Instruments of Land Policy

Dealing with Scarcity of Land

Jean-David Gerber, Thomas Hartmann, Andreas Hengstermann, Jean-David Gerber, Thomas Hartmann, Andreas Hengstermann

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780367404130
• eBook ISBN: 9781315511634
• Edition: 1
• Topic: Architecture
• Subtopic: Urban Planning & Landscaping

In dealing with scarce land, planners often need to interact with, and sometimes confront, property right-holders to address complex property rights situations. To reinforce their position in situations of rivalrous land uses, planners can strategically use and combine different policy instruments in addition to standard land use plans. Effectively steering spatial development requires a keen understanding of these instruments of land policy.

This book not only presents how such instruments function, it additionally examines how public authorities strategically manage the scarcity of land, either increasing or decreasing it, to promote a more sparing use of resources. It presents 13 instruments of land policy in specific national contexts and discusses them from the perspectives of other countries. Through the use of concrete examples, the book reveals how instruments of land policy are used strategically in different policy contexts.

Part I

Introduction

1 Land, scarcity, and property rights

Thomas Hartmann and Jean-David Gerber

Land policy and scarcity

Scarcity of land is the result of a political process. Only goods and services that are used up through consumption (subtractability) can become scarce (Ostrom et al. 1994).¹ Scarcity is usually thought to be found in situations where limited resources are confronted with demands (or needs) that outreach the available supply. But the story becomes a bit more complex if the rules and regulations that support the (unequal) appropriation and distribution of resource units are taken into account in the analysis, which a political approach to scarcity does.

Scarcity of land is not good or bad per se. This depends on the perspective and the policy goals one hopes to achieve. The reason why land dedicated to single-family homes becomes scarce is a matter of land use planning regulations (i.e. zoning for residential housing) and property rights. These institutions create exclusivity and lead to a situation where the supply does not meet the demand. Institutions governing land uses substantially contribute to the rivalrous character of the land. Because resource scarcity is mediated through institutions, it is always politically and socially constructed (Drahos 2004; Fuys and Dohrn 2010; Hess and Ostrom 2003).

Planning is about creating or alleviating scarcity of land according to politically defined spatial development objectives. By so doing, planners need to interact with, and sometimes confront, property-right holders. This is where power games come into play. Planning is about finding ways to deal with power grounded in strongly protected property rights. Otherwise, stalemate situations develop and land use plans remain paper plans.

This book explores the strategies used by planners to reinforce their position in front of other well-protected interests. In particular, this book aims to discover how planners can use different policy instruments, coming from either public or private law, to support the implementation of land use plans. The selection of policy instruments is often presented in a functionalist approach as if it depended merely on technical choices (Lascoumes and Le Galès 2005). However, instruments are not neutral; they correspond to specific interpretations of the role of the state and/or its private partners (Salamon 2000). This makes land use instruments inherently normative and political. Today, local authorities appear to be caught between competing interests – private vs. public, efficiency vs. accountability, long term vs. short term, property rights vs. public policies, command-and-control vs. partnership, accumulation strategy vs. incentives to remain ‘slim’ – all of which have an impact on spatial development. In this context, public policy instruments have both a technical and a social dimension: they structure the social relationship between a public authority and the target groups according to the representations and meanings that they are carrying (Lascoumes and Le Galès 2005). As such, the selection of policy instruments generates political activity.

Land use plans are a source of legitimation for an intervention in the allocation and distribution of use rights to land. But this intervention faces many obstacles, creating situations of scarcity because plots of land are not available for the intended development goals. This book asks: how can public intervention strategically manage the scarcity of buildable land, either increasing or decreasing it, in order to promote, overall, a more sparing use of resources? This question follows three underlying objectives.

The first objective is to understand how different policy instruments can impact scarcity of land. The way different categories of instruments regulate use rights is conceptualized in the next chapter, which distinguishes four paths of intervention. We will see that public actors make use of a broad set of policy instruments to implement spatial planning objectives. Public policy instruments can either increase scarcity (mainly through different mechanisms restricting landowners’ freedom to develop) or reduce it (e.g. by increasing allowed density or preventing land hoarding). These instruments provide governmental or municipal actors legitimate intervention ways to effectively influence the way land is allocated and distributed.

The second objective is to stress that policy instruments are political in nature: public intervention creates losers and winners. In other words, policy instruments lead to a (partial) redistribution of use rights to the land. This book does not aim to provide best-practice examples. Planners’ activities are embedded in specific and complex institutional settings, which make it impossible to provide one-size-fits-all solutions to issues of scarcity, as each context is unique. Therefore the aim is to put forward a particular – strategic – way of thinking about policy instruments. Instruments can strategically be mobilized by planners and other actors involved in planning to reinforce their position in a given context in such a way that the implementation of politically defined development objectives becomes possible.

The third objective is to highlight the creativity that is needed to fight against scarcity. Policy instruments can be rediscovered after periods of oblivion, transposed from a rural to an urban setting, combined with other in a complex intervention strategy, and so forth. In this sense, this books aims to bring together examples from different national contexts in order to raise the awareness on how specific instruments are used by planners in other countries.

This volume will not question or address the spatial planning objectives followed in a specific municipality or country, and thus it will not address the question whether the goals are good or bad. Rather, we take the objectives of these public policies as given, since they are the result of a (parliamentary) socio-political compromise at a given time and scale. This book looks at the rationale of the different instruments of land policy and how they are used strategically in different contexts.

Changing notions of scarcity

In most national settings, land use planning instruments have been crafted in a context of land profusion and economic growth. During the past century, all Western countries have developed a system to shape their spatial development. Planning acts were passed, planners were trained through academic planning schools, and planning departments were established at all levels of government. Systems have been established to control urban growth and address related topics such as housing, transportation, environmental issues, and many more. The policy instruments that were invented and implemented proved to be quite effective when it came to shaping the expansion of urban areas at the edges of cities. Greenfield development is something that planners know how to deal with!

However, this context has changed. Today, actors in charge of planning must learn how to deal with scarcity. They are increasingly confronted with the challenge of brownfield development, redevelopment, mixed-use development, and urban land reconversion or densification. Many European cities have reached their maximum spatial expansion and are focusing on reshaping their urban core or industrial areas. Even where economic growth is still a given, the actors of land use planning struggle with this new focus on the redevelopment of pre-used plots. Besides managing technical challenges such as contamination, neighbour conflicts, noisiness, and so forth, understanding the structure of the underlying property rights is crucial for the success of planning projects. Planning frequently fails to cope with the complexity of property right arrangements, as its instruments are traditionally adjusted to deal with the simple property rights related to former agricultural land. One of the central challenges of the new scarcity situation is that land use planning now needs to address the complex property rights situations that characterize the already built environment. More than ever, effectively steering spatial development requires a keen understanding of the tight interactions between land use planning and property rights.

In a context where greenfield development always becomes more problematic because of the high resource consumption that is bound with it, building land becomes scarcer. This book claims that this scarcity is mostly constructed by the complex entanglement of property rights that characterize the already built environment. Controlling urban sprawl, promoting densification of already built areas, and encouraging brownfield redevelopment are undertakings that all need to address the complexity of property rights relations. For different reasons, planners have often ignored the reality of complex property right situations. A better understanding of the nexus between planning, property rights, and scarcity is of utmost importance for spatial development today and in the future.

This book

The challenges of land as a scarce resource differ in various national contexts, and strategies to deal with it vary accordingly. This book highlights how planning practices and scarcity interact with one another. Therefore, instead of systematically comparing a specific instrument (e.g. land readjustment or long-term building leases) in a number of different national settings, this book deliberately aims to present a broader range of instruments illustrating the nexus of scarcity, planning, and property rights. What is gained in scope would be lost in depth of analysis if the different national settings were not carefully chosen in accordance with each country’s experience with a given instrument. In the selection of the cases presented in the next chapters, we looked for contrast in the use of instruments. Rather than selecting an ‘average’ case, we chose particularly eloquent situations to assure that the mechanisms at play would be more easily identifiable (Yin 2009).

Each chapter is discussed in a commentary written by an author of another national background, where the particular instrument is regarded from a different perspective. Different interpretations of the situations presented are also given by the fact that the contributions of this book were written by scholars from different disciplines (planners, lawyers, sociologists, political scientists, geographers, economists, etc.). The goal is to encourage the dialogue between national settings and between disciplines interested in planning. This enables a deeper understanding of the rationales of the different instruments and nurtures a broader academic and policy-relevant debate on the management of building land as a scarce resource – an issue that is of increasing importance worldwide.

Note

1This purely economic perspective on scarcity can be challenged from various points: the Netherlands are a paramount example to illustrate that land can indeed be produced – whole cities exist on produced land. Also, the amount of land can be changed due to various environmental phenomena – sea level rise or volcanic activity. So land is not necessarily scarce per se.

References

Drahos, P. (2004) The regulation of public goods, Journal of International Economic Law, 7(2), 321–339.

Fuys, A. and Dohrn, S. (2010) Common property regimes: Taking a closer look at resource access, authorization, and legitimacy, in: German, L., Ramisch, J. J. and Verma, R. (eds) Beyond the biophysical: Knowledge, culture, and politics in agriculture and natural resource management, Springer, London, New York, 193–214.

Hess, C. and Ostrom, E. (2003) Ideas, artifacts, and facilities: Information as a common-pool resource, Law and Contemporary Problems, 66, 111–145.

Lascoumes, P. and Le Galès, P. (2005) Gouverner par les instruments, Presses de Sciences Po (P.F.N.S.P.), Paris.

Ostrom, E., Gardner, R. and Walker, J. (1994) Rules, games, and common-pool resources, University of Michigan Press, Ann Arbor, MI.

Salamon, L. M. (2000) The new governance and the tools of public action: An introduction, Fordham Urban Law Journal, 28(5), 1611–1673.

Yin, R. K. (2009) Case study research: Design and methods, 4th ed., Sage Publications, Los Angeles, CA.

2 Land policy

How to deal with scarcity of land

Jean-David Gerber, Andreas Hengstermann, and François-Xavier Viallon

Introduction: from land use planning to land policy

Land use planning is the ‘process by which public agencies, mostly local governments, determine the intensity and geographical arrangements of various land uses in a community’ (Fulton 1999: 7). In this book, land use planning is not framed by a scientific theory, a design activity, or a ‘value-neutral’ technique. It is understood as a public policy. As such, it aims to solve a public problem usually connected with inefficient use of public infrastructure or with the insufficient coordination of land uses that, for instance, leads to sprawl or induces nuisances. As a public policy, it draws its legitimacy from a legal basis (e.g. a constitutional article or the land use planning law), defines the public actors in charge of implementation (e.g. planning agency), and provides them with a budget, different competencies, or means of action. Through different policy instruments, a public policy aims ‘at modifying the behavior of social groups presumed to be at the root of […] the collective problem to be resolved (target groups) in the interest of the social groups who suffer the negative effects of the problem in question’ (Knoepfel et al. 2007: 24). Land use planning has typically developed a series of hierarchical plans (policy instruments) to control the actions of those actors, namely the landowners, whose effective behavior has been identified as leading to uncoordinated growth. Therefore, landowners can be identified as the target groups of the land use planning policy (Knoepfel and Nahrath 2007). However, due to their strong position as titleholders, they are well equipped to resist. Here lies the conundrum of plan implementation: how can comparatively weak political-administrative actors impose land use restrictions (plans) on strongly protected target groups?

Historically this problem was de facto mitigated through a focus on areas with little conflict potential. At the margin of cities, new development could take place on greenfields where complexity was low and resistance weak. Similarly, large-scale redevelopments in American cities tended to take place in neighborhoods of lower socio-economic level with weak political connections (Bullard 1983; Wei and Knox 2015).

In a context of resource scarcity, this strategy that avoided directly facing the power of landowners or their representatives was reaching its limits. But planners are typically insufficiently equipped to deal with power issues; they may sometimes feel helpless in front of the hidden power games at play in complex urban environments (Flyvbjerg 2006). However, the growing scarcity of land available for development in cities led to deep changes in the planning field. Land is more and more seen as a resource that needs to be properly managed, not only to comply with sustainability standards, but also to reduce the cost of an expensive way of life based on resource squandering.

In parallel to this changing reality of the planning field, theoretical concepts needed to evolve as well. In this chapter, we present four complementary ‘shifts’ or ‘turns’ that took place in the planning field – (1) the resourcial turn, (2) the institutional turn, (3) the actorial turn, and (4) the instrumental turn – and show how they have paved the way to the land policy approach. The main objective behind these theoretical considerations is to demonstrate that land...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Foreword
• Preface
• Part I Introduction
• Part II Regulating land uses without impacting property rights
• Part III Steering land uses through regulation impacting property rights
• Part IV Redefining property rights to steer land uses
• Part V Redistributing property rights to steer land uses
• Part VI Conclusion
• Contributor biographies
• Index