Friday, October 13, 2006
The United States' population is estimated to reach 300 million early next week, according to the Census Bureau. This compares with only 200 million in 1968, 150 million in 1949 (when Presidents Bush and Clinton were toddlers), and only 100 million in 1916, when the first generation of zoning laws were being adopted. While the population of our nation has grown (few other affluent nations are growing as quickly, largely because of immigration to the U.S.), the amount of land has in effect stayed the same. The population milestone provides a good moment to reconsider the wisdom of land use policies that encourage sprawl, discourage infill, require separation of uses, and discriminate against certain types of uses, including multi-family housing. And the traditional American Dream of a single-family house with a suburban yard -- which was fulfilled for most people in the 20th century -- may have to be reconsidered in a more crowded America.
Wednesday, October 11, 2006
Perhaps the starkest potential clash on the face of the Constitution exists between the freedom to exercise religion and the prohibition against establishment of religion. When a government regulates a land use that is religious, it is violating the right to free exercise? If it excuses the religious land use from the regulation, is it then violating the non-establishment clause?
Such a dispute is playing out in Suffern, New York, where the local government has denied a variance by an Orthodox Jewish organization that provides meals and lodging to those who are visiting relatives or friends at a nearby hospital on the Sabbath. By using the house, Orthodox Jews can avoid driving or other religiously-prohibited actions on the Sabbath.
The federal government last week sued the village of Suffern in federal court, alleging that the denial of the variance violated the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc to 2000cc-5, which makes it unlawful for a local government to “impose a substantial burden” on a religious land use, unless the government is using the “least restrictive means” of furthering a “compelling government interest.”
Does Congress have the authority to go beyond the words of the Constitution to foster free exercise, in the face of the tradition of local control of land use?
Tuesday, October 10, 2006
Land use laws often have unintended consequences. Last night my local PBS station re-aired an episode of the justly famous series “Eyes on the Prize” about the civil rights movement of the 1950s and 1960s. Much of the episode focused on the effort to desegregate department store lunch counters and other public facilities in Nashville, Birmingham, and other southern cities in the early ‘60s. Eventually, of course, laws made racial segregation in such facilities unlawful.
But did the laws create social integration? Downtown department stores used by everyone in a metro area have closed in most cities and moved to suburbs. Many stores in suburban areas are poorly integrated by race because of de facto suburban housing segregation. Meanwhile, more specialized public places (restaurants, clubs, etc.) that remain downtown often remain largely segregated in fact.
Did anti-discrimination laws result in the move of public facilities to the suburbs? No, for the most part, I suspect; anti-discrimination laws did not “cause” commercial “white flight” the way that school desegregation rulings did in many areas. Suburbanization of retail establishments has occurred everywhere, even in places that are racially homogeneous. But the fact of suburbanization certainly has, unfortunately, dampened the ability of law to foster greater social integration.
Monday, October 9, 2006
Can we trust government to do anything right concerning big questions of land use and the environment? In a recent essay in the Tulane Environmental Law Journal, Tulane law professor Oliver Houck paints a damning picture of government at all levels in the decades leading up to, and the year since, the disaster of hurricane Katrina. The Army Corps of Engineers and other federal agencies, the state of Louisiana, and local governments are each taken to task for putting politics ahead of public service. The desires of oil companies, regional infighting, and petty corruption each helped doomed governmental plans. Such a gloomy assessment from a leading environmental liberal seems like an echo of public choice theory, usually associated with conservatives. What does this say about the future of proposed governmental solutions to big environmental problems?