Land Use Prof Blog

Homelessness in 2007 …

  Three-quarters of a million Americas are homeless, according to a first-ever Annual Homeless Assessment Report by HUD.  (Seeing news that is less than upbeat is in itself a surprise to see at the top of a government website.)  This total (which is greater than that of the city of Boston) includes people living on the street, in emergency shelters, and in transitional housing.  The number also roughly matches previous estimates.

    The report is discouraging, coming as it does about two decades after the problem of “homeless” first became an issue of national attention (as the term and attitude concerning “bums” receded).  But it is also a good point for reflection.  The polarized rhetoric of the 1980s –- that homelessness was largely the “fault” either of Ronald Reagan’s cold capitalist polices or of the misguided emptying of mental institutions –- has largely passed.  Without pointing fingers, what approaches are the best for alleviating homelessness in the new century?

  Portland, Ore., reports a significant drop in its homeless population over the past few years, which some attribute to a change in emphasis away from proving emergency shelters (which can often be less palatable than a sleeping bag in a doorway) to helping the transition to low-cost permanent housing.  This certainly seems like the best solution, but it requires a committed effort by private organizations or the government or both, which not all cities hold.  Such efforts also are less likely to house those homeless people with severe social disorders.

   Passing the large “tent city” under Interstate 275 in nearby St. Petersburg, Fla., I remain convinced that there is a role for the direct provision of non-market housing to the most helpless of homeless people.  Instead of allowing the unstable and unsatisfactory tent city under the interstate, couldn’t the government fund construction (in some area with few complaining existing residents, such as under the freeway) for very low-cost housing?  The facility could hold simple rooms, single beds, and shared sanitary facilities, as a form of housing that would be better than the typical emergency shelter, but less expensive than market-rate housing.  Such housing would not be ideal, but it could be humane.  Call me naïve, but tent cities should not have to exist in the United States of America in 2007.       

Fences and sour neighbors ...

   Property owners often complain about the details of requirements that government places upon them in order to get a permit or rezoning.  Meanwhile, neighbors and preservationists are annoyed that legal restrictions are often bent or waived to appease property owners.

    Here is an interesting story of a 10-year legal battle in Baltimore County, Md., between a commercial garden center owner and his neighbor over the details of an agreement to allow rezoning for the business.  Arguments over interpretation of the details, and changes to the land use since then, have kept the controversy bubbling.  One of the complaints has been that a fence between the properties did not have a lattice top, as allegedly agreed to.  Ah, the police power at work …            

Saving by using .. in the rainforest and elsewhere …

  Is utilization sometimes the best path to conservation?  From adaptive reuse of historic buildings to preservation of the rainforest, students of land use are accepting more often the notion that limited use of a special place may be the most stable method of conserving it for future generations.  This variant of sustainable use, sometimes derided as an apology for degradation, runs counter to the traditional model of using strict land use barriers.  It is only a second-best solution, more strict preservationists contend. 

  But usage has often been a large part of the most successful efforts to protect special places.  Congress was encouraged to enact the legislation that reserved Yellowstone National Park in 1872 in part by the political support of the Northern Pacific Railroad, which foresaw a tourist magnet for its rail lines.  The bison is unlikely ever to go extinct in the United States in part because it is now ranched for meat on private land (there are more bison on ranches than in the wild).  And historic buildings such as Daniel Burnham's Rookery in Chicago are less likely to feel the pressure of the wrecking ball if they are adapted to modern desires such as new HVAC, bigger restrooms, and brighter lighting, even if some of these changes diverge from the original architecture.

    A similar argument about saving by using is set forth in "The Last Forest," a new book by veteran Amazon journalists Mark London and Brian Kelly.  According to early reviews, London and Kelly develop arguments for allowing controlled development in the Amazon, including the certification of eco-friendly forestry and other land uses that do not require extensive deforestation or road-building.

Too rocky for a mosque? …

   How can a property owner prove that government has discriminated on unlawful grounds when exercising eminent domain?  In Wayne, N.J., the township is trying to take land on which a group of Albanian Muslims wants to build a mosque and cultural center.  The township concluded that the hilltop site is too rocky and that construction would be too disruptive.  The Muslim group has filed a claim in federal court, alleging that that the denial of the building application was based on unlawful religious discrimination.

    Proving discriminatory intent is one of the thorniest issues in law.  Absent "a "smoking gun" of an incriminating memo or public statement, how does one prove discrimination in something such as eminent domain?  Would proof of discriminatory intent by the planning board be enough?  By one member of the legislative council?  By a majority of those who opposed the property owner?  What if motivations are mixed, as they are likely to be with any big project planned by a religious minority group?  Answering these questions, and how a claimant is expected to prove them, is exacerbated by the less formal procedures of local government land use decisionmaking.   

The wild, wild suburbs …

   In a nation committed both to suburban living and to wildlife protection, clashes are inevitable.  From Texas comes a story about a sharp increase in suburbanites’ encounters with wild animals such as coyotes, deer, and even feral pigs.

   One land use solution that is often favored by suburbanites is to have government try to remove the “problem,” such as by capturing pesky coyotes and trapping the razorbacks.  Under this attitude, the suburbs are viewed as sanctuaries both from the bustle of the city and from the dangers of the natural world. 

   On the other side, ecologists argue that the world belongs to wild animals as well as people.  Healthy ecosystems can’t depend solely on a handful of reserved areas such as parks and government-protected forests.  Humans outside of cities should learn how to live with animals, just as any good Texan knew how to do in the 19th century.

   What can suburbanites do?  They can act in a way that is mindful of the natural world around them.  Domestic dogs can be kept on a leash; if the house cat is let outside, one simply accepts the risk that it might become a coyote’s (or bobcat’s) dinner.  Children can be told to avoid approaching raccoons.  Wire and netting can be used to try to keep deer out of flower beds; if this doesn’t work, the flower beds may simply have to be given up.  Bending one’s life to live side by side with nature is a prescription for a modern, more nuanced attitude towards life in the suburbs.                        

   Is this just an environmentalist’s dewy-eyed vision of the world?  Not necessarily, especially if one adds a potentially sensible step of having a locked shotgun at the ready, if a citizen has special concerns about dangers to small children.  This is Texas, after all, and this is a world of wide open spaces and diversity of life.    

Not carefreee this Mardi Gras ...

    Here’s a Mardi Gras story:  St. Bernard County, downstream from New Orleans, has begun issuing fines to property owners who aren’t maintaining their property, including things such as not mowing their grass or otherwise neglecting the land.  The proposal is aimed largely at absentee owners who aren’t attending to a clean-up, and the fines can be forgiven if work is done.  But is still seems like an awfully broad mandate.

   Meanwhile, the stories from New Orleans include tales of people who are fed up with the slowness of promised government funds, the inefficient government, and frayed relations with neighbors.  All in all, the level of hope seems to be significantly lower than it was at last year’s Mardi Gras.

Metropolitan government? Pro and con …

  Does metropolitan government hold the promise of better land use planning and the avoidance of costly competition among neighboring jurisdictions?  Or is it just another layer of bureaucracy that is ineffective at offering solutions that city and state governments don’t already offer?

   From the Southwest this week are two stories that appear to point in different directions concerning metropolitan government.  First is the story of wealthy Troon, Arizona, north of Phoenix, which has taken advantage of school choice laws that (at least temporarily) allow children to attend school in neighboring jurisdictions while allowing Troon to avoid imposing any school taxes because there are no schools in the contrived “school district” set up for the purpose of avoiding such taxes.  This kind of corrosive game-playing among suburbs is a powerful argument in favor of regional organization.

   On the other side of the story is an exposé in the LA Weekly about the Southern California Association of Governments.  Established 30 years ago to develop a centralized vision for land use planning and development in the great Los Angeles area, SCAG is criticized for its myopia towards the future, its impracticable plans (often fixated on rail), and the fact that the massive Los Angeles region, with its myriad of parochial local interests, is perhaps too big to plan effectively at the regional level.

  Could we have a regional government that is both effective and efficient?  A prize from heaven waits.      

Lots of city condos, but fewer city residents …

   The good news:  Many cities are getting more residential units built in their downtowns.  The bad news:  In some places, many of these units are second homes for the wealthy.  Accordingly, while these units have provided work for the construction industry, they do less than might be expected to improve the economic and social life of the city.

   The Wall Street Journal reports that many of the new condos in Manhattan in recent years have been occupied by out of wealthy out-of-towners desiring a pied-à-terre.  Although no one worries that often-empty condos will cause New York sidewalks to collect dust, the phenomenon does drive up the market price for all housing, further exacerbating New York’s painful affordable housing situation.

   Nearby me, in St. Petersburg, Florida, the once-sleepy tourist town is experiencing a boom in towering downtown waterfront condos, selling for extraordinary sums.  Most of these units, I’m told, are bought by part-time winter residents only.  St. Pete’s pleasant little downtown is being shadowed by the high-rises, but they may not do much to help the year-round health of the city’s shops and restaurants.

   I have often bashed government meddling with market forces recently.  Let me change my stripes here and suggest a role for government interference to respond to the second-home phenomenon.  Law takes various steps to help “homesteads” –- primary residences –- that it reserves from second homes.  If government could figure out a way to impose a sensible “impact fee” upon the use of limited urban space for a second-home, the city might get fewer pied-à-terres, and, eventually, a few more low-cost apartments.

Remaking Hialeah for the new century …

   How do you remake a city?  The Council of Hialeah, Florida, famous for its Cuban-American majority, voted last week to approve a new zoning plan to create special business districts in the city of more than 200,000, just north of Miami.  The plan appears to be part of an effort to remake the appearance and commerce of Hialeah, which is also famous for its low-key and low-density land uses of modest houses, small shops, and restaurants.

    I question (as usual) the wisdom of having government try to remake the commercial outlook of a city in a particular way.  Typically, much tax money is spent, many grand plans fail, and well-connected businesses tend to do better than those without key contacts. 

   On the other hand, the Hialeah project, which calls for mixed use development with many low-cost residences above ground-floor businesses, seems like the type of loosening of land use restrictions to allow higher densities that is desperately needed in southeast Florida, where build-able land is rapidly disappearing.  If the zoning changes allow for the construction of new buildings in which a fourth-story low-cost apartment unit sits above a small insurance office on the second floor, which rests above a cafe serving black beans and plantain on the first floor, this seems like a rationale and welcome vision for 21st century Hialeah –- or any place, for that matter.   

“Revitalizing” by stopping affordable housing? …

   What does Orange County, California, need more of, from the viewpoint of government regulation of land use:  Low-cost “affordable” multi-family housing units, or “upscale” hotel and condominium units?  (Please notice that I give both sides equal treatment with the euphemisms.)

    The Anaheim City Council voted yesterday, on a split vote, to uphold its planning commission’s disapproval of a plan to build low-cost apartments and condos near Disneyland.  Disney objected to the plan.  According to the Los Angeles Times, the planning commission wants to preserve an existing zoning plan that has “revitalized” an area that once was filled with “tacky” stores.   

   Why does government see the need to try to push out commercial businesses because it finds them “tacky”?  Whose sense of taste and opinion is likely to reign in such decisions?  Parties who tend to have greater power and wealth, at the expense of those who are poorer and less powerful? 

   And why is it that we hear howls of protest when government takes private land for higher-tax-generating private development, but if government denies through the zoning process a proposed land use because it wants another, higher-tax-generating land use, we simply nod and move on? 

Pay as you ride for public transportation?

   Public transportation has been funded with billions of dollars over the past 40 years, much of it from federal funds. (As a former Washington, D.C., Metrorail rider for more than 10 years, I thank of the taxpayers of America.) Some of the dilemmas of the policy of supporting public transportation are shown in places such as St. Louis, where an expensive and physically stunning “light rail” system attracted fewer than 50,000 riders per day in 2006. (One of the most bizarre sights I have seen from the air is that of a jammed freeway full of suburban auto commuters inching their way over bulldozed and empty blocks of St. Louis, which holds fewer than half as many people today as it did 50 years ago.) Overlaying the contentious issues of class, race, and politics is the simple question: Who should pay for these projects?

    In the Atlanta metro area –- infamous as one of the nation’s fastest growing and most gridlock-clogged –- the state plans to build a new rail line connecting downtown Atlanta with booming southern suburbs (Henry County, for example, doubled its population in the 1990s). But some local politicians think that the rail line is a waste of money that would benefit only a handful of riders; they have proposed that the line not be built unless each county and city in which a stop is planned agrees to pay for a large chunk of the bill. Some of the opponents are fiscal conservatives; others appear to be skeptics of public transportation in general.

   It may be easy to say, “Transportation is a general public benefit and should be paid for by the public at large.” It may also be easy to conclude that the derided “bridge to nowhere” in Alaska debated in the U.S. Congress last year was not a justified use of public funds. A lot of plans are much grayer, however. I suggest a rule of thumb that local governments should pay for about half of the costs –- both capital costs and operating costs –- of transportation projects. Wouldn’t this impose too large of a burden on crowded metro governments? My initial response is that life in the big city is expensive, and that local residents should bear half of the burden of projects –- both roads and rail –- that they need.

The "Goldilocks Syndrome" ... and San Francisco's kinky Armory ....

  Call it the “Goldilocks Syndrome” in land use:  Some local residents won’t accept any land use except for the precise type of use that they want.  If this desired land use isn’t economically feasible or forthcoming, the opponents block other uses … with the result that land and buildings often stay vacant for many years, and with an eventual use that may be far from what the picky local protagonists wanted.

    Such a tale is playing out in San Francisco, where the landmark Mission Armory sat unoccupied, in effect, for more than 30 years.  As various proposals for its commercial use were floated, such as a computer center and a skating track ( it is not easy to adapt to modern uses a 90-year-old castle-like landmark designed as an arsenal) each was shot down by local opposition.  Here is a link to an entertaining history from the San Francisco Chronicle, from the year 2000, about the frustrating efforts to find an acceptable land use, and an update from earlier this year.      

   Some advocates wanted affordable housing –- a land use of critical need, of course, in the exorbitant city by the bay.  But such a project was not forthcoming, and activists mobilized again to oppose a new plan for … condominiums, of course.  (In San Francisco, a unit behind two feet of masonry and without windows would still likely generate a princely sum.)  Such a plan to gentrify the Armory was “too cold,” perhaps. 

   What the Mission District has finally got is something different –- a business that makes kinky sex videos.  The company reportedly bought the Armory for more than $14 million.  And neighborhood protesters have been picketing, arguing that the business is degrading to women and offers only demeaning jobs.   Perhaps such a usage is “too hot.”

   If the protesters get their way, the Armory would once again sit vacant, and would once again wait for that beautiful land use prince (Wait a minute –- am I confusing fairy tales?) who never seems to come.

Reviving the downtown park … with sausage and land use policy …

  Whither the downtown park?  Nearby me in St. Petersburg, Florida, the city is making an effort to encourage more workers to visit the arboreal Williams Park in the middle of the city.  In recent years, the park, like many others across the nation, has been known largely as a center for homeless people.

   American cultural history gives us a likely history of Williams Park, which was once a focal point for civic and other events in a winter tourist town.  In the 1950s, one might imagine, an unshaven man who lingered in the park after dusk might have been told to “move along” by the local cop, and the man might even have been arrested (especially if he were not white) under the vagrancy laws.  As our culture and laws became more enlightened, we scrapped the vagrancy laws and made allowances for homeless people.  One result –- fair or not –- is that what should be a pleasant oasis of green and shade in St. Pete is largely shunned by downtown workers and residents.  This remains the case even in a city with sunshine more than 300 days of the year and a burgeoning downtown residential population.

    A few decades ago, we can imagine that many civic and business leaders might have simply written off such a park as an irrelevancy, as they sped past in their Cadillacs from their office garages to their suburban homes.  With today’s greater attention to the health of downtowns, however, more cities are trying to encourage non-homeless people to reclaim their use of downtown parks, without stepping on the needs of the homeless.  One of the most famous successes has been Bryant Park in New York City, just behind the main Public Library at 5th Avenue and 42nd Street, where the drug dealers of the 1970s (Were the 1970s the nadir for cities in America?) have been pushed out and lunchtime picnickers have returned.  A combination of new design (better lighting, cleaning up), enticing capitalism (hot dog and other vendors judiciously allowed into the park), and a combination of municipal and business efforts lured people back. 

  St. Petersburg is trying a similar method, starting with Wednesday “Midday Markets” with food and other vendors.  This past Wednesday’s kickoff market was apparently a success, even though (because?) there were a half dozen police officers in attendance to ward off any potential clashes between the homeless people and the shoppers.

   Keys to the success of getting workers and residents to visit their downtown parks is to get local businesses involved (Appeal to their sense of civic pride?) and to provide some big incentives (such as quality vendors of sausage and ice cream) to visitors.  Once visitors realize that they and the homeless CAN co-exist, maybe they WILL co-exist. 

Should government land use science be easier to challenge? …

   Are governmental land use officials biased against development, especially when it concerns environmental issues?  At the federal level, many property owners have asserted that government experts, especially scientists, tend to look more favorably upon evidence supporting preservation of nature than they do contrary evidence.  Does the same effect occur in local land use decisions? 

    In the Utah legislature, a property-right-oriented bill would allow developers to override certain zoning restrictions made for environmental reasons when the developer provides scientific evidence that the land use restrictions are based on poor science.  Disputes could end up in arbitration and, presumably, then in court. 

   Such a process could lead to a thwarting of worthwhile ecological protections by well-funded developers.  It could also, by contrast, lead to better science, as decisions would analyzed through what amounts to an adversarial system.  Environmentalists who scoff at the idea of having arbitrators and courts second-guess governmental science should be reminded of the historical criticism of the Army Corps of Engineers, which enviros have long criticized as being biased in favor of construction, and the arguments in favor of closer third-party scrutiny of the Corps' decisions.

Maximum lot sizes and required high density: An idea whose time has come ….

   Across the nation, jurisdictions have adopted minimum lot size laws to try to avoid unwanted development and suburban sprawl.  Such laws are often touted as preserving farmland and maintaining “open space.”  In practice, rules such as five-acre minimums may not keep land as farms; they do, however, keep residential density low.  Other effects of such laws are to push the pressure for development elsewhere (sometimes even further out) and to exclude families of moderate incomes.  Minimum lot sizes are today perhaps the most notorious element of exclusionary zoning.

   If governments are truly serious about “smart growth” and battling land-gobbling sprawl, here is an idea whose time has come:  MAXIMUM lot sizes that require HIGH density. 

   Such laws could be imposed in certain sectors that are relatively favored for new growth and that hold features such as access to public transportation, freeways, existing schools, and infrastructure.  Such mandated high density would encourage the construction of “smart growth” housing in the suburbs.

    Such rules, of which there are a few extant examples (especially in Oregon), should be constitutional in most places.  After all, if it is legally acceptable to depress the value of property by telling the landowner that it can only allow a small number of lots, it should be acceptable to tell the owner that it must allow a large number of lots when the land is developed.

   Why would a locality adopt such a rule, which might guarantee an influx of new residents, many of whom would not be affluent five-acre types?  One reason would be to encourage multi-family and other affordable housing.  Another reason would be to relieve development pressures from other sectors (environmentally sensitive regions or areas with little infrastructure, for example).  It would also prove that the jurisdiction is serious about “smart growth,” rather than merely interested in parochial exclusion.  As with other efforts to combat exclusionary zoning, it may be desirable for state governments to impose such high-density requirements on localities.      

Gated developments in the city …

   Gated communities:  Are they anti-social ogres that reflect clannish fears of the “other”?  Or they are simply a privately created response to sophisticated new desires for home and community? 

    Popular perception typically imagines gated developments in Sun Belt exurbs –- an image that may bring with it baggage of geographic and regional intolerance.  But gated developments aren’t just for suburbs of Atlanta and Phoenix any more.  They are popping up in unlikely places, as the New York Times recently explored in an interesting article about such a community in Brooklyn, NY.  Not only is the new development closed to outsiders, it is also residential-only -– no mixed use, thank you –- and low density.  It’s enough to make a new urbanist holler in pain.      

   I’m uneasy abut the gated development phenomenon, although my worries concern things such as auto-traffic channeling more than they do the over-sold assertions that open neighborhoods engender the embrace of differing social classes and ethnicities.  But the allure of suburban-living close to downtown is just as appealing to many families as bringing culture and walkable streets to the suburbs is to others.         

Turning eminent domain targets into shareholders? ...

   Eminent domain continues to be the land use issue that most often galvanizes public opinion.  In lieu of forbidding government from using its power for the purpose of economic development, how else could the law be made “fairer” to landowners whose property is taken?  Professors Amnon Lahavi and Amir N. Licht have recently published a proposal that addresses one of the most commonly cited justifications for such eminent domain –- the “holdout” who stymies the “assembly” of a large private development project.      

   Under the proposal of Lahavi and Licht, a landowner whose property is taken for economic development would be given the option of accepting shares in a specially created development corporation that would assemble the development project. 

   While this proposal would likely give affected landowners more money than they might get in a typical fair market value determination –- a goal of many proposed adjustments to eminent domain law –- it seems to do less to address the absolute “rights” issue that seems to bother so many Americans viscerally.

    Here’s one historical anecdote on the supposed “assembly” problem for development projects.  As explained in Daniel Okrent’s immensely entertaining "Great Fortune: The Epic of Rockefeller Center," the Rockefellers were faced with stubborn holdouts (in the Great Depression!) to their big plan for midtown Manhattan.  Their solution?  They simply built around the holdouts.  The result?  The most acclaimed urban business development in American history. 

Historic preservation .. even when history is sad ...

   What makes a building an historic landmark?  What if the “history” contains painful memories, such as those of America’s history of racial segregation?  The conflicting emotions in the African American community over the preservation of places associated with black history –- segregated schoolhouses, sharecropper cabins, burial grounds for enslaved people, etc. –- were the subject of a fascinating article this week in the Christian Science Monitor.

   A growing number of African Americans are working to preserve such sites, especially when they serve to educate about the past.  The National Organization of Minority Architects held this summer in Memphis a conference on the preservation of historical sites associated with African American history.  The federal government, states, and private organizations can encourage conservation efforts by using plaques, tours, and other programs to keep alive the role that places and buildings can play in educating the public about the lessons of our past.