Land Use Prof Blog

Global warming .. and Big boxes ....

  No, big boxes aren't being blamed for global warming.  But at the same time that California is taking the initiative to curb greenhouse gasses, Governor Schwarzenegger may soon have to take a position on another controversial measure.  The California legislature is considering a law that would require local governments to create and consider an impact statement before approving big box construction.  Will the impact statements have to consider the amount of global warming generated by additional road trips to the planned Wal-Mart or Best Buy? 

One year later ... Katrina rebuilding .. and federalism?

   One year ago today, hurricane Katrina swept across the coasts of Louisiana and Mississippi.  The land use policy implications of the disaster and the rebuilding efforts and myriad, of course.  Here are stories today from the New Orleans' Times-Picayune and South Mississippi’s Sun-Herald.  In the debate over rebuilding, one point I have not heard often is virtues of federalism (although President Bush seemed to allude to it yesterday in a speech praising Mississippi’s efforts).  After all, Tiebout-ites presumably would claim that reserving land use and financing decisions to local governments provides a market in which citizens can choose:  Do I prefer a state with high taxes, more intrusions of government into private property, but more assistance during and after a disaster?  Or do I prefer a state with low taxes, little government meddling, and I’m pretty much on my own once a storm hits?   If such a choice seems inappropriate, why here and not elsewhere in land use policy?
   

Energy standards in red America ...

   Environmentally friendly towns?  Mandated energy standards?  I must be talking about a place such as EcoHeights, Cal., or Treehugger, Mass, right?  Well, no.  Here’s a report from PRI’s Marketplace about the growing attraction of energy saving laws in places you wouldn’t expect.  Frisco, Texas, an affluent and booming suburb north of Dallas, has imposed requirements that new homes (which tend to be huge, of course) be built to demanding energy-saving standards.  What’s next –- Solar panels and composting in Crawford? 

Worldwide concern over wetlands ... one year after Katrina ...

[Global Sunday]

   With global warming and storms on the rise everywhere, other nations are trying to learn from the human errors that led to the disaster of Katrina.  Prescriptions are to slow down construction near the coasts, build flood gates to protect against storm surges, and preserve wetlands that serve as buffer to coastal storms and erosion.   These are all essential.

   Meanwhile, back in the United States, we constantly hear that the losses of Louisiana’s coastal wetlands, in part destroyed to help “big oil,” exacerbated the impact of Katrina.   There is no doubt that the erosion of Louisiana’s coastal wetlands increases the risk of storm damage to human settlements.  And at least part of the New Orleans flooding was caused by water funneling up the much-maligned Mississippi River-Gulf Outlet, leading to a “Mr. Go Must Go!” campaign.  This is all well and good.  But let’s not forget that such land use decisions involve difficult trade-offs.  One of the chief reasons that Louisiana’s wetlands have been disappearing are the levees and channelization of the Mississippi River, which no longer periodically floods with its sediment, as it did for millennia.  This work was done to protect Americans from the horrible consequences of river floods, such as the 1927 disaster.  As let’s also not forget that most of the damage to New Orleans came from water pushed into the city’s canals (themselves built to flush standing water out of the city) from Lake Pontchartrain to the north, not from the wetlands areas to the south and east.  Flood control changes necessarily involve difficult choices, with the amelioration of some threats creating others. 

To wind turbine or not to wind turbine? ...

   Let’s switch to renewable energy sources, such as wind and solar power, many environmentalists advocate.  But at the local level, the land use impacts of such power sources generate opposition from nearby residents. 

   Today’s wind turbines are colossal –- the most efficient turbines are up to 400 feet tall, or higher than the Statue of Liberty (with pedestal) and about the size of a 35-story building.  Towns in rural New York State are rapidly passing laws to bar such turbines, asserting, of course, that they are incompatible with the quiet “character” of their communities.

   I am sympathetic to the need for wind turbines, of course, and it would be easy to wag my finger yet again at this example of NIMBY.  But if we welcome land use laws that would bar 30-story buildings in rural areas, why allow enormous wind turbines?   One argument for permitting giant structures is, of course, that the turbines provide a valuable public service that might override residents’ concerns, as with any necessary but locally unwanted land use (LULU).  Local blocking of such valuable projects highlights the need for some land use decisions to be made at a level higher than that of the town or county, so that the needs of an entire state, or even an entire nation, can be taken into account.

   But what about the rural resident who wakes up one morning to find a set of colossal wind turbines towering over his or her property?  If such turbines are truly a valuable public service, how about a system of compensation for the “wipeout”? -– an idea that can be used to ameliorate local opposition to a variety of LULUs and whose costs can be passed on the taxpayers who benefit from the land use. 

Local government, Vernon style ...

  Yesterday I wrote about towns that abuse land use law to keep themselves largely residential and largely affluent.  But then there’s Vernon, Cal., with only 91 permanent residents but dozens of industrial facilities that fill up most of the municipality.  The local government has been “run like a fiefdom,” according to a state judge that decided an election lawsuit brought against newcomers who –- despite once being evicted from their new residence in an old building –- want to break up the cozy relationship between the city (which owns most of the residential houses in Vernon) and its leading family.

The tenacity of exclusionary zoning ...

   Which state holds the highest incidence of “exclusionary zoning” –- laws that prevent low-cost housing from being built?  Remarkably, it’s New Jersey, according to a summary by Bruce Katz and Robert Puentes of the Brookings Institution of a forthcoming book.  This is notable because, of course, New Jersey was supposed to be at the vanguard, by virtue of the Mount Laurel litigation, of the effort to require localities to take affirmative steps to ensure the provision of their fair share of low-cost housing!  There are stories all over the place these days about the affordable housing crunch and questioning the practice of exclusionary zoning.  Local defenders of such zoning counter that it’s in the best interests of the residents of the town to keep the town’s population down and its property taxes per capita high.  This is no doubt true.  But the point of the Mount Laurel decisions was that land use policies are not matters of concern only for the current residents.  One town’s exclusion simply pushes the demand for low-cost housing elsewhere and raises the cost of housing for the less affluent across an entire area.

   When will state governments finally realize these facts and rein in towns’ selfish laws?  Repeat after me:  Nothing that government does in domestic law is more harmful to the public welfare than exclusionary zoning.   
 

The future of Carolina's Chimney Rock ... park or development?

   The mountains and shores of the South Atlantic states are experiencing a development boom, as retirees and affluent second-home buyers look for alternatives to high-priced Florida.  Perhaps no state is feeling the pressure as much as North Carolina.  It used to be that most of the population was in the middle, while only poor mountain towns and fishing villages dotted the extremes.  Now both coast and mountains are sprouting housing developments, perhaps faster than law can deal with them. 

   One concern is the future of natural landmarks, such as Chimney Rock of the western Carolina Blue Ridge.  Many natural “attractions” of the East were once privately owned and operated for profit-making tourism.  Chimney Rock still is, although the current owners are offering it for sale in the private market.  Developers are interested.  According to an AP story, the state, with help from the Nature Conservancy, tried to buy the famous rock outcropping and its surrounding forest, but could not match the asking price.  The state is now considering whether to try again.  This is the kind of issue that puts the public interest in preservation to the test:  Do citizens love their natural treasures enough to pay for the cost of preserving them for future generations?

Can't anybody figure out how tall a house is?

    In our computerized age, it’s remarkable that something as simple as figuring out the height of a house can become a source of legal controversy.  In Fairfax County, Virginia, the zoning authorities have cracked down on mansions that are too tall under county rules.  Many homebuyers in the booming affluent suburb haven’t been able to move into their houses; those who already moved in are being allowed to stay.  Remarkably, builders have had a different understanding than the county on how to measure the height; according to this news story, the county measures to the midpoint of a roof, while many builders average the height of various roofs (and today’s mansions of course must have multiple roof features).  The lack of understanding was exacerbated by the fact that the county only conducts spot checks of houses and for years seemed less than vigilant in enforcing the height rule. 

   It’s extraordinary to me that simple rules such as the height rule aren’t explained by computerized diagrams for builders to understand, and that the builder is not required to submit a computerized image of the house as built, showing (at the builder’s expense) that the house meets the requirements.  But then, I’m just a lawyer …

  My favorite proposed solution to over-tall houses: One owner is planning to raise the grade of the land around his house in order to “decrease” its height!  The lawyer in tells me that something is wrong here …

Auto impact fees in Singapore ...

[Global Sunday]

  Americans are used to thinking of themsleves as the world's leader in market innovation and computer technology.  But the pressures of transportation congestion have pushed other nations, such as Asia's innovative Singapore, to develop effective systems for market-based incentives and technology for impact fees on auto transportation.   

What did Rapanos "hold"?

  I vaguely remember a controversy back in the '90s about the reporting of the famous Lucas decision, which set forth a limited ground for property owners to recover from the government for a regulatory taking.  Today there's another problem with the reporting of a complex land use decision.  Perhaps the biggest victory for landowners against government regulation since Lucas is Rapanos v. United States, decided by the Supreme Court in June.  What did Rapanos "hold"?  For anyone who has read the case, the answer is clear:  There was no majority opinion in Rapanos; Justice Scalia's four-justice plurality opinion was not the opinion of the court.  But according to Westlaw (accessed this morning), "Justice Scalia ... announced the judgment of the court, holding that: (1) term 'navigable waters,' under CWA, includes only relatively permanent, standing or flowing bodies of water, not intermittent or ephemeral flows of water, and (2) only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right are adjacent to such waters and covered by the CWA."  But Justice Kennedy, who concurred only in the judgment remanding the case, disagreed with this reasoning of the plurality.  Isn't this reporting as to the "holding" incorrect?

The forests of northern Maine: Going, going ... ?

  Northern Maine is in many ways the wildest and most sparsely populated area of the eastern half of the United States.  When timber prices were low back in the '90s, preservationists suggested that government and private trusts could buy up much of the region, which is bigger than each of the other New England states, for relative pennies … before development came.

   The news today is that a developer wants to get rezoning for a huge area near Moosehead Lake and construct the largest development in Maine's history.  The day may not be far off when northern Maine looks like the Great Smokies or the South Carolina coast -- boom regions of recreational housing development within reach of the huge eastern metropolises, especially in an era of massive retirement.  Here's a story about the Maine development project and the legal and lobbying controversies swirling around it.   

Citizens split on Wal-Mart in Maine ...

[Wal-Mart wars, continued …]

            Reflecting the diverse attitudes of the nation, a number of small cities in southern Maine have recently produced mixed results in referenda to impose retail size zoning limits, supported by opponents of Wal-Mart. The advocates say that they are trying to preserve local businesses and the character of their communities, of course.

These Maine downtowns are quintessential New England –- handsome brick storefronts pressed together in a pre-auto world, lovingly tended and bedecked with flowers in the short summers.  But look more closely and one finds that things have not been frozen since the 19th century –- most spots are occupied by boutiques, coffee shops, and tourist-oriented craft stores.  The hardware and clothing stores are long gone.  Are today’s mom-and-pops truly threatened by Wal-Mart? Or is it more the visual insult that bothers the big-box opponents?

The risks of segregation ...

[Global Sunday]

   Here is another warning about the dangers of segregation, with a twist that might either be construed as very conservative or very liberal.   The consensus of the mainstream media is that most of the plotters to blow up planes bound for the U.S. from Britain were emboldened by their social and economic isolation in northeast London.  Land use and cultural segregation of cultures within one nation is a dangerous thing, as proven time and again, from England to Yugoslavia to Chechnya to Israel/Palestine to Sri Lanka to the projects of Chicago and New Orleans …   

Worms .. kids ... zoning officials .... Anything but Al-Qaeda ...

  On the last day of a depressing week of world news, here's a lighter story about a boy, his worms, his sign, and a city zoning crackdown.   

Library discriminates against homeless … readers …

   Homeless people and libraries -- this must be about homeless persons who sit and sleep but who aren't really using the library, right?  Well, no, for once. 

   The public library of Worcester, Mass., says that it has had problems with homeless people not returning books and then being hard to track down because of their transience.  A new rule is that any person without a permanent address (shelters don't count) may only check out two books at once.  A homeless man who is a diligent library patron is suing, with the help of civil liberties groups.

   I have enough respect for librarians to accept their perception of a problem and support their decision to discriminate against transients, in at least some manner.  Disappearance of books is a real problem, and demanding a permanent address for those who want to check out a lot of books strikes me as reasonable.  But how about narrowly tailoring such the rule somewhat -- such as making an exception for any homeless person who has built a record of responsible book-returning? 

Is infill "vertial sprawl" like suburban "sprawl"?

   Opponents of high-density infill in their metro neighborhoods have a catchy new name for their reasons: "vertical sprawl."  In an article comparing opposition to infill with traditional greenfields development, the New York Times' Nicholas Confessore asserts that the "general issues are remarkably consistent: traffic, parking and the cost of supporting new projects with schools, water and other municipal services."  The new usage reveals that the word "sprawl" is now almost meaningless, as it becomes a catch-all for just about any land use that one doesn't like. 

   Let's consider the first "issue" that the Times mentions: "traffic."  It is a truism that any new development anywhere would create more traffic in its proximity.  But the traffic problems of infill are, on closer analysis, quite different from the traffic problems of exurban development.  In low-density greenfields development, a leading concern is that residents must travel long distances, use scarce natural resources, and alienate those without vehicles.  With infill, the dominant concern is of course "parking" -- something that usually is in abundance in the exurbs, of course. 

   As for public services, it should be apparent that infill, which takes advantage of at least some economies of scale from existing services -- public transportation routes, city streets, existing schools, and existing fire stations -- is likely to be far more efficient in its demands than are green fields developments.  As for the assertion that the social costs of high-cost urban infill housing resembles the social costs of McMansions that overwhelm a once-small town, I concede that there is some similarity. 

   But the real "cause" (as with most of the issues) of this social chafing is the simple fact that there are nearly 300 million people in the United States -- nearly twice the number in 1950.   Rural residents may oppose green fields construction by calling it "suburban sprawl" and urban dwellers might oppose infill by calling it "vertical sprawl," but both are simply saying, "There are too many people (and too many with a lot of money)."  But these 300 million people have to live someplace, and one's opposition to their living in your community can't be justified simply by tarring it with epithet of "sprawl."

A tale of two campuses ...

   The design of our universities can mirror the land use policies of our larger community, giving us hints of how land use affects society.  I recently had the chance to visit two of the newest large state universities of the East -- the University of Central Florida in Orlando, and Virginia Commonwealth University in Richmond.  Both began classes in their current university form only in 1968.  But the contrast in university land use couldn't be any starker.  UCF was built as a typical American state university -- on a largely virgin tract of land, removed and isolated from the existing city, with a low-density layout, lots of "green space" between buildings, and surrounded by enormous parking lots that act as oceans between the university and the outside world.  Despite a well-thought-out circular plan, UCF remains, in my view, as insolated outpost of academia, from which it is very difficult for a student or professor to travel anyplace else (including the city of Orlando) without a motor vehicle.  UCF is near Orlando, but in no way is it part of Orlando.

   VCU, on the other hand, has grown inside the city, directly adjacent to downtown Richmond, with many of the university's buildings in the city's remarkable Fan district, one of the nation's most charming pre-auto single-family-home neighborhoods.  Naturally constrained by the city and its street grid, VCU has grown in large part by occupying the closely clustered city mansions that were once the homes of Richmond's aristocracy.  This practice has had many welcome results.  The university's use of old houses, and the fact that many students rent the attractive, columned old two- and three-story small apartment houses in the Fan, have preserved many of Richmond's finest old buildings and cityscapes from demolition and conversion to offices or parking lots (which are largely hidden as garages on the VCU campus).  Currently, VCU is expanding to nearby Broad Street, once Richmond's great retail street, that has been sorely in need of revitalization.  Just as significantly, the integration of a major university within the established city gives Richmond a vigorous, hip, youth-oriented feel as great as any city in the nation.      

Moscow becomes a Western city …

[Global Sunday]

   We know that Russia has truly joined the capitalist world, as Moscow experiences the same land use policy dilemmas that many western urban centers have -- booming numbers of  affluent urbanites are swarming into the old city, pushing the labor class out to distant and dreary suburbs; historic buildings are being torn down; and the citizenry seems to prefer glitzy modern versions of traditional architecture (Las Vegas style).  Here's a fascinating segment from Public Radio International's' "The Changing World." 

Hometown Week: Transit-Oriented Development in the Suburbs?

[Hometown Week]

   Yesterday I wrote some optimistic comments about transit-oriented development in the suburbs; today, I'm not so sanguine.  The closest subway stop to my summer locale is the Takoma stop, just over the D.C. line from the famously liberal town of Takoma Park.  When the Metrorail was built here in the '70s, however, local opposition to a large parking lot (there are large Victorian homes nearby) ensured that the only way to commute from this stop is to walk or take the feeder bus, thus deceasing the Metro's potential popularity for those who don't live very close by.  Currently, the Metro authority wants to revive the idea of transit-oriented construction by building a condo complex on station property.  There has been strong local opposition. The reason?  A postage-stamp-sized green space that serves mainly as a visual buffer between the station and the affluent houses. 
   The fundamental desires of human nature are food, shelter, sex, and NIMBY -- not necessarily in that order.