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The Public Regulation of Land Use Decisions: Criteria for Evaluating Alternative Procedures

47 Pages Posted: 23 Sep 2009 Last revised: 3 Jul 2013

Tom Tyler

Yale University - Law School

David L. Markell

Florida State University - College of Law

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Date Written: August 31, 2009

Abstract

In this article we argue for an empirical governance approach - the use of public evaluations - as one basis for deciding whether and how to regulate decisions with public consequences. We propose a conceptual framework for evaluating public acceptability, notably that public judgments should be evaluated against five criteria: overall acceptability ex ante; robustness; consensus; procedurality; and their ranking on non-fairness issues such as cost and convenience. In the article we also move beyond theory to implementation by modeling our framework to evaluate public judgments concerning acceptability in the contentious area of land use decisions in Florida.

Data from a survey of Florida stakeholders offers several interesting findings about five procedures currently in use to make land use decisions: private negotiation; public hearings conducted by elected local officials; administrative law hearings; judicial adjudication; and public referendums. Based upon the above five criteria, judicial adjudication is evaluated as the most desirable of these procedures through which to govern land use decisions. Respondents view judicial and administrative adjudication differently, a finding that raises important questions concerning the appropriate roles for, and structure of, administrative and judicial adjudication. Referendums receive mixed reviews, while public hearings, the most common form of decision-making procedure in the land use arena, are the least acceptable. In short, as the paper details, our findings in the specific context of land use decision-making procedures raise interesting and important questions about the most appropriate procedure through which decisions should be made in this arena and whether there are ways to revise procedures to improve their acceptability to the public. Further, the findings raise important questions across policy arenas about the appropriate use and structure of different types of decision making processes.

Our more general objective is to offer a framework for using empirical governance to consider and, ultimately, enhance the public acceptability of government decision-making processes. Our basic premise in this project is that, to further good governance, government should make decisions using procedures in which the public has confidence and that will increase public acceptance of such decisions.

Suggested Citation

Tyler, Tom and Markell, David L., The Public Regulation of Land Use Decisions: Criteria for Evaluating Alternative Procedures (August 31, 2009). Journal of Empirical Legal Studies, Vol. 7, p. 538, 2010; FSU College of Law, Public Law Research Paper No. 390; FSU College of Law, Law, Business & Economics Paper No. 09-24. Available at SSRN: https://ssrn.com/abstract=1475378

Tom Tyler

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

David L. Markell (Contact Author)

Florida State University - College of Law ( email )

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