The sword in the zone: Fantasies of land-use planning law

The theme of this article is that the contradictory impulses found in modern land-use planning law are impossible to overcome. The analysis takes place at two levels; that is, on the level of law and on the level of land-use planning. In the first place, the case law on the decision-making authority of municipal bodies and their provincial review boards will be examined in an effort to clarify, if possible, the question of whether land development raises issues that are, at heart, law or policy and, consequently, whether they are entitled to intervention or deference by reviewing courts. That case law, which forms a shell for land-use planning approaches, is then filled in with an examination of divergent approaches toward fashioning the liveable city. The regulatory flux between density and sprawl and the tension between more recent new-urbanist designs and the traditional suburban development plan are explored, demonstrating that neo-urban hub developments are premised on a false vision of collective social experiences, while suburban garden developments are premised on the hollow dream of an idyllic society. Each of these competing approaches simultaneously answers the weaknesses of the other and contains weaknesses of its own that are answerable by the other. Given this incoherence, this article, therefore, endorses a substantial deregulation of the field. Paradoxically, this advocacy of privatization does not proceed, first and foremost, out of respect for the value of the market as efficient regulator; rather, it proceeds out respect for the values inherent in public regulation and administrative law - values which government land-use planning has found impossible to achieve.