74 Am. U. L. Rev. 461 (2024).
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Abstract
Our communities must be made safe and easy to navigate by people with disabilities and by those who are seeking to age in place. This requires us to do land planning and zoning in a cost-conscious way that empowers a diverse population to readily participate in community life. Accomplishing this goal involves working at the intersection of land use law and disability law. This means we must work at the intersection of competing legal frameworks, one based on the exercise of the sovereign police powers and the other based on the prevention of discrimination under civil rights law.
The fundamental problem is one of land use law regulating places and uses on the ground, while disability law regulates the prevention of discrimination as people move through the spaces and places of community life. These competing interests and legal frameworks reveal a tension between land use law and disability law. Thus, our task is to determine how best to organize the law to mediate this tension and to improve accessibility infrastructure community-wide.
In addressing the relationship between land use and disability, we must consider three primary methods for conceptualizing disability. The first is the “medical model,” the second is the “social construction” model, and a third, suggested in this Article, is a “network capabilities” model. The network capabilities model frames disability in terms of the built environment and focuses on understanding human capabilities from a land use perspective—that is, in relation to an integrated system of property infrastructure, assistive technology, and inclusive design. This method addresses disability as a regulatory matter focusing on public health, safety, and welfare. It balances concerns for accessibility with pragmatically achievable land planning goals.
* E.I. White Chair and Distinguished Professor of Law & Kauffman Professor of Entrepreneurship and Innovation, Syracuse University College of Law. LL.M., University of Illinois College of Law; J.D., University of Florida College of Law; B.S., Purdue University, Krannert School of Management. Thank you to everyone who provided comments and feedback on drafts of this Article. I am particularly thankful for comments from Doron Dorfman, David Driesen, Rashmi Dyal-Chand, John Infranca, Arlene Kanter, John A. Lovett, Marc Roark, Danielle Stokes, James C. Smith, and Cora True-Frost; along with all participants in the workshop on Resilient Property Theory held at the International Institute for the Sociology of Law, Oñati, Spain; participants in the 2024 workshop on scholarly research at Syracuse University College of Law; participants in the 2024 meeting of the Association for Law, Property, and Society (ALPS); and participants in the property workshop at the 2024 meeting of the Southeastern Association of Law Schools. In addition, I wish to thank my research assistants who at various times assisted with gathering resources and with footnote preparation: Michael J. Cimino, Suzan Elzawahry, Jamie L. McLennan, Madison McCarthy, Ryan S. Ockenden, Mikaela Riley, and Erin E. Shea.