Land Use Prof Blog

Sprawl, ecology, and the Everglades

   “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.

Is the "tear-down" phenomenon good?

   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.       

Protests, free speech, and funerals

   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? 

zoning and sex offenders

   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.

Riding to the defense of eminent domain

    While advocates of private property rights howled in response to the Supreme Court’s 2005 eminent domain decision in Kelo v. City of New London, many supporters of government were left mumbling lamely about “deference” in trying to defend the decision. It seemed difficult to justify “the government’s right to take your house and give it to Wal-Mart,” as some news reports in effect in summarized the state of the law.

   A new pamphlet of essays published by the Vermont Law School’s Land Use Institute comes to the rescue of some of the leading arguments in favor of giving government a broad power to use eminent domain. Particularly provocative is the essay of Vermont’s Marc B. Mihaly, who asserts that both the majority and minority in Kelo failed to understand the new and beneficial conception of the public-private relationship in economic redevelopment of cities.

Eminent domain and insular minorities

  One of the most remarkable public responses to law in recent years has been the outcry over the Supreme Court's upholding the broad right of government to take private property through eminent domain when the land is destined for private hands.   The decision in Kelo v. New London, Conn., has spurred initiatives in nearly every state, a well as in Congress, to limit eminent domain.  I find it intriguing that so many citizens appear to find it objectionable that government can take their house for an urban redevelopment plan, when governments have  always routinely taken houses for public land, such as for city halls and roads.  Does the fact that land is going to end up in private hands make so much of a difference?  Do citizens see in eminent domain destined for private hands a much greater potential for abuse than condemnation for roads, etc? 
   The "liberal" criticism of eminent domain - that property of poorer and less politically powerful groups in society tend to be the targets of eminent domain - failed to make any apparent dent in the thinking of the Supreme Court in Kelo.  I suggest, however, that arguments of unfair effect on insular groups might eventually form the best defense against eminent domain destined for private hands - at least in the halls of government, if not in the courts.  The experience of the "environmental justice" movement - which asserts that environmental hazards have been disproportionately and unfairly sited near racial minority neighborhoods - may have had its greatest success simply in mobilizing communities that previously would not have stood up for their interests.    
   An example of the phenomenon in the world of eminent domain may be playing out in Washington, D.C., where the city is evicting a number of small businesses on land destined for the new city-financed baseball stadium.  A number of the businesses are gay-oriented shops.  Whenever an insular minority suffers disproportionately from a burden of government, law (both lawmakers and courts) should look very closely at why this adverse impact had to happen.

"Home" at Ten: Are the New Urbanists Right? (First in a Series)

   Ten years ago, social critic James Howard Kunstler published "Home From Nowhere."  Perhaps more than any other work, "Home" (which followed Kunstler's "The Geography of Nowhere") provided a readable source of criticism of the American suburban model and offered proposals for revamping our land use laws.  In plain language, Kunstler decried the everyday world in the United States an "abysmal mess."  The solution, he argued, was a reversal our laws that separated land uses, required low density, and depended on the automobile.  Instead, he proposed changes to encourage "mixed-use neighborhoods" in which people could walk, ride their bike, or take public transportation to nearby friends, stores, and jobs.  He pointed to the ideas of the "New Urbanist" architects and planners.  He also bucked trends by, for example, criticizing the environmentalist shibboleth of "green space" for its own sake in the metropolitan world.
  The construction of our sprawling suburban world has been a "self-destructive act," Kunstler maintained.  We should replace it with the models of dense cities, as in Europe, and of the old small town Main Street, which "people loved deeply," he wrote.
   In a series of entries in this blog, I will from time to time examine how American law and culture has responded over the past ten years to Home and its ideas.  On one hand, the benefits of density and mixed use have become an accepted part of the urban dialogue.  On the other hand, sprawl has continued unabated.  While some Americans have returned to the city, many others have embraced the ideal of suburban life as never before, with huge SUVs (with their own DVD players) and enormous homes inside of gates and regulated by restrictive deeds and covenants. 
   What have Kunstler and his cohorts taught us?   How have they been right?  How have they been wrong?  Please watch this space.   

Cities aren't for children anymore

   The new urbanists argue that Americans are rediscovering the joys of urban life.  This may be true for some groups, but not for all.  The Washington Post reports that the percentage of residents who are children is continuing to fall in many American cities.  In San Francisco, the under-18 population fell to 14.5% in 2000, down from 17.2% in 1980 and 24.5% in 1960.  Focusing on the story of a single mother who has moved to Sacramento but still commutes to the city by the bay each day, the Post's John Pomfret blames the skyrocketing cost of housing. "[M]iddle-class families [are] fleeing" coastal cities for less expensive communities, he writes.
   But San Francisco is not losing population; it is gaining population.  Developers there have been spurred by the house-price boom to try to squeeze in more units wherever they can.  So why is the percentage of children falling?  The truth, rarely spoken, is that more affluent families (and affluent singles, of course) are likely to have fewer children than middle-class and poorer families have.  As a city gets richer, it also is likely to lose children.  Although it may be true that Americans are more attracted by city life today than they were in, say, 1970, it is much more likely to be people with few or no children who are following the attraction.   
   

Getting Americans to accept dense “mixed use,” by learning from Mexico

  Here's a more optimistic entry about the mixing of American and Mexican cultures.  Architect Teddy Cruz, who works in San Diego but was born in Latin America, designs mixed-use housing projects that echo the shanty towns of Tijuana.  South of the border, shanty town residents use whatever materials are available to build housing and stores that are attached haphazardly, sometimes on top of each other.  The result, which can often resemble children's building blocks, can sometimes be a dynamic, workable, and even visually stimulating community.  Cruz uses these ideas to create multi-level, mixed-use projects in southern California that are both colorful and appealing.
   The usual policy complaint about dense, mixed-use communities is that American will not accept them.  We want lawns, quiet, and separated land uses, often with gates.  Cruz's work in southern California suggests that new immigrants, who are accustomed to such living arrangements, may be the vanguards of getting Americans to accept density and mixed use, if it is done right.      

Fences make good (international) neighbors

   The purpose of zoning is, of course, to separate land uses that may clash.  Residences shouldn't be built across the street from an oil refinery, for example.  In the realm of international affairs, the idea of physical separation is growing as a proposed solution (often, a reluctantly proposed solution of last resort) to ethnic conflict.  When the Indian subcontinent gained independence in 1947, conflicts between Hindus and Muslims led to the splitting of the region into separate nations and a massive migration of millions of persons, both voluntary and forced.  Although the migration caused much suffering and many deaths, the separation of conflicting people may have saved the lives of millions over the past 60 years.
   In Israel and Palestine, the benefits of more absolute physical separation of the two peoples is gaining support.  Even former Israeli hard-liners, such as Prime Minister Ariel Sharon and his advisors, have reportedly considered the division of Jerusalem and the granting of autonomy, behind a fence, to Palestinians in East Jerusalem, as a way of avoiding bloodshed. 
   And in the United States, there is a growing call for more concrete steps to stop the illegal immigration of people across our southern border.  Moderate columnist Robert J. Samuelson recently called for the construction of a fence along the entire border with Mexico.  Although physical separation is not the best solution to the problem of conflicting cultures - it fails to engender understanding and encourages mistrust, of course - it may be the second-best solution when the preferred solution does not work.  When the idea of cultural cooperation or a policy of less-intrusive patrol of a border fails, a more concrete (literally, perhaps) form of separation may be, alas, the best choice.      

The joy of homeowners associations?

   In our increasingly crowded communities, homeowners associations give some citizens a sense of security about how their neighbors will act.  They ensure that the neighbors won't forget to mow the grass, install a kennel for 20 dogs in the backyard, or post signs complaining that the government is controlling their brains through secret radio transmissions.  These kinds of concerns may seem "intolerant."  In the New York Times recently, however, libertarian-oriented columnist John Tierney discussed one new reason why many citizens like the ability to control their neighbors:  it slows the trend of "mansionization," by which one's neighbors tear down their small house and, spurred by zooming property values, build a colossal and ostentatious new one that looms over yours.  In his unrestricted Maryland suburb, Tierney wrote, arguments over mansionization led the mayor to send a letter asking residents to stop throwing eggs at each other's houses.  Deed restrictions ensure that one's neighbor won't decide to build a gaudy palace next door and ensure that one's neighbor won't chop down trees for a new 4-SUV garage.   Are homeowners associations thus a form of environmentalism?

The tyranny of homeowners associations?

     Occasionally, a local land use controversy breaks through into the national debate.  Such an event occurred this week, as a homeowners association in Florida told the wife of a military serviceman in Iraq to take down her front lawn sign that said “Support Our Troops.”  See the Tampa Tribune, March 9, and March 14.  In such cases, lawyers might argue about whether deed restrictions are completely voluntary contracts (and thus should be enforced) or whether law should consider a homeowners association to be a form of government, thus binding it to respect the constitutional right of free speech. 
     Here are some broader, sociological questions:  Why are homeowners associations’ restrictions typically so much more intrusive of personal autonomy than are local zoning laws?  Beyond cases of constitutional rights, why is it typical for a homeowners association to decree what color paint can be used on a house, what kind of fencing can be used, and how foliage must be trimmed?  It is that homeowners truly prefer such close regulation and thus demand it in the private market?  Is it that close regulation is favored when it is readily enforceable, as it is when the neighbors do the enforcing?  It there something about giving power to the average citizen that brings out a 1984-ish desire to control one's neighbors?  Is there something about the political process that typically dissuades a local government from similarly telling people how to live their lives?

Welcome to the Land Use Prof Blog!

    Welcome to a source of commentary and news about the law of land use and community development.  I’m the editor, Paul Boudreaux, who teaches at Stetson University College of Law, Tampa Bay, Florida. 
     This blog addresses the construction of our communities, both literally and figuratively.  It concerns where we live, how we live, with whom we interact, and how we interact.  The biggest component of this law is “land use” law.  This seemingly narrow topic has many components, however.  For example, the United States is the first nation in which a majority of people live in a suburban environment of single-family houses, from which nearly all travel is made (and made often) by private automobile.  How has law encouraged this “American Dream” and how is law attempting to curb what critics now call “sprawl”?  In many law schools, the course is still referred to as “land use planning,” as if it were merely a dry set of rules about how government develops zoning plans and issues building permits.  This is no longer the case, of course.  Land use law now encompasses myriad other aspects of the construction of our communities. 
    First, land use law is inextricably bound to issues of racial and class segregation.  The promise of our anti-discrimination laws, as set forth in Brown v. Board of Education and the statutes of the 1960s, was of an integrated society.  But the suburbanization of housing, shopping, and work has made it possible for many Americans to interact only with persons of like race and class, as never before.  Has land use policy undermined the promises of the civil rights laws?
    Second, community laws are revolutionizing how Americans relate to the Bill of Rights.  About half of all new homes are governed by a homeowners association, which can tell residents what color the house can be painted, whether the homeowner can post a political sign, and who can live in the house.  A free-market opinion is that these associations are healthy reflections of the desire of Americans to control their surroundings, through voluntary agreements.  On the other hand, critics holler that the associations are an insidious manifestation of suburbanites’ fear of the “other.”  Which is accurate?  Indeed, I maintain that community law affects human happiness, on a daily basis, more than any other aspect of American law. 
    Third, land use is an essential component of environment law.  Some analysts say that our pollution laws may have gone as far as they can, at least conceptually, in regulating pollution from industry.  What law has not tackled, however, is the regulation of the average citizen’s use of his and her land.  Regulating pollution from fertilized lawns and nutrient-laden farms raises quandaries of property rights and personal autonomy, as well as thorny problems of trying to insinuate federal goals into matters that have traditionally been local. 
    Fourth is transportation.  If we are indeed approaching the “end of oil,” what will happen to our neighborhoods, which have been constructed, in part by zoning laws that favored low density, so that the only feasible way in and out is through the private automobile? 

    If land use law is so important, why do relatively few law students take the course (even though huge numbers of lawyers practice land use law)?  And why are so many people, include academicians, still a little fuzzy about what it encompasses?  Part of the reason is that it land use law remains predominantly local; it is created largely by county, town, and city governments.  Because there are few federal laws – the Fair Housing Act is a chief exception – the sweep of the importance of land use law is often overlooked.  Because of this factor, the blog will contain a lot of news – stories from the press about how local governments are regulating land use and the community and how citizens and markets are responding.  Land use law is the lifeblood of local politics.  These news stories are often a much better source than court opinions of good information about how community law is changing.   
    In sum, this blog will address a cornucopia of interrelated issues in the law of land use and community.  I hope you find the entries to be food for thought.  Bon appetit!

Paul Boudreaux