Article by Thomas J. Schoenbaum
In the last several years, many American scholars have expressed admiration for the German system of land-use planning. Although it has a population density many times that of the United States, Germany has created clean, liveable cities with a noticeable lack of urban sprawl, has preserved large quantities of open space, farmlands and woodlands, and has constructed an efficient system of transportation. At least partially as a result of land-use planning efforts, energy use per capita is also much lower in Germany than in the United States.
The perceived success of German land development law raises the question whether it might be successfully transplanted to the United States. Land-use law has been in ferment in this country, but the role of foreign models has been minimal. It has been stated that there are three reasons for using foreign law models: (1) international unification of law, (2) "giving adequate legal effect to a social change shared by the foreign country with one's own country," and (3) "promoting at home a social change which foreign law is designed either to express or to produce." The second and third reasons explain the recent awakening of interest in the German experience. But the transferability of law depends upon a shared basis of cultural, social, economic, geographical, and especially political factors. Those who would use the German model in this country bear the burden of showing that the requisite similarities exist in these realms.
At first glance, there are similarities between Germany and the United States to indicate that the German land-use planning model might be usefully employed in this country. Both countries are federal democracies with free market economies and a high degree of industrialization. Unlike France, Germany does not explicitly tie land development planning to the realization of national economic goals. Germany also accords major responsibility for planning to local governments. The right of private ownership of land as well as the right of the individual to develop land are constitutionally protected in Germany. But it does not necessarily follow from these similarities that the German model is appropriate for the United States. Such a conclusion can only be legitimate to the extent that it is based upon a thorough understanding of how the German system works.
This article examines and evaluates the German system of land-use planning, first, to determine whether it should be emulated in the United States, and second, to achieve a useful perspective from which to view and judge the American system. Three topics are covered: (1) plan formulation, (2) plan implementation, and (3) protection of the individual under German law. In order to lend specificity to the analysis, the German Land (state) of Bavaria is used as a paradigm of the German approach to land-use planning law.
About the Author
Thomas J. Schoenbaum. Professor of Law, Tulane University.
Citation
54 Tul. L. Rev. 624 (1980)