Hofstra Law Review


If city planners are to succeed in shaping the growth and development of modem American cities, they must regulate the use of land in far more affirmative ways than they were able to achieve with their traditional zoning ordinances. Land use regulations have historically been designed to prevent harm, e.g., to separate incompatible uses, to limit density and scale of particular neighborhoods, to prohibit or restrict development where public services are unavailable and to protect adjoining parcels from invasions of their light and air. These regulations, based on single lot development, are not concerned with how a section of the city actually works, i.e., what positive relationships between single lot development in a unique area should be encouraged-whether office workers have room to walk on the sidewalk or can get into a subway entrance. As general rules, single lot regulations tend to codify minimal standards. They encourage inexpensive and often inadequate solutions to circulation problems and amenity needs. Traditional zoning has thus helped turn the concentration of activities that is essential to the success of a city into congestion.

In our view, government should intervene in the development process, creating zoning and other techniques that will encourage and even coerce private investment to make the city a more pleasant and efficient place in which to live and work. Public steps will still have to be taken in certain situations to prevent development where necessary. Accentuating the positive does not mean eliminating the negative in all cases.

New York City has developed and refined a series of tools to shape the nature of private development. The techniques that have been used raise interesting questions about the legitimate extent of government control and about the nature of new interests in land that have been created. It is the purpose of this article to explore the legal aspects of some of these questions as well as to explore the use of zoning as a creative device for eliciting public benefit from private development.

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