Land Use Prof Blog

Crosses and controversy ...

   Our era of divisive politics brings out conflicts between land use law, which tries to ensure harmony and conformity, and free speech, which protects controversy.  Earlier in the week I wrote about the debate over a peace sign wreath in Colorado.  Today comes another controversy –- this one from Lafayette, Cal., an affluent community just over the hills east of the San Francisco Bay.  On private property across from the train station, anti-war advocates have created what they call a memorial, with hundreds of crosses and a large sign listing the number of American servicemen killed in Iraq.  City law prohibits signs this large (maximum size 4 square feet), but makes exceptions for memorials.   

Wal-Mart: San Diego says "no," in part because it wants more "walking?" …

[The Wal-Mart Wars, continued …]

   They once said that what happens in California eventually slides down to the rest of the country.  If this is still true, we may see other localities following the vote of the San Diego (population: 1.2 million) City Council yesterday to ban any big box store that also sells groceries -- in other words, no Wal-Mart Supercenters.   

  I won't write yet another defense of the free market and yet another rant against the demonization of the nation's largest employer.  But I will comment on a statement by a San Diego councilman who said he supported the ban because he wants a "walkable" community.  It is no exaggeration to say that many Americans do much of their walking by visiting the shopping mall, at which they park and walk among stores (witness the popular phenomenon of "mall walking").  Wal-Mart now builds "Supercenters" of more than 200,000 square feet, including the grocery section.  Since box-box retailers have yet to allow auto driving inside the store (although this may be in our future), I wouldn't be surprised to learn that the sheer size of the giant stores forces some shoppers to walk more than they would if they drove to two or three smaller stores to get their shopping done! 

More on tackling urban transportation congestion … stick, or bus ticket?

  As Americans return to their workplaces after the busiest travel weekend of the year, here are two updates, from opposite sides of the globe, on transportation topics that I wrote about last week.

   Environmental advocates are pushing New York City to impose a fee, like downtown London's, on motor vehicles entering the crowded southern half of Manhattan.  While I like the concept of impact fees, the plan raise some concerns (beyond the opposition of outer borough and suburbanites who don't have easy access to the subway, bus, or commuter rail system).  First, the supposed air pollution benefits are likely to be minimal, considering that the number of vehicles in lower Manhattan is just small fraction of the area's total air pollution.  Second, unlike London (and other less-sprawling European metros), New York should worry that making it more difficult to get to Manhattan may encourage businesses to re-locate or establish in the suburbs.  Many big corporations have already fled the congested city for greenfields in New Jersey, Westchester, or Connecticut in recent decades; relative disadvantages in transportation laws will simply encourage more movement to the suburbs, undermining the intended effect of the city's plan.  (Right, Judge Posner?)      

    Across the world in Sydney, Australia, the city is planning to turn some downtown street lanes into dedicated bus routes, instead of the more expensive option of rail routes.  As more and more cities across the globe accept the idea of clean, efficient, and hi-tech dedicated bus routes, eventually many Americans will abandon their almost innate rejection of the urban bus as the most promising solution to urban transportation needs in the 21st century.   

Happy holidays … and take down that wreath! …

[HOAs run wild:  First in a series about reigning in common-interest-community rules]

   In the latest example of homeowners associations run amuck, an HOA in Pagosa Springs, Col., has ordered a resident to take down a Christmas wreath in the shape of a peace sign.  The private government contends that it violates the association's no-sign rule.  Some residents have complained that the peace sign expresses a political message and is offensive to those with relatives serving in the military.   

   Rules of HOAs fulfill a useful role by serving as private regulation of anti-social activity that does not quite rise to the level of a nuisance under public tort law.  Ten barking dogs, piles of garbage in the front yard, and a 50-foot statue of Elvis over the house:  these are the kinds of annoyances that HOA rules are properly aimed at.  They are especially welcome in our society of individualists, for whom respect for others' feelings and interests is a low priority. 

   But homeowners associations have run wild, and are imposing upon Americans an unnecessary uniformity of action, and sometimes of thought.  It is truly cockeyed when a nonverbal symbol such as a Christmas wreath is impermissible solely because it expresses a THOUGHT, such as "peace."  Although the First Amendment does not apply to private HOAs, of course, state law should ensure that residents (who often have no choice, in a nation in which about half of all new housing units come with substantive covenants) do not have to give up their free speech rights at home.  Which kinds of actions and speech should state law protect?  I'll leave this to later blog posts.  But the peace wreath is a good place to start …

"Progressive" politics succeeds ... except with day laborer centers, of course ...

  How is American land use law adapting to our increasingly diverse and economically stratified populace?  From the recent election results, some would have us believe that Americans have rejected a bias against immigration.  But the "on the ground" details of land use decisions tell a nother story.  Here's a vignette from Montgomery County, Maryland, a Democratic-dominated and affluent suburb of Washington.  Like countless jurisdictions across the nation, the city of Gaithersburg (motto: "Character Counts!") has been looking for a location for an organized center for day laborers (who are most often Latino in Montgomery County) to congregate and get jobs.  But nearly every proposed location generated some local opposition.  Instead of merely imposing this locally unwanted land use on any of a number of potentially appropriate sites, the city has announced that it has given up.  (Here's an editorial of the Washington Post.)  The failure of the local government and the supposedly progressive populace to allow such a simple and important land use shows, yet again, that much of America still prefers social segregation.            

Rail or bus? More arguments for the urban bus ...

[More on transportation during this busy travel week ...]

  The nation continues to spend billions of dollars on urban rail systems, which are touted as green solutions to congestion, pollution, and unease over gasoline supplies.  But for the most part, the social benefits (broadly defined) of such systems fail to cover their enormous costs, according to a study by Winston Clifford (Brookings Institution) and Vikram Maheshri (U.C.-Berkeley), neither of whom should be accused of a pro-auto bias.  Only the San Francisco Bay area's BART provides a net social benefit, they conclude.

  The biggest problem with rail is that it simply does not serve conveniently a huge number of Americans who live and work across the hundreds of square miles of a typical modern metro area.  Although lauded by politicians and environmentalists for their speed, cleanliness, and hi-tech feel, rail lines are simply inconvenient for most commuters.  Take a look at the Los Angeles rail system map (top left) and imagine how far most of these lines are from millions of southern Californians. 

   A potential solution?  Read here the recent opinion of Los Angeles's Michael Woo and Christian Peralta, who argue for an expansion of a dedicated bus lane on Wilshire Boulevard.  Although not as "hip" as trains, a modern bus system (see the L.A. bus map at bottom left) can get far more people around at much less cost. 

Transportation, impact fees, and pollution ...

  In celebration of the most infamously busy travel week of the year, I'll focus on transportation for the days around Thanksgiving.
   
   Imagine driving to the store in 2030:  As soon as you start your low-emission-diesel-electric-hydrogen hybrid, coordinated signals from both the vehicle and the roadway are fed into a centralized computer system, which charges you, the operator, an impact fee for the miles traveled.  As a result of this incentive, you combine trips to the automated dry cleaner (the new soy fibers are indistinguishable from cotton), to the drive-through grocery store (to pick up your halibut for dinner, ordered by e-mail yesterday and flown directly from the aquaculture farm in Uzbekistan), and five other errands, each completed within the hour.  The regional transportation authority immediately debits your bank account as you return home. 

   Sound unlikely?  Well, many skeptics predicted failure for London's imposition of a fee on vehicles entering central London.  The impact fee system has worked fairly well in decreasing traffic, encouraging public transportation, raising revenue, and not crippling the central London micro-economy.

   In a variant of the Peter principle, however, the leftist mayor of London has now proposed that the fee be raised from 8 pounds to 25 pounds for high-polluting vehicles.  This plan confuses  policies. It would take a straightforward land use policy -- charging an impact fee for usage of the limited public roads -- and mix it with anti-pollution policy.  One problem is that air pollution over central London is not, of course, caused solely (or even largely) by vehicles in the fee area.  Thus the fee matches up poorly with the harmful usage of the public air.  One possible motivation for the plan is a dig at yuppie Londoners who (like their American counterparts) drive Range Rovers in the city and, not coincidentally, tend not to vote for leftist polticians.         

Voters like green space ... for better or worse ...

   What types of land use questions should be decided by the voters, as opposed to their representatives? In this era of widespread referenda, let me express a note of skepticism over the practice of having the voters make policy choices. Voters often do not understand the issues they are asked to decide -- not because they are stupid, but simply because they haven't had the occasion to think deliberately before they reach the voting booth (the media is to blame for much of this problem). And while the electorate presumably is immune to influence-peddling, it is also not as inclined as representatives to consider the nuances and consequences of difficult choices. (At this point, I recognize that my comments may remind one of the views of the deranged colonel in Stanley Kubrick's film Dr. Strangelove, who asserted that war shouldn't be left to politicians, as opposed to colonels, because they do not have the time, training, or inclination for strategic thought.)  What does make sense for pure democracy, I contend, is for citizens to vote on whether they are willing to spend their own tax money for undeniably socially beneficial expenditures.

   With these comments in mind, it is heartening to read that the American voters approved the great majority of land preservation tax and bond initiatives that were on the ballot across the nation earlier this month. More than three-quarters of these efforts passed, according to CNN, and are worth more than $5 billion.  Voters seem to like the idea of using public money to pay for parks and other conservation lands. I'd be even happier if I thought that the typical voter thought, "It's important for the environment and future generations to protect natural land," as opposed to, "Let's stop development near me; the traffic is getting terrible."

The diseased roots of modern land use law ... Now in a bestseller near you! …

Imagine the city in 1850:  A dense nest of people living in unsanitary conditions, in which disease, filth, and fire spread quickly.  The media of late 2006 is buzzing over a new history book by Steven Johnson, “The Ghost Map,” which tells the story of the recognition in the 1850s that cholera and other diseases are spread by contagion.  (Here's the review in the L.A. Times.)  This discovery helped spur (in a somewhat indirect manner, of course) the land-use-segregation ideas of zoning and the dominance of risk-avoidance in much of today’s land use law.

Public land to private in Nevada ...

  NPR reported this morning about an obscure federal law that requires that funds received from public land sold around Las Vegas be spent on local projects, mostly concerning other public lands in the state.  Nevada politicians, including soon-to-be- Senate-majority-leader Harry Reid, of course have supported the law. 

    Unlike some advocates of public ownership, I argue that it makes sense for the federal government to sell off some of the public lands in a state such as Nevada, in which Uncle Sam controls more than 80 of the land, and in which there is today high demand for private ownership.  But giving the money only to local interests provides an incentive as dangerous, and as susceptible to abuse, as that in Kelo-type eminent domain for private use. 

Remove parking requirements for residential units … before commercial property …

  Concern about auto traffic has played a greater role, perhaps, than any other factor in pushing modern land use law to restrict and shape new construction.  For both commercial and residential building, for example, the developer often is required to provide for a certain amount of parking.  Without such parking requirements, government fears, people would park in the surrounding area, annoying neighbors and placing intolerable demands on a limited number of spots.  One result of these laws in that parking is now a dominant urban land use, both in suburbs and cities.

    But there is a move to soften the nation’s mandatory parking laws, especially in connection with multifamily housing in dense neighborhoods.  There are many benefits to a legal change. First, it dovetails with efforts to encourage public transportation.  Second, fewer parking spaces in cities mean more space for housing, including low-cost housing.  Third, it would lower the cost of housing for those who can do without a parking space.  And fourth, it is a free market approach: parking would be provided in response to free market demand (like most other good s and services), instead of what government thinks is best.  (San Francisco is going further and requiring that condo sellers “unbundle” parking spaces from the sale of new units in certain areas.)   

  But what about the concerns of annoying the neighbors?  Here, I suggest a difference between commercial and residential property.  When visiting a store, drivers are more likely to engage in anti-social parking behavior: blocking driveways, taking reserved spots, and double-parking.  After all, the driver often thinks, “I’ll only be here for a few minutes” and “I’m not going to repeat this practice tomorrow” (maybe).  With residential parking, however, the resident driver knows that he or she will have to repeat the parking practice day after day, and that egregious practices are more likely to be caught.  As a result, the residential driver is likely to behave more socially –- such as by paying for secure off-site parking (as thousands of Manhattanites do).  If my theory is correct, law might do well by removing parking requirements for residential property before doing so for commercial property.    

Campaign signs: Free speech, nuisance, or both?

  Isn’t the display of a campaign sign a quintessential example of free speech, protected by the First Amendment?  You’d never know it from the breadth of American local laws regulating campaign signs and their removal.  In the city of Tucson, for example, rules limit political signs in residential areas to six square feet, require that they be “kept in a presentable and safe condition,” and demand that they be removed within 15 days after a general election.  Across the nation, local governments and private citizens are taking special pains to remove signs, now that the election is over.  Enforcement of conformity is always popular in today’s suburban America.   

    In one sense, political signs are a quaint throwback to a simpler world.  They are perhaps the “lowest tech” form of widespread communication in our society.  They are also almost content-free:  Most signs consist of simply a blue and white background (red is still associated with socialism, even in this area of “red/blue” discourse) and the name of the candidate, often without party affiliation.  As such, the “speech” involved is hardly more complex than a grunt.  But in this era of advertising-is-everything, advocates continue to believe that simple repetition of a name can help a candidate in the balloting.   

   But if political signs are indeed free speech (see City of Ladue v. Gilleo, 312 U.S. 43 (1994) (striking down a prohibition against signs in residential neighborhoods)), on what basis are cities such as Tucson justified in demanding that signs be removed within 15 days?  Is a possible justification that, after the election, the law can presumptively assume that keeping the sign up is not an expression of a political opinion, but rather simply an expression of sloth? 

Sensible land use plans (of hoops and charity) in Seattle ...

   What types of private land uses should government subsidize?  Last week, I suggested that sports stadiums, the most famous type of subsidy, don’t make sense for affluent cities with a diversified economy.  A quintessential example is found in Seattle, where the voters last week rejected a proposal that would have, in effect, provided a land use subsidy for the SuperSonics pro basketball team.  (As a result, the team may move to Oklahoma City.)  At about the same time, the city approved a complex land use plan for a new 1-million-square-feet headquarters for the Bill and Melinda Gates Foundation  -- the organization that might do more good for the world than any other, over the next couple of decades.  According to the Post-Intelligencer, the city is arranging for the relocation of a recreation park on the land; the foundation will pay for transportation improvements (including support of carpooling and public transit) to help assuage traffic congestion.  The only significant city payout would be for a parking garage that the city will eventually gain the title to.  One city seems to have its priorities and its negotiating acumen working well.      

Wine stores ... protectionism or free market?

  If citizens had their way –- as opposed to politicians who are influenced by protectionist forces –- would they prefer more free-market solutions to land use questions?  In an interesting development, Massachusetts voters defeated on Tuesday a ballot question that would have permitted grocery stores to sell wine.  Under current state law, only licensed liquor stores may do so.   

   I’ve often been amazed and frustrated by what I’ve viewed as antiquated liquor sale laws.  How much better, I’ve thought, to live in a state such as California, where one can buy bottles of bourbon, chardonnay, and beer at the same time that one buys fish, dill, and lettuce!  Restrictions on liquor sales appeared to be either examples of unworthy protectionist land use laws or relics of prohibition. 

  But the voters of Massachusetts appeared to disagree.   From reader comments on boston.com, significant factors included the desire to protect small liquor store owners, as well as a desire to avoid a “Wal-Mart-ization” of wine sales.  Haven’t the Bay State voters read their Smith, Friedman, and Posner?        

Public support of land for sports ... in California?

  Here’s a second day of stories from California that exemplify changing attitudes towards public land use and private wealth.  The Athletics baseball franchise plans to move from its current home in Oakland to a new stadium in Fremont, in the South Bay area, close to the affluence of San Jose and Silicon Valley.  (The history of the franchise’s movement mirrors the changes in the central land uses in America –- from old downtown Philadelphia in 1901, to a residential neighborhood of Kansas City in 1955, to the western city of Oakland in 1968, to an exurban Fremont plot today.)  The reports are that the local governments will pay little for either the purchase of land or the construction of a new Athletics’ stadium.  Similarly, the National Football League has been unsuccessful in getting some public funding for a new franchise in the Los Angeles area, which has been without a team since public money from St. Louis helped lure away the Rams in 1995.                  

   It makes sense that governments in California are reluctant either to use public funds or to secure public land for sports stadia.  The questionable arguments for public support –- that it helps pump the local economy and provides favorable publicity for the city –- might possibly make sense for smaller cities such as Memphis or Salt Lake City.  They make no sense for the famous, colossal, and diversified metropolises of California.

Historic preservation ... private-style ...

  Privatization of works that government won’t or can’t do, or can’t do as well, is part of the modern world.  While at one time associated with conservative politics, which touts the benefits of private competition, informal privatization now includes the spending of money that government simply doesn’t want to spend, but that public-spirited private benefactors ARE willing to spend.

The latest example of privatization is in historic preservation.  American Express is providing $1 million in preservation funds for historic buildings in the San Francisco Bay area, according to the Oakland Tribune.  In good Bay style, the buildings are being selected with the help of a recent online vote.  The top vote-getter was Berkeley’s 1910 First Church of Christ, Scientist (see top photo); third place was the Pigeon Point lighthouse on the Pacific (see bottom photo). 

  Okay, historic preservation advocates –- Let’s not have everyone e-mailing the Google billionaires all at once …            

Of flags, a celebrity, snobbery and ... oh yeah, zoning ...

  It's a sign of the times that a rare appearance of zoning law in the Associated Press concerns a celebrity.  If you follow such things, you've probably already learned that the city of Palm Beach, Fla., has informed Donald Trump that an 80-foot-high flagpole recently erected on his coastal estate is too high, violating the local zoning ordinance.  Trump is quoted as saying that his display of an American flag, which sits atop the pole, must be protected by law.  A city landmarks official then harmed the government's case by comparing the display of the enormous banner to the look a car dealer in the far-less-chic city of West Palm Beach.         

   It will be mildly interesting to see whether the combination of Trump's clout and his draping himself with the flag (how about completely wrapping himself in the colossal banner?) will enable the flagpole to withstand what should be an open-and-shut matter of government regulation of the display and manner of speech.  This is, after all, a state in which one of two substantive things that a homeowner's association CANNOT impose upon residents, under state law, is an association rule banning a display of the American flag.    

Housing pushes out golf courses ...

  They have been an essential feature of affluent land use in both suburbs and resorts -- as  inevitable on a large scale as coffee shops on a smaller scale.  But for the first time in recent memory, the number of golf courses that are closing in the country in 2006 is likely to exceed the number that are opening, according to the Economist.  The chief reason for the closings is the value of land for housing in affluent areas.  Even some property owners in Myrtle Beach, S.C., a famous golfing haven, have decided that they can make more money by selling to residential developers.       

    I can't lament too much the loss of the links, even as some golf community residents who bought with the expectation that a course would there forever are suing under contract theories, the Economist reports.  Golf courses use up a large amount of land; with new housing construction for a growing America restricted in many places by environmental regulations, open space requirements, and large-lot zoning laws, housing demand is bound to fall upon the golf links.  Let the market work.    

A new employer discovers the joys of the suburbs ...

   The new “model” for re-locating corporate headquarters has been set for many years.  When given a choice, most big corporations prefer suburban locations, where land is cheaper than in the city downtown, parking is plentiful, and, by the way, the CEO and other top execs live nearby.  (My favorite story in this regard is how an incoming chief of General Dynamics in the 1970s got the corporate headquarters moved to the St. Louis area because he already lived there.)  Corporate relocation to the suburbs not only brings with it corporate jobs (and other jobs that rely on corporate employee residence and work), but also brings cachet, traffic, and land use disputes.

    Some businesses have been resistant to the move to the suburbs.  Law firms, for example, tend not to need much office space and often prefer to be close to city courthouses.  But a new type of employer is now reported to be following the trend to the suburbs, disregarding all the talk of fighting “sprawl” and of encouraging centralized development near public transportation.  This employer is the federal government.  According to a story in today’s Washington Post, more and more agencies are moving some operations to the suburbs of Washington, and from inner suburbs to outer ones.  For the military, in particular, many operations are being moved to the Virginia exurbs (where, by the way, many top military personnel happen to live.)             

  The move away from public transportation and towards exurbs, whose handful of road arteries are already chocked with commuters (any sane person would much rather drive around downtown Washington during rush hour than around Virginia’s Tyson’s Corner or Manassas) seems to be the antithesis of “smart” growth.  It is also a sobering phenomenon in the on-going fight to reverse the trend toward sprawl.