Abstract

Land-use activity typically imposes spillovers . Spillovers traditionally were addressed by common law doctrines such as nuisance. In the last century, however, regulation emerged as a central response to spillovers. At the local level, zoning regulation is a dominant but problematic regulatory scheme controlling land use. Concern about spillovers is central to zoning, particularly as a means to limit or prevent incompatible land uses. I examine the legitimacy of zoning as a response to spillovers by evaluating whether either of two theoretical approaches to spillovers---"externalities" and "harm"---provides a suitable way to identify which spillovers legitimize state coercion. I reject the externalities approach because the related "efficiency" criterion is insufficiently discriminating and ignores important moral considerations. I argue that "harm," construed as a wrongful setback to interest, provides a basis to identify some coercion-legitimizing spillovers. I argue further, however, that since spillover cases typically involve conflicting interests, and since these conflicts must be resolved in order to determine whether a spillover causes harm, appeal to harm does not settle the question. This claim is developed further by showing that Joel Feinberg's account of harm and R. H. Coase's analysis of spillovers are similar in two central ways: Whether or not the state intervenes, the interest one of the parties will be adversely affected. And whether state intervention is appropriate depends not merely on the fact that a person's action imposes an adverse effect on the interest of another person, but also on an institutional judgment defining rights. I ask, then, given that conflicts of interest are ubiquitous, what rules should be set up to govern and mitigate such conflicts. Finally, in the framework of harm and conflicting interests, I re-examine the case for zoning. I conclude that zoning is legitimate but flawed in important respects. I also suggest that normative social and political theorizing provides less guidance to policy makers than might be hoped in resolving conflicting interests when land use involves spillovers