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62 U. Toronto L.J. 163 (2012)
The Sword in the Zone: Fantasies of Land Use Planning Law

handle is hein.journals/utlj62 and id is 172 raw text is: THE SWORD IN THE ZONE: FANTASIES OF LAND-USE PLANNING IAWt 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 provin- cial review boards will be examined in an effort to clarify, zy possible, the question of whether land development raises issues that are, at heart, law or policy and, conse- quently, 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 simulta- neously 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 effi- cient regulator; rather, it proceeds out respect for the values inherent in public regu- lation and administrative law - values which government land-use planning has found impossible to achieve. Keywords: municipal law, administrative law, judicial review, law and plan- ning, new urbanism, aesthetic regulation, bonusing I Throwing zones at class houses The word is out in the scientific community that a 'new deal' in planning is not in the cards. 'Natural selection,' the theory goes, 'has passively guided the evolution of mammalian brains throughout time, just as poli- ticians and entrepreneurs have indirectly shaped the organization of * Professor of Law, University of Toronto t Many thanks to the participants in the Planning, Law, and Property Rights Conference held at the University of Alberta in May 2011 and to the participants in the University of Toronto Faculty of Law Summer Camp series held in July 2011 for their helpful comments and discussion. Additional thanks to Eric Turkienicz for his comments and for several puns. Errors and the worst of the puns are the author's alone. (2012), 62 UNIVERSilY OF TORONTO LAW JOURNAL Ed Morgan* DOl: 10.3138/utlj.62.2.163

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