Thursday, June 29, 2006
I've heard a lot in the news recently about new ideas for the technology of desalination -- turning salty water into fresh water. (See some links here and here and here.) Long used on ships for boiling, desalination has been expensive and complex when used on a large scale. But when an increasing demand for fresh water combines with better technology, desalination will become practical for more and more places, including for domestic and agricultural water usage in water-hungry parts of the United States.
Imagine the land use consequences! Consider a time -- and it may be soon in the future -- when it is relatively inexpensive to desalinate water from the Pacific or the Gulf of California and pump it across the Southwest. There would then not be much to stop new retirement homes from popping up along the length and breadth of the Arizona desert ... and Utah … and all of sparsely populated eastern California. It would be a developer's dream … a groundwater conservationist's deliverance …and an urbanist's nightmare.
Wednesday, June 28, 2006
Tomorrow, June 29, is the 50th anniversary of founding of the federal interstate highway system. The freeway web transformed how Americans moved, and thus how we constructed our communities, and thus how we shaped our societies. One telling of the story is that advocates (which included contractors and certain local governments, of course) were having difficulty persuading the fiscally conservative members of Congress in the early '50s, until they came upon the idea of calling it a "defense" plan to facilitate the movement of troops and materiel in case of war with the Communists. Once packaged as a feature of national security, Congress authorized billions. (Plus ça change.)
On the benefit side of the ledger, the interstates have given Americans mobility to travel freely across the nation (imagine the delays of a cross-country road trip back in 1940!) and made trucking an extraordinarily efficient means of transporting goods, thus contributing mightily to American prosperity. (I recently read that nearly all major automotive parts facilities locate within minutes of I-65 and I-75, from Michigan south to Alabama.)
As for drawbacks, critics point out that subsidized highways harmed the railroads (which, to be sure, got their own subsidies back in their heyday). Federally funded interstates have often served suburbanites more than interstate travelers (just try getting around Atlanta on I-285 at rush hour, or try going west from Denver on I-70 on a skiing weekend.) Perhaps most significantly, they have facilitated suburban sprawl (imagine the drive from Winnetka to downtown Chicago or from Garland to Fort Worth without freeways). First houses, and then shopping malls, and then jobs, have followed the routes of interstates out of the city. Should we wonder why sociologists say that today's Americans, isolated in suburban subdivisions, office parks, and interstates, have fewer friends than they used to have?
Tuesday, June 27, 2006
Is democracy always good? I say "no." The California Central Valley city of Davis, famous for its progressive policies, has adopted a municipal code that requires a public referendum for any proposed change in land use currently mapped for agricultural or non-urban use. This will no doubt slow new developments in the city. But democratic votes aren't the best way to make most decisions of government. Doesn't a public vote avoid the problem of special-interest influence on elected representatives? Perhaps, but it holds more drawbacks. First, if the question involves pitting a public benefit versus an arguable individual "right" (no matter how small), the "right" side is bound to get short shrift from the public. NIMBY rises, and the public's respect for a right dissolves, when voters are able to hide behind the secret ballot. Imagine if your right to paint your house pink or to put up a controversial political sign were subject to a vote of your neighbors? Moreover, with democratic decisions, there is no way to police the outcome -- a vote can be motivated by bases such as race, religion (imagine a vote on the siting of an Islamic center), or other unfair grounds. Referenda also are also hampered in many cases by the public's lack of knowledge of the issue, which then results in a disproportionate number of ballots marked by the those with a personal "interest" in the issue.
Yes, representative decisionmaking is imperfect, in that it is subject to undue influence by the powerful and the connected. But it is, for most questions, including land use issues, a better system than direct democracy.
Sunday, June 25, 2006
Why can't U.S. cities be more like European ones? That's what many Americans ask when they visit the dense, efficient, and well-maintained cities of western Europe. Even in Canada, Vancouver vigorously encourages dense development and Montreal seems more like Lyon than Chicago. But here's a dissent from the Montreal Gazatte, arguing that Canadian anti-suburban laws have slowed economic growth and raised housing prices; what is helping Montreal today, the author claims, is suburbanization.
Friday, June 23, 2006
A New York City councilman wants to use zoning laws to restrict sharply the number of fast-food restaurants in Manhattan. Using land use laws to control the spread of chain restaurants is nothing new (see a New York story from 1985), but the current goal is different from most: The councilman wants to fight obesity, especially among young and poor people, who eat in disproportionate numbers at the fried food factories. Although I may applaud the goal, using land use laws to fight the nation's obesity problem seems to be using the wrong tool -- just as using school busing to try to create a more racially just society (meanwhile, there was not much far effort to integrate by housing) may have used the wrong tool to deal with a bedrock social problem.
Tuesday, June 20, 2006
As many expected, the Supreme Court’s “decision” yesterday in the Clean Water Act cases only further muddied the question of the reach of the law, other than for pollution into interstate waters that are navigable by boats. The morass cries out for a statutory, not just a regulatory, solution. I am especially troubled by the continued reliance of Justice Scalia and the property-rights advocates on the supposed fact that land use regulation is a “quintessential state and local power.” Citing some Supreme Court cases that made this assertion (If the Supreme Court says a fact is true, does this make it so?), the property-rights advocates have justified their restrictive Clean Water Act opinions in large part on a need to avoid the boundary of the interstate commerce power. But the conclusion that a regulatory interpretation is close to the boundary is in itself a rough decision as to where that boundary lies (without actually engaging in a thorough delineation of this boundary). Moreover, the assertion of the supposed “tradition” of state and local control over land use ignores such developments as the national regulation of air and hazardous waste pollution, not to mention 30 some years of national regulation of water pollution. The logic that “Congress can’t regulate land and water use because traditionally only states have done so” could have been (could still be?) used for fields such as employment (the Court struck down national employment laws before the 1930s) and discrimination (“moral” regulation was largely left to the states before the New Deal or before the 1960s). Interpreting statutes and making rough constitutional decisions through broad generalizations about “tradition” is both unstable and unsatisfying.
Monday, June 19, 2006
My father has told me the story (Happy Father’s Day, Dad!) of, when he got into the cutting-edge world of computers in the 1960s, how people predicted the arrival of the “paperless office.” Ha ha. Computers have simply created more paper than ever before, especially for lawyers. What happens when a lawyer piles up too much paper in his apartment office, creating a potential fire hazard? Does a citizen have a property right to be messy, or does the police power justify government action?
From Arlington, Virginia, comes a story about a lawyer who was evicted from his condo for too much paper … and other junk. A problem with anti-“hoarding” laws is, of course, that they hold the potential for inconsistent, unfair, and selective enforcement. In today’s relatively safe cities, however, we can forget how dominant was the fear of fire in the development of modern land use laws. In addition to creating a fire hazard, too much clutter can make it difficult for emergency responders to provide assistance and to get in and out safely. The biggest problem I have with the Virginia story is that the government officials apparently evicted the lawyer immediately, without giving him some time to “cure” his clutter problem. He is, of course, suing the government ….
Saturday, June 17, 2006
The very-real problems of American cities pale in comparison to those of poor countries. This week Vancouver will host a World Urban Forum, organized by the United Nations Urban Settlement Programme. UN-Habitat is also releasing the 2006 State of World's Cities Report. More than half of the world's 6.5 billion people now live in urban areas, and this total in expected to rise to two-thirds by 2020. Nearly a billion people live in city slums, where health criteria such as nutrition and life expectancy are not always better than in poor rural areas. It was an assumption of 20th century policy, of course, that urbanization meant more reliable access to food and health care. This may no longer be the case, just as it was not back in the dark days of early 19th century England.
Friday, June 16, 2006
Questions of land use and sprawl don't typically make it into the New Yorker magazine, so I was glad when I was directed to a Malcolm Gladwell review, of a few months back, of Jared Diamond's book Collapse, which argues in part that civilizations often destroy themselves through environmental self-destruction. Gladwell concludes his review with a reference to Oregon's Measure 37, passed last year, that in part reversed the state's tight development laws and is expected to pave the way (no pun intended) for greater sprawl in Portland's suburbs. Gladwell makes two points. His first is that ecological resources such as rivers and forests should be treated as a "birthright;" this is hard to argue with, although I'm not sure he understands how the fertilized farmland encouraged by Oregon's old laws have not always been the friendliest neighbors to rivers and forests. His second point is that Measure 37 is "intellectually incoherent," arguing that the reason property is so valuable on the outskirts of Portland is that is has been protected from development. Once developed, he suggested, property is likely to fall in value. This cockeyed statement reflects a common view of sprawl as some kind of inorganic disease that we should avoid whenever possible. But sprawl is not simply pavement and strip malls; it is also people -- lots of people -- looking for an affordable and pleasant house in the suburbs.
Thursday, June 15, 2006
Does music (unsponsored) belong in public places? While nearly everyone claims to a fan, for most people there is some type of music -- perhaps it's hip-hop, goth, or schmaltzy '40s show tunes -- that one would just rather not hear. This morning, I heard from my suburban house the sound of drumming; when I investigated, I found in a nearby park a man playing African drums -- quite expertly -- but doing so with amplification. Was this necessary?
The Washington, D.C., Metrorail system is considering allowing musicians underground for the first time in its 30-year history. After all, New York auditions authorized subway performers, and trips to Paris and London are spiced up by musicians that move through trains. In Washington, however, the rail system was built in the '60s and 70s, when the avoidance of crime, graffiti, and litter were foremost in the minds of the planners. The Washington Metrorail has been criticized for its zero tolerance of snackers and solicitors, but there is no doubt that it has succeeded in creating a non-stressful environment for riders -- something that New York plainly failed to provide in the '70s.
Today, with crime down and the New York subway cleaned up, Washington's rail operators may think about making the experience not just safe, but happy. But I still have a concern, however, over allowing too much music underground. One problem is avoiding really bad musicians, and the decision of what constitutes a bad musician will involve government in making "artistic" judgments (imagine the potential lawsuits!). My first rule of thumb would relate back to the drummer in the park: No amplification. Almost every kind of music, from chamber quartets to "unplugged" rock to paint-pail hip hop, can be played without amps. Riders interested in listening could move forward for a minute of two; those uninterested could quickly move on. This simple and fair rule would help ensure that the sounds don't become a bother in our busy urban rail systems.
Wednesday, June 14, 2006
What makes a city eligible for federal poverty aid? NPR reported this morning about a potential change in HUD criteria for community development block grants, which have risen in importance with the increased authority given to states in handing out federal money. Developed in the 1970s, the current CDBG criteria place a large emphasis on the age of housing stock; the older the buildings, the more likely a city is to receive aid. Although focusing on poor quality housing certainly makes sense for HUD, this criterion also reflects the outmoded thinking of the '60s and '70s -- that urban poverty was caused in large part by old wood and nails, as opposed to a lack of income and segregation in an underclass culture. Leftists critics have also argued that the focus on demolishing "blighted" housing was pushed by cities' desire to move unwanted African American neighborhoods close to downtown and spurred by chops-licking builders and developers.
Tuesday, June 13, 2006
I visited this weekend the Barnes Foundation, the famous private art gallery in Merion, Pa., that holds one of the world's great collections of French art. The foundation has been embroiled in controversy for years concerning the will of Albert Barnes, who died in 1951 with strict specifications concerning how his collection should be displayed (in groupings of Barnes's selection) and how it should be accessible to the public (sparingly). In the past 20 years, the university that was given effective control of the collection clashed with the wealthy suburban township of Lower Merion over access by buses and whether the foundation would be permitted to build a parking lot. The township wanted to minimize traffic, of course. Eventually, the trustees obtained a court order that allows them to move the collection to a new building in downtown Philadelphia, which is just a few miles away. How has Merion responded? Nearly every mansion surrounding the Barnes Foundation now holds a sign (tasteful, of course) reading, "The Barnes Belongs in Merion." This is a delicious twist to NIMBY -- the wealthy residents don't want to be bothered by lots of tourists, but they do like the cachet of having the collection in their midst.
I believe that art museums (which for much of this century were wrong-headedly placed in city parks, such as in San Francisco and St. Louis), big libraries, and sports stadiums belong in downtown cities, where public transportation, parking lots, and proximity to other attractions make them most conveniently accessible to all.
Monday, June 12, 2006
Remember communism? Just 20 years ago, there was still a significant threat to private property from the political movement whose foundation was, in the words of one K. Marx, the “abolition of private property.” With the collapse of the Soviet Union and China’s embrace of capitalism, in the 1990s writers suggested that a consensus in favor of free enterprise meant an “end of history.” In reality, such views were simply a manifestation of American and Eurocentrism. Outside of the West, in countries in which the putative benefits of private property and capitalism have not benefited the poor, the appeal of collectivism remains strong. Latin America has, of course, been the center of such renewed appeal –- which is not going to go away any time soon. See here for a revealing story about the effort of Hugo Chavez’s Venezuela to seize a noted private ecotourist preserve for distribution to the “people.”
Friday, June 9, 2006
Many locations, including those in California and Virginia, are allowing hybrid car drivers to use lanes that are otherwise reserved exclusively for car-pool vehicles. This is bad policy, I suggest.
The reason for car-pool lanes is to relieve traffic congestion by encouraging shared riding and alternative means of transportation. Driving a hybrid, however, does not serve these goals -- indeed, with new hybrid SUVs, the low-emission vehicles aren't necessarily smaller cars that take up less space, and driving a hybrid does not mean that one drives less often. The benefits of hybrid vehicles is that they are fuel efficient and pollute less (I look forward to buying one once my '98 Saturn gives up). Although government encourages these benefits of hybrids, government also encourages people to contribute to charities and to eat their vegetables. Should these worthy acts entitle one to drive in the car-pool lanes?
By mixing the goals of traffic relief and fuel/pollution, governments risk losing popular support, which has always been tenuous at best, for car-pool lanes.
Wednesday, June 7, 2006
Here are an uneducated easterner's thoughts -- perhaps ignorant, perhaps obvious -- about the land use plight of the American Indian tribes of the West. Traditionally, the tribes were either nomadic (such as the Apaches) or agricultural (such as the Hopis), often on marginal land. With their modern-day concentration on reservations -- often very poor land, of course -- the tribes were unable to continue a nomadic lifestyle and have found subsistence farming to be very difficult. Thus a young Indian is faced with a dilemma: the traditional way of living is all but impossible on the reservation, and joining the dominant, non-Indian economy means leaving one's culture behind. Today, of course, gambling has recently brought in a lot of money, and pleasant new houses are visible across Indian lands. But support through the money of gambling is not a culture ….
Tuesday, June 6, 2006
What kinds of commerce should cities encourage to revitalize their downtowns? I was recently in Albuquerque, which, like many sun belt cities, saw its old commercial downtown whither in the suburban age. New Mexico's biggest city has tried to revive its downtown with nostalgia: its Central Avenue was a stretch of the famous old Route 66 (eliminated by unromantic highway managers when Interstate 40 was run through the Southwest) and still holds a lot of interesting Art Deco buildings. But while the city tries advertising nostalgia, the successful new businesses I saw on Central Avenue were all youth-oriented: night clubs, dance spots, and hip bars. This is a lesson that policy makers and planners are often reluctant to understand: While it may be possible to lure single young people with few responsibilities to the bright lights of downtown, it is far harder to attract suburban families, who seem to prefer the big parking lots, short walks, and controlled atmosphere of the suburban realm.
Monday, June 5, 2006
One of the most thorny dilemmas of land use policy is the city park. For many years, downtown parks and squares have been magnets for the homeless, drug addicts, and other antisocial types, thus making them to anathema to the average citizen. In a less tolerant past, winos might have been told to "scram" by the cop walking the beat; by 1970, however, few cops patrolled the streets and the striking down of vagrancy laws restricted law's ability to regulate the parks. The shunning of urban parks by the average citizen was exacerbated both by suburbanization (auto-bound commuters saw no reason even to consider visiting an urban park) and the American attitude of favoring private space (homes and offices) over public space.
In the past 20 years, however, revived attention to urban amenities has led many cities to pay renewed attention to their downtown parks. Yesterday, I was in Santa Fe, New Mexico, whose Plaza was laid out by the Spanish soon after 1610, making it one of the nation's oldest urban squares. Compared with my last visit nearly ten years ago, the Plaza at lunchtime was flush with urban activity. One section seemed permanently reserved for groups of scruffy, hackysack-playing teens; meanwhile, a respectful distance away, Indian families ate lunch on the grass, while many of the ornate metal benches were filled with weary tourists (like me) resting their feet and adjusting their cameras.
What has helped the Plaza? One small but significant change that I noticed is that lunchtime carts, previously restricted to side streets, were now conveniently placed at each corner of the Plaza, offering green chile corn tamales, turkey drumsticks, and hot dogs. By allowing this type of commerce, Santa Fe lures lawyers in gray suits and others who might see no reason to visit and sit down. Once a critical mass of non-threatening people are observed, the urban park seems friendly to all.
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- Water Down Under: A Report from Australia by Barb Cosens: Post 2: Comparative Water Law: Australia and the western United States or Conversations with Claire
- APA Planning & Law Division's Smith-Babcock-Williams Student Writing Competition now accepting entries
- Jan 30 - Boston U Law - The Iron Triangle of Food Policy - AJLM Symposium
- "Basic Human Right" to Farm Your Lawn?
- CFP: Fordham Law: Sharing Economy, Sharing City: Urban Law and the New Economy