Too Much Open Space An Interesting Paper

Prof. Robert Ellickson of Yale Law School has an interesting paper up on the Social Science Research Network (SSRN) website.  He critciizes widespread popular support for open space, pointing out that too much open space reduces population density and thus accelerates sprawl and reduces housing supply. 

Although Ellickson's paper is not primarily focused on remedies, he does have a couple of interesting ideas.  First, he suggests that a reform-minded state legislature could pass a law "that limited to 1/4 acre the maximum lot size that a locality could impose without incurring presumptive liability for both a regulatory taking and the complainant's attorney fees."  I suspect that smart growth supporters would generally like this idea but might prefer slightly different numbers: for example, prohibiting local governments from mandating any densities too low to support public transit (thus, 1/8 or 1/10 of an acre rather than 1/4).

Ellickson also addresses the overuse of conservation easements, pointing out that cities indirectly coerce such easements by downzoning property, which in turn reduces the property's value, which in turn makes the conservation easement option more tempting than development.   Ell8ickson proposes that denying tax benefits for gifts of open space where "the area of undeveloped land exceeds a certain percentage of the total land area"- that is, where a region is already drowning in undeveloped land.