March 18, 2006
Getting Americans to accept dense “mixed use,” by learning from Mexico
Here's a more optimistic entry about the mixing of American and Mexican cultures. Architect Teddy Cruz, who works in San Diego but was born in Latin America, designs mixed-use housing projects that echo the shanty towns of Tijuana. South of the border, shanty town residents use whatever materials are available to build housing and stores that are attached haphazardly, sometimes on top of each other. The result, which can often resemble children's building blocks, can sometimes be a dynamic, workable, and even visually stimulating community. Cruz uses these ideas to create multi-level, mixed-use projects in southern California that are both colorful and appealing.
The usual policy complaint about dense, mixed-use communities is that American will not accept them. We want lawns, quiet, and separated land uses, often with gates. Cruz's work in southern California suggests that new immigrants, who are accustomed to such living arrangements, may be the vanguards of getting Americans to accept density and mixed use, if it is done right.
March 17, 2006
Fences make good (international) neighbors
The purpose of zoning is, of course, to separate land uses that may clash. Residences shouldn't be built across the street from an oil refinery, for example. In the realm of international affairs, the idea of physical separation is growing as a proposed solution (often, a reluctantly proposed solution of last resort) to ethnic conflict. When the Indian subcontinent gained independence in 1947, conflicts between Hindus and Muslims led to the splitting of the region into separate nations and a massive migration of millions of persons, both voluntary and forced. Although the migration caused much suffering and many deaths, the separation of conflicting people may have saved the lives of millions over the past 60 years.
In Israel and Palestine, the benefits of more absolute physical separation of the two peoples is gaining support. Even former Israeli hard-liners, such as Prime Minister Ariel Sharon and his advisors, have reportedly considered the division of Jerusalem and the granting of autonomy, behind a fence, to Palestinians in East Jerusalem, as a way of avoiding bloodshed.
And in the United States, there is a growing call for more concrete steps to stop the illegal immigration of people across our southern border. Moderate columnist Robert J. Samuelson recently called for the construction of a fence along the entire border with Mexico. Although physical separation is not the best solution to the problem of conflicting cultures - it fails to engender understanding and encourages mistrust, of course - it may be the second-best solution when the preferred solution does not work. When the idea of cultural cooperation or a policy of less-intrusive patrol of a border fails, a more concrete (literally, perhaps) form of separation may be, alas, the best choice.
March 16, 2006
The joy of homeowners associations?
In our increasingly crowded communities, homeowners associations give some citizens a sense of security about how their neighbors will act. They ensure that the neighbors won't forget to mow the grass, install a kennel for 20 dogs in the backyard, or post signs complaining that the government is controlling their brains through secret radio transmissions. These kinds of concerns may seem "intolerant." In the New York Times recently, however, libertarian-oriented columnist John Tierney discussed one new reason why many citizens like the ability to control their neighbors: it slows the trend of "mansionization," by which one's neighbors tear down their small house and, spurred by zooming property values, build a colossal and ostentatious new one that looms over yours. In his unrestricted Maryland suburb, Tierney wrote, arguments over mansionization led the mayor to send a letter asking residents to stop throwing eggs at each other's houses. Deed restrictions ensure that one's neighbor won't decide to build a gaudy palace next door and ensure that one's neighbor won't chop down trees for a new 4-SUV garage. Are homeowners associations thus a form of environmentalism?
March 15, 2006
The tyranny of homeowners associations?
Occasionally, a local land use controversy breaks through into the national debate. Such an event occurred this week, as a homeowners association in Florida told the wife of a military serviceman in Iraq to take down her front lawn sign that said “Support Our Troops.” See the Tampa Tribune, March 9, and March 14. In such cases, lawyers might argue about whether deed restrictions are completely voluntary contracts (and thus should be enforced) or whether law should consider a homeowners association to be a form of government, thus binding it to respect the constitutional right of free speech.
Here are some broader, sociological questions: Why are homeowners associations’ restrictions typically so much more intrusive of personal autonomy than are local zoning laws? Beyond cases of constitutional rights, why is it typical for a homeowners association to decree what color paint can be used on a house, what kind of fencing can be used, and how foliage must be trimmed? It is that homeowners truly prefer such close regulation and thus demand it in the private market? Is it that close regulation is favored when it is readily enforceable, as it is when the neighbors do the enforcing? It there something about giving power to the average citizen that brings out a 1984-ish desire to control one's neighbors? Is there something about the political process that typically dissuades a local government from similarly telling people how to live their lives?
March 14, 2006
Welcome to the Land Use Prof Blog!
Welcome to a source of commentary and news about the law of land use and community development. I’m the editor, Paul Boudreaux, who teaches at Stetson University College of Law, Tampa Bay, Florida.
This blog addresses the construction of our communities, both literally and figuratively. It concerns where we live, how we live, with whom we interact, and how we interact. The biggest component of this law is “land use” law. This seemingly narrow topic has many components, however. For example, the United States is the first nation in which a majority of people live in a suburban environment of single-family houses, from which nearly all travel is made (and made often) by private automobile. How has law encouraged this “American Dream” and how is law attempting to curb what critics now call “sprawl”? In many law schools, the course is still referred to as “land use planning,” as if it were merely a dry set of rules about how government develops zoning plans and issues building permits. This is no longer the case, of course. Land use law now encompasses myriad other aspects of the construction of our communities.
First, land use law is inextricably bound to issues of racial and class segregation. The promise of our anti-discrimination laws, as set forth in Brown v. Board of Education and the statutes of the 1960s, was of an integrated society. But the suburbanization of housing, shopping, and work has made it possible for many Americans to interact only with persons of like race and class, as never before. Has land use policy undermined the promises of the civil rights laws?
Second, community laws are revolutionizing how Americans relate to the Bill of Rights. About half of all new homes are governed by a homeowners association, which can tell residents what color the house can be painted, whether the homeowner can post a political sign, and who can live in the house. A free-market opinion is that these associations are healthy reflections of the desire of Americans to control their surroundings, through voluntary agreements. On the other hand, critics holler that the associations are an insidious manifestation of suburbanites’ fear of the “other.” Which is accurate? Indeed, I maintain that community law affects human happiness, on a daily basis, more than any other aspect of American law.
Third, land use is an essential component of environment law. Some analysts say that our pollution laws may have gone as far as they can, at least conceptually, in regulating pollution from industry. What law has not tackled, however, is the regulation of the average citizen’s use of his and her land. Regulating pollution from fertilized lawns and nutrient-laden farms raises quandaries of property rights and personal autonomy, as well as thorny problems of trying to insinuate federal goals into matters that have traditionally been local.
Fourth is transportation. If we are indeed approaching the “end of oil,” what will happen to our neighborhoods, which have been constructed, in part by zoning laws that favored low density, so that the only feasible way in and out is through the private automobile?
If land use law is so important, why do relatively few law students take the course (even though huge numbers of lawyers practice land use law)? And why are so many people, include academicians, still a little fuzzy about what it encompasses? Part of the reason is that it land use law remains predominantly local; it is created largely by county, town, and city governments. Because there are few federal laws – the Fair Housing Act is a chief exception – the sweep of the importance of land use law is often overlooked. Because of this factor, the blog will contain a lot of news – stories from the press about how local governments are regulating land use and the community and how citizens and markets are responding. Land use law is the lifeblood of local politics. These news stories are often a much better source than court opinions of good information about how community law is changing.
In sum, this blog will address a cornucopia of interrelated issues in the law of land use and community. I hope you find the entries to be food for thought. Bon appetit!