Saturday, April 1, 2006
Here’s a twist (and no April Fool's ...) to government’s using eminent domain to serve the “public interest.” The New Yorker magazine reports that the tony town of North Hills, on Long Island, N.Y., is considering seizing an exclusive and private golf club in order to make it available to all dues-paying members of the town. The magazine states that there are already 51 golf courses within 15 miles. A dilemma for duffers, however, may be that most of the courses are private, often with very high dues and a wait list. What’s a poor $200K-a-year North Hills executive to do when he or she has a hankering for a par 4 with a water hazard (now recognized by the U.S. Interior Department as a wetland)? Kelo, Midkiff, and Berman to the rescue.
Friday, March 31, 2006
“The Swamp” is an entertaining new book about the century-long efforts to drain Florida’s Everglades and turn them into rich farmland and towns, followed by the more recent plan to restore some of the natural water flow and ecosystems. Author Michael Grunwald skillfully moves from colorful tales of the allure of creating rich real estate to the modern struggles among environmentalists, sugar companies, and suburban developers. Some predict that the Everglades Restoration Plan will prove to be the biggest civil engineering project in world history.
In a radio interview on Tampa’s WUSF yesterday, Grunwald made some interesting comments about the Everglades. In addition to the ecological concerns, the restoration plan – which involves limiting new development and even the taking of some houses – is being pushed by “quality of life” issues for those unhappy with “runaway sprawl,” he said. These comments raise a disturbing feature of our land use debates: Some efforts to curb sprawl and protect “green space” are driven in part by a desire of current residents to stop new nearby construction -- thus raising the value of existing homes – and limiting new migrants. Such a NIMBY attitude is especially unfair to immigrants and others who have not had the chance to buy their homes in sunny Florida. The challenge for land use law is to separate true environmental concerns from self-interest hiding behind the mask of the environment.
Wednesday, March 29, 2006
The affluence of the American family and its hunger for a modern house, combined with skyrocketing prices, have led to the “tear-down” phenomenon – homeowners demolishing small homes and replacing them with larger and fancier ones. A number of factors encourage rebuilding, including the costs of buying and selling, the possible avoidance of some taxes, and relatively modest costs of new construction. A problem is, of course, that one’s neighbor doesn’t like a “McMansion” being built next door. Across the nation, governments are debating rules to curb the replacement of existing houses. While neighbors resent the height, bulk, and ostentatiousness of new construction, preservationists lament the loss of historic and affordable housing forms, such as the modest and charming bungalow style.
But should law regulate the tear-down phenomenon? I suggest that governments generally should refrain. The dislike of a neighbor’s McMansion is of course a variant of NIMBY. Universal zoning laws, as opposed to ad hoc anti-construction rules, can and should regulate the size of a house and how close to the property line it can be built. Upset expectations about a view or sunlight might be dealt with more efficiently by rules for compensation from the rebuilder to the aggrieved neighbor.
Besides the familiar argument of “property rights,” what benefits might the community get from the tear-down phenomenon? By allowing families to stay put and still sate their desire for a McMansion, there will less pressure for the “greenfield” construction of suburban sprawl. Replacing (“tear-down” is tendentious, of course) thus can be seen as a form of infill, which is of course a mantra of smart growth. The fact that the total acreage of most metropolitan areas has greatly outpaced population growth in recent decades is in part a result of Americans’ fulfilling their desire for newer and larger houses in the exurbs. Law should welcome a practice that encourages people to stay put.
Tuesday, March 28, 2006
Our fractious society generates conflicts over the use of public land. Here is a bizarre one: States are reacting to anti-gay protests at military funerals (organized by a virulent anti-gay religious group) by considering broad laws to ban demonstrations near funerals. The Illinois legislature is considering a law to outlaw protests within 200 feet of a funeral. By outlawing all such protests – and thus being “content-neutral” -- Illinois obviously hopes to avoid legal claims that the law violates free speech. One complication, however, is that the law would also have the effect of barring labor pickets by cemetery workers.
The American Civil Liberties Union has been lobbying against such laws. In Minnesota, the ACLU has asserted that even “cruel, distasteful” speech is protected by the First Amendment and has warned that funeral protest bans could be vulnerable to legal challenge. Could the fact that such laws plainly are motivated by a desire to stop the anti-gay protests form a basis for arguing successfully that the laws do regulate content?
Monday, March 27, 2006
As governments use land use laws in new and more sophisticated ways, they sometimes raise disturbing questions over whether zoning should be used to further majoritarian social policy. For example, many local governments now prohibit convicted sex offenders, once out of prison, from ever living anywhere near schools or day care centers, with the result that in cities such as Dubuque, Iowa, sex offenders are in effect limited to a few seedy locales. Because few politicians are willing to object to such restrictions, laws are sometimes enacted with inaccurate assumptions, such as the assumption that such offenders are always “predators” of children, when in fact many sex offenders have no such history. Such land use laws also show the worst side of land use “competition” among jurisdictions; when one town squeezes out its sex offenders, the neighboring town is pushed into passing similar measures. This is a disquieting example of the economic prisoner’s dilemma ruthlessly at work in land use law.
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