Land Use Prof Blog

Will billboards destroy Vermont?

    A handful of states, including Vermont, have long banned the placement of billboards along the state’s roads.  But in an effort to protect a cute painted barn mural with a 1940s-looking car on it that says, “See Bellows Falls, Vermont” (check this link for a picture), the state legislature passed last week an exemption to the much cherished billboard ban.  (A state agency earlier had ordered the mural taken down (or, more likely, painted over)).  The exemption would allow –- uh, essentially the Bellows Falls mural:  the signs would have to be hand-painted, on an old building, give only directions to a town, and be not far from the town promoted.  But the exemption is generating a lot of hand-wringing in Vermont, where some see it as a crack in a dam that could lead to Vermont’s resembling a tacky suburban retail strip on a Saturday afternoon.    

    I’ve never quite understood the dislike of billboards.  In my memory, billboards bring to mind the quaint “South of the Border” signs (advertising a restaurant just over the state line in South Carolina) that I used to look for as a kid in my parents’ ’71 Falcon station wagon as it rumbled its way south to Florida.  Or old “Drive through a tree – only 20 miles ahead!” billboards wilting in the rain of coastal Oregon.  One of my favorite writers, the late westerner Edward Abbey, thought that it was silly to protect the “beauty” of roads and their views.  It’s when one gets OFF the road and into the forests, mountains, and meadows, on one’s two feet, that one finds the true beauty of a state such as Utah or Vermont.

   And it also seems a bit naïve to believe that a motorist who is driving with a GPS screen in their face, ads blaring on the satellite radio, and the kids chortling to a screaming DVD in the back will be disappointed by the low-tech intrusion of billboards on Vermont roads. 

   It’s usually bad policy to craft a legal rule that is focused on one discrete person or act.  But I’m glad that the barn mural gets to stay.  Now, I must get back to planning a summer vacation.  Hey, I’ve heard that Bellows Falls, Vermont, is quaint …

Big plans in Las Vegas … with a twist …

  "Make no little plans; they have no magic to stir men's blood.”  The famous dare of century-ago century Chicago architect Daniel Burnham proved to be a daunting challenge in the last century for American cities.  Big projects such as the government centers in Boston and Albany turned out to be anti-social and ill-fitting products of urban planning as sculptural design.  In part as a result of these efforts, few American cities have tried big makeovers in recent years.
    But Las Vegas is not any city, of course.  One of the fastest growing cities in the nation over the past few decades, Las Vegas has struggled to make itself a great city that happens to have giant casinos –- not just a grouping of giant casinos and parking lots with a city attached.  The city is trying to build a new downtown (Las Vegas’s old downtown withered in recent decades, as have many in the nation) called “Union Park” just west of the old downtown.  The hope is that new residences, a performing arts center, and big office towers will provide a ready-made city center. 
   One concern with the plan is that big buildings don’t a downtown make; many American cities (especially in the Sunbelt) are filled with big buildings to which visitors travel and leave almost exclusively by car.  Horizontal development (restaurants, small shops, etc.) is more likely to make for a vigorous urban setting.  But the Las Vegas plan also doesn’t seem to hold the attributes of the carefully packaged retail walking spaces that have been fairly successful in places such as Reston, Virginia.  Moreover, the current plans include a lot of open space, which reminds one of the enormous, human-dwarfing wind-swept plazas that made places such as Boston’s Government Center so unpleasant.  (In Las Vegas, of course, it would be a sand-swept plaza).  And the idea of adding new condos in a city with soaring foreclosure and vacancy rates seems like an unreasonable gamble.         
   Perhaps the bottom line is that the United States simply doesn’t do big public spaces well –- we are a culture only of pleasant “private spaces.”  But, like Burnham, let’s appreciate Las Vegas for trying … 

Left and libertarians and big bad boxes …

    What’s an article from the libertarian “Reason” magazine doing reprinted in “Utne Reader,” an alt-left reader with a picture of Barack Obama on the cover this month?  The reason is an essay by Michael C. Moynihan arguing that land use laws restricting big box retailers such as Wal-Mart are silly and unnecessary.  The reason?  Big boxes chains don’t know their clientele as well as local retailers, and many customers prefer the local touch and knowledge –- many of the same reasons touted for land use restrictions.  Moynihan relates the success story of an indie music-and-sundries store that has outlasted big-box music retailers in Boston.  Its secret?  Tattooed employees (among other factors, I’m sure) that appeal to hip young Bostonians. 
    I’m not sure that Moynihan’s choice of music retailing is the best example (downloading and online shopping has all but killed off the industry entirely) but his larger point seems sound.  He also relates the story of the fears back in the 1920s that big retailers such as Woolworth’s and A&P (young people: ask your grandparents about these) would kill off mom-and-pop stores, just as Wal-Mart-phobes do today.  The lesson seems sound:  If people want to shop at a big box, land use laws probably won’t do much good (they will simply drive till they find one) and those who prefer locally oriented stores will patronize them.  And there always a lot in the later group, at least in certain places.  So now we see why it’s in Utne …   

The food crisis and the changing land uses of rural America …

   What’s happening to food and how has law contributed to the shock?  The Washington Post printed a readable primer on the complex topic this week; the report today concerns the massive increase in corn farming over the past few years, spurred in part by laws requiring the use of ethanol.  These changes are having a profound effect on the grain belt.  Acreage devoted to corn in Iowa, the biggest corn state, rose by more than a third over the past 20 years; in Kansas, traditionally a wheat state, corn acreage more than doubled over that time.  Yesterday, the Post reported on the fall in wheat production, which raises the price of bread. 
   Meanwhile, Congress continues to debate an enormous farm bill, which will shape farm and rural land use for years to come.  While high farm prices haven’t discouraged Congress from continuing a host of farm payment programs, there is an effort afoot to shift some of the payments away from farmers and toward consumers.

Of history, Hitler, hofs, and hip hop …

  It's settled law that demolition or alteration of buildings can be restricted by law simply because something historic happened there.  But can, and should, historic preservation laws extend to restricting the "use" of a building, when no significant change to the architecture takes place?
    Here are two vignettes.  In Berlin, Germany, voters this weekend failed to cast ballots in sufficient numbers to trump a decision of the regional government to close old Tempelhof airport, built in Nazi Germany but made famous during the postwar airlift, when food and supplies kept West Berlin going, in spite of a Soviet blockade.  (German law holds the intelligent nuance of not allowing the results of a referendum to count if not enough people care to vote.)  The terminal building won't be torn down -- it's protected by law -- but it probably won't be used as an airport any longer.  By today's standards, it's far too close to downtown, among other drawbacks.
   Meanwhile, in the Bronx, N.Y., local activists are trying to preserve the status as low-cost housing of 1520 Sedgwick Ave., where, many say, hip hop music was invented by DJ Kool Herc back in the early 1970s.  Some proposals would turn the building into higher-priced housing.
    It's one thing for government to preserve historic buildings from defacement or demolition.  It's also rather uncontroversial to put in place historic plaques and conduct tours.  But should land use law impose restrictions on the use of a building, simply to maintain its historic use, in the face of market pressures for other uses?   

Density’s growing pains: Will zoning finally come to Houston?

  Who needs zoning in a metro area that has been an exemplar of sprawl, and where land uses have been separated well by covenants and culture?  These are some of the reasons why Houston has resisted thorough zoning and land use laws for so long.  But things may be changing, as explained in this recent article from the Houston Chronicle.  One reason that the topic is gaining more traction:  the rise of new dense construction plans in a city traditionally famous for its low density.
   Houston’s decisions will be fascinating politics and law, because the adoption of new land use laws could go in various directions:  traditional, anti-density laws to help affluent homeowners; laws favoring “smart” density; laws that give local autonomy; and an infinity of variants.
   To me, the outcome of this debate in Houston and elsewhere is more fascinating, and more important for the future of the typical American, than the squabbling of presidential candidates about who is more in touch with the average Joe and Juanita.  But that’s just me ….

Density’s growing pains: Homestead … and homesteading the central city …

    Is the idea of density really causing significant changes in land use law and practice in the United States?  One example of a possible missed opportunity has been the rapid development of Homestead, Florida, south of Miami.  As much as any metro area of the country, greater Miami holds nearly impenetrable boundaries of sea and enormous protected areas (the Everglades).  One of the last undeveloped locations has been around Homestead, which was until very recently surrounded largely by farms.  But population pressures have led to a rapid build up; by some estimates, Homestead grew faster than any other city in the nation of at least 50,000 people since 2000.  But most of this development has been in the form of single-family houses –- often small houses, to be sure –- but many more single-family houses than multi-family units.  If any place called for a change in thinking, and greater density, it would be Homestead …
    But maybe things are changing.  NPR reported today that high gas prices, combined with a downturn in the economy, is propping up the prices of houses in close-in neighborhoods in many metro areas, especially those areas close to public transportation.  If this trend continues, we may finally see greater pressure for truly dense in-fill in old American cities.
   

Density’s growing pains: Mixed-use in Dallas …

  Will Americans accept living above stores?  A generation ago, the answer probably would have been a resounding “No!” in a nation suckled on the notion of separation of commerce and residences.  A few optimists might have offered:  But what about New York or Paris, where millionaires live above stores?  Today, the notion of mixing land uses is downright acceptable.  Even in Tampa, Florida, near me, which is one of the world’s least dense cities, condos have been sold atop stores for the affluent.

   But old shibboleths die hard.  From Dallas, Texas (motto:  “Think large.  Live big”   -– not exactly the idea behind density!) comes a fascinating story about the lack of success of mixed use-complexes.  According to the Dallas Morning News, the problem is not renting residences, but renting for retail; many of the stores have proven difficult to rent.  The theme of the story is that density-loving governments push mixed-used plans, even in places where retail probably won’t succeed.  Or perhaps the residents of the mixed-use developments simply can’t accept the idea of visiting a store without getting in their cars …

Density’s growing pains: Los Angeles …

  “Density” captures the essence of most plans to foster “smarter” growth and change the American tradition of sprawling land use law.  But the seemingly simple idea of allowing –- or maybe even encouraging –- denser development often runs into opposition in a nation that has been reared on thinking that low density is the ideal.  This week, I write about a variety of stories that reveal the growing pains of density.

    Los Angeles is of course the quintessential low-density metro area –- built in large part after the introduction of the automobile, and spread out by virtue of its revolutionary freeway system.  But with more than 4 million people now in the city, more than 15 million within 50 miles of downtown, and new sprawl blocked by ocean mountain, and desert, Los Angeles is looking for ways to increase density. 

   But density naturally has its opponents in Los Angeles. One of the most vocal is Zev Yaroslavsky, a County Commissioner and former City Council member, who recently wrote an anti-density opinion column for the L.A. Times.  His guiding principle?  Density should not be allowed to interfere with the “character” of a residential community.

Too much affordable housing?

  Can a town have too much affordable housing?  May local governments think so, as they try to avoid the presumed tax and other unwelcome consequences of allowing low-income residents into their jurisdiction.  So it was in Canton, Mass., an affluent exurb south of Boston, which in 2003 denied an application by a developer to build rental units and low-cost single-family homes.  Under Massachusetts law, however, a locality must devote 10 percent of its total housing units to low or moderate cost housing.  An aggrieved developer may appeal to a state Housing Appeals Committee.  Although Canton did not meet its statutory obligation at the time of the denial, it later claimed to do by allowing another affordable housing project.  Did this later action in effect moot its legal obligation to the earlier applicant? 
    No, said the state Housing Appeals Committee, relying on a regulation which fixes a town’s obligations as of the date of a denial of a permit application.  Why did the town say it didn’t want more low-cost housing?  Increased traffic, of course!  The Housing Committee called this an insufficient reason for the town not to fulfill its duty.  Fighting all the way –- as so many localities, do –- Canton appealed to the Massachusetts courts and won in the Superior Court, which found that the housing regulation “skewed … the delicate balance” of the law too far in favor of developers of low-cost housing. 
    But the developer, Canton Property Holding, LLC, and the state Housing Committee prevailed on appeal to the Massachusetts Supreme Judicial Court.  In a decision handed down last Friday, the high court held that the Committee’s rule for determining the date for assessing a town’s compliance was a rational one, and that courts must to defer to rational agency regulations.  The Supreme Judicial Court did not find that more low-cost housing would be too much.  (The court’s decision is Zoning Board of Appeals of Canton v. Housing Appeals Committee, Mass. Supreme Judicial Ct., No. SJC-10057, April 11, 2008.)
   As housing prices continue to either stagnate or fall across the nation, many localities will no doubt fight with even greater tenacity their obligations to foster low-cost housing.      
          

More land put to the plow ... and more problems …

  With the dollar plummeting and the reputation of the United States at a low point throughout much of the world, in which ways is the United States still the leader in the world economy?  One way is our agriculture –- even if nobody wants to buy our cars anymore, everyone wants to buy the bounty of the United States’ farmland.  With the boom in the economies of nations such as China and India, combined with the great demand for biofuels in an age of high gasoline prices, America’s crops are selling at record levels. 
    One result of this is a great incentive to turn more rural land into producing crops.  The New York Times today printed a story about the shift of much farmland out of the federal government’s “Conservation Reserve Program,” which pays some farmers not to grow on certain environmentally sensitive land.  With high crop prices, it now pays more to farm much of these lands.    
    Perhaps even more troubling for the environment is the push to turn forests into crops for biofuels.  In a recent edition of Time, Michael Grunwald argued that the biofuel boom is turning into one of the biggest environmental disasters in the world, in large part by encouraging more rapid destruction of rainforests, which destruction spews carbon into the air and drives up the price of corn for the poor. 
   I won’t look at my soyburger or corn tortilla the same way again …
   

Even if you can't get a burger there anymore, you can get a landmark …

  Can a boarded-up Denny's restaurant be considered a landmark?  Yes, according to the Seattle Landmarks Board, which recently designated such a building in the Ballard section of the city.  The decision was made in part because of the once-futuristic "googie" style architecture, and because it is considered by some a fixture in the neighborhood.

  I welcome a landmark system that considers both architecture and history as part of its bailiwick.  But one problem with many cities' landmark processes is that they are so one-sided -- landmark commissions appear too often to see only the benefits of preservation and little of the reasons for allowing demolition (such as the interests of the property owner).  The owner of the Denny's site, who reportedly paid $12 million for it in 2006, is suing, of course, and alleges that the city failed to follow its required procedures.

   I love googie architecture, and would be saddened to see another example fall to the wrecking ball.  An alternative to strict preservation of buildings is the practice of retaining only features of architecture -- as was done in my old hometown of Silver Spring, Md., in which a new apartment building retains a once-distinctive old "Canada Dry" sign.  But today the sign seems a little incongruous, and a little lost.  Perhaps sometimes it's best simply to move on ....

Whose homeless are these, anyway? …

   Like many cities that feel overburdened with homeless people, the city of Ontario, Cal., has decided to take steps against those who it does not believe are its responsibility.  Earlier this week, the Ontario police entered a "tent city" and evicted those who "lacked ties to the city."  The tent city was evacuated and the city plans to fence it off.  According to the L.A. Times, the Ontario police said that the dispersed people included a man from Milwaukee, who was sent "home."
   It is the proper role of a city to discriminate against those with no pre-existing "ties" to the city?  On the other hand, warm places, such as southern California and my home state of Florida, believe that they bear an unfair burden of homeless people. 
   But one also wonders whether many of those pushed out of Ontario's tent city merely moved to locations nearby.  It does little good for communities simply to compete with each other to push the homeless to the next town.  The problem of homelessness should be dealt with at least at a regional level. 
   And for a success story about the benefits of metropolitan government, see this positive appraisal of the benefits of metro government, adopted in 2003, in greater Louisville, Ky.  The biggest city in Kentucky had been disfavorably compared with nearby Nashville (which adopted metro government in the '70s) in David Rusk's influential "Cities Without Suburbs."  No longer competing at every turn with its more affluent suburbs, Louisville's star is on the rise.  It might even be able to deal more effectively and fairly with its homeless problem …

The curious case of smoking at the Curious Theater …

    The play tempOdysssey, which has received many favorable reviews, involves a character who dies because of smoking.  The plot calls for smoking on stage.  Can government uses its powers of land use law to ban such smoking indoors, even in a play?  Yes, according to a Colorado appellate court in a decision handed down last week, upholding a trial court’s denial of the theatre’s request for a preliminary injunction.  (The case is Curious Theater Company v. Colorado Dept. of Public Health and Environment, No. 06CA2260, March 20, 2008).   

    The Curious Theater Company argued that its first amendment rights allow it to present a play with smoking, despite Colorado’s far-reaching statutory ban on smoking in “any indoor area,” including theatres.  (Colo. Rev. Stat. sec. 25-14-204).   Application of the ban to plays would violate the free speech right to expressive conduct, the theater argued.  And if the display of nude movies is granted first amendment protection (for example, Erznoznik v. Jacksonville, 422 U.S. 205 (1975)), why not plays with smoking?

   The Colorado court, however, trudged through the tests for first amendment protection and concluded that the smoking ban is “content neutral” and fulfills an important governmental interest (limiting the risks from second hand smoke etc., etc.)   The court also noted that plays with smoking could be held outside.  (There was no indication of whether the difficulty of getting a land use permit is a factor in the first amendment analysis.)

    Perhaps the best response to such a case is to focus on the statute itself and to try ensure that this and similar laws include reasonable exceptions, including an exception for theatrical performances, as in the California anti-smoking law (Cal. Lab. Code sec. 6404.5(d)).  Or perhaps someone needs to work on a devise that looks like a cigarette but emits harmless clouds of vapor that look like smoke –- until a law is enacted that bans the simulation of smoking, because it legitimizes the practice ....

Does lawful land use depend upon the popularity of music?

    If my memory is correct, an English defendant represented by the fictional Rumpole of the Bailey back in the ‘60s testified that he could not have committed the crime because he was seeing the Rolling Stones with a mate at the time of the incident.  When the judge asked what the Rolling Stones were, Rumpole helpfully provided, “I believe they are jazz musicians, my lord.”  If Rumpole had been available in the California Court of Appeal this year, he might have helped a business that ran afoul of a land use permit that restricted, among other things, the kind of music that could be played.
   According to the decision by the Second District Court of Appeal last week, a business in the city of Diamond Bar (in east Los Angeles County) received a conditional use permit in 2003 to operate a restaurant called “Scribbles.”  The permit required that: “Entertainment shall only include a jazz band, guitarist and pianist and which shall occur on a small stage within the bar.  Furthermore, a DJ with dancing shall only occur for banquets and private parties within the banquet room.”  (Query:  Had the restaurant presented an atonal “free” saxophone honking performance, would the issue of legality turn on whether the music fit within the defintion of “jazz”)?   
    Within a couple of years, however, the local police began to receive a lot of complaints about a “nightclub” being operated out of Scribbles, including 200 people waiting in line on Thursday nights, some of whom engaged in anti-social activity outside the club, according to the complaints.  Had jazz finally broken through to the masses, led by the  sophisticated citizens of Diamond Bar?  Alas no; the music being offered was “by known artists,” according to the trial court (Did being “known” disqualify the music from being jazz?), in a way that constituted a nightclub, not a restaurant or private party, in violation of the permit.  One advertised event was a “Drinco de Mayo” night; other events were advertised as offering Hip Hop and Top 40 music.  In fact, the appellate court held that whether this type of entertainment was permitted under the permit was a “question of law” for the trial court.  Let’s hope that Rumpole’s judge is not still on the bench. 
   Under a city ordinance, any operation in violation of a permit automatically constitutes a public nuisance.  So the city council found, and so the courts approved in enjoining the nightclub.  The appellate opinion was State of California v. Ratan Hospitality, No. B194660 (Cal. App. 2d Dist., March 20, 2008).  The opinion is unreported and is restricted for citation in California courts.