In 2004, I was invited to participate in an earlier symposium held in Professor Dan Mandelker’s honor. As in this second Festschrift, I was the only foreigner among an eminent group of U.S. planning-law scholars. I titled my chapter in that symposium “A View from the Outside: The Role of Cross-National Learning in Land-Use Law Reform in the U.S.”1 In that paper, I took a broad view of U.S. land-use law from a comparative perspective. Here I will dive deeper and farther.
Since my previous paper, a potential leap occurred in the capacity for knowledge exchange about land-use law. The Organisation for Economic Co-operation and Development2 (OECD) has taken up the mission of providing information about land-use policy and regulation in all its members’ countries, among them the United States. This first-ever survey was published in 2017.3 A second project has recently been completed—a survey of “land value capture” tools available in all OECD member countries and others. I have been involved in both projects, as well as in prior United Nations Habitat efforts to encourage knowledge transfer about related topics.4
The 2017 OECD report is directly pertinent to this essay because it makes a dramatic point about the United States. In the classifications of national approaches to land-use regulation, the United States is found to be an outlier and has been placed in a category on its own.5
In this paper, I argue that behind the solitary status of the U.S. land-use model hides a paradox: despite its placement in a self-contained category, the United States has, unaware, been a passive “exporter” of knowledge about land-use regulation. Planners or lawyers in local government trenches who invented, or adjusted, such ideas are usually unaware of the international interest that their ideas have invoked. The exported tools, however, are very specific. They fall in a category that Alan Altshuler and Jose Gomez Ibanez (1993) succinctly termed “regulation for revenue.”6 A broader term is used today: “land value capture.” 7 Examples include transfer (or trading or purchase) of development rights (TDR); exactions; incentive zoning for affordable housing; incentive zoning for public/private open space; inclusionary zoning; impact fees; and linkage fees for workforce housing. The common denominator for these inventions is the leveraging of land regulation to deliver indirect financing for specific types of public services or amenities.8 Importantly, these tools can be detached from the main body of American land-use law. The paradox is that the converse side—an “import trade”—hardly exists. Americans rarely seek to adopt land-use regulatory tools from abroad.
In this paper, I try to identify the underlying reasons for this paradox. But, first, an important disclaimer: I am not an expert on American land-use law and am even less of an expert on constitutional law. This paper is written from an observer’s perspective. It is based on my decades-long comparative international research on various aspects of land-use (planning) law, supplemented by intermittent guest appointments at American universities. Perhaps as an outsider, I can offer a mirror-on-the-wall perspective, with the hope that some parts of the image will resonate in internal debates and further legal and empirical research.
The paper’s journey begins with a brief summary of the key differences between U.S. land-use law and other countries. To understand the export-import paradox, I need to “zoom out” and look at the U.S. context from a distance. For the export side of the paradox, I propose four explanatory factors, each discussed in a separate subsection. I then try to understand the other side of the paradox—the self-isolation of U.S. land-use scholars (and decision makers) from inputs from international knowledge. The paper ends with some thoughts about the merits of cross-national research for rebalancing knowledge exchange.
I. Why Is U.S. Land-Use Law in a Category of Its Own?
Most readers of this Festschrift volume will be American experts in land-use law who are usually unaware of other countries’ approaches to land-use law. They may be pondering why the OECD would regard the U.S. approach as so different from those of other countries. In this section, I offer my own analysis of the key attributes of U.S. land-use law that set it apart.
From the OECD report:
The absence of national or state level requirements for local planning also implies that
the differences between local approaches to planning may be significantly larger in the
United States than in other OECD countries. This is exacerbated by the widespread
absence of state-level or other supra-local plans. Only 13 US states prepare state-wide
spatial plans and only a minority of them are legally binding for local governments.
As a consequence, most local governments in the United States have a greater scope
to determine their land-use policies than anywhere else in the OECD. The potential
diversity in approaches makes it nearly impossible to provide a representative overview
of the approaches to land-use governance that are used by the approximately 36 000 local
governments in the United States.
OECD (2017), Land-use Planning Systems in the OECD: Country Fact Sheets, OECD Regional Development Studies, OECD Publishing: p. 27.
But first, a note on terminology. What Americans know as land-use law is often known internationally as “planning law” (or spatial planning law or territorial planning law). The term “planning system” is used as a general (not specifically legal) way to refer to the package of legislation, organizational structure, procedures, and dominant practices. This term is also featured in the OECD report’s title.
Beyond the similarities and differences captured in the OECD’s general survey, my own comparative research shows that when one adopts a legal perspective, no two “planning systems” are ever the same. Ostensible similarities will almost always hide differing legal implications, even among neighboring countries with a similar legal-cultural background.9
In my view, the American system differs from most other countries in three main aspects: absence of national legislation, the weak status of plans, and the regulatory takings issue. The United States is among a tiny minority of advanced-economy countries without national land-use legislation, whether enabling or regulatory.10 This is not due to the federal structure. Some other federal countries—such as Germany—do have national legislation, with a variety of relationships between the national and state/local levels. Furthermore, as Jerold Kayden has explained, the United States has no unsurmountable constitutional barriers to enactment of federal land-use legislation. Indeed, there has even been an attempt to propose such legislation.11
Although the contents and legal details of national statutes differ greatly across countries, their shared role is to formulate a rationale or set of goals for land-use planning and regulation. They set framework boundaries for what falls within the scope of land-use regulation and what is outside. Often, national legislation also determines the interrelationships among the relevant institutions and lays out the key procedures and stakeholders. Thus, statutes provide coherence to the planning system. As the OECD report notes,12 given the absence of national legislation, state and local governments in the United States display much greater disparities than in most other countries.
A second attribute that sets the United States apart is the usual hiatus between “regulations” and “plans.” I often find that my American colleagues, accustomed to a separation between zoning and American comprehensive plans, erroneously assume that, in other countries too, the term “plan” is distinct from regulation. Since only thirteen U.S. states require preparation of comprehensive plans, zoning usually remains legally detached from something called a “plan.”13
In most other countries, there is overlap and continuity between regulation and planning. Statutory land-use plans are the main regulatory tools. Statutory plans come in various degrees of detail, geographic scale, and legal status. They can contain a greater variety and mixture of topics than usual U.S. zoning and other land-use regulations, like subdivision and design control. The most detailed level of plans is usually the regulatory level that directly controls decisions on development permits. In principle, the law in many countries requires some degree of consistency and continuity between plans of different scales and functions. As an aside, I should add that a system with binding plans does not always fulfill the expectation that plans would function like constitutions.14 In practice, the “tail wags the dog” syndrome often occurs, where frequent amendments disrupt the plan’s integrity and entail partial collapse of the hierarchy.15
The third unique attribute of U.S. land-use law is not picked up by the OECD report. The “elephant in the room,” in my view, is the regulatory takings issue as it has evolved in the United States. I will revisit this topic in greater depth later.
II. The United States as an Exporter of Freestanding Land-Use Tools
Back to the export-import imbalance in transfer of knowledge in land-use law: what could explain it? I conjecture that the United States’ upper hand on the export side is due to the interaction of four factors that co-exist only in the United States. The first two operate to generate the tools, the third and fourth operate to select and disseminate the tools. The four factors are the following: (a) opportunity for innovation thanks to broad legal-political and geographic spaces; (b) necessity for innovation to cope with regulatory takings challenges; (c) an “ecosystem” for selection-of-the-fittest and dissemination within the United States; and (d) overseas dissemination advantages thanks to the dominance of the English language. Together, these four factors can, perhaps, help to explain the export advantage, or serve as hypotheses for further research.
A) Opportunity for innovation: Broad legal-geographic spaces
Alongside its negative impacts, the absence of national land-use legislation in the United States has a positive side in the context of this paper: its absence has provided ample opportunities for innovation. State and local governments have broad legal freedom to create their own land-use planning legislation (bounded by shared U.S. constitutional law).16 Observers might ask: Are there indeed fifty land-use law systems in the United States? In fact, though, most states have similar land-use enabling legislation. The main common aspects reflect the early adoption by most states of the same voluntary model enabling acts for zoning and city planning, dating back to the 1920s.17 The shared attributes are so significant that it is possible to analyze U.S. law in a single (though thick) book volume.18
Not all states still follow the original model legislation. The absence of federal legislation has enabled several states (known as the “Quiet Revolution” states) to write their own unique script.19 Given current trends of political distancing across states, and especially the hot debates about affordable housing and criticism of single-family suburbs,20 I conjecture that future land-use legislation will express further divergence rather than convergence.
The loose legal framework allows local governments very high degrees of freedom for innovation. The sheer size of the United States and the large number of general-purpose local governments provide many different playing fields.21 Compared with many other countries, American local governments have broad legal powers, not only in land use. Where there is home rule, these powers are fortified to extremes. The U.S. decentralized legal system, the country’s large geographic distances, and the historic and socio-demographic differences across cities and regions result in a formula for allowing generous degrees of freedom for local inventions (some good, some not so good, depending on perspective).
B) Necessity for innovation: The challenges of the regulatory takings issue
I cannot think of any other national or subnational jurisdiction where so many day-to-day land-use regulatory decisions are exposed to possible constitutional challenges as in the United States. The primary issue is regulatory takings. This factor is not identified in the OECD report, but it is an important factor in the self- isolation of U.S. land-use law. The necessity of escaping the grip of regulatory takings has incentivized some U.S. local governments to invent new regulatory tools that have greater chances of bypassing takings action.
Almost all nations around the globe also have a national constitution, and many include clauses about protection of property rights. The difference is that, in the United States, the interface between the Constitution and day-to-day land use decisions is much more intimate than in many other countries. This is especially visible with regulatory takings—the “raw nerve” of American land-use law. In most U.S. states, no state legislation can effectively mediate between the Constitution and routine land-use decisions.
A look at the United States through a comparative lens can help illustrate my point about the high degree of legal uncertainty. My book Takings International23 covers thirteen national jurisdictions (representing forty-five percent of all OECD members at the time). U.S. law on regulatory takings is shown to be the most turbulent and infected with chronic uncertainty. In the absence of federal legislation and only a few partial attempts at state legislation (following the Kelo decision),24 government bodies continue to be exposed to constitutional takings challenges. Unlike other countries, where legislation provides boundaries for the types of regulations that can trigger takings claims, in the United States the boundaries are not clear. Apparently, takings claims are sometimes based on grounds totally unrelated to land use or real property.25
How do other countries cope with regulatory takings? Figure 1 shows a schematic scale based on the sample of advanced-economy countries in my book. The first category includes Canada, Australia, the United Kingdom, France, and Greece. In those countries, the law does not provide any compensation rights for “partial takings.26” The second category is of intermedium and ambiguous formats, where the rules are unknown or blurred. In Finland (and to a lesser extent in Austria), the ambiguity reflects the small number of claims in a non-litigious society and, thus, insufficient case law for basic interpretation of the legislation. By contrast, in the United States, there is an avalanche of court decisions, but closure and certainty seem far away. The third category includes five countries with relatively clear and more generous compensation rights.27
I cannot think of any other country, except the United States, where government bodies face such a high degree of uncertainty about liability for compensation claims. My guess is that the United States holds the global record in takings court decisions (by whatever count). On December 11, 2022, American land-use lawyers noted (or celebrated?) the centennial anniversary of Pennsylvania Coal Co. v. Mahon.28 Since then, there have been several major Supreme Court decisions29 and hundreds, perhaps thousands, of lower-court decisions on regulatory takings claims.
To give both U.S. and foreign readers a rough quantitative sense of the legal turbulence, I tried to count the number of academic papers that discuss, interpret, criticize, and rediscuss regulatory takings in land use. The approximate number is five thousand.30 Although I cannot offer an international equivalent due to language and terminology-related reasons, my guess is that this number may be higher than the total number of academic papers on similar issues published across the globe.
Legal uncertainty triggers the need to craft regulatory tools that have a better chance of escaping takings challenges because they harness market forces to mitigate direct negative impact on property values while avoiding the need to exercise eminent domain Here are a few examples of triggers and solutions: Need to downzone to protect historic heritage? Invent Transfer (or Trading) of Development Rights fit for this purpose. Worried about how to conserve depleting agricultural land? Design Transfer (or Purchase) of Development Rights tailor-made for this purpose. Fear takings claims about exactions for open spaces in New York City? Invent incentive zoning for public or privately-owned public space (POPS). Worried about the unaffordability of housing for low-middle-income population not eligible for housing subsidies? Invent incentive and inclusionary zoning for housing. Losing blue-collar or middle-income workers? Design linkage fees for workforce housing. Need land or financing for public services without eminent domain or taxation? Invent impact fees. But to become attractive for export to other countries, each local invention must also fulfill the last two of the four factors. In addition to opportunity and necessity already discussed, an exportable invention should also pass the “survival of the fittest” test and achieve broad dissemination within the United States. Only then can any of these innovations become candidates for export outside the United States.
C) An “ecosystem” for survival of the fittest
The first two factors (ample opportunities for innovation and necessity to cope with regulatory takings challenges) have turned the United States—unaware—into a huge testing ground composed of many dispersed local-government “laboratories.” But these two factors are only necessary, not sufficient to explain dissemination overseas. Two more factors are necessary. A locally invented tool must present the capacity to survive legal and political challenges in a variety of local contexts. Thanks to factors A and B supporting innovation, the United States also provides an ecosystem for a “survival of the fittest” process. The invisible hand of this system selects those land-use tools that have proven repeatedly resilient to legal challenges and political conditions.
Following successful survival in varied local contexts, some innovative tools are reported on public, professional, and social media and gradually become known beyond their state. The shared basis of land-use law across most states makes knowledge transfer and adoption feasible. But another important factor should not be ignored: all parts in the United States share a single language: (American) English and shared land-use terminology. All government units and most of the media share this language. At some point, a promising tool is also likely to capture the attention of American land-use academics and their students, who will understand the shared terms. These are powerful engines of distribution within the United States. Whether a leap abroad then takes place will depend on fulfillment of factor D, discussed below.
D) Dissemination beyond the United States: Riding on the international dominance of the English language
The three factors discussed above probably also stimulate U.S. planning-law experts to produce a huge body of scholarly publications. This body, I conjecture,31 is much larger, compared with other countries (normalized for population size, number of university positions, etc.).
American authors usually write for the domestic audience and may be unaware that U.S.-based publications on topics related to land-use law and practice, especially when accessible online, are read and cited by an increasing number of land-use scholars overseas. As I shall show in the next section, this exposure is largely passive: neither do U.S. scholars write with this audience in mind, nor do they make much dissemination effort.
The passive dissemination of American publications rides on an objective factor. English is not only the dominant language across the United States. It is today’s lingua franca. Most Europeans do not know their neighboring countries’ languages, but, among academics worldwide, knowledge of English and publication in English is increasingly required in many universities. Furthermore, the United States is a powerhouse of universities. Of the top fifty universities globally, twenty-seven were located in the United States in 2022.32 In many fields of science and scholarship in general, U.S. academic journals stand out in the total number of papers published.
Even though legal scholarship on most topics everywhere concentrates on domestic issues, this focus too is changing. Overseas, academics in land-use regulation are also increasingly reading American journals because their universities expect them to publish even their domestic analysis in English-language journals, and, for that, they must perform an international literature review. During this process, a scholar from overseas may encounter some of the U.S.-originated land-use tools. As in other fields of research, chains of citations will form that, at some point, may become detached from their U.S. origins. This happens when knowledge transfer becomes robust.
Full quantitative evidence of this phenomenon is beyond the scope of this paper, but I propose a small do-it-yourself test. Try, for example, a Google Scholar search with the term “Transfer of Development Rights,” also known as “TDR” (or related terms like “Tradable Development Rights” or “Purchase of Development Rights”).33 By now, TDR practices have acquired their own momentum of international dissemination to a broad range of countries.34 In recent years, an increasing numbers of publications by researchers in other countries cite this term. At first, TDR was discussed, as in the United States, mainly the context of historic preservation or agricultural land preservation. Most recently, TDR is receiving a special international boost among scholars as one of the “market-based instruments” for enabling nature-based solutions for biodiversity preservation and climate change.35 TDR is on its way to becoming an internationally known land-use tool, increasingly even without mention of its American origins.
The other side of export of knowledge—the import side—is comparatively weak in the United States. This is not due to intentional reluctance to learning from others but to de facto self-isolation. The self-confinement is a reflection of three factors: (a) The low degree of interest abroad in the overall U.S. land-use law (as distinct from the market-based tools discussed here); (b) U.S. land-use scholars’ low interest in imparting knowledge outside; and (c) The self-contained operation of U.S. academic platforms in land-use law.
A) Not much interest abroad in the overall U.S. land-use law model
Despite international interest in certain “footloose” instruments of U.S. land-use law discussed above, the main body has few buyers. The fact that the United States has been placed by the OECD in its own category also implies the converse: no other countries have adopted a similar model. You might ask: Perhaps the world is saturated with land-use law models and few countries have been looking for new or alternative models? In fact, in the 1930s and 1940s when the Standard State Zoning Enabling Act36 was gradually spreading to most U.S. states and local authorities, very few countries already had national land-use legislation. Many countries adopted such legislation in subsequent decades, unsynchronized. None chose to implement the U.S. model.
Then, in the 1990s, a global event—the collapse of the Soviet Bloc—led to the emergence, at once, of a large cluster of countries37 in need of a land-use law model. The Soviet regime had no interest in planning law due to its centralized decision structure, disdain for market forces, and disrespect for civil rights. Some of the East European countries did have planning law pre-World War II, but these laws had been abolished or frozen and became dysfunctional. During the 1990s, most of the post-Communist nations began crafting planning legislation.38 International agencies financed some of the work and helped to hire consultants. One can discern the footprints of planning-law models from Britain, Germany, and more—but hardly any from the United States.
The low level of interest in importing the U.S. model probably stems from some of the same reasons that render the United States a fruitful ground for innovation and export of specific tools. Four attributes of the main body of U.S. land-use law may be responsible for its low popularity among other countries: (1) the absence of national legislation that leaves the system without clear objectives and with weak legal-political coherence; (2) antiquated state legislation with embedded objectives that do not reflect recent dramatic turns in the social and environmental public norms of land use; (3) reliance on zoning as the primary land-use platform, leaving a broken link between ongoing regulation and planning policy; and (4) the persistent regulatory takings issue, which exposes the body of land-use law to an overly high dose of uncertainty about the legal boundaries of land-use regulation. This package of attributes makes the U.S. land-use model unsavory for most other countries.
B)Little interest within the United States in importing land-use tools
To the best of my knowledge, not many examples of specific land-use regulatory tools have been imported from abroad by U.S. local governments. To clarify, I am referring to specific tools of land-use regulation—not to urban-planning concepts—of which mutual learning is more intensive (for example, “new urbanism” being inspired by “old urbanism”).
To illustrate difficulties on the import side, I chose land readjustment (LR). It shares some of the functions of TDR, which I used to illustrate the export side, but LR is more comprehensive and ambitious. LR is like a network of mutual TDRs among landowners within a demarcated area, supplemented by land dedication, fees for public services, and a balancing mechanism to ensure equity among the owners.39 LR also has potential for transferability across countries. It is currently practiced in several countries across the globe and is one of the land-value capture tools strongly promoted by UN-Habitat40 and the OECD.41
On its face, LR should be attractive for import into the United States because it addresses several key problems that challenge American cities: how to assemble real estate with many owners; how to supply land and financing for public services and amenities; and how to balance the difference in uplift and decline in property values. LR may even serve as a shield from regulatory takings claims.42
Ironically, the term “land readjustment” (in English) was coined back in 1982 by Bill Doebele, an American land-use scholar.43 However, the idea did not capture much interest in the United States. A contributor to this volume, Frank Schnidman, made a concerted effort to promote adoption of LR, including a paper in this journal.44 In 1986, in cooperation with the Lincoln Institute for Land Policy, he brought over several international experts45 and, in 1987, even co-initiated a specialized academic journal (which ceased operation after two years).46 In 2000, another step was taken when George Liebmann published a model statute for adoption of LR in the United States (also published in this journal).47 However, the idea apparently did not go much further than some isolated local attempts.48
C) Self-isolation by American land-use scholars
Compared with land-use law scholarship in some other countries, the United States is more self-isolated. I do take into account that most legal fields focus on domestic law; this holds for land-use law too. Yet, as noted already, in recent years, legal research in many other countries is gradually adopting the models of research shared by other fields. This includes the increasing expectations that doctorate students and academics will publish not only in their native language, but also in English. Thus, there is a growing body of English-language publications about land use law in other countries, yet even recent American land-use law publications rarely cite any of these publications.
Another method to promote academic exchange is to incorporate a diversity of authors within academic journals. To attract good researchers from around the globe, journals in most fields make an effort to enroll in international indexing and quality-assessment platforms. Unindexed journals are not attractive because they cannot provide prospective authors with journal metrics (such as impact factor and quadrant level). In most fields, and increasingly in legal studies too, academic hiring and promotion procedures in many countries utilize such metrics.
Unfortunately, none of the nine American journals dedicated to land-use law and related topics is indexed internationally (see Figure 2).49 This is quite a large number of journals in our field, where many of the top American scholars in land-use law publish their analyses. International journal ranking may not matter for American legal scholars (given the domestic substitutes), but it does matter to many overseas scholars. It is not surprising that few scholars from abroad publish in these journals.
Figure 2: Status of international indexing for academic/professional journals in the United States that specialize in land-use law and related legal fields. Currently, none is indexed. The Urban Lawyer was indexed for several years, then stopped.
In a sister field, urban planning, the academic journals published in the United States used to be highly domestic. Gradually, these journals recognized the merits of international reach. Today, U.S.-based planning journals play a major role in cross-national academic knowledge. Analysis of knowledge transfer is now a topic in its own right in planning theory.50
International academic conferences are another platform for international knowledge exchange. These events aim to promote in-person peer evaluation and collaboration. In recent years, international conferences are available in land-use and planning law too.51 However, the number of American scholars who attend these conferences remains small. Conferences on land-use law held in the United States do not usually engage participants from overseas. Thus, due to self-isolation, the superb scholarship in American land-use law is very difficult to access by overseas scholars..
IV. Towards Future Cross-National Knowledge Transfer
Land-use regulation everywhere is often subject to criticism. Exposure to different modes of regulation is one way of getting “out of the box” and generating new ideas. There are many formats of land-use law and regulation around the world.
This paper has shown that, from my perspective as a scholar of comparative land-use law, the United States presents a paradoxical picture. On the one hand, certain attributes of U.S. geography, language, and legal structure make it a global laboratory for innovation in some types of land-use tools, drawing international interest. On the other hand, the United States is self-isolated from importing land-use law concepts from other countries.
The time is ripe for a big push for cross-national research in land-use law. For the first time, the OECD has assembled basic information about the land-use governance systems around the globe. The information is largely descriptive and does not delve into the deeper legal issues, creating a challenge for us land-use scholars.
My colleagues in this Festschrift and, of course, Professor Mandelker himself, represent a high level of land-use scholarship that is hard to emulate anywhere. The United States’ large community of American scholars could contribute greatly to the international state of knowledge in land-use law. This is good timing for American scholars to join in the international effort to enhance the knowledge base for better land-use regulation. Our field may seem like a small, somewhat esoteric niche within law and public policy in general. In fact, land-use and planning law shape our cities, economies, social structure, and environment. So many changes in socio-ethical values are occurring. Our knowledge is needed for meeting climate change. It is time to harness the best of comparative research to instill evidence-based reforms in our (often out-of-date) land-use laws. This is true for the United States—but also for many other countries.
1. Rachelle Alterman, A View from the Outside: The Role of Cross-National Learning in Land-Use Law Reform in the United States, in Planning Reform in the New Century 309 (Daniel R. Mandelker ed., 2005).
2. The OECD is the forum of the world’s economically advanced democratic countries. At the time of the survey in 2017, there were thirty-six member states. The United States was among the twenty founding members in 1961. Today, there are thirty-eight member states. Our Global Reach, OECD, https://www.oecd.org/about/members-and-partners (last visited Mar. 1, 2023).
4. Lawrence Walters et al., UN-Habitat, Leveraging Land: Land-Based Finance for Local Governments: A Reader (Victoria Quinlan ed., 2016), https://unhabitat.org/leveraging-land-land-based-finance-for-local-governments-a-reader.
5. OECD Fact Sheet, supra note 3, at 27–28.
6. Alan A. Altshuler et al., Regulation for Revenue: A Political Economy Analysis of Land-Use Exactions (1993).
8. Id. For a distinction between the different rationales for land-value (or “windfall”) capture, see Rachelle Alterman, Land Use Regulations and Property Values: The “Windfalls Capture” Idea Revisited, in The [Oxford] Handbook of Urban Economics and Planning 755–86 (Nancy Brooks, Kieran Donaghy & Gerrit-Jan Knaap eds., 2012).
9. My forthcoming book on comparative planning law will make such similarities and differences apparent. Handbook on Comparative Planning Law (Rachelle Alterman ed., Routledge, forthcoming 2024). The book covers some twenty nations across the globe.
10. Prior to the OECD report, I conducted comparative research on ten advanced-economy countries. Rachelle Alterman et al., National-Level Planning in Democratic Countries (Rachelle Alterman ed., 2001).
11. Jerold S. Kayden, National Land-Use Planning and Regulation in the United States, in National-Level Planning, supra note 2, at 44–64.
12. OECD Fact Sheet, supra note 3, at 27.
13. Id. at 28.
14. Charles M Haar, The Master Plan: An Impermanent Constitution, 20 L. & Contemp. Probs. 353 (1955).
15. This is not unlike what Daniel R. Mandelker reported for zoning amendment in his seminal book: Daniel R. Mandelker, The Zoning Dilemma (1972).
16. Kayden, supra note 11.
17. Standard State Zoning Enabling Act and Standard City Planning Enabling Act, Am. Plan. Ass’n, https://www.planning.org/growingsmart/enablingacts (last visited Apr. 19, 2023). For excellent analysis of the evolution of zoning and the interests behind it, see Sonia A. Hirt, Zoned in the USA: The Origins and Implications of American Land-Use Regulation (2014).
18. See, e.g., Daniel M. Mandelker & Michael Allan Wolf, Land Use Law (6th ed. 2022); see also John R. Nolon, Patricia E. Salkin, Stephen R. Miller & Jonathan D. Rosenbloom, Land Use and Sustainable Development Law: Cases and Materials (9th ed. 2017); Robert C. Ellickson, Vicki Been, Roderick M. Hills & Christopher Serkin, Land Use Controls: Cases and Materials (5th ed. 2020).
19. David L. Callies, The Quiet Revolution Revisited, 46 J. Am. Plan. Ass’n 135 (1980); David L. Callies, The Quiet Revolution Revisited: A Quarter Century of Progress, 26 Urb. Law. 197 (1994).
20. Notable in stirring this wave is Nolan M. Gray’s book: Nolan M. Gray, Arbitrary Lines: How Zoning Broke the American City and How to Fix It (2022); see also Island Press, Arbitrary Lines Nolan Gray’s Conversation with Planetizen, YouTube (July 21, 2022), https://www.youtube.com/watch?v=aFKzZWeVYNc. Some newspapers are already reflecting voices to abolish zoning. E.g., Adam A. Millsap, Time to Abolish Zoning? New Book Makes the Case, Forbes (July 29, 2022, 8:20 AM), https://www.forbes.com/sites/adammillsap/2022/07/29/time-to-abolish-zoning-new-book-makes-the-case/?sh=a77df5a5a9a5; Virginia Postrel, Can the US Housing Crisis Be Fixed by Abolishing Zoning?, Wash. Post (Aug. 2, 2022, 5:04 AM), https://www.washingtonpost.com/business/energy/can-the-us-housing-crisis-be-fixedby-abolishing-zoning/2022/07/31/81a74e6c-10d1-11ed-8482-06c1c84ce8f2_story.html.
21. These “playing fields” in the United States number approximately 40,000. Number of Government Jurisdictions, Federalism US (2022), https://federalism.us/significantfeatures2020/1-1-number-of-government-jurisdictions.
22. Rachelle Alterman, The U.S. Regulatory Takings Debate Through an International Lens, 42 Urb. Law. 331 (2010/2011).
23. Rachelle Alterman, Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights (2010); see also Alterman, supra note 23.
24. Kelo v. City of New London, 545 U.S. 469 (2005). Regarding state legislation, see Harvey M. Jacobs & Ellen M. Bassett, All Sound, No Fury? The Impacts of State-Based Kelo Laws, 63 Plan. & Env’t L. 3 (2011). A more recent analysis argues that these state statutes have been weakened even further. See Timothy M. Harris, Backwards Federalism: The Withering Importance of State Property Law in Modern Takings Jurisprudence, 75 Rutgers Univ. L. Rev. 113 (2023).
25. The latest example to surprise me happened to land in my inbox recently. In Washington Food Industry Association & Maplebear, Inc. v. City of Seattle, 524 P.3d 181 (Wash. 2023), the court held that a takings challenge to Seattle’s ordinance requiring COVID-19 combat pay for food delivery workers could proceed. Seattle’s Hazard Pay For Food Delivery Gig Workers Might Be a Penn Central Taking, Inverse Condemnation (Feb. 13, 2023), https://www.inversecondemnation.com/inversecondemnation/2023/02/seattles-hazard-pay-for-food-delivery-gig-workers-might-be-a-taking.html. For a scholarly argument about the lack of boundaries see, for example, Eduardo Peñalver, Regulatory Taxings, 104 Colum. L. Rev. 2182 (2004); Mark Fenster, The Stubborn Incoherence of Regulatory Takings, 28 Stan. Env’t L.J. 525 (2009).
26. France is an extreme case where the planning legislation explicitly states, “no compensation rights,” leaving no room for discretion.
27. Germany and Sweden do offer compensation rights but only withing a stipulated time limit after a plan (in those countries, the equivalent of zoning) has come into force.
28. 260 U.S. 393 (1922).
29. Readers of the Urban Lawyer are probably well acquainted with the major decisions. See, for example, the latest edition of: Mandelker & Wolf supra note 17, at ch. 2.
30. To save me tedious work, I turned to the recently released services of Chat GPT on March 10, 2023. I asked the AI machine to count the number of discreet academic items published in the United States where “regulatory takings” (or regulatory taking) is mentioned at least once in the context or land use or zoning. Chat GPT’s machine learning at the time was up to November 2021.
31. This conjecture cannot be verified as yet, It awaits progress of AI machine-leaning data bases to become proficient in planning-law terminologies in many languages globally.
32. World University Rankings 2022, Times Higher Educ. (2022), https://www.timeshighereducation.com/world-university-rankings/2022/world-ranking; Press Release, ShanghaiRanking’s Academic Ranking of World Universities 2022 (Aug. 15, 2022), https://www.shanghairanking.com/news/arwu/2022.
33. I selected TDR because this term seems to have retained its original name in many papers by foreign academics. Some of the other tools I mentioned are more difficult to trace because the original American name has been domesticated into other languages and, if reported in English, may result in a literal translation from the local term. For example, incentive zoning has probably been translated into other terms because, as explained, zoning is not widely adopted outside the United States.
34. Even UN-Habitat, which mostly serves developing countries, describes examples of TDR applied in Global South countries. Walters et al., supra note 4, at 87, 163–67.
35. Erica Bruno, Enzo Falco, Sina Shahab & Davide Geneletti, Integrating Ecosystem Services in Transfer of Development Rights: A Literature Review, 131 Land Use Pol’y No. 106694 (2023).
36. U.S. Dep’t of Com., Advisory Comm. on Zoning, A Standard State Zoning Enabling Act Under Which Municipalities May Adopt Zoning Regulations (rev. ed. 1926).
37. In addition to the countries that emerged directly from the Soviet Bloc’s collapse (1989–1991), several new countries were formed through border redrawing in the wake of wars. I count twenty-seven.
38. An example of the latter is Poland. Soon after parting from Soviet influence, Poland began work on a new planning law and has revised it since. See Maciej J. Nowak, Przemysław Sleszy´nskim, & Paulina Legutko-Kobus, Spatial Planning in Poland Law, Property Market and Planning Practice 27–35 (2022).
39. There is ample international literature on LR. See, e.g., Yu-Hung Hong et al., Analyzing Land Readjustment Economics, Law, and Collective Action (Yu-Hung Hong & Barrie Needham eds., 2007).
40. 7 UN-Habitat, Global Experiences in Land Readjustment: Global Legal Case Studies (Yu-Hung Hong & Julia Tierney eds., 2018), https://unhabitat.org/sites/default/files/documents/2019-05/global_experiences_in_land_readjustment_urban_legal_case_studies_volume_7_1.pdf.
41. OECD & Lincoln Institute of Land Policy, supra note 7.
42. Of course, like any land-use tool, LR is not a panacea, and its practices and effectiveness differ across countries and contexts. For analysis of the detailed functioning of LR and some legal challenges that might be encountered, see Rachelle Alterman, Much More Than Land Assembly: Land Readjustment for the Supply of Public Services, in UN-Habitat, supra note 37, at 57–86. The full volume discusses various versions of LR practiced in several countries.
43. William A. Doebele et al., Land Readjustment: A Different Approach to Financing Urbanization (William A. Doebele ed., 1982).
44. Michael M. Shultz & Frank Schnidman, The Potential Application of Land Readjustment in the United States, 22 Urb. Law. 197 (1990).
45. Lincoln Inst. for Land Pol’y, Conference on Land Readjustment—American Style, Fort Myers, Fla., Apr. 27–30, 1986. My own presentation, “Land Reparcellation with Builtin Equity: Israeli Style,” was part of that conference.
46. The journal was called Land Assembly and Development—A Journal of Land Readjustment Studies. (I was a member of the editorial board.) See also Frank Schnidman, Land Readjustment, Urb. Land, Feb. 1988, at 1.
47. George W. Liebmann, Land Readjustment for America: A Proposal for a Statute, 32 Urb. Law. 1 (2000).
48. Robert Home reports of a few failed attempts to pass LR statutes in some U.S. states. There may have been more since his 2007 paper. Robert Home, Land Readjustment as a Method of Development Land Assembly: A Comparative Overview, 78 Town Plan. Rev. 459 (2007).
49. Of course, in the United States and elsewhere are also generic journals in legal studies, but their potential for promoting knowledge exchange among peers is diffused.
50. See, e.g., Patsy Healey et al., Crossing Borders: International Exchange and Planning Practices (Patsy Healey & Robert Upton eds., 2010).
51. I am the Founding President of the International Academic Association on Planning, Law, and Property Rights (PLPR), founded in 2007. The association is very vibrant in stimulating international knowledge exchange. Its annual conference draws participants from scores of countries. Each year the conference is hosted by a university in a different country, including three times in the United States. With 100 to 200 academic papers delivered every year, cross-national collaboration in published papers has increased severalfold since the Association’s founding. Dan Mandelker honored us with his presence some years ago. An American, Richard Norton, was PLPR’s past president. However, only a handful of American land-use scholars participate regularly. More recently, the Fordham Urban Law Center has begun hosting international and comparative urban law conferences. Urban Law Center, Fordham Univ., https://www.fordham.edu/info/20699/urban_law_center (last visited Apr. 22, 2023). Again, only a small number of U.S. land-use scholars attend regularly. A closely related field—property law—presents a good model. The Association of Law, Property and Society was founded in 2009 and holds annual conferences with a truly global reach. Many U.S. scholars in property law regularly attend.