Thursday, October 6, 2011

It's great to be back at Hogwarts

I've been spending too much time among the muggles (non-land use profs) and it's nice to be back here at Hogwarts.  Many thanks to Matt, Jamie and Jim for welcoming me here, and my best wishes to Chad as he begins a new adventure. 

In one of my last guest posts, I asked how people start the land use course.  My sense is that many land use profs (and several of the leading casebooks) begin with a discussion of planning.  This is logical, since zoning ordinances are supposed to be consistent with a comprehensive plan.  However, to paraphrase Justice Holmes, the life of land use has not been logic, it has been politics.  And as a matter of political reality, the zoning has always come first, and planning has been the ugly stepchild that lagged behind.  This is not to say that planning is irrelevant (especially in states like California where planning is required) but that it is something of an aspiration that is not always realized in practice.  Indeed, courts and legislatures seem to recognize this, and they often look to find an appropriate balance between permitting politics to infuse the land use decisionmaking process and requiring some apolitical mechanism to ensure adequate consideration of those things that are unlikely to be taken seriously by the local political process (affordable housing, anyone?).  For example, although California has some pretty serious planning requirements, including an affordable housing element, it breaks from the Standard Planning Act in permitting the elected city council to enact the general plan, rather than requiring the plan to be enacted by the appointed planning commission, as the Act originally required.  This is seemingly designed to permit that sort of balance between politics and planning expertise.  In practice, of course, the politics tends to dominate.  More on that in a future post.

So how to convey all this to students on the first day of class?  I begin with a hypothetical mixed-use residential/commercial project, and ask students what questions or concerns they might have about the project if it was proposed to be sited in their town.  They pretty quickly get to issues like traffic, noise, and infrastuctural burdens, and with some prodding they also figure out that there may be tax implications (added tax burden to finance needed infrastructure and services as well as a major potential gain in property and sales tax revenue), impacts on local property values, school overcrowding, possible degradation of environmental resources, need for low-income housing for low-wage workers at the new development, even vote dilution concerns.  This is a useful exercise to get students thinking about how complex even a single land use approval can be, and how many factors ideally need to be considered.  Then, once I have a pretty complete list on the board, I reveal that there is no Santa Claus -- it is a fantasy to think that all of these factors actually will be fairly considered in the land use process.  I give the students a reading from Mike Davis's City of Quartz, which paints a pretty sordid picture of local land use politics as a series of pitched battles between affluent developers and affluent homeowners (a theme I pick on here.)  I then ask students: in an environment where decisions are made by elected local officials beholden to these two groups, which among these many factors are likely to be predominant, and which are likely to be ignored?  They catch on pretty quickly that taxes, property values, and schools are major issues while affordable housing and environmental concerns are either ignored or treated with active hostility.  By showing students the variance between those concerns that in a utopian world should be considered by a rational land use system and those concerns that actually are considered in our political land use system, they begin to understand the tension between the political and the apolitical, and why courts and legislatures have seen the need to strike some balance between the two. 

So, how do you start the land use class?

Ken Stahl

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