Land Use Prof Blog

From NIMBY to … “Drawbridge Protectionism”?

   Say that residents of a town outside a big city don’t want new housing developments built near them; development would bring unwanted traffic and change the quiet character of the town, they say.  If one is skeptical of such an argument, what does one call it?

   “NIMBY” is perhaps the most overused term in land use policy debates, even though the term itself is only a few decades old.  It makes sense to complain of a “not in my backyard” syndrome to snicker at objections over LULUs (“locally unwanted land uses”) such as a factory, a bus station, or a halfway house.  One might say that it’s human nature not to want such distinct land uses near one’s back yard.

   But the broader phenomenon of objections to development in general raises more serious policy issues.  The desire to preserve the quiet “character” of a town deserves a term that is distinct from NIMBY.  Alternative acronyms (here’s a list) might include BANANA (“build absolutely nothing near anyone”) and CAVE people (“citizens against virtually everything”), but these imply nutty extremism.   

    The more nuanced nature of the topic justifies a divergence from the practice of cute acronyms.  One term that comes close is the “raise the drawbridge” phenomenon, used to refer to citizens who are already inside a preferred area (those who have already, say, built their A-frame on the Oregon coast) and who now want to raise a legal drawbridge to keep others out.  But, to me, even this term focuses on an implication of individual selfishness that fails to capture the larger social effects of the anti-development phenomenon.  For example, one town’s rejection of new housing development is likely to push the pressure for development elsewhere (just as localities jostle with their neighbors to discourage the homeless). 

   Here’s a proposed new term: “Drawbridge Protectionism.”   This term refers to the desire of citizens to keep new development away from the community, in order to  preserve “character,” avoid traffic, simplify planning and taxation, increase home values in the community by legally limiting the supply, and push other complications of a changing world to other, less-well-organized jurisdictions.  Some of these goals may be more laudable than others.                  

   Doesn’t “drawbridge protectionism” mix concepts?  Yes it does, and this is part of my point.  After all, drawbridge protectionism addresses one of the most important domestic issues facing the United States in the 21st century.  It deserves a little complexity.

Sprawl and the slippery numbers of home-lot sizes …

    Here’s a second day of thoughts on the arguments defending suburban sprawl and the auto-dependent culture, set forth by Reason Foundation authors Balaker & Staley.  One of the most interesting statistics they cite is that the average home lot size has in fact fallen from 1970 to today.  This may be true (I found Census figures stating that while the median lot size of a new house has shrunk noticeably since 1976, the “average” is almost unchanged –- evidence of a growing number of really large new lots), but one wonders about the relevance of using 1970 as a starting point in an assessment of sprawl.  What about, say, 1920, when widespread auto usage was just starting?  Cities were certainly denser, but many more people lived on spacious farms. 

    The smaller-lot-size argument is also hard to reconcile with the oft-cited statistic that while the Chicago metro area barely increased in population from 1970 to 1990, its square-mile “footprint” grew by a stunning 24 percent (Or was it 46%? See the debate between the anti-sprawl National Governors Association and the Heritage Foundation).  Perhaps the significant shift from apartments to single-family homes simply isn’t reflected in the statistics about the size of the typical new home lot.  But even though the Chicago area clearly has expanded relative to its population, no one can deny that there still are a lot more acres of corn in Illinois than there are acres of subdivisions. 

    Selective use of statistics should be viewed with a skeptical eye, especially with such an amorphous topic as suburban sprawl.

Three more cheers for sprawl, the global ideal? …

   Is suburban sprawl the destiny for all affluent cultures?  A growing number of market-oriented commentators argue that spreading suburbs are less the manifestations of subsidized highways and corporate greed, and more the result of a natural human desire for a big house and the personal freedom afforded by automobile travel.  A new entry in the pro-suburban camp is "The Road More Traveled: Why the Congestion Crisis Matters More Than You Think, and What We Can Do About It," by Reason magazine contributors Ted Balaker and Sam Staley (I'll let you try to figure out the title).  A commentary appears here.   

    Some of their more interesting numbers concern the supposed rejection of sprawl in other countries, especially Europe.  While it is true that public transportation and density have been more common elsewhere, these features may have been the result more of necessity than of preference.  Wherever people become more affluent, they tend to buy cars more often, ride the train less, and look more favorably upon a house outside the city and a road-borne commute.   

  Balaker and Staley also score some easy points by deflating some of anti-sprawl's more hyperbolic and over-heated claims.  No, America is not being paved over with asphalt, and we're not running out of farmland.  And no, driving less isn't likely to do much about global warming; other sources of pollution (including power plants that create the electricity that runs your computer right now) are far greater culprits.  Indeed, modernity-fueled growth, including more asphalt roads in health-care-starved countries, might help poor people in climate-change-vulnerable countries more than rising temperatures may harm them.  It's food for thought.    

Eminent domain ... up to the states? ...

   The U.S. Supreme Court denied last week a petition to hear another eminent-domain-for-redevelopment case, this one arising from a taking in Port Chester, N.Y. One response to property-rights frustration is that, as the Court said in Kelo in 2005, eminent domain is largely a state law issue, and states are free to limit localities from exercising their power for redevelopment, or to impose any restriction they like under state law. In fact, most states did respond to Kelo with some sort of statutory limitation on eminent domain for economic reasons. In a sense, then, we can be satisfied that strong public opinion has led to democratically enacted changes in the law.

    On the other hand, simply passing the constitutional buck to state governments may not be a satisfactory solution in the long run. Once the public furor has died down, "government" - meaning both local and state authorities - has the incentive to give itself broad authority. The "public use" requirement for eminent domain is in effect an individual human right against the power of government, and only the courts can fully vindicate such a right.

Discriminating roommates … and a proposal for a change in the Fair Housing Act …

  Does the Fair Housing Act cover online roommate preferences?  The New York Times published this week an opinionated article about online roommate services, many of which contain explicit preferences for a roommate of a particular race, or religion, or sex (which is not automatically excluded from coverage by the Act!).  At least one Fair Housing Act lawsuit against an online service is pending.  The author suggested that the Act might violate notions of free speech, in that it prohibits “publish”[ing] or “advertis”[ing] a preference on the ground of race, religion, sex, etc., 42 U.S.C. § 3604(c), even though it otherwise excludes from its coverage such discrimination by someone who merely rents out a room (or two or three, but not four) in his or her house, 42 U.S.C. § 3603(b)(2) (the so-called “Mrs. Murphy” exception).  The article suggested that this situation might amount to prohibiting speech about lawful conduct –- a conclusion that certainly would be troubling under the First Amendment.   

   But here’s a different way of looking at the situation.  The “Mrs. Murphy exception” was included in the Act to protect homeowners who rent out a few rooms (boardinghouses were far more prevalent in 1968 than they are today).  Because of the unappealing (in 1968, at least) specter of federal law coming down on the stereotype of such a boardinghouse owner –- a fictional widow called Mrs. Murphy, who simply didn’t feel comfortable renting to black people –- the law provided an exception for her.  How far should the exception reach?  The limits were designed to try to protect little old Mrs. Murphy but ONLY little old Mrs. Murphy.  The three-other-family limit was created presumably because if a homeowner rents more than three other rooms, this owner looks less like a Mrs. Murphy and a lot more like an apartment landlord.             

    Similarly, if the homeowner “publishes” the rental, the owner isn’t acting like Mrs. Murphy; the owner is acting more like a businessperson.  (Little old Mrs. Murphy would only have put a sign “Room for Rent” on her drafty old house and spread the opening by word of mouth).  This is why “publishing” makes the discrimination unlawful.  It’s NOT that it’s speech about conduct that’s lawful.  The reason for the rule is that if you publish, the law presumes that you’re not the kind of little old boardinghouse owner upon whom the law grants sympathy and the Mrs. Murphy exception.

   This having been said, why shouldn’t there be an exception for publishing roommate preferences?  I suggest that the Mrs. Murphy boardinghouse exception be abolished (a 70-year-old Mrs. Murphy today has lived most of her life in a world with the Fair Housing Act) and replaced with an exception that allows anyone –- fee simple owner or renter –- to be exempted from the Act if they rent to only ONE other person.  They would be exempted whether or not they “publish” their preference (a far more routine occurrence in the day of the Internet than it was in 1968, of course).  Do I approve of such discrimination in finding a roommate?  No.  But just as law wisely does not make it unlawful to discriminate in whom one invites to lunch, the limited interest in personal privacy should exclude from the Fair Housing Act the choosing of a sole roommate, even for the most distasteful reasons.         

Residences downtown … in fact, too many! …

[“Downtown Week,” extended]

  Downtown residences!  Downtown residences!  This is the cry of progressive urban land use policy.  To fight sprawl, support city finances, encourage public transportation, and foster communitarianism, cities across the United States are trying to get more housing built downtown.

   Which North American city has been the most successful in increasing both the supply of and demand for multi-unit downtown residences?  It’s likely Vancouver, that dynamic metropolis on Canada’s West Coast.  To walk around downtown Vancouver at 10:30 a.m. on a weekday is unlike the experience in almost any American city at such an hour; with much of the downtown converted into high-rise residences, the city center is bustling with people who live directly above small shops, offices, and restaurants.  It feels so … European, perhaps, but also Asian, as the west coast city holds a large and growing Chinese population.  It seems like an urbanist’s dream of a modern city in 2100.

    But the success of Vancouver’s “living first” policy, adopted in the 1980s, is now having unexpected drawbacks.  With so much space devoted to housing, businesses in the booming city are finding it difficult to find enough office space.  With firms complaining and threatening to move to suburbs or elsewhere, Vancouver is considering raising height restrictions and is imposing new commercial space requirements on developers who otherwise would be building mostly residences.  This is the opposite, of course, of the policies in many residence-thin cities of the United States.  Now that Vancouver’s downtown-residence policy has proven to be so successful, the city should consider allowing free-market forces to determine much of downtown land use in the near future. 

New looks for NYC …

[“Downtown Week,” continued …]

  What land uses make a city distinctive, memorable, and pleasant?  In addition to buildings, roads, and vegetation is its “street architecture.”  New York City, that crazy mélange of neighborhoods and districts, is in the process of revamping city land fixtures, such as signs, bus shelters, and newsstands.  What’s an overarching requirement?  Sturdiness, of course.  Too many cities have put in benches, shelters, and signs that simply can’t stand the rain, wind, and, most importantly, the inevitable attempts at vandalism that occur in any big city.  In New York, of course, all these concerns are heightened.  One thing that won’t change is the bold san serif subway signage, which has been in place since the ‘60s.  With clear, easy-to-read white on black words (the reverse would have disastrous in filthy New York, of course) and with routes designated by a letter or number in a colored circle, square, etc. (replacing the old confusing references to the original private companies, such as BMT and IRT, and informal names, such as “Broadway Local”), the city’s subway signs have (along with the largely successful effort in cleaning up the graffiti on trains by guarding them better when not running), helped pull the city out of its cultural near implosion of the 1970s.  If the new street architecture works as well and lasts as long as its subway signs, New York will be have succeeded.      

A new skyline for Austin? …

[“Downtown” Week,” continued]

    Austin, Texas, is bound to be one of the star cities of this century.  Few other cities of its size in the world boast its current prominence in government, education, culture (its somewhat hyperbolic claim of “the world’s live music capital” got a boost with the migration of many New Orleans musicians), and even charm.

   But Austin residents are worried that its booming economy will chop away at its charm.  The city has proposed rethinking its “view corridors” that protects vistas of the state capitol dome.  With new business moving to town, developers are pushing for newer and bigger office buildings, which currently are limited by the many “view corridors.”

   Old cities across the world have struggled, of course, with whether and how to restrict high-rise construction that would mar historic vistas.  Paris largely relegated high office construction to a specific district, La Defense.  London protected a few areas, and has its own outer-city office tower area in Canary Wharf.  Washington, D.C., has stuck to its early 20th-century law that no building downtown can rise above approximately 11 stories, protecting the view of the U.S. Capitol, which means that D.C. office buildings are mostly uniform (and thus, some say, boring), while Philadelphia (perhaps not as secure as its more famous rivals to the north and south) abandoned its old rule about towers rising higher than William Penn's statue atop City Hall.  My guess is that Austin will wisely cut back on the multiplicity of its corridors and allow high office buildings in more sectors.  Austin is primed to be a major world city, and aspiring to a compromise along the lines of what London or Paris have done doesn’t seem so bad.

Expanding TDRs for the environment and property rights …

  Can innovative methods of compensation –- such as transferable development rights –- serve to assuage the concerns of property advocates while permitting government to regulate for the public interest?  The state of Washington is studying this year how TDRs might be used more effectively to preserve nature and farmland in the Evergreen State while at the same time give some form of compensation to regulated property owners.

    Last year Washington voted down a property rights initiative, I-933, that would have required more automatic monetary compensation for restrictions on land use, akin to Oregon’s successful Measure 37 in 2004.  But Washington Governor Christine Gregoire, perhaps recognizing that the property rights movement is not going away, has put her support behind studies of how TDRs can be used more fluidly to give regulated property owners in designated “sending” areas the right to sell their unusable development interests to property owners in designated “receiving” areas where more development is more acceptable –- theoretically making everybody happier, including the taxpayer. 

   Chronic problems with TDR programs include: (1) finding enough “receiving” areas in which there is local support for more development than would otherwise be allowed; and (2) the Scalia/property rights argument that any form of partial compensation, such as TDRs, does not meet the full compensation right of property owners who can assert successfully that the regulation has legally “taken” their property.   

"Downtown Week": The disappearnace of low-cost downtown housing, in Key West and elsewhere ...

   For many Americans, January is the month for getting back to work after end-of-year vacations and buckling down for a long winter.  It’s a time to think about the city.  Accordingly, I present “Downtown Week.”   

   I visited Key West, Florida, this weekend, which is not often thought of a “downtown” kind of city.  But Key West was built up in the 19th century, when it boomed as a center for shipping, fishing, and salvage.  Its lovely downtown is still largely in pre-automobile form, with densely packed wooden cottages (some listed for more than $1 million) and houses on a street grid.  One of the most surprising (to me) features of its otherwise high-priced downtown ambiance is “Bahama Village,” a district traditionally inhabited largely by low-income black persons (many of whom are of Bahamian descent and long-time key residents), literally a block west of famous Duval Street.  While Bahama Village still holds some public housing and worn shacks, many of the houses are being bought up, fixed up, and put on the market at astronomical prices.  Can such a low-income community survive the housing and tourist boom? 

  I suspect that it cannot survive, and that the forces pushing against Bahama Village are symptomatic of the economic pressures that face any lower-income neighborhood near an economically growing downtown.  In big cities, poorer persons are being pushed further out; in some places, the problems of what were once called the “inner city” are now the problems of the “outer city,” as they are in places such as London and Paris.  But in Key West, an island, there is almost literally nowhere else to move.  (A mayor was quoted as saying that affordable housing was the city’s only drawback.)  I suggest that cities with limited downtown housing options need to push aggressively for the construction of low-cost multi-family housing while it still can and where it still can, even if this housing doesn’t fit with the “character” of places such as Key West.             

Is government allowed to “protect” a church … from itself?

  When should courts look behind the thick veil of governmental discretion and conclude that a land use regulation was motivated by an unlawful purpose?

   This and other issues are at stake in a challenge to a land use ordinance of Sinton, Texas, that was adopted soon after the Grace Christian Fellowship established a rehabilitation center for parolees near the church.  The ordinance prohibits parolees from living within 1000 feet of a church (as well as the usual off-limits locales, such as schools).  Opposition to the law has brought together Christian groups and the ACLU.  The Texas Supreme Court will hear the case this spring.

   Laws banning ex-cons from living near schools are unusually upheld under the notion of local governmental discretion to make even unwise land use laws for the “public interest.”  But when the facts (including the timing of adoption) point to a law’s motivation as targeting a specific activity –- and one that implicates freedom of religion –- the usual standard of deference should be flipped around.  What justification is there for picking out churches, where people tend to congregate in large and safe groups, as being off-limits to parolees?  And what if a church, such as the one in Sinton, has created the land use -– shouldn’t the freedom of religion demand that the church hold the power to override an ordinance designed for its “protection?” 

   Religious groups, advocates for ex-cons, and libertarians (and me) all are hoping that Texas’s high court will use the state’s Religious Freedom Restoration Act to flip the usual presumption and strike down the Sinton ordinance’s application.

Trailer or a million bucks? Not an easy choice …

   The mainstream media loves a good tale of moral dilemmas and lots money, so the story of the Briny Breezes trailer park in Palm Beach County, Fla., has been getting a lot of publicity recently.  (Click here a special section of the Palm Beach Post.)  The community plans to vote this week on whether to accept an offer to sell the entire complex to a developer for more than $500 million, which would amount to more than $1 million per trailer owner, most of whom are far from rich.  Despite the dangling cash, many of the residents are retirees who say they prefer life in the waterfront park, which has been around since the 1940s.  Two-thirds of the town must vote “yes” for the sale to be approved.

    The story holds a number of lessons for land use law.  One point is that a monetary payment may not sufficiently “compensate” the resident for the entire psychic “value” of a home -– a point made by opponents of widespread eminent domain, both on the right and on the left. Another point is that the recent boom in land values, especially in locations such as coastal Florida, is creating a significant shift of the nation’s assets in favor of long-time homeowners, such as the trailer residents at Briny Breezes, who have the option of taking a large monetary windfall (not often a welcome term in coastal Florida), and away from young people and new entrants to the homeowning market, who are bearing the brunt of the high prices (which, admittedly, are finally starting to fall in many places).  As with the uncertain future of social security, we as a nation pay too little attention to the generational discrimination of our land use policies and their effects.

Of wine, happiness, and the sociology of chain stores …

   Are chain stores a bane or a boon to the community?  I have written a number of times in favor of a utilitarian viewpoint that trusts free market demand more than government land use decisions to serve better the public interest.  A recent edition of the Atlantic magazine provides two interesting and contrasting viewpoints from sociological perspectives.

    First, food writer Corby Kummer criticized the proposal (which was voted down) to allow big box and grocery stores to sell wine in his home state of Massachusetts.  Allowing chain stores to sell wine would lead to a "dumbing down," he argued, because the big retailers would push out small wine shops, which are more willing to offer unusual wines and provide personal attention to customers.  My view is that such small shops might benefit Kummer, who visits wine stores in sophisticated Boston and travels around the nation, but they might not benefit much somebody living in West Cranapple, Mass., which may not have local stores with such expertise or clientele.

    "In Praise of Chain Stores" is the title of an contrasting essay by Virginia Postrel, who wrote to dispel the notion that chain stores are undesirable because they make every place in America look the same.  Chain stores succeed, Postrel argued, not simply because they are big, but because they are the successful results of nation-wide processes of trial and error to determine what most American want.  Cities don't exist to please tourists, she notes, but to provide desirable goods and services to their citizens, which chain stores do to a greater extent than small shops ever did.      

"Your money's in Martini's house! ..."

   The holiday season has come to a close, but it's worth reflecting upon, as the New Year begins, one of the most telling images of year-end festivities in the United States.  I'm speaking of the near-idolization of single-family homeownership that is applauded in the classic Christmas film from 1946, "It's a Wonderful Life," which has become as important a part of Christmas as conifers in the house and long shopping lines.  Where else in American literature is the hero a banker (or rather, the director of a "building and loan"), who is heroic for providing easy mortgage credit to those (immigrants, etc.) who could not have afforded homeownership in other centuries and other cultures, and in financing a middle-class housing development ("Bailey Park" in the movie)?  (Although the nightmarish, re-zoned "Pottersville" always looks, to me, like a fun place to spend a weekend.)  To me, this film speaks more eloquently than any other work about the fundamental success of the United States -- and its land use and credit laws, of course -- in providing simple happiness to a majority of its citizens.
   Happy 2007!