Thursday, October 25, 2007
The huge fires in southern California this week are likely to revive calls for a reassessment of land use laws and polices that allow, and sometimes even foster, development in disaster-prone areas. One thing that many of these areas have in common is that they are especially appealing to development.
Eighty-six years ago today, a hurricane hit Tampa Bay in Florida, where I live. If such a hurricane hit today, it would cause colossal damage, as such a hurricane would do almost anywhere along the coast of the Florida peninsula. Yet thousands of new residents move to Florida each month, attracted in large part by the water, which also poses to them a great threat. Much of the debate in Florida politics over the past few years has swirled around how and whether the state government should support insurance for homes in risky areas. Meanwhile, the federal government also props up flood insurance.
Across the continent in California, new residents are drawn to the beautiful desert hills; this attraction has become especially strong in recent years, as most of the lowland areas of coastal southern California have in effect been filled up. But these hills—steep, dry, and covered with oily bush—are some of the most dangerous places to live after a bone dry California summer. And the winter rains may bring mud slides.
Is it too late to call a “retreat,” or at least to call a halt to policies—guided by sympathy for landowners in such areas—that encourage such risky development?
Wednesday, October 24, 2007
Conservationists and developers frequently clash over the designation of “open space” in a metropolitan area. For the former group, more open space discourages sprawl, helps nature, and provides for breathing room (sometimes literally) for crowded metropolitans. For the later group, designation means both a loss of potentially profitable land and an assurance of upwards pressure on housing prices. Nowhere in the United States is this conflict sharper than in the San Francisco Bay area, in which environmentally minded governments have designated large amounts of open space in a metro area that is already hemmed in by water, mountains, brush, and farms.
In SFGate.com this week, home builder Joseph Perkins argues that far too much of the Bay area has been designated as off-limits to development, with the result that the region has a critical shortage of affordable housing both today and in the future.
It is easy to be cynical and assume that home builders use the affordable housing argument as a leverage to gain greater opportunities for profit. Regardless of this, the housing crunch in the bay area is undeniable. Perkins asserts that the Bay area will grow in population by 1.5 million by 2030, but that there’s no place to house these new residents, who will come through births and migration.
But is the bottom line for some conservationists this: They simply don’t want the Bay area’s population to increase? Can local governments say, through land use law, in effect, “The Bay area is now closed to any new significant migration?” To those who were lucky enough to live here already, congratulations, but for others –- well, look elsewhere? Is this a valid role for government's land use law?
Monday, October 22, 2007
On Friday, I wrote about the entanglement of government with religion in deciding land use cases. Today, I write about the need to scrutinize speech in order to determine an issue concerning land use and the press.
A challenge to the “adult bookstore” rules of Fulton County, Ga. (which includes Atlanta), was rejected on Friday by the U.S. Court of Appeals for the Eleventh Circuit. (The case is Starship Enterprises of Atlanta, Inc. v. Fulton County, No. 06-15448, decided Oct. 19, 2007.) The plaintiff store sought to challenge the county’s rule that imposes a special use permit requirement for any “adult bookstore,” which is defined as “having a minimum of 25 percent of its stock in trade” as sexually explicit merchandise. (Fulton County Zoning Res. sec. 3.3.1A.) The county concluded that the store, soon after it opened in 2004, contained more than 25 percent sexually explicit material. The store disagreed, leading to the lawsuit. Under the Fulton County ordinance, could a store avoid an “adult” designation simply by dumping thousands of old ordinary magazines and comic books “for sale” in the back of the store, in numbers that overwhelm the number of “adult” materials in the front of the store? If the ratio appears to be close, what sort of fact-finding has to be undertaken: Is each and every non-duplicative piece of merchandise to be categorized separately in calculating the ratio?
Happily for the bookstore, its location was then included within the newly created City of Sandy Springs, which was not so tough on the store. It granted a business permit earlier this year and the store is now in operation, making the case moot.
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