Land Use Prof Blog

Mosques, tolerance, and government …

  I wrote on Wednesday about America's tradition of religious diversity and the desirability of having government stay out of religion and land use.  Here's a story that may be an exception on both counts.

  Houses of worship have often received preferential treatment under zoning laws.  This caused  little controversy when the nation was largely heterogeneous in terms of religion.  As more and more Americans are not Christians or Jews, however, the siting of houses of worship is likely to result in some tension.  Here's a story about local opposition to a large planned Muslim mosque complex near Katy, Texas -- including a cockeyed attempt to annoy the Muslims with a pig race on neighboring property.

  On way to look at such a story is as an exception to Americans' usual tolerance of minority religions.  But in an age when it is part of the nation's task on the world scene to prove the superiority of our creed of tolerance, this episode justifies some speaking out by governmental leaders.  Perhaps a leading Texan in national office?   

  [Thanks to Prof. Anthony Schutz  of the University of Nebraska for a link to this story.]

If it's December, it must be time for religious controversy …

   Indulge me in a little Scrooge-ism this holiday season.  I write today to complain about the practice and law concerning religious symbols during the so-called "holiday season."

    I am spending the season in Takoma Park, Md., where, in year's past, a large evergreen outside the city hall and library has been decorated with lights in December.  The federal courts have struggled, of course, with the question whether the display of religiously related symbols on public land constitutes a violation of the First Amendment's proscription against the "establishment" of religion.  In the much-derided Lynch v. Donnelly, 465 U.S. 668 (1984), the Supreme Court developed what many call the "plastic reindeer" rule -- a Christian nativity crèche was permitted because it was surrounded by non-biblical items, thus somehow secularizing the image.  The more purely religious the display, however, the more likely it is that a court will find it unlawful.  (Click here for a summary of the law.)

   In Takoma Park this year, the conifer holds no Christmas/holiday lights.  Near the tree, however, stands a three-foot Hanukkah menorah, which was still standing yesterday (three days after Hanukkah ended).  Because it is not surrounded by secular "holiday" items, isn't this display of a religious symbol a violation of the First Amendment?  Does it matter whether the government placed it there or merely permitted a private person or group to install it?  Should the constitutional answer depend on the reasonable perception of someone (say, a local Hindu or Muslim) about the government's purpose?  What if the government had hung a banner stating "We celebrate religious heritage"?

   These are difficult questions.  I suggest that, as a matter of good policy, government should err on the side of staying out of mixing with religion, even if a particular act might not violate the confused First Amendment precedent.  The United States arguably has been the most successful nation in the history of the world in allowing diverse religions to worship freely (and this is, arguably, our greatest achievement as a nation).  We have done this largely by keeping government away from religion, and allowing the "free market" of religion to flourish.   Displays of Christmas trees, crèches, menorahs, and other symbols are common at religious institutions, businesses, and private homes.  Why not have the government simply stay out of the practice of placing them on public land?   

Too many vacationers? ...

[Southern California week, final post ...]

 

   Don't like competition from businesses with locational advantages?  Don't like the kind of people who rent next door?  One potential solution is use the power of government regulation to hinder unwanted land uses -- without having to go so far as to legally ban the land use.  The power to regulate for the public interest turns into the power to regulate for the benefit of some.

    Big Bear Lake, Cal., is a mountain oasis surrounded by tall trees and meadows that looks more like Colorado than its true location in the San Bernardino Mountains northeast of Los Angeles.  It is also a center for thousands of popular vacation homes and rentals.  This fact both annoys some permanent residents, who dislike the traffic, noise, and other minor nuisances of vacationers, and annoys competing hostelries in nearby communities.  Opponents have combined in an effort to impose a host of burdensome government land use regulations (paved parking lot requirements, etc.) on rentals in Big Bear Lake.  This story appears to highlight once again the difficulty of distinguishing land use regulations that are reasonable and proportionate to address true public harms and land use regulations that are the product of local protectionism.

No alcohol on the beach? ...

[Southern California week, continued …]

   One upon a distant time (Was it in the 1960s?  In California, perhaps?), someone suggested: "Perhaps the restaurant should have a section in which smoking isn't allowed."  There were laughs at first, I'm sure, but eventually, of course, both private property owners and then the government restrained the ability to smoke in public places.  By such small steps, the world is transformed.

    In the San Diego community of Ocean Beach, there is an effort to designate a stretch of the beach as off-limits to alcohol.  In southern California, the beach is not simply a resort, but is part of the fabric of everyday life, especially for young people.  And on the beach, unlike on city streets, alcohol use generally is permitted.  Today, some of the same reasons why drinking is banned on the streets is being asserted for a limited ban at the beach.  Deciding when and where it is fair to limit alcohol will raise many difficult policy decisions -- the type of balancing with which public park managers, for example, constantly struggle. But it seems to me that drinking in a public space, like smoking, is one of the few public activities that justifies reasonable government restriction. 

Modern land use: Los Angeles pushes out industry and farms …

[Southern California week, continued …]

  Los Angeles is most famous for its entertainment industry, but its diversified economy has often been at the forefront of land use law.  One of the landmark victories for modern land use regulation was Hadacheck v. Sebastian, 239 U.S. 394, decided in favor of the Los Angeles police chief by the U.S. Supreme Court in 1915.  Through a land use ordinance, the rapidly growing city (autos were starting to crowd city streets) outlawed the plaintiff’s successful brick kiln operation, costing him (according to the plaintiff) more than 90% of the clay-laden property’s value.  Concluding that neither financial hardship to the landowner, his vested interest, or any other factor limited the city’s police power to enact ordinances to further “progress,” the Supreme Court upheld the ordinance (Justice Scalia was not yet on the bench!), helping pave the way for cities to shape the direction of land uses within their borders.   

    A 21st century echo was recently heard in the San Fernando Valley north of the city, with the final demise of the remnants of “Egg City,” once called the world’s largest egg farm.  Founded after World War II by a refugee from Nazi tyranny, Egg City at its peak produced 2 millions eggs per day, despite a growing chorus of complaints from residents who filled the valley in the ‘50s and ‘60s, forcing the operation to move a number of times.  Unlike Hadacheck’s brick kiln, however, Egg City survived a number of zoning changes.  Eventually lawsuits and other factors forced a shrinkage of the egg farm.  Abandoned buildings burned down earlier this month.  Here’s a fuller story from the L.A. Times.

Horses and eggplant clash in southern California ...

   As the weather turns colder (efforts of global warming notwithstanding) and daylight reaches its nadir, one may think of southern California –- that land of sunshine (El Nino permitting) and 20 million people trying to live together in a stretch of unstable land between mountain and beach.  So I present “Southern California week” …

   Southern California presents some surprisingly sharp lines between city and rural areas. One such remaining line exists in the Rancho Equestrian district of Burbank, just north of the city, adjacent to mountainous Griffith Park (think “Rebel Without a Cause”).  The special district permits backyard horses under special zoning rules; horses have always been an important part of the community.  Local advocates are mobilizing to stop the introduction of a planned Whole Foods Market, which many think will clog the streets with cars, which already co-exist uneasily with the horse community.

Best practices for green buildings ...

[New York week, final post ...]   

   The biggest land use buzz in midtown Manhattan concerns the new Bank of America building under construction near Times Square.  The 54-story tower is being touted as the city’s “greenest” office building –- it will include large amounts of recycled materials, will reuse rainwater, and will flush urinals with small amounts of oil instead of water, among other things.  Many of the features required variances in building and zoning codes –- something that many non-traditional building plans (including new urbanist mixed used buildings) have to take into account.

  A next step toward a “greener” world of office buildings would be to translate these environmental ideas into requirements.  The federal Clean Water Act, for example, imposes upon most point source polluters the requirement to use some “best technology” to decrease their water pollution.  A new generation of land use laws might require a similar series of detailed “best practices,” based upon environmental features, upon new office buildings. 

An "apartment dream" for America's future? ...

[New York week, continued ...]

  It’s been called “the American Dream” –- owning a single-family home.  And it’s testament to the successes of government, the private sector, and individual Americans that the homeownership rate (including condos, of course) currently is near a perhaps-all-time high of more than 68 percent of all households, despite the 1995-2005 housing price jump (which was fed in part by high demand, of course).  But we can’t expect the homeownership rate to continue to rise (can we?) with a rapidly growing and urbanizing population on a limited amount of land.  “Density” is what the future will hold, many predict, and density is often inconsistent with single-family homeownership.  Will significant numbers of American families accept a “dream” of less than the old ideal in the 21st century? 

    For a source of a possible affirmative answer, we can look, of course, to New York City, where the homeownership rate is only about 30 percent.  Even many affluent New Yorkers have accepted apartment life in Manhattan, of course.  Today, a growing number of apartment buildings are popping up in what used to be single-family neighborhoods in the outer boroughs of Brooklyn, Queens (photo at left), the Bronx, and Staten Island.  Who lives in these apartments?  A large number of residents are immigrants (today typically from elsewhere than Europe), for whom a cramped and noisy apartment in New York may be major step up from the economic, political, and social troubles of their native countries.  As the United States becomes a nation of immigrants and immigrants’ children, we may increasingly become a nation that accepts apartment living as a new and acceptable ideal, appropriate for a more crowded 21st century.   

Pedestrian life, 21st century style ...

[New York week, continued …]

   What’s the most troublesome aspect of the pedestrian-oriented lifestyle of a Manhattanite, now that crime has plummeted and public transportation has been cleaned up (two achievements that seemed impossible as recently as the ‘70s, by the way)?  It might well be dog poop.  In my recent peregrinations around midtown Manhattan, it seemed that one couldn’t risk more than a few steps without scanning the sidewalk ahead for the unwanted brown smears.  Why is there so much dog poop, while the rest of Manhattan has gotten cleaner?  It may be that the replacement of young singles for families has led to a sharp rise in the number of companion dogs. 

   What should we do about the dog poop epidemic?  Just grin and wipe it off (your shoes)?  In the old stereotype of Paris, every shopkeeper finished his workday by washing down the sidewalk.  A similar effort in today's American cities would fit with the model of private landowners as partial stewards of the public land and thoroughfares that facilitate their private ownership.  The biggest lesson in governing over the past 30 years is that government cannot do everything; we need private participation in improving worthwhile public endeavors –- land use included.

The appeal of the city to families ... without school-aged children, that is ...

  I visited New York City recently, and took time to reflect on land use as I walked around the affluent residential quarters east and west of Central Park.  Under sunny winter skies, life in a dense neighborhood of multifamily housing -- directly above restaurants, cleaners, and clothing shops -- seemed pleasant, sensible, and sustainable.  From the Hudson River to the East River, well-heeled people are paying extraordinary sums for life in the city, without the personal space or back yards offered by the suburbs.  Is this the way of the American future, as high gas prices and long commutes make suburban life no longer tolerable?      

   Then I noticed a couple of interesting phenomena.  As I strolled past the wealthy apartment buildings and co-ops, I noticed a lot of couples with children, which pleased me.  Then I noticed that the children were almost all very young.  I saw many two-year-olds, but not many 10-year-olds. Then I noticed that I passed far more private schools than public schools.  It appears that many prosperous Manhattan families stay in the city when they reproduce, but then depart for the suburbs when the youngsters reach school age, unless they are truly rich and can afford Manhattan private schools.  A widespread American "return to the city" seems unlikely unless the nation addresses the perceived drawbacks of city schooling.

Full speed ahead ... for stopping "growth"?

  One result of the success of “progressive” politicians across the nation this year is likely to be a renewed vigor to pass laws that attempt to curb “sprawl.”  Outside Washington, D.C., the outer suburbs of Loudoun County, Va. (photo at left), and Prince William County, Va., and the inner suburb of Montgomery County, Md., are in the process of imposing tough new moratoria on housing developments.  While advocates hope that the efforts will preserve “open space” and help the counties provide services, some other results are also bound to occur: (1) the decreased supply of new housing will keep up the extraordinarily high housing prices in Washington suburbs, and (2) development pressure (and demand) will move to even further-out suburbs. 

A casino “nuisance” near Gettysburg?

   How should the law of “nuisance” respond to modern times?  If one creates excessive noise, smells, or other annoyances that cross property boundaries, neighbors have a chance of convincing a court that the conduct is a “legal nuisance” that justifies either an injunction or money damages.  Should more types of disturbing actions be considered nuisances?  When the annoyance may bother public property –- or perhaps simply bother those trying to enjoy public property –- should the law be even tougher?

  From south-central Pennsylvania comes a controversy about an application to open a gambling casino within a couple of miles of the Gettysburg battlefields, much of which are on a National Military Park.  Should the supposed inappropriateness of a casino near America’s bloodiest battlefield be a ground for barring the casino in some manner?

   Two past controversies jump to mind:  First, In Minnesota v. Block, 660 F.2d 1240 (8th Cir. 1982), a U.S. Court of Appeals upheld the federal government’s authority to ban motorboat use on state-owned property that was near federally owned property in Minnesota’s Boundary Waters Canoe Area, because the law permissibly “protected” the federal property (designed for canoe travel) from noise “interference” that came from off federal property.   Less successful was an effort to stop construction of large private buildings in Arlington, Va., that in effect “overshadow” the National Mall, when seen from places such as the west Capitol porch. 

  Should or could the Pennsylvania authorities deny the permit because of the psychological or social effect of a casino near the battlefields?  Could or should the federal government attempt to control such a local land use because of its “effects” (broadly defined) on federal land?  Could federal or state courts enjoin such as casino as a common-law social “nuisance”?

An idea about homelessness in "paradise" ...

  One would think that there would be advantages to addressing homeless and affordable housing in a paradise, such as Hawaii.  Architecture in the 50th state can almost dispense with walls, because of the mild climate.  But housing for the poor has always been more about difficulties of economics, law, and social politics than it has been about construction.

  On the west shore of Oahu, for example, about 1000 people are now living tents on the beach near Waianae, according to a story today in the New York Times.  Most residents of Waianae are “native Hawaiians,” who are the least affluent ethnic  group in the state. As rents have priced out some residents, as in many popular places in the country, some low-income Hawaiians have found a tent on the beach to be the best alternative.  (See also today a story about an activist-created shantytown in Miami.)  Without cold weather or heavy rains (west Oahu is very dry), tent housing is not as unpleasant as it would be elsewhere.  In fact, many Sunbelt cities are experiencing booms in homeless populations.

   Couldn’t some of the incentives to life on the street or beach in a place such as Hawaii be used to advantage by government?  Although publicly built housing is disfavored today, for good reasons, in favor of government-supported housing payments, there are a number of advantages to having government more directly involved in housing construction.  Instead of trying to swim upstream by providing monetary assistance that may not be able to keep pace with rising housing costs, government should also consider subsidizing housing of the kind not seen much in the past 50 years –- simply built rooms, without amenities and with limited private access to electricity and plumbing.  While such rock-bottom housing would not meet modern building codes, it might clearly be better -– for residents and for the public -– than life in a beach tent.  Such housing probably wouldn’t work in the violent slums of St. Louis or Los Angeles, but it might help in places such as Waianae. 

Pahrump-ing towards a more sour America ...

   If one wants to see the future of America –- or at least one conception of it, for better or worse –- one should visit Pahrump, Nevada, the appropriately named town northwest of Las Vegas, which is being transformed from a dusty outpost to a booming exurb.  When I last drove through Pahrump, it seemed one colossal construction site of strip malls, endless asphalt parking lots, sprawling housing plots, and six-lane highways seemingly in the middle of nowhere.  While many critics and academicians see a “return to the city” as America’s future, I suspect that it’s even money that our future will more often look like Pahrump.

   And what do the citizens of Pahrump want?  The town recently passed an "English Language and Patriot Reaffirmation Ordinance" that, among other things, makes it unlawful to display a foreign flag by itself, even on private property.  Some estimate that about 15 percent of Pahrump’s residents are Latinos.  Although the ordinance was watered down at the last minute to exclude some of the more egregious provisions, apparently some believe that it prohibits the speaking of Spanish in public places.  (It doesn’t quite do that.)   

   Although I think that the creation of a bi-lingual or multi-lingual society would be a divisive thing for America, laws such as those of Pahrump are still very disturbing.  (One can find plenty of similar examples.)  Does the isolating, sprawling land use of such exurbs encourage distrust, or do people who distrust tend to move to such exurbs?   

A call for a political response to global warming and land use changes …

  Because the legal response to global warming inevitably complicates land use law, I am justified in this post about the argument in the U.S. Supreme Court Wednesday in the case of Massachusetts v. EPA.  The case shows two major failures of representative democracy in addressing perhaps the world’s most important topic.

   First, it is quite likely that the Court will dismiss the case for lack of standing.  A number of states and environmental groups claim that the EPA must regulate carbon dioxide (the leading “greenhouse gas”) as a “pollutant" under the Clean Air Act’s mobile source emission standard, § 202(a)(1), 42 U.S.C. §  7521(a)(1).  Among others, Justice Scalia has been at the forefront of imposing tough requirements on plaintiffs to show that their asserted injuries are “imminent,” “concrete,” and “particularized.”  But these requirements are largely the creation of judge-made law of the 20th century; the U.S. Constitution does not even use the word “standing.”  I assert that the Court’s recent jurisprudence on standing in environmental law cases deprives citizens (and state governments) of the essential power to obtain judicial review of violations of federal law.      

   Second, and more fundamentally, the plaintiffs’ substantive demand –- that EPA regulate carbon dioxide through the Clean Air Act – exposes a failure of the political branches of the federal government.  The immensely difficult policy choices in responding to global climate change –- Impose a carbon tax?  Cap-and-trade?  Kyoto?  Invest billions in a potential technological fix? –- are questions that should be decidedly squarely by Congress and the President.  They should not be decided by dumping the issue in the lap of an agency (EPA) through a statute that was not designed to deal with global warming.  It is true, of course, that political hot potatoes are often sent to agencies; with global warming, however, it is time for Congress and the President to act, regardless of the outcome of Massachusetts v. EPA.