Land Use Prof Blog

A scary tale of ghost ships … and unwise public water usage!

   A vehicle is damaged and abandoned, leaking oil and creating a traffic hazard.  Does the government respond, by removing the vehicle and charging the owner? 

   Not necessarily, if the vehicle is a boat.  Here in Florida, home to more than a million registered boats, law encourages people to leave their boats anchored in harbors without cost (marina fees are costly and often have wait-lists), according to the St. Petersburg Times.  When boats are damaged, many owners simply let them rot, causing navigation hazards, and sending fuel and paint into the water.  According to some, Florida’s governmental authorities haven’t given priority to enforcement of derelict boat laws. 

  One way to get governments to pay better attention to public land (or water) use hazards and nuisances is to make it monetarily worthwhile.  Like the small-town cop that fills town coffers by stopping out-of-town auto speeders, governments should make boaters pay for their improper water usage.  Charge more for boat registration (and use the money for enforcement), require that boats have readily accessible identification tags that are difficult to remove, send out notices promptly to owners of derelict boats (Florida gained hundreds of these after the hurricanes of 2004 and 2005), impose heavy fines on owners who don’t remove their boats quickly, and encourage local enforcement by allocating some of the funds to the local government.    

  Imposing hefty fees on those who cause harm to public land (or water) is the best way to encourage civic-minded land and water usage.            

Residential zoning for the majority -- that is, for non-married households ...

[American Resettlement – fourth in a series about how land use law is responding to changing residential patterns]

  The big census news (since the news about 300th million person) is that “married families” now constitute a minority of American households, as Americans are more likely to be unmarried -– young people who put off or eschew marriage, single immigrants, and elderly widow and widowers.  This change in population should be and is having significant effects on land use law, which was largely developed (especially in the suburbs in which a majority of Americans now live) under the assumption that the “typical” American household is a married couple with kids.  The pro-family bias in zoning laws need to be re-examined. 

   As if on cue, the New York Times also reported recently about how developers are responding to the change in households.  Perhaps not surprisingly, considering its role as a vanguard in battling “exclusionary zoning,” the example comes from New Jersey.  In the affluent suburb of Livingston (median household income of about $100,000), a new development includes condominiums that appeal to both elderly couples and young people who can’t afford or don’t need a detached house.  Zoning laws were recently changed to allow the non-traditionally suburban development and have also facilitated new townhouses near a downtown retail street –- not a typical scene in affluent suburbia. 
 
  Suburban governments and developers across the nation should and will eventually, I predict, respond to the changing America and amend land use laws to facilitate new housing demands and new kinds of residential development.            

Ethnic residential separation in Iraq?

[Global Saturday]

  Residential integration of people of different ethnicities is the best way for a society to foster equality and understanding.  America’s hesitancy in encouraging housing integration casts a shadow over our legal efforts in educational integration and equal rights.  But when other nations simply cannot maintain even peaceful coexistence among ethnicities, physical segregation may be the second-best solution, I contend.  Although it pains ostensibly ethnicity-blind Americans to admit it, spatial separation has saved countless lives in Greece and Turkey (where millions moved to their ethnically “home” nation after World War I), in the states of the former Soviet Union (where many non-Russian peoples were allowed to follow their own destiny, without much bloodshed), and in Northern Ireland (where laws sometimes require separation of potential battling religious groups).

   I am leading to Iraq, of course, in which a potential solution of separation of the three major population groups –- Shia Arabs, Sunni Arabs, and Kurds –- is now being finally being considered in voices louder than a whisper.  In response to the crippling violence, many ordinary Iraqi citizens who have lived as regional minorities are now relocating to regions in which their group is the majority, according to Iraqi-born American political scientist Adeed Dawisha, who was interviewed on National Public Radio this morning.  This is reminiscent, on a much smaller scale, of the enormous population migration of Muslims and Hindus to and from India and Pakistan, when the two nations split after World War II (see photo).  Such migrations cause suffering and are in many cases unfair, but in the long run they can avoid violent conflict and saves lives.   

Long-term land use assignment: Find room for another 100 million …

[American Resettlement –- the third in a series about how land use law responds to changing residential patterns]

  Students of mine from other countries often express their surprise at American land use; even in big metro areas, our low-density residential land use seems wasteful to them.  USA Today printed today a thoughtful piece on how the United States might cope with a population growth up to 400 million by 2040; largely because of immigration, we now have the fastest population growth rate of any affluent nation.  The article mentions sensible efforts such as infill construction, more condo and apartment buildings, and transit-oriented development.

   In addition to these “metropolitan” ideas, the nation needs to think more thoroughly about where the population pressures will be felt most acutely.  It’s one thing to encourage infill in Cleveland, but it’s another thing to get immigrants and young families to move there instead of going to Colorado (hit by a huge blizzard yesterday), California (ravaged by wildfire this autumn), Florida (thanking luck stars for a respite from hurricanes), and Nevada (wondering where Las Vegas will get water in 10 years).  I predict that by 2020 we will hear debates over rethinking our land use policies for environmental conservation, which have (in the words of pro-development advocates) “locked up” much of the western states, Florida, and many attractive coastal areas.  For example, why does the federal government continue to own most of Nevada when new cities could be built in the desert not far from Vegas (surely we’ll get some technological fix for water supplies in the near future, yes?).   It’s true that government policy in 1976 cemented the idea of permanent federal ownership of the “public lands,” and it’s true that Ronald Reagan’s Interior Secretary James Watt was chastised in the ‘80s for advocating a return to a policy of disposing of federal lands to private landowners.  But I predict that within a few decades even many environmentalists may accept the idea that a new city in the desert, or in the hills of Colorado, or along the Carolina coast –- perhaps built according to new urbanist or old-European density precepts –- might be a partial solution for a nation of 400 million.            

Location, location … of hot metros, college grads, and the attraction of Olathe, Kansas …

[American Resettlement –- the second in a series about how land use law responds to changing residential patterns]

   Why did the housing price boom of past decade affect a handful of regions (the northeast, west coast, and Florida) far more than it did other areas (including the large cities of the Midwest)?  Any why has Olathe, Kansas, also experience a large jump in rental costs, as the NY Times recently reported? 

    There are a lot of factors that go into pricing, of course, but here’s a related piece of trivia to fit into the puzzle.  Richard Florida (the “Creative Class” author) has published in the Atlantic Monthly a pair of maps that show how college graduates are concentrating in certain metro areas far more than they did in 1970.  The primary reason, Florida argues, is that the best jobs in our high-tech-oriented nation are now concentrated in a small number of popular metros, most of which are on the coasts (with some exceptions, most notably Denver).  The special attraction of these metros (few people these days move to Cleveland or Memphis to try to get rich, unlike in the past) helps account for the skewing of housing price boom.

   But what about Olathe, Kansas?   I suspect that the same sort of phenomenon that concentrates college grads and home buyers in high-tech coastal cities is at work in a smaller scale in Olathe.  For nearly every metro area in the country, today’s suburbs (where a vast majority of metro residents live) no longer fit the uniform stereotype of the 1950s.  Some suburbs are prosperous and full of new businesses, while others languish.  In many metro areas, the favored suburbs are near the airport (which attracts business travelers and business hotels); in many areas, the favored suburbs are exurbs in which houses are new, big, and have two-car garages, the stores are clean and surrounded by plenty of parking, good jobs are found in office parks, and the schools systems tend to be flush with high-income cash and low in numbers of poorer students.  These attributes attract intra-metro migration, which translates into far higher housing prices for these favored exurbs.  In the two-state Kansas City area (not a focus of much inter-metro migration, of course), college-educated professionals often tend to prefer Kansas, as opposed to Missouri (race plays a role here, I believe), and in particular, they are flocking to “hot” Olathe and nearby communities.

   Only by recognizing the diversity of and competition among today’s suburbs can law regulate effectively housing and land use in our metropolitan areas.      

Too many moose? … the first in a series about American Resettlement …

[American Resettlement –- the first in a series about how land use law responds to changing residential patterns]

   How are trends in geographic settlement shaping land use and the laws that seek to regulate it?  Commentary is filled with alarming reports of how rural land is being “gobbled up” (a favorite verb phrase) by big-lot housing subdivisions and strip malls.  But this is not the whole story, of course. 

    Here’s a welcome story (for rural land conservation, at least).  Most eastern seaboard states have experienced over the past century a significant re-growth of forest land that was logged in order to create farms in the 18th and 19th centuries (in the 20th century, these small eastern farms could no longer compete with those in the Midwest and California).  As a result of this reforestation,  wildlife that was once pushed away is returning.  In Vermont, the moose is making a comeback –- so vigorous a comeback that the state government is calling for an aggressive hunting season this autumn to cut back the population of the large and iconic animals.  Elsewhere in the nation, the mountain lion –- that once-elusive creature also called a puma, cougar, panther, and catamount (in Vermont) –- is popping up in surprising places –- not only among the red rocks outside Boulder, Col., but even in Iowa.      

When do pedestrian ways work?

   The pedestrian street: Is it a boon or a bane for cities?  In Beverly Hills, Cal., the city government is considering closing off a block of the famous Rodeo Drive (see left) to ban motor vehicles and making it a pedestrian-only “Rodeo Promenade.”

  I applaud the idea of pedestrian ways, at least in theory.  In older sections of many cities in Italy, for example, some streets are closed off to motor vehicles, if only because of the lack of space. These streets give the older sections of cities such as Florence (see photo at left) a special charm.   

   Pedestrian ways have also worked in cities such as Miami Beach (the restaurant-chocked Lincoln Road) and Charlottesville, Virginia, where the old downtown Main Street (see photo below) has been pedestrianized for decades and has successfully made the transition (the only way for downtown streets to survive, and possible only in “cute” downtowns) from a shirts-and-socks retail street to a pleasant strolling route of fancy restaurants, bookstores, and specialty shops. 

   But pedestrian ways don’t work in places where shoppers won’t make the special effort to walk and don’t see any reason to stroll.  Chicago’s ill-fated pedestrianization (with buses) of downtown State Street helped push the great middle-class shopping street (see ca. 1900 photo at left) downhill in the 1970s, and Washington, D.C.’s closing to cars of a stretch of the once-busy E Street led to a lifeless and dirty stretch of city.  Both cities have reversed their decisions and have reopened the streets to motor vehicles, which have helped revitalize both streets. 

  The lesson?  Pedestrian ways will work for popular “boutique” retail streets, but not elsewhere.  Rodeo Drive seems to fit perfectly in the former category, of course.  Build a big parking lot, and let the Californians stroll.          

Satellite dishes and historic preservation ...

  The city of Boston, often at the forefront of local law, is considering an ordinance to strictly curtail satellite dishes that are visible from public view in historic areas.  Some residents are complaining that the dishes, which often proliferate with new owners and new technology, are eyesores and depress property values.

   In all the furor, I make a few points:  First, a law requiring out-of-the-way placement of dishes doesn’t seem any more intrusive than laws regulating signs, old cars, or laundry lines on residential property.  Second, it’s ironic that government can sometimes tell a property owner that it can’t install a dish, but that the government can’t force a landlord to accept a thin cable line outside an apartment building without compensation (Loretto v. Teleprompter Manhattan CATV Corp, 458 U.S. 419 (1982)).  Third, it’s fascinating that local ordinances against dishes are complicated by a congressionally-mandated FCC rule (47 C.F.R. § 1.4000) that protects a citizen’s right to encumbered satellite TV reception (but not in historic areas).  The right to 657 TV channels has got to be in the Bill of Rights, yes? 

Compensation for adversely affected property owners ... in the private and public sectors ...

   Why do homeowners assert NIMBY?  In many cases, it’s because a nearby land use plan may decrease the values of their properties or lower the quality of their lives.  In economic terms, one person’s land use has an external effect upon another person’s property.  If the effect is too much, the offending land use might be enjoined as a legal nuisance.  Likewise, if government “goes too far” in regulating one person’s land in order to protect neighbors or other values, the regulation might be considered a “taking.”  A solution to these external effects is to compensate adversely affected landowners for decreases in property values.  Here’s a twist to this idea in the private sector:  A Los Angeles developer is offering to give nearby residents an equity interest in other developments, in return for their not opposing the condominium.  This solution would avoid the need for up-front “buy outs” of local opposition. 

   Governments probably can’t take similar steps because most government land use efforts –- such as permitting a locally unwanted water filtration plant, or a public housing project, or regulating land for environmental reasons –- don’t provide monetary profits to the government.  Such projects DO, of course, provide a public service.  Accordingly, some property rights advocates argue that adversely affected property owners should be compensated, with the money coming from those (the taxpayers) who presumably benefit from the public service. A tax-and-compensation scheme has the same effect as the private equity-sharing system.  Governments typically resist such ideas, of course, because the citizenry rarely accepts arguments of, “We’re raising your taxes for good projects.”  The public usually prefers to be told that politicians can both provide services and cut taxes at the same time –- perhaps through magic.  In my state of Florida, most of the politicians are filling the airwaves this election season with variants of, “I’ll protect your home from hurricanes, I’ll subsidize your homeowner’s flood insurance, and at the same time I’ll cut your taxes.”   

The Wal-Mart wars, continued … today, the Nobel Prize …

   I’ve written many times that land use law is not an effective way to deal with perceived problems outside of land use, such as complaints about the labor practices of Wal-Mart.  But some go further and contend that Wal-Mart is a force for good in the world.  John Tierney, the quirkily conservative columnist for the New York Times, suggested today that no organization has done more to pull people out of poverty than Wal-Mart, largely through providing decent factory wages in poor countries to people who otherwise would be living in abject rural poverty, and through low-cost goods in the developed world.  He suggests that the Nobel Peace Prize this year should have gone to Wal-Mart, instead of Bangladesh’s Grameen Bank, which provides micro-credit to help poor farmers.  Perhaps it’s my affluent American bias, but I can’t fully swallow the argument that it’s always better to take a factory job than to stay on a poor third-world farm. 

    For land use law, might someone next suggest that we should use zoning laws to encourage big boxes, as a well of pulling poor Asian farmers out of poverty?      

The "Rationale Razor" ... and the example of farm subsidies ...

   The Washington Post has continued its remarkable series on the faults of the federal farm subsidy program.  Although the system was touted as helping farmers in times of distress, it practice it provides windfalls to many farmers and large profits to a handful of competition-protected insurance companies.  Among the land use implications is the fact that the program encourages farming in areas that are risky and susceptible to floods, droughts, and other hazards, including many stretches of the intensely farmed Great Plains.  The taxpayer is the loser. 

    The distortion is an example of what I’ll call law’s “Rationale Razor”:  If a policy CAN be explained by protectionism of a favored group, protectionism likely IS the lawmakers’ motivation for adoption of the policy.  The “Rationale Razor” is a variant, of course, of Occam’s razor, which suggests using the simplest explanation to solving any problem.  It also relates to the Public Choice theory of politics, which suggests that lawmakers are driven my personal benefit (including political gain), just like other economic actors.  While I do not deny that the “public welfare” motivates some policies, the “Rationale Razor” suggest that protectionism should be the presumption.

300 million people, on the same amount of land ...

  The United States' population is estimated to reach 300 million early next week, according to the Census Bureau.  This compares with only 200 million in 1968, 150 million in 1949 (when Presidents Bush and Clinton were toddlers), and only 100 million in 1916, when the first generation of zoning laws were being adopted.  While the population of our nation has grown (few other affluent nations are growing as quickly, largely because of immigration to the U.S.), the amount of land has in effect stayed the same.  The population milestone provides a good moment to reconsider the wisdom of land use policies that encourage sprawl, discourage infill, require separation of uses, and discriminate against certain types of uses, including multi-family housing.  And the traditional American Dream of a single-family house with a suburban yard -- which was fulfilled for most people in the 20th century -- may have to be reconsidered in a more crowded America.   

Free exercise, non-establishment, and a sabbath house ...

   Perhaps the starkest potential clash on the face of the Constitution exists between the freedom to exercise religion and the prohibition against establishment of religion.  When a government regulates a land use that is religious, it is violating the right to free exercise?  If it excuses the religious land use from the regulation, is it then violating the non-establishment clause?   

   Such a dispute is playing out in Suffern, New York, where the local government has denied a variance by an Orthodox Jewish organization that provides meals and lodging to those who are visiting relatives or friends at a nearby hospital on the Sabbath.  By using the house, Orthodox Jews can avoid driving or other religiously-prohibited actions on the Sabbath.

   The federal government last week sued the village of Suffern in federal court, alleging that the denial of the variance violated the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc to 2000cc-5, which makes it unlawful for a local government to “impose[] a substantial burden” on a religious land use, unless the government is using the “least restrictive means” of furthering a “compelling government interest.”    

  Does Congress have the authority to go beyond the words of the Constitution to foster free exercise, in the face of the tradition of local control of land use? 

Lunch counters, racial segregation, and suburbanization ...

   Land use laws often have unintended consequences.  Last night my local PBS station re-aired an episode of the justly famous series “Eyes on the Prize” about the civil rights movement of the 1950s and 1960s.  Much of the episode focused on the effort to desegregate department store lunch counters and other public facilities in Nashville, Birmingham, and other southern cities in the early ‘60s.  Eventually, of course, laws made racial segregation in such facilities unlawful. 

  But did the laws create social integration?  Downtown department stores used by everyone in a metro area have closed in most cities and moved to suburbs.  Many stores in suburban areas are poorly integrated by race because of de facto suburban housing segregation.  Meanwhile, more specialized public places (restaurants, clubs, etc.) that remain downtown often remain largely segregated in fact. 

  Did anti-discrimination laws result in the move of public facilities to the suburbs?  No, for the most part, I suspect; anti-discrimination laws did not “cause” commercial “white flight” the way that school desegregation rulings did in many areas.  Suburbanization of retail establishments has occurred everywhere, even in places that are racially homogeneous.  But the fact of suburbanization certainly has, unfortunately, dampened the ability of law to foster greater social integration.     

Katrina and the failed promise of government ...

  Can we trust government to do anything right concerning big questions of land use and the environment?  In a recent essay in the Tulane Environmental Law Journal, Tulane law professor Oliver Houck paints a damning picture of government at all levels in the decades leading up to, and the year since, the disaster of hurricane Katrina.  The Army Corps of Engineers and other federal agencies, the state of Louisiana, and local governments are each taken to task for putting politics ahead of public service.  The desires of oil companies, regional infighting, and petty corruption each helped doomed governmental plans.  Such a gloomy assessment from a leading environmental liberal seems like an echo of public choice theory, usually associated with conservatives.  What does this say about the future of proposed governmental solutions to big environmental problems?   

Public land neglect by the most powerful branch?

  Which is the most powerful branch of government?  In many cases, the answer is the “fourth branch” of government –- administrative agencies.  With the executive and legislature busy on  “hot-button” topics and re-election worries, agencies turn policy into rules that affect land use on an every-day basis, even though few people pay attention to the details.

In the case of the Bush administration’s land management decisions, the Washington Post perceives that agencies such as the Bureau of Land Management, the Fish and Wildlife Service, and the NOAA Fisheries Service are choosing not to implement many environmental protection laws, and that federal judges are reacting strongly to the perceived neglect.  The power of citizens to sue over government’s environmental and land use errors is a critical component of our federal laws; without them, few people, including the media, would notice.

Who killed the streetcar?

    Did General Motors kill off America’s city streetcars?  According to PBS’s “History Detectives” episode that was broadcast last night (admittedly not the most scholarly source!), which focused on the demise of Cleveland’s once-extensive trolley lines, GM’s primary effort in the ’40s and ‘50s was in buying up already-troubled private streetcar companies and turning them to buses –- GM buses, of course. 

If this is the extent of GM’s role, blame for the demise of urban public transportation should be laid equally in the lap of city governments, which failed at the time to appreciate that more public funding would be needed to support public transportation in the auto age (remember that even New York’s subway lines were originally built and run for decades largely as private ventures).  The PBS show also expressed a bias in favor “clean” streetcars over “smelly" buses.  But wasn’t there a benefit in the mobility and speed of the city bus over the slow and unwieldy streetcar?    

Needed: More soccer fields!

  As my plane approached Chicago’s urban Midway Airport this weekend, we flew low over a handful of playgrounds in the moderate-income neighborhoods.  The baseball fields seemed unused, while the football fields had been overlain (though I doubt any land use planners were involved!) with soccer fields, not always in perfect rectangles.  I see this phenomenon all over –- city planners and recreation departments have failed to keep up with the times and provide for an adequate number of soccer fields, which are in heavy demand today.  This example of a changing America might also cause us to rethink land use laws concerning multi-family housing and public transportation needs.  (It might also give the United States, which failed to win this year’s World Baseball Classic, hope for the 2014 soccer World Cup ….)         

The folly of "local" land use laws... and the case of a city with "too many churches" ...

  Traditional law, which views land use as a matter of only “local” concern, creates some perverse effects in our modern and mobile age.  The city of Stafford, Texas, an exurb of Houston, is becoming alarmed because it has too much of one kind of land use: churches.  There are more than 50 places of worship in the city of less than 20,000; most of the worshipers –- and there are Buddhist temples and Hindu centers as well as Christian churches –- come from outside of Stafford.  Dependent on sales taxes and business taxes, Stafford faces a budget crisis because so much of its land is used by non-revenue-raising religious establishments.      

   What’s the solution to this dilemma? A new law that tries to cut back on the number of churches?  Using eminent domain to condemn some houses of worship?  None of these legal measures makes much sense, and all of them risk conflict with the first amendment’s right to exercise religion freely.  The only long-term solution to Stafford’s problem –- or similar dilemmas of cities with too many homeless people, or not enough wealthy business taxpayers -– is for state governments to enact laws requiring revenue-sharing within metro areas, or other forms of metropolitan government.  Radical?  Perhaps, but it is even more troublesome to stick to the old-fashioned view (plainly erroneous in the case of Stafford’s religious commuters) that ones city’s land use laws affect that city only.