to the ways in which individuals and communities create trust, maintain social networks, and establish norms that enable participants to act cooperatively toward the pursuit of shared goals. The question that this Article asks is how, if at all, we account for a community's social capital in land use law and policy. This inquiry is based on the assumption that decisions about physical urban form and design often, but not always, exist in a highly interactive (and integrated) relationship with the social structure and organization of urban communities. Part I of the Article employs a case study involving a lawsuit to stop the proposed sale of hundreds of community gardens by New York City, the owner of the previously vacant lots, to private developers. Part II takes a closer look at the legal mechanisms through which we regulate and manage land use in urban environments and through which the impacts on social capital can be assessed. Part III turns to contemporary urban land reform movements, namely "New Urbanism" and "Smart Growth," which are reshaping the urban landscape in the pursuit of social, economic, and environmental quality goals. Part IV of this Article suggests that accounting for the integrated relationship between decisions about physical urban space and impacts on a community's social capital necessarily requires rethinkinghow we manage and regulate the urban commons.

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