Land Use Prof Blog

Hey, trucker, turn off that motor!

   By the time that Will Rogers joked in the 1930s that America was the first nation ever to go to the poorhouse in an automobile (imagine!), it was clear that Americans had special relationships with their vehicles.  Americans eat, sleep and beget children in their cars, and no amount of environmental shame or new urbanist design is going to change the habits of millions of Americans who seem to love their cars and trucks.

    One sour manifestation of this love is the practice of idling –- trucks and buses that run their engines while the driver is waiting, dozing, or doing who-knows-what.  Idling trucks and buses are not only an aural nuisance; constant and concentrated exhaust can cause health hazards.  This is especially of concern for people who live near places where trucks and buses often idle.   

   Responding to complaints from a residential neighborhood near a truck business in Allentown, Pa., a Pennsylvania legislator has introduced a bill to limit trucks to idling for a maximum of five minutes in most instances.  We can cheer this legislation as a blow for the rights of citizens against those who abuse their privilege to drive and impose burdens on others’ enjoyment of their property.

   But we should also be aware of the limits of land use laws such as these.  What are the chances that such a law would be enforced in any effective way?  It might be effective in stopping unlawful idling at the notorious spot in Allentown, but it would be unlikely to be at the top of police priorities in most places.  Just as laws against littering do little to protect our sidewalks and streets from garbage, we probably shouldn’t expect too much from laws against idling.  In some countries of the world, it is impossible to get effective enforcement of most land use laws.  Even in the United States, law has its limits. 

Is my house too ugly for you?

   In my property law class this week, we talked about a famous case in which the affluent suburb of Ladue, Mo. (which has been involved in more famous land use litigation that any suburb its size) told a property owner in the late 1960s that he couldn’t build his planned “modern” home because it didn’t fit with the traditional architecture of Ladue.  I chastised the decision and suggested that city officials probably thought that the house would have fit in a place such as wild and free Los Angeles, but not in conservative Ladue.

   I spoke too soon.  The current Economist magazine reports about a boom in the City of Angels of gaudy houses in non-traditional architectural styles, especially among the city’s large class of wealthy immigrants (more than 40 percent of new homes in the U.S. have four or more bedrooms today –- twice the percentage in 1985 –- which the report attributes in part to immigrant families).  There is a move to stop the construction of large, ostentatious "Persian Palaces."  One proposal is to decrease by half the square footage permitted for houses on certain size lots.  Why is it, I ask, that house of a certain size that was acceptable 20 years ago is today considered far too large? 

    I also am very skeptical of land use “stylistic” laws, such as those that exist in snooty L.A. area cities such as San Marino and Beverly Hills.  Most great architectural developments, from St. Peter’s to the Eiffel Tower to the Robie House to the Guggenheim Bilbao, were derided by advocates of more traditional styles.  I don’t trust government to decide taste.  (The Economist quotes one owner as stating that if he wanted "mullahs" to tell him what to do, he could have stayed in Iran!)  And I agree with the U.S. Supreme Court, in another famous case involving Ladue, that a “special respect for individual liberty in the home has long been part of culture and our law.”  City of Ladue v. Gilleo, 512 U.S. 43, 58 (1994) (striking down a no-signs-on-lawns ordinance).  People should be able to build in the architectural style they prefer, even at the risk of decreasing neighboring property values (if it does so too much, let the neighbors sue for a “visual nuisance”).   

Laying blame on the American borrower … and a proposal for national education …

  Sometimes society needs a major embarrassment to whip it into shape.  After the debacle of the 2000 election, for example, an entire generation of Americans presumably will do a better job of checking their voting ballots before turning them in.  And the current mortgage foreclosure explosion should sober up the next generation of Americans about the risks of overextending themselves with mortgage debt. 

    Last week I wrote to criticize lenders and to suggest a tightening our lending disclosure laws.  Today I write to suggest that a large share of the blame for the boom in foreclosures is attributable to borrowers who simply shouldn’t have taken the loans.  As reported in today’s New York Times and in a spate of other stories from around the nation, too many Americans have taken on mortgage loans that they knew, or should have known, were going to gobble up far more than half of –- and sometimes more than –- their monthly income.  Many of them are now losing their homes because they cannot pay back their enormous debt.

   Avuncular economists might say that these stories should be a lesson for American borrowers, and I have to agree.  Too many citizens appear not to have thought long enough about what they were agreeing to.  When I first considered buying a house, my father told me an old rule of thumb that one could afford a house only if it cost no more than 2 and ½ times one’s annual income.  This may be overly restrictive today, but any sensible person should realize that agreeing to spend more than half of one’s income on mortgage payments is a dangerous practice. 

   Perhaps law should reinforce today’s cautionary tales by requiring greater emphasis on teaching personal finance in the public schools (especially as many of the overextended borrowers appear to be immigrants and those raised outside of the mainstream American culture, where rules of thumb are taught).  We should educate young people that the marketed dream of “Buy now, worry later!” is irresponsible.  To have many Americans fooled once might be considered a problem of personal failings; for it to happen repeatedly would be a national shame …         

No zoning, many apartments; more zoning, fewer apartments? ...

  One consequence of Houston's famous lack of comprehensive zoning may be that Houston holds one of the nation's highest percentage of rental units (only 46 % of Houston's households own).  I suspect that this is because it is easier and quicker for developers to build apartment buildings in Houston.

    Houstonians have consistently rejected proposals to introduce comprehensive zoning -- another example of Americans' preference for the status quo in their communities.  But there is a growing call to do something to stop large new apartment construction in Houston.  I'd be sad to see the change made, if only that the large number of apartments in Houston (unlike in its suburbs) shows what the future of American cities will be like (and the large number of apartments provided welcome homes for Katrina refuges in 2005), and because the relatively low cost of rental units Houston is attributable in large part to the lack of restrictive zoning laws.

Foreclosures show that tougher disclosure laws are needed …

   It’s time to strengthen our nation’s mortgage loan disclosure laws.  The boom in foreclosures –- perhaps as high as one in five loans made in Cleveland in 2005 –- shows that many Americans have taken on mortgages that they should not have.

    When I was a credit journalist back in the ‘80s, it seemed that laws such as the Fair Credit Reporting Act adequately informed consumers of simple facts such as the difference between the interest rate and the annual percentage rate.  But the rise of complicated loan deals, which is in large part to blame for the foreclosure problem, shows that too many Americans do not realize the full implications of the loans that they agree to.  If anyone has perused the cable TV “deals” they get in the mail, loan-term payment contracts can be very complicated, and that “teaser” deals can be very tempting.  It takes some sophistication to figure out what all the details mean in the future.

    Have lenders been making “sub-prime” loans with the expectation (or even hope?) that many borrowers will lose their mortgaged homes through foreclosure?  Back when I was a journalist, lending representatives convinced me that the hassles and costs of dealing with foreclosure and repossession were so great that no sensible lender would make a loan that it expected to have a great risk of default.  With today’s stories, however, I am no longer so convinced.

   Should the fact that some unsophisticated borrowers didn’t understand what they were agreeing to justify changing the disclosure laws to make matters more cumbersome for everyone?  There is no easy answer to this question.  The matter is also complicated by anecdotal evidence from places such as Cleveland and its suburbs that a large percentage of the foreclosures are occurring to homebuyers who are African American. 

  From the complexity of the loan agreements that I hear about, however, I am convinced that the federal credit laws need to be strengthened.  In appropriate instances, government should play the role of acting paternally to slow Americans down and make sure they do not rush into deals that they do not fully understand.            

   The New York Times reports today that in the Cleveland suburb of Euclid, whose ordinances back in the 1920s led to the courts’ green light to land use regulation, there are hundreds of houses being foreclosed and hundreds more that are vacant.  The problem of empty houses is so acute that local governments are acting to prevent vandalism and local panic. 

   It’s time for the federal government to respond, perhaps with a new law requiring much greater and plainer disclosure of terms, and perhaps with some outright bans on certain loan terms.

The globe, moving towards a land use norm …

  As globalization advances, variances in the world’s land use laws converge to a global mean.  It's another example of the idea of "best practices" changing behavior across the planet.  Here are two interesting stories from different parts of the globe. 

   First, China is becoming less communist, as it is changing its laws to allow for more protections of what is in effect private property.  Included among the new rights are powers granted to homeowners associations to work collectively to enforce common private interests.

    Second, the European Union is beginning to pressure Germany to impose speed limits on its famously unregulated autobahns.  Slowing down cars would cut gas consumption and cut the emission of greenhouse gasses.  Many Germans are vigorously opposed, of course, to taking away their special privilege.

Renting -- the new "American Dream"?

   One of the sidebars of the great 1995-2006 housing price boom is that rental units also experienced a sharp increase in costs.  According to a stat-filled article in Apartment Finance Today magazine, an astonishing 44 percent of renters now pay more than half of their income on housing.  In addition to higher prices, one reason for this phenomenon may be that so many upwardly striving people in recent years made the jump to homeownership; the homeownership rate in the United States is now nearly 69 percent, up from 64 percent in 1994 -- partial proof of the theory that the housing price boom was largely demand-driven. 

   With all the ominous news about a boom in defaults on mortgages loans granted to people who perhaps shouldn't have qualified, we may soon see a return to more Americans accepting renting as a long-term housing choice. 

   What implications does this have for land use policy?  The message is straightforward -- governments should do more to permit the construction of apartment buildings, especially in built-up sections of metro areas.  Why should law allow more apartments?  The reasons are numerous, but here are some:  (1) With more than 300 million Americans (more than double the number of 1950), more than half of whom live in large metro areas, we have to accept the idea of denser housing.  (2) With growing concern over environmental protection, denser housing is the best solution to "sprawl."  (3) With much of America's population growth today arising from immigration, the new Americans are perhaps more likely to accept an apartment as their "American Dream" than did previous generations.  (4)  With fewer children in most families, and with those children more likely to spend their free time typing on a laptop than playing in the back yard, apartment-living increasingly fits with today's culture.   

   One of the first ways to start a return to apartments is for governments -- cities and suburbs, perhaps with prodding from state governments -- to loosen outmoded zoning laws to allow for more apartment construction.  Let's get with the 21st century … 

Two sides of the street ... in the after-school travel home …

  A good test our nation's supposed commitment to public transportation is how we facilitate -- or rather don't facilitate -- its use by our most protected members of society. 

    This spring break I'm visiting my parents in my hometown of Silver Spring, Md.  Every school day at about 3 p.m. some fascinating phenomena occur.  The first is that an enormous number of vehicles head out to pick up kids from the local public schools, in numbers far greater than the handful of parents who helped kids home way back when I was in school.  This phenomenon -- which leads to gridlock around many schools these days -- is attributable in part to the paranoia surrounding today's kids.

  Across the street from the high school, however, another phenomenon appears -- and this one flies in the face of our child-coddling culture.  Across the major highway from the school stands a bus stop.  Because my home county now holds some school choice, a large number of kids line up for the bus every afternoon.  The bus stop is wedged on a narrow sidewalk between the busy highway, on one side, and the parking lot of an office complex, on the other.  There is no shelter, and there are no seats for the kids waiting for their bus to take them home.  The contrast couldn't be more striking between the students being picked up by their SUV-driving parents and the group of bus-riding kids (largely but not exclusively black and Latino kids), squeezing themselves onto the narrow sidewalk space, enduring rain (these are high school kids, so of course no one has an umbrella), snow, heat, and cold.  Why doesn't our kid-protecting society do something to make their waits safer and more comfortable?  The answer says volumes both our social segregation and our supposed commitment to public transportation.         

No more landfills, please …

  It used to be the case that the standard assumption about rural land use planning was that unsophisticated governments were typically within the control of powerful business interests.  But times are a-changing all across the nation, even in the rural South.  It's been nearly 20 years since Robert Bullard wrote in "Dumping in Dixie" about the excessive amount of environmentally risky land uses in the rural South, especially in African American communities.

   In South Carolina, counties are successively changing their zoning and planning laws to try to stop the creation of new waste landfills, even as the state environmental authority grants permits.  Lawsuits have followed.  An optimistic way to look at these legal battles is as local communities standing up to being "dumped" on.  A less savory way to view them is as more communities realizing the potential ability to push unwanted land uses to other, less-organized counties, or perhaps even to other states.   

Would you like your "downtown" fake or real?

  When is a faux revitalized downtown better than a real one?  A recent edition of the Economist discusses the largely unsuccessful efforts of San Jose, Cal. (now one of the largest and most affluent cities in the nation) its wake up its moribund downtown with subsidies, tax breaks, etc.  But theaters, offices, and public transportation can't make Silicon Valley residents socialize in downtown San Jose.   

   Where are people going?  To the mall, of course.  But not just any mall.  Private developers have noticed that people like to dine outside (especially in the mild California climate), like to stroll past nicely designed stores, and especially like to do so with giant parking lots nearby and security guards making sure that the experience is safe.  Hence the boom in manufactured "downtown" nightlife streets, such as Santana Row in San Jose, opened by private developers in 2002.  Other examples include the much-ballyhooed Reston Town Center in the outer Virginia suburbs of Washington, and Bay Street, attached to an upscale mall in Tampa.  Yes, bring back the city, but maybe bring it back by starting from scratch, and doing it in the suburbs…    

Cooperation, not competition, among neighboring localities?

  Which is the most urbanized state?  No, it’s not in the Northeast; it’s California, where the vast majority of the population is tucked into a handful of great metropolises.  This is true even though California is still the nation’s most valuable supplier of agricultural products.  With places such as the Los Angeles Basin and the San Francisco Bay area effectively “full” (especially if you’re looking for low-cost housing), where will new Californians live in the 21st century?

  The answer seems obvious –- the great Central Valley, which is both America’s vegetable basket and the home of many growing towns and booming cities.  One of the fastest growing counties is San Joaquin County, in the heart of the valley.  There, the county’s eight cities are getting together to discuss common problems and potential coordinated solutions to dealing the expected doubling of the population over the next 50 years. 

   It would be wonderful if communities could reach agreements to cooperate on vital land use issues, such as affordable housing and farmland preservation.  The Tiebout hypothesis aside, cities should not compete with each other to exclude low-income persons and to push LULUs around.  Perhaps the San Joaquin cities will reach agreements for each to accept their fair share of low-cost housing and a fair share of undesirable but necessary land uses.  And let’s hope that they don’t decide to push the problems over to the adjoining counties in the Central Valley …    

A property right to a public view?

  Can a “view” be considered public property that government should not be able to take away through land use decisions?  In New Jersey, a group is suing the state over a plan to build a memorial to 9/11 in Liberty State Park, across the Hudson River from the site of the former World Trade Center.  The group, Friends of Liberty State Park, asserts that the project would block views of the “sacred” site from the park, as well as interfere with use of the park for other purposes.  The lawsuit alleges various flaws of due process and public participation requirements.    

   Should certain “views” be considered part of the public trust that government cannot take away?  In California, the state courts in the 1980s ruled that Mono Lake is part of the traditional navigable waters public trust, and that the state government must take steps (which it has) to protect the lake from being shrunk by water transfers to other parts of the state.  In the Washington, D.C., area, there was a failed effort to try to stop Virginia from permitting the construction of large apartment buildings in Arlington, across the Potomac River, that are in the line of sight of the great vista from the Capitol steps, down the National Mall, through the Washington Monument, to the Lincoln Memorial.  Today, the distant apartments complete the vista, which is no longer quite as stirring.

   Although I sympathize with the idea of protecting historic vistas –- views that, once taken away, are hard to recover –- I suggest that this is the sort of issue that usually should be decided through the political process (and perhaps with the help of eminent domain, as in the case of the demolition of the private tower that once loomed over the Gettysburg Battlefield), not by the courts.    

LULUs and standing ...

  I’ve written recently about the issue of LULUs and the issue of who has standing to sue government for a land use decision.  An interesting matter in Georgia brings these two topics together.  The Macon- Bibb County Planning & Zoning Commission yesterday approved a zoning change that would allow the establishment of a new halfway house for convicts who are close to ending their terms in the local federal prison.  Of course there is local opposition to this extreme LULU.  What is more interesting, however, is that the rezoning also was opposed by a competing halfway house business in Macon.  If the new facility is built, there will be more competition for the contract from the federal prison authority.

   Does a potential competitor have standing to challenge a zoning change?  If the change violates the law or is otherwise an unwise land use decision, I see no reason why a competitor, who might be in the best position to serve as a watchdog of government, should have not standing.  But the increase in competition by itself is not and should not be a substantive basis for challenging a zoning change.

Mandating bicycle-friendly streets? ...

   Should land use law do more to encourage bicycle use on the streets?  One reason for the low rate of bicycling in urban America is a vicious circle.  Because so many streets are not friendly to bikes, we have not many cyclists.  And because we have so few cyclists, there is little pressure to make the streets better for the handful who pedal. 

   One method to break the vicious circle is for land use law to demand that the infrastructure change to make streets better for cycling.  Once this is done, more people will be encouraged to ride instead of drive for some trips, which in turn will build support for more and better bicycle lanes –- a virtuous circle.  One way to do this is the “complete the streets” idea, which rests on the notion that a street designed only with motoring in mind is “incomplete” until it considers and facilitates cyclists, pedestrians, and those who use wheelchairs.

  Is such an idea only for “crunchy” and outdoorsy places such as northern California and college towns?  Planners in Louisville, Kentucky, think that the idea can work there too.  They have proposed a rule that would require streets to include bicycle lanes, among other things, when new streets are built and old ones are resurfaced.  This idea is reminiscent of the special “best technology” requirements for new or modified sources of air or water pollution under the environmental statutes, and also echoes the idea of low-cost housing set-asides in “inclusionary zoning” policies.         

One nation under a pack of jacks?

    Will the United States soon become a country lined with casinos and gambling parlors from coast to coast?  Certainly, the lure of revenue without taxes is extraordinarily tempting for local governments, even as some localities discover that a majority of residents don't want the taint and unsavoriness that casinos and gambling may bring to their community.  It is an indication of the ultimate LULU (locally unwanted land use) that cities often find it politically beneficial to propose that a casino literally not be a "land" use at all -- that instead it be placed on a barge tied to a dock in the city river or harbor.  This way, the casino is removed from any neighborhood and the city takes advantage of areas that often have been abandoned with the removal of heavy industry from urban America. 

   In the final of a trio of posts about Philadelphia and south Jersey, the city of Brotherly Love has tentatively approved two casinos to be set in the Delaware River across from New Jersey.  Why are there special pressures on Philadelphia?  One reason is that millions of dollars that would otherwise be spent in Pennsylvania restaurants and bars is now spent in gambling-friendly Atlantic City, N.J., only an hour drive away.  By permitting river-borne casinos in Philly, Pennsylvania should get much of that money back (and maybe even lure some Jersey money as well). 

  Does this competition for spending mean that coast-to-coast casinos are inevitable?  Not necessarily. The casino land use (and water use) wars are bitter.  The latest news from Philadelphia is that an effort to place on an upcoming ballot a rule that would have barred any casino from being within 1500 feet of any residence (read, just about all of the city) recently failed when a judge concluded that many of the petition's signatures were not valid.  But environmental and other legal challenges may still delay, at least, the casino plans.  Will we see casinos in most states within our lifetimes?  Don't bet on it …    

Generation after generation of exclusionary zoning litigation …

  To most of my law students, the year 1971 might as well be 1471 –- it was before they were born, in a world that seems radically different.  So it’s strange to explain to them that the saga of New Jersey’s landmark exclusionary zoning litigation, arising from the town of Mount Laurel in south Jersey, is still going on, some thirty plus years later.

    This week the New Jersey Builders Association plans to present an award in the memory of Ethel Lawrence, the late activist who helped spur the Mount Laurel litigation, which established the principle that each locality in the state must take steps to provide for its “fair share” of low-cost housing.  The goal was, first, to dismantle zoning laws that exclude low-cost housing and, second, to require localities to take affirmative steps to spur the construction of low-cost housing.  In the 1980s, the court-made duty was replaced by code and the establishment of a state Council on Affordable Housing.    

    Earlier this year, a New Jersey court struck down many aspects of recent COAH regulations; one provision required each locality to create one low-cost housing unit for each eight units created by the market.  One problem with this approach, challengers asserted, is that imposes little or no requirements on localities in which there is little new market housing construction.  The saga continues …

   
   

Who has “standing” to challenge local land decisions?

  The doctrine of standing, which restricts WHO is able to sue over an alleged violation of law, is one of the most contentious issues in citizen enforcement of land use laws.  In the environmental field, it is almost literally true that if there is no one in the forest to hear a tree fall, no one has standing to sue the person who chopped down the tree.  Simply “caring about” the forest isn’t good enough.

   Disputes over local standing are currently playing out in the city of Philadelphia.  The Pennsylvania General Assembly enacted in 2004 a law that limits to “aggrieved persons” who have been “detrimentally harmed” the standing to challenge in court Philadelphia zoning board decisions.  This Philadelphia Inquirer article discusses two pending cases. 

   First, does a citizen have the right to challenge a variance to allow a billboard?  Or is this akin to allowing anyone to sue, which goes against the grain of allowing only persons with “particularized” injury (in other words, not just a taxpayer) to sue?  Second, can a variance to allow a two-family house on a small lot be challenged by someone who isn’t a neighbor?    

   My view of the doctrine is that it should broadly grant standing to any person who can show that he or she has been harmed.  Courts should also give a broad view of the purpose of laws.  Presumably, the purpose of laws restricting billboards is aesthetics, as well as avoiding traffic distractions.  Thus, anyone who has been annoyed by the ugliness of a billboard should be able to sue.  What’s the purpose of a maximum-size law for residential lots?  Presumably it is to protect the immediately adjacent neighbors from unwanted bulk next door.  But if a citizen who lived two blocks away can show that another reason for such a law is to limit “traffic” (often a bogus justification for all kinds of NIMBY arguments, but an ostensible justification, nonetheless), then this citizen too should have standing.  One’s view of the merits shouldn’t affect one’s view of the scope of the law of standing.  And I think that citizen suits are one of the finest features of the American legal system, no matter how much I may dislike NIMBY.   

Housing authorities and inefficiency …

    Why are so many local housing authorities inefficient?  In Miami-Dade County, Florida, the housing agency “is a mess,” as reported by NPR this morning.  Meanwhile, there is talk of having a federal HUD takeover of the authority, as discussed in the Miami Herald this winter.  Among the complaints with the Miami-Dade Housing Agency is that a lot of money has been spent but few housing units have been built or supported, even as older public housing units have been demolished. 

  Last week, I wrote in favor of greater governmental efforts to support the construction of semi-permanent housing for the chronically homeless.  This week I write to express concerns about entrusting matters as important as low-income housing to public authorities.  Conservative humorist P.J. O’Rourke has written that to call something “public” is to define it as inefficient.  (Think of the current news about Walter Reed Army Medical Center.)  This may be unfair, of course, to many dedicated pubic officials.  But there is often reason for concern in the running of housing authorities.  It is a thankless task to try to swim counter to market forces and foster low-cost housing while trying please various political constituents.  It requires knowledge and skill in dealing with real estate, construction, and tenant relations, among other factors, beyond politics.  Employees are often poorly paid, and the housing authorities often do not attract employees with the experience necessary to run such a complex operation.

   What is the solution?  One way to help is for the watchdogs of government -– the news media, housing residents, and other public-spirited groups –- to complain loudly when a housing authority is not doing its job.  The spotlight trained on Miami-Dade at the moment is likely to help matters significantly, including providing better oversight by governmental leaders who otherwise might not pay much attention to their local housing authority.      

Windmills on the horizon? …

  Amidst all the breathless reports about the potential for the United States to become one big field for ethanol are a growing number of other stories about alternative energy and land use.  Some environmentalists are reconciling themselves to a revival of nuclear energy as a least-bad alternative.  And wind power –- which offers energy on land without traditional pollution –- is becoming more and more attractive, despite some environmental concerns. 

    Virginia is considering a plan for its first significant wind farm, which would be placed on a ridge top in the mountains near the West Virginia border.  As with any such project, birds would be killed by the huge spinning blades, noise would be generated by the colossal towers (400-feet high -– taller than the Statue of Liberty!), and nearby residents will complain about the marring of their landscape.  These all are serious concerns.

  But any source of energy causes harm to the environment.  Coal-burning power plants impose huge smokestacks on the landscape, pollute the air, exacerbate the greenhouse effect, and use up nonrenewable resources.  It should be the goal of government to rationally, cautiously, and soberly balance the various harms to land and environment with the amount of energy generated (historically, a drawback of wind farms), and to chose the methods provide the highest ratio of benefit to harm.