Research Matters: Lee Fennell on “Crowdsourcing Land Use”

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Lee Fennell, Max Pam Professor of Law and Herbert and Marjorie Fried Research Scholar, wrote “Crowdsourcing Land Use” for a symposium published in the Brooklyn Law Review. The paper explores the information shortfalls that often afflict land use control, and the way new technologies might allow local governments to crowdsource land use impacts. Fennell assesses the prospects of these new technologies as well as the potential pitfalls.

Q. Why study this, and what did you find?

A. The idea behind the symposium was to look at what the future holds as far as land use controls, beyond zoning as we know it. I had been interested in ways that land use controls use information, and so I wrote up this piece to try to think about those ideas. How can information work as an input when we’re deciding how to control land use? New technologies are making it cheaper to acquire information and to compile information, and the takeaway is that those technologies might change the way that we do land use control and land use planning.

Q. What are some of those technologies?

A. We now have a large number of people walking around with smart phones, and there’s an ability for people to do real-time monitoring along a lot of dimensions. The idea of having people work as citizen scientists who go out and collect information about various things has already caught on in some contexts. One thing that people could collect information about is impacts that are occuring around them or conditions that they’re seeing around them. Mobile devices offer the ability to have people report in real time, and the ability to pin to a map point where particular things are happening. We now have apps that can do things like detect decibel levels, which might make it possible to learn in more detail what kinds of noise levels are being experienced next to some particular industrial use, for example. Samples that people collect as they go about their business could inform us of what the impacts are really like.

Q. Why is this worth studying and understanding?

A. Land use control has traditionally relied on making educated guesses about what kinds of land uses conflict with each other, and then separating those uses. That approach has ruled out certain ways of controlling land use that might be promising. There’s an idea known as “performance zoning” that would focus not on controlling what uses you can have in a particular place but instead on controlling impacts. So an extreme version of this would be, you can have any use you want in this space, as long as the noise levels that are detectable on the next property don’t exceed a certain threshold, or as long as vibrations don’t exceed a certain amount. These kinds of peformance standards have not been widely adopted because they’re very hard to enforce without real-time monitoring.  So land use controls have generally been based on projections about land use categories, and prospective guesses about the impacts that will occur or that will be a problem. New technologies could allow for a different way of going about zoning, by looking at actual impacts.

Q. What else could change because of the work?

A.  People might also be able to use online interfaces to provide more information to their neighbors or prospective neighbors about what uses they plan to engage in in the future. This could potentially head off some land use conflicts. And it could work together with platforms the government designs to help people reach mutually beneficial bargains over land use. Right now, people often have to guess about what their neighbors are going to do. To take a simple example: Somebody wants to put up solar panels. They know that if they do that, they’re going to make a big investment, and if their neighbor suddenly decides to put up an addition  or grow tall trees, their investment will be lost. But right now it’s very difficult to know whether their neighbor will do that. They can go and knock on the door, they can ask their neighbors, but there might be ways to more systematically make information available.

Similiarly, on a bigger scale, people could chime in on their vision for areas that are being redeveloped, or what kinds of land use patterns they’d like to see. Currently, we have people choosing where to live or where to locate a business based on the choice sets that exist, but there’s the potential to use simulation and online aggregation to get more information about what kinds of land use patterns people would like to see, if they weren’t restricted to what already exists.

Q. Is there a downside to crowdsourcing land use?

A. There are some risks associated with trying to aggregate information from the general public. One worry is that the people who participate are not representative, or they might have reasons to be biased. There does have to be some oversight: managing who participates, verifying the information, making sure it’s representative. We also don’t want to just aggregate preferences if those preferences run counter to normative commitments of society. We don’t want people to be able to aggregate their views to produce a discriminatory result, or an environmentally unsustainable result, for example. We still need to have government setting the parameters.