Monday, March 31, 2008
Can a boarded-up Denny's restaurant be considered a landmark? Yes, according to the Seattle Landmarks Board, which recently designated such a building in the Ballard section of the city. The decision was made in part because of the once-futuristic "googie" style architecture, and because it is considered by some a fixture in the neighborhood.
I welcome a landmark system that considers both architecture and history as part of its bailiwick. But one problem with many cities' landmark processes is that they are so one-sided -- landmark commissions appear too often to see only the benefits of preservation and little of the reasons for allowing demolition (such as the interests of the property owner). The owner of the Denny's site, who reportedly paid $12 million for it in 2006, is suing, of course, and alleges that the city failed to follow its required procedures.
I love googie architecture, and would be saddened to see another example fall to the wrecking ball. An alternative to strict preservation of buildings is the practice of retaining only features of architecture -- as was done in my old hometown of Silver Spring, Md., in which a new apartment building retains a once-distinctive old "Canada Dry" sign. But today the sign seems a little incongruous, and a little lost. Perhaps sometimes it's best simply to move on ....
Friday, March 28, 2008
Like many cities that feel overburdened with homeless people, the city of Ontario, Cal., has decided to take steps against those who it does not believe are its responsibility. Earlier this week, the Ontario police entered a "tent city" and evicted those who "lacked ties to the city." The tent city was evacuated and the city plans to fence it off. According to the L.A. Times, the Ontario police said that the dispersed people included a man from Milwaukee, who was sent "home."
It is the proper role of a city to discriminate against those with no pre-existing "ties" to the city? On the other hand, warm places, such as southern California and my home state of Florida, believe that they bear an unfair burden of homeless people.
But one also wonders whether many of those pushed out of Ontario's tent city merely moved to locations nearby. It does little good for communities simply to compete with each other to push the homeless to the next town. The problem of homelessness should be dealt with at least at a regional level.
And for a success story about the benefits of metropolitan government, see this positive appraisal of the benefits of metro government, adopted in 2003, in greater Louisville, Ky. The biggest city in Kentucky had been disfavorably compared with nearby Nashville (which adopted metro government in the '70s) in David Rusk's influential "Cities Without Suburbs." No longer competing at every turn with its more affluent suburbs, Louisville's star is on the rise. It might even be able to deal more effectively and fairly with its homeless problem …
Wednesday, March 26, 2008
The play tempOdysssey, which has received many favorable reviews, involves a character who dies because of smoking. The plot calls for smoking on stage. Can government uses its powers of land use law to ban such smoking indoors, even in a play? Yes, according to a Colorado appellate court in a decision handed down last week, upholding a trial court’s denial of the theatre’s request for a preliminary injunction. (The case is Curious Theater Company v. Colorado Dept. of Public Health and Environment, No. 06CA2260, March 20, 2008).
The Curious Theater Company argued that its first amendment rights allow it to present a play with smoking, despite Colorado’s far-reaching statutory ban on smoking in “any indoor area,” including theatres. (Colo. Rev. Stat. sec. 25-14-204). Application of the ban to plays would violate the free speech right to expressive conduct, the theater argued. And if the display of nude movies is granted first amendment protection (for example, Erznoznik v. Jacksonville, 422 U.S. 205 (1975)), why not plays with smoking?
The Colorado court, however, trudged through the tests for first amendment protection and concluded that the smoking ban is “content neutral” and fulfills an important governmental interest (limiting the risks from second hand smoke etc., etc.) The court also noted that plays with smoking could be held outside. (There was no indication of whether the difficulty of getting a land use permit is a factor in the first amendment analysis.)
Perhaps the best response to such a case is to focus on the statute itself and to try ensure that this and similar laws include reasonable exceptions, including an exception for theatrical performances, as in the California anti-smoking law (Cal. Lab. Code sec. 6404.5(d)). Or perhaps someone needs to work on a devise that looks like a cigarette but emits harmless clouds of vapor that look like smoke –- until a law is enacted that bans the simulation of smoking, because it legitimizes the practice ....
Monday, March 24, 2008
If my memory is correct, an English defendant represented by the fictional Rumpole of the Bailey back in the ‘60s testified that he could not have committed the crime because he was seeing the Rolling Stones with a mate at the time of the incident. When the judge asked what the Rolling Stones were, Rumpole helpfully provided, “I believe they are jazz musicians, my lord.” If Rumpole had been available in the California Court of Appeal this year, he might have helped a business that ran afoul of a land use permit that restricted, among other things, the kind of music that could be played.
According to the decision by the Second District Court of Appeal last week, a business in the city of Diamond Bar (in east Los Angeles County) received a conditional use permit in 2003 to operate a restaurant called “Scribbles.” The permit required that: “Entertainment shall only include a jazz band, guitarist and pianist and which shall occur on a small stage within the bar. Furthermore, a DJ with dancing shall only occur for banquets and private parties within the banquet room.” (Query: Had the restaurant presented an atonal “free” saxophone honking performance, would the issue of legality turn on whether the music fit within the defintion of “jazz”)?
Within a couple of years, however, the local police began to receive a lot of complaints about a “nightclub” being operated out of Scribbles, including 200 people waiting in line on Thursday nights, some of whom engaged in anti-social activity outside the club, according to the complaints. Had jazz finally broken through to the masses, led by the sophisticated citizens of Diamond Bar? Alas no; the music being offered was “by known artists,” according to the trial court (Did being “known” disqualify the music from being jazz?), in a way that constituted a nightclub, not a restaurant or private party, in violation of the permit. One advertised event was a “Drinco de Mayo” night; other events were advertised as offering Hip Hop and Top 40 music. In fact, the appellate court held that whether this type of entertainment was permitted under the permit was a “question of law” for the trial court. Let’s hope that Rumpole’s judge is not still on the bench.
Under a city ordinance, any operation in violation of a permit automatically constitutes a public nuisance. So the city council found, and so the courts approved in enjoining the nightclub. The appellate opinion was State of California v. Ratan Hospitality, No. B194660 (Cal. App. 2d Dist., March 20, 2008). The opinion is unreported and is restricted for citation in California courts.
Wednesday, March 19, 2008
Meanwhile, about 1300 miles up Route 1 from Key West, Manhattan’s Harlem is coming to grips with a variant of a change in “character.” The famous African American section, which has had its ups and downs over the years, is facing a huge new redevelopment. Last week the New York City Planning Commission approved a significant new zoning plan that will facilitate new businesses, apartments, and bigger buildings. Once shunned by the business community south of central park, Harlem is now a magnet for new commercial and residential development, especially on its 125th Street (where, among the Apollo Theater and other famous landmarks, Bill Clinton located his office a few years back). Some fear the loss of what has made Harlem a unique Manhattan neighborhood. Will it become an uptown version of Times Square, which now sometimes looks like an overgrown suburban mall? But according to this story, many stakeholders believe that the plan is good compromise of encouraging new business while preserving Harlem’s identity.
Tuesday, March 18, 2008
Historic places that have turned into tourist towns inevitably face the dilemma of trying to preserve charm while at the same time facilitating the modern amenities desired by the lumpen tourist. Such a challenge is facing Key West, Florida, which offers fascinating history, lovely architecture, unique communities, and a growing reputation as a party-hardy tropical destination. All of this merges on Duval Street, Key West’s main drag, where some local politicians and businessmen want to discourage the strip joints and t-shirt shops that have filled much of Duval in recent years.
The problem that faces such “clean up” efforts is that, for Key West and similar tourist magnets, there are probably ten visitors who come only for beer and a t-shirt that says “I got drunk in Key West” for every more sophisticated visitor who wants to stroll among the charming old Florida bungalows (available for a song 40 years, and for a million dollars today), see the homes of Hemingway and Bishop, and visit the fascinating historical African American neighborhood of Bahama Village.
One solution is to allow the more base entertainment but to cluster and strictly contain it. Most partiers don’t care that they have been segregated; they simply want easy access from their hotels to the beer and t-shirts. Historic buildings and neighborhoods can be kept party-free, as long as the demand is pushed elsewhere by land use law. Many tourists to New Orleans, for example, visit only crowded Canal and Bourbon Streets, and the nearby charms of Royal and Magazine Streets are thereby preserved. Zoning! What a great idea …
Monday, March 17, 2008
Last week I wrote about the creep of auto-based residential land use into Europe. This week I give time to the opposite viewpoint –- in particular, to one of the latest manifestos of James Howard Kunstler, Scourge of the Suburbs. In an excerpt from his new book, “Thrillcraft: The Environmental Consequences of Motorized Recreation,” Kunstler predicts that the death of the auto-based culture is at hand, and calls for rethinking our policies and our lifestyles to handle the change.
Of the most remarkable features of the opinions of Kunstler and his ilk is the almost palpable glee with which the end of the dominant American land use culture is predicted. You do not hear this sort of emotion from more polished critics of suburbia, who call for changes in land use laws as much out of necessity as out of a desire to protect the environment and improve society. But not Kunstler, who misses no opportunity to pummel the motor-propelled objects of his derision.
Among other things, he blames the auto-obsessed culture –- as reflected in NASCAR –- in large part on the insecurity of the U.S. South over its poor sister status in the early 20th century, and the opportunities that cars gave southerners to improve their status in the later half of that century.
I might have gone further with the sociological argument and extended it to the SUV boom of the 1990s, which was not a southern-driven phenomenon. As the United States became more crowded, and as lifestyles became more sedentary in the late 20th century, the once-alluring ideal of the sports car appealed less and less to young men (who had fewer palaces to speed and feel the adrenaline rush); its place was taken by an obsession with sheer size and comfort (as reflected in McMansions as well) and gadgets –- features offered by the SUV, which looks very impressive indeed stuck at the light on the way to Home Depot.
Is Kunstler correct in predicting the imminent decline of this culture and a revival of pre-auto small-town values? Only time… and perhaps the chemists feverishly at work trying to fashion petroleum alternatives … will tell …
Thursday, March 13, 2008
When one hasn’t visited a more traditional town in Europe for a while, the distinctions in land use seem remarkable. I was in the beautiful city of Granada, Spain, last week, where I was struck both by the increasing homogeneity of the globalized world, in aspects such as entertainment and attire, but also by the lingering differences in residential land use. Arriving by bus, the transition from rural area to city is of course far more abrupt than it would be heading towards a sprawling U.S. city of more than a quarter-million people. Walking from the bus station in the outer city, obviously built up only in the past 50 years, the two mile-walk to the center of town revealed a nearly unrelieved landscape of apartment buildings, with few parking lots, and no single-family houses. The city bus system is extensive, efficient, and busy. While of course there are many cars and motorcycles, the central city alleys are not clogged with vehicles as they might be in a bigger city, in which more travel must be accomplished by motor. And on Saturday afternoon, the central shopping street is alive with thousands of local shoppers, who travel downtown, unlike the phenomenon in the United States of shoppers driving out the latest exurban shopping mall.
An American such as me marvels at the sense of intimacy in such a city. Wandering around an originally Arab section called the Albaicn, where immaculately maintained whitewashed homes are both on top of each other and built into the steep south-facing hillside (in the bright early Spring sun, it was the most picturesque neighborhood I have even seen), one begins to lament the fact that most American cities lack anything like this kind of walkability and social structure. But after a couple of hours in the Albaicin, one longs for some large open space, and one questions the at-first-so-enticing lifestyle in the flower-bedecked but otherwise dark and small residences.
And on the bus heading out of town, I saw the future (?) -– a few miles removed from the city, there was a bona fide housing development. It was a well-defined and insular community of pleasant but not grand townhouses, complete with small balconies, tiled roofs, and parallel parking directly in front of each house on the newly paved streets. The scene easily could have been in Riverside County, California, or the outskirts of Phoenix, or in a new Broward County, Florida, development. Only the small sizes of the cars –- gasoline costs more than 6 dollars a gallon –- returned the mind back to Spain. But I couldn’t help thinking: Is this the future of European land use?
Monday, March 10, 2008
Are restrictive land use laws the real culprit in the housing bubble dilemma? Yes, according to Randall O’Toole of the libertarian-minded Cato Institute. He argues that laws inflated the price of housing –- mostly by restricting the supply –- which then caused borrowers to have to seek out risky loans in order to pay for them, and which many now cannot pay back. He cites the research by Harvard’s Edward Glaeser and others that concluded that land use laws were the major culprit in the recent housing price inflation. This effect is most prominent along the coasts, where there typically are more progressive-minded laws to protect “open space,” etc.
I have written favorably a number of times about the studies by Glaeser, et al. But the housing bust makes me pause. A number of questions remain unanswered in my mind. If restrictive development laws were the dominant factor in causing prices to rise, why did we experience great inflation only from 1995-2005, and not before? If tough development laws are the major factor in causing high prices, why do we now have a bust (in the Tampa Bay area where I live, for example, prices are falling)? And how does this supply-oriented theory explain examples such as Las Vegas, where prices rose as fast as any place (and are now falling) and which is not famous for its restrictive laws (just the opposite, of course).
In sum, I think that we should concede that greatly increased demand -- facilitated by easier credit than we were accustomed to –- played large role in the housing bust and boom. This is not to say that restrictive land use laws don’t cause prices to rise. A University of Washington economist argues that they add an additional $200,000 to the price of a typical home in the Seattle area (presumably as opposed a completely free market, which would of course place subdivisions on top of Mt. Rainier). My speculation (the kind in the mind, not the kind with cash) is that a combination of both tough development laws and easy credit together explains what has happened …
Tuesday, March 4, 2008
The distressing boom in foreclosures is imposing costs on local governments, which find that many houses are abandoned, especially in poorer neighborhoods, both serving as annoyances to neighbors and attracting vandalism and crime. Some cities are resorting to demanding that creditors take more responsibility for taking care of houses on which they have foreclosed. A problem with this is that so many homeowners are simply abandoning their homes before foreclosure; most creditors don’t find it worthwhile to go after them for money that they may owe beyond the value of the house. Thus many houses may serve as local nuisances before the creditors even know that the residents have gone.
Instead of pointing fingers or filing lawsuits, I suggest that governments might consider a new land use law along these lines: When the government learns that a house appears to be abandoned, it informs the creditor, and the creditor holds an obligation to engage in basic maintenance, even if it has not yet formally taken title to the property. While this might prove to be costly for some lenders, it will also encourage creditors to take early steps to try to avoid the problem of abandoned properties.
Monday, March 3, 2008
A goal of many land use laws for the central city is to make our cities look like they did before 1950 … or like many European cities still do –- a mixture of commerce and residences, few parking lots, and retail at the street level –- all of which will encourage people to walk. But even this seemingly simple policy sometimes is hard to achieve in practice. One story from New York shows that a growing number of residents in even this ultra-dense city make a commute to the suburbs
Another problem may be the scale of modern structures. This opinion column from Seattle’s Stranger newspaper criticizes the enormity of new city-encouraged residential towers in the city. Because the buildings often take up an entire block, they impose a psychological barrier to pedestrianism, the argument goes. Retail in such a large building doesn’t prosper as it might in a block with a variety of structures, the author seems to suggest. But then again, many blocks in Paris were successfully “developed” in a uniform (monotonous?) style in the mid-19th Hausmann reconstruction, and remain inviting to walkers and shoppers. Perhaps laws need to require even more and varied retail at the street level. And perhaps the habits of Americans to avoid walking are harder to break than we thought …
This blog is an Amazon affiliate. Help support Land Use Prof Blog by making purchases through Amazon links on this site at no cost to you.
- Stephen R. Miller on Why are building inspectors so often on the take?
- Josh Hightree on What makes people leave rural areas, and what makes them stay
- Jessica Shoemaker on What makes people leave rural areas, and what makes them stay
- Jamie Baker Roskie on Why are building inspectors so often on the take?
- Stephen R. Miller on What makes people leave rural areas, and what makes them stay
- Water Down Under: A Report from Australia by Barbara Cosens: Post 5: Indigenous Rights to Water and Capacity Building
- Land Use Law-Related Articles Posted on SSRN in February
- March 4-6: Stanford 2015 Rural West Conference: Preservation and Transformation: The Future of the Rural West
- March 3 - J.B. Ruhl to deliver Boehl Distinguished Lecture in Land Use Policy at U Louisville Law
- Is this blog post "advertising"? California's bar proposes bright-line rule for regulating attorney blogs