Overcoming Neoliberal Hegemony in Community Development: Law, Planning, and Selected Lamarckism
44 Urban Lawyer 345-398 (2012)
54 Pages Posted: 25 Feb 2012 Last revised: 3 May 2013
Date Written: February 24, 2012
Law constrains our behavior, both individually and collectively. Legitimate law is that law that emerges from an inclusive process that identifies a governed community’s collectively imagined future for a place, while respecting the concerns of necessarily oppressed minority interests. In the land use context, we use comprehensive land-use plans to identify and communicate a vision that motivates binding behavioral changes — i.e., plans create visions that are sufficiently attractive to motivate communities to act in meaningful ways. To the extent law emerges from an inclusive and effective community plan, it is legitimated by that plan. But a planning process that relies exclusively on letting visions emerge from a community necessarily prefers those visions that provide individual economic benefits to specific participants — e.g., the growth machine. Public goods — even public goods that might represent the “best” vision for a particular community — are not championed, supported, or developed in the planning process. Combined with a general trend toward neoliberal governance, and the weak legal position of comprehensive plans, this inherent preference for the growth machine over the public good yields land-use ordinances that are unrelated to what might be the best vision for a community. The remedy is twofold. If planning’s purpose is to achieve public goods, planners must be willing to represent the unrepresented, potentially forcing particular visions on communities during the planning process rather than waiting for private-good-driven visions to emerge, at least initially. And the forced visions must be sufficiently specific so as to limit the universe of legal choices, and land-use consequences, that result. If the forced vision is useful — if it is a public good — the community will adopt it. Without the forced vision, it does not have that opportunity.
Keywords: Land Use, Comprehensive Planning, Neoliberalism, Public Goods
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