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In FSU Law Review, Albany Law’s De Barbieri Proposes Anticipatory Governance Model for Land Use and Development

By By John Caher

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Public projects in the "built environment"—a social science term for the human-made space where people live and work—often occur without true public participation, according to Edward W. De Barbieri, associate professor of law at Albany Law School.

Professor De Barbieri contends zoning and planning boards, which are supposed to represent the interests of the community, routinely avoid the legally required public hearings until the project is a fait accompli. In other words, only after having already made up their minds do boards go through the virtual charade of soliciting input from the people who will be most affected.

"In many instances in land use and economic development, a project doesn't come up unless it is likely to pass and individuals who could potentially be affected are on the outside of that process and are forced, after a decision has all but been rubber stamped, to resort to costly, time-consuming and difficult mechanisms to have their voices heard," Professor De Barbieri said.

In his recent article, "Urban Anticipatory Governance" in the Florida State University Law Review, Professor De Barbieri proposes an anticipatory governance model, or one which relies on research, foresight, and data-based predictions to address potential problems at the point of conception. And that means involving those affected at the start of discussions.

Read on SSRN: Urban Anticipatory Governance

"Early involvement allows residents and experts to engage in discussions about empirical evidence and community values" while avoiding the "negative impacts of relying on facts or disputes about the nature of the facts, without understanding the potential impact on people," he wrote.

Professor De Barbieri acknowledged that it's a double-edged sword.

On one hand, research suggests that many people will be more accepting of a project they do not support if they are confident their concerns were heard and considered. On the other hand, announcing potential projects at a very early stage will likely allow a vocal minority to mobilize and possibly "stymy the development of affordable housing, transportation infrastructure, and other important projects because of strong localized opposition," Professor De Barbieri wrote.

Professor De Barbieri said the article was inspired by several factors: his pre-academy pro bono work for groups trying to influence land use and economic development decisions; a 2017 Court of Appeals ruling in Avella v. City of New York; and "PlaNYC," a climate change/population growth strategic plan in New York City that is a classic example of anticipatory governance.

Avella centered on a proposal to build a retail and entertainment complex on land adjacent to Citi Field in Queens, home of the New York Mets baseball team. The majority held that the parcel, which was the site of the old Shea Stadium and mapped as park, cannot be developed under a 1961 statute. The dissent argued that the land had been "alienated" and the proposed project was consistent with modern development trends. Professor De Barbieri suggested both the majority and dissent partially missed the boat.

"Both the majority and the dissent fail to address the harm the city's actions caused to surrounding small businesses" as well as the social and economic impacts, he wrote. Professor De Barbieri argues that the decision "reveals a weakness in the law" that yielded a result that is satisfactory to few and, arguably, inconsistent with sound land use principles. The land at issue can be used for little but a parking lot and is not suitable for family recreation; businesses displaced by the construction of a new stadium across the street remain displaced.

Professor De Barbieri said he is hopeful his article will help address that "weakness in the law" and inspire local governments to embrace anticipatory governance and "improve on participation in land use and economic development decisions at the local level."