PROJECTIONS the MIT Journal of Planning 12

PROJECTIONS The MIT Journal of Planning 12 New Approaches to Law and Planning Spring 2016 P r o j e c t i o n s 12 The MIT Journal of Planning EDITOR KARTHIK RAO-CAVALE ADVISOR BALAKRISHNAN RAJAGOPAL EDITORIAL BOARD ANTONIO AZUELA National Autonomous University, Mexico ERAN BEN-JOSEPH Massachusetts Institute of Technology GABRIELLA CAROLINI Massachusetts Institute of Technology PARTHA CHATTERJEE Columbia University MARIE HUCHZERMEYER University of the Witswatersrand PETER MARCUSE Columbia University BALAKRISHNAN RAJAGOPAL (c) 2016 MIT Massachusetts Institute of Technology Department of Urban Stud- ies and Planning, MIT BOAVENTURA DE SOUSA SANTOS University of Coimbra ISSN 1535-6191 All rights reserved. No part SUSAN SILBEY of this journal may be re- Massachusetts Institute of Technology produced in any form by any electronic or mechanical means without prior written permission from the pub- lisher. Layout: Gill Sans MT, Lucia Grande. Garamond, Myriad Pro. Dig- itally published using Adobe InDesign. New Approaches to Law and Planning P r o j e c t i o n s 12 The MIT Journal of Planning INTRODUCTION: NEW APPROACHES TO LAW AND PLANNING KARTHIK RAO-CAVALE 3 PLACE, POWER, AND THE CITY SQUARE: OCCUPY VANCOUVER AND THE UN/MAKING OF PUBLIC SPACE BRADLEY ALEXANDER POR 13 LAW’S ECOLOGICAL RELATIONS: THE LEGAL STRUCTURE OF PEOPLE-PLACE RELATIONS IN ONTARIO’S AGGREGATE EXTRACTION CONFLICTS ESTAIR VAN WAGNER 35 PUBLIC INTEREST LITIGATION AS A SLUM DEMOLITION MACHINE ANUJ BHUWANIA 67 DEPENDENT DEVELOPMENT: LAW AND SOVEREIGNTY IN SOPORE, KASHMIR AMRITA SHARMA & PEERZADA RAOUF 99 PRIVATE MAINSTREAMING: USING CONTRACTS TO PROMOTE ORGANIZATIONAL AND INSTITUTIONAL ADAPTATION JESSE M. KEENAN 119 AUTHORS’ BIOGRAPHIES 140 1 Projections 12 2 INTRODUCTION: NEW APPROACHES TO LAW AND PLANNING KARTHIK RAO-CAVALE Massachusetts Institute of Technology In April 2013, the Planning Accreditation Board (PAB) reaccredited the MIT city planning program after a year-long comprehensive review. But the board, in its review, once again raised a long-standing concern about the treatment of “Planning Law” in the curriculum. The PAB requires planning programs in North America to demonstrate that all students develop an “appreciation of the legal and institutional contexts within which planning occurs” (Planning Accreditation Board 2012). In most graduate planning programs in the U.S., this requirement is met through a mandatory course (often taught by adjunct faculty members with law degrees,) which exposes students to a limited set of statutes and judicial precedents in Ameri- can property, land use, and occasionally municipal and administrative law. In con- trast, the Department of Urban Studies and Planning at MIT (DUSP) does not have a mandatory course on the subject, though it does offer several elective courses in which legal institutions are taken very seriously. DUSP has always had a large contin- gent of students interested in topics other than conventional land use planning (such as economic development), both in the U.S. and internationally, and the faculty have been of the view that a course on American Planning Law may not be the best way to develop an appreciation for the importance of legal institutions. Nevertheless, in the past two years, a small group of students and faculty within the department have responded to PAB’s provocation by posing the question – what would a deeper engagement between Law and Planning look like? This special vol- ume of Projections – the MIT Journal of Planning – constitutes a preliminary at- tempt to address this question. From the beginning, we have seen the two professions in decidedly non-essential terms. By this, I mean that our approach is to treat both Law and Planning as historically constituted, but constantly shifting constel- lations of institutional(ized) practices whose relationship to other institutions and professions is not fixed in time or space. It then follows that the engagement between Law and Planning must reflect these ongoing changes in the two professions. This introductory essay tries to highlight some of the new fronts of engagement that have emerged, lacking which “Planning Law” as a field of study risks losing relevance and becoming anachronistic. The importance of Law to Planning must be obvious to a student of its history in the United States. Lying at the intersection of utopian and reformist traditions of socio-political thought, “city planning” carried out by self-governing municipalities was one of the earliest instances of applying new forms of social knowledge to solve the problems of industrial societies. The legitimacy of such planning in the 3 Projections 12 early 20th century depended heavily on legal recognition of the tools adopted by planners (and the institutions they served) to improve urban environments in the industrial age, such as sanitary and zoning ordinances, eminent domain, and building controls (Heathcott 2005; Akimoto 2009). The standard zoning enabling act adopted by most American states during the 1920s, for instance, required local governments to prepare a “comprehensive plan” in rational pursuit of the general welfare of the community (Knack et al. 1996). Planning thinkers, of course, disagreed vehemently about whether the contribution of the legal profession was beneficial to the development of Planning. In the 1930s, Rexford Tugwell, who played an important role in advocating for both city planning and national economic planning as necessary to tackle contemporary challenges in the United States, bitterly complained that “[t]he Constitution is used as a holy of holies within which the ugly practices of free competition can be hid from vulgar eyes”. Two decades later, Norman Williams Jr. (1955: 319) was able to legitimately argue that planning lawyers ought to take on the creative task of applying the “great constitutional guarantees of fairness, equality, and liberty of action” to planning problems. These debates about the role of Law sought to identify the place of the “social” in relation to the “market” within a capitalist framework, and the focus was on the limits exogenously imposed by Law on the powers of the State to undertake planning activities (Kennedy 2002). But the competence of planners to unilaterally pursue “public interest” was not brought under the scanner during this period. It is widely accepted that, by the 1960s, the profession was facing a deep crisis of confidence because of its reliance on singular articulations of “public interest.” As American cities suffered from unemployment, inner-city crime, poverty and a variety of other problems, and as urban renewal programs continued to fail, many critics within and outside the profession argued that pluralist, collaborative, and in- cremental decision-making processes are more appropriate for identifying widely acceptable ways of tackling these “wicked” problems (Rittel & Webber 1973). The attention of planning theorists shifted to the tension between technical and communicative rationality (or, to phrase it differently, the tension between ‘top-down’ and ‘bottom-up’ approaches.) For new proponents of communicative rationality, the distinction between private and public sector organizations was less relevant than the methodology of “planning” used within both kinds of organizations (Healey 1992; Schon 1983). Soon after, the planning profession became the target of an even more devastating critique; scholars like Bent Flyvbjerg (1998) argued that, given the visible and invisible forms of power routinely exercised by elites in the decision- making process, rationality typically gives way to rationalization. Planning, according to these latter traditions, requires not just a calculus of “facts,” but also a calculus of coercion, consent and resistance. It is possible to distinguish at least three levels at which the Planning profession has experienced radical transformations: the substantive, the institutional, and the methodological levels. Tackling “wicked” problems has forced the planning 4 Karthik Rao-Cavale profession to expand its substantive horizons beyond land-planning to incorporate certain aspects of economic and community planning, and to incorporate a variety of governmental and non-governmental actors at various scales (from local to international) within the planning process through institutional reform. Methodologically, this means that planners seek not only to use coercive power, but also to gain the consent of citizens, anticipate resistance, and on occasion, even to contribute to it (Yiftachel 1998; Sanyal 2005; Miraftab 2009). The imperative to adopt such a broad perspective has also been enhanced by globalization and the internationalization of the planning profession. Even simple problems seem to turn into wicked ones when they are encountered in developing country environments, given the lack of resources and expertise; moreover they often need to be addressed through an institutional patchwork even more multi-scalar than what American planners are typically accustomed to. Finally, the dangers of methodological reliance on technical rationality (and even communicative rationality) increase manifold with greater social distance between the planner and the subject of planning (a common feature in postcolonial settings). Each of these transformations in the field of Planning opens new fronts for engagement with Law. The substantive expansion of planning as a field, for instance, requires planners to be aware of legal precedents more relevant to planners

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