Land Use Prof Blog

So why do we allow 55-plus communities, anyway?

  Why does American law allow housing discrimination against younger (under 55) people?  This is a follow up to Friday's post.

    Law does not allow a housing development to be restricted to "whites only" (as used to be common before the Fair Housing Act of 1968) or "Catholics only" or "native-born Americans only."  So why did the 1988 amendments to the Fair Housing Act make "older people only" acceptable?  The most cynical rationale is that older people are well organized and have political clout, so this is why they got their exception.  But is there a more reputable justification? 

   Fifty years ago, one might have said that older people are among the poorest and least powerful members of society, and thus a small benefit to them -- we give them a chance to live among their "kind" -- is a small bone we toss to them.  But this sort of argument makes little sense today, when older persons are just about as well off financially as younger people are.  Similarly, an argument that they are a small, underprivileged minority that needs protection from the ruthlessness of the market makes no sense today, with about a quarter of the population over 55.  From my perspective in Florida, older people have always had market clout, of course, and this power is growing in places across the nation, as the famous "baby boom" generation passes to old age.  Is it because older people "deserve" the option to live in discriminatory housing?  But this merely begs the question.      

  The fact that law gives a special privilege to older persons is especially odd in this era, when real estate developers create housing that is designed to appeal especially to certain categories of people -- families with kids, urban yuppies, and even gay couples.  There is no doubt that even without the 55-plus law, many condo and housing developments (and not just in Florida and Arizona) would be overwhelmingly filled with older persons.  Why does law give a group that holds considerable power in the market even more power, including the power to exclude those who aren't like them?  Another cynical argument, which I discussed on Friday, is that local governments like the idea of developments that discourage government-service-demanding children.  But such a craven argument falls within the same category as the residents who tried to enforce no-blacks covenants in the 1940s and restaurants that tried to defy the Civil Rights Act in the mid-1960s.

  I will say it boldly.  In this age of a crowded nation of families and poorer persons searching for affordable housing, there is no cogent social policy justification for a law that permits developments in which younger people are excluded.      

Too many "age-restricted" developments? …

   Free market theory assumes that there is, in effect, an unlimited supply of choices.  But one asset that clearly is not in infinite supply is land.  The fact that there may be little space for low-cost housing in a region supports the idea of "inclusionary zoning."

    Meanwhile, local governments are rapidly realizing that one of the best ways to keep expenditures -- and thus taxes -- low is discourage developments that appeal to families with children.  What could be a better "public welfare" initiative than to keep taxes low?

   An unholy alliance is spurring the boom in "age-restricted" communities, usually referring to 55-years-old-and-up developments.  These communities are popular with older people (a group whose numbers are mushrooming with the coming of age of baby-boomers).  They are also popular with local governments, who encourage them as a way to keep out families with school kids.

   Sure, it's unlawful for either government or the private sector to discriminate, even through a "disparate impact," on the basis of race, sex, or religion.  But fairly blatant discrimination against younger people and families with children still passes muster in most states.  One story about a town that may wish to swim upstream is Trumbull, Conn., which is considering a moratorium on age-restricted communities.  Watch this space …          

A revival of the cities? … even Detroit?

     Will depopulated cities such as Detroit experience a rebirth in population and economic activity?  In a sense, the answer has to be "yes;" after all, for depressed central cities such as Detroit, St. Louis, and Cleveland there is really no place to go but up.  Each of these cities holds  block after block of emptiness, abandoned buildings, and land use failures.  Eventually, market pressures are going to build something useful in these spaces.

   But I'm skeptical of the predictions of University Michigan professor Robert Fishman, whose new book foresees "A Fifth Migration" on a large scale of people moving out of the suburbs and back to the cities.  (His "fourth migration" was the 20th century movement out from the cities.)  With a rapidly growing American population, empty city spaces, more single adult households, and the limits of commuter tolerance, certainly more people will inhabit our cities, even Detroit, in the 21st century.  This will probably be true even though some of Detroit's biggest land use plans of the past few decades didn't work out as planned.  The huge "Renaissance Center" built downtown on the river in the '70s was a fortress that said only, "Hurry up inside here; you'll be safe!" -- which isn't exactly the best way to rebuild a downtown.  (And today, the large company whose headquarters is in the Ren Center is mourning the passing of the mantle of the world's largest automaker to Toyota).  And the infamous downtown monorail has been the disappointment that one might have predicted in a low-density, depressed city that is the home of the American carmakers.   

  As Fishman points out, much of the revival of American cities will come from new immigrants from other countries -- which doesn't really fit the model of a migration from suburb to city.  Despite decades of predictions from Kenneth Jackson to Prof. Fishman, the great bulk of Americans simply have not rejected the suburbs for high-density life in the big city.  With alterative fuels on the rise, the survival of the auto-based suburban culture seems assured for the foreseeable future.  Here's my own prediction: Cities such as Detroit will revive, but they'll look not like the Detroit of 1950 or even Portland, Ore., of 2007.  They'll look like downtown Los Angeles or the city of Miami today -- modest-scale neighborhoods, largely of recent immigrants and stores that cater to them, alongside large "loft" apartment blocks of mostly childless families who enjoy the cultural amenities of downtown, but who are still vastly outnumbered by the soccer moms and dads in homeowners associations in the suburbs.  And this isn't so bad a future, for Detroit or America …   

Don't go near that freeway? …

   It's a "smart" idea to foster development near existing transportation routes, right? And although smart-growth advocates always favor rail and other public transit first, it has long been considered good land use policy to encourage growth near freeways, as well.  Through this "infill," natural areas may be preserved, while auto commutes may be limited.

   But in a new study of air pollution in Oregon, a environmental science professor has concluded that living and working close to freeways exposes one to much greater amounts of air pollution, and at further distances from the freeway, than previously thought. 

  Does this mean that land use law should discourage new construction near freeways and create wide buffers around them?  No, this would seem to be an over-reaction.  In fact, such a system might create more pollution, by virtue of requiring more driving and more burning of gasoline.  But it's worth remembering that most supposed "quick fixes" in land use law are likely to have their drawbacks.  It's through the balancing of advantages and drawbacks, in place-specific decisions, that good land use policy is created.   

Two states, two cities, two visions for transit …

   There is lore among tort layers about line-crossing auto accident cases on State Line Road, a major route that is literally astride the border of the two Kansas Citys –- one Missouri and one in Kansas.  Which state’s law applies to an accident with a vehicle partially in Kansas and partially in Missouri?  If this is a difficult decision, imagine trying to get interstate cooperation about a better public transportation system in the greater KC area.  Funding and route-mapping has to be done in both states and involves many levels of government, as reported in the Kansas City Star.  Among many complicating issues is that the Kansas side tends to be more suburban and often more affluent (and perhaps more skeptical of transit) than the Missouri side. 

   The states have already instituted a bi-state tax system, but the money can only be used for sports, arts, and cultural activities.  (Take a guess which been in the greatest demand.)   Another complication is the on-going battle between, on one hand, rail plans, often favored by visionaries (and voters), and, on the other hand, improved bus routes, often supported by those with more practical notions.

Is stereotyping acceptable ... when it comes to college students? …

  In this week of soul-searching about our nation’s college students, here’s an interesting story from the neighborhood around Johns Hopkins University in Baltimore.  The city’s zoning board voted this week that a college fraternity must leave the neighborhood, even though it has been on the site for more than 30 years, much of which as a nonconforming use.  (The house was vacated for a while as a number of code violations were addressed.)

    What’s most interesting to me is that neighbors complained that the house was in effect a “nuisance” of loud parties and drunken students.  The matter recalls the infamous U.S. Supreme Court decision of Village of Belle Terre v. Boraas, which I just discussed with my class. There, an exclusive town on Long Island, N.Y., zoned out group houses; SUNY-Stony Brook was nearby.  In an oft-criticized decision, Justice William O. Douglas upheld the town’s decision.  I discuss with my class whether the SUNY college students were the victims of “stereotyping” –- reading between the lines, the town probably didn’t want annoying student housing in their community.

   Returning to the Baltimore example, is it so clear that it’s good policy to conclude that because some students have been drunken louts in the past, we can assume, through law, that fraternity students will be drunken louts in the future? Is this a kind of stereotyping that is acceptable?

Impact fees – doing them right …

  Impact fees –- Are they a subtle and effective way for governments to shape and discourage harmful or costly development?  Or are they a license for governments to abuse their power over private property owners?  Or perhaps a little of both?

   Two impact stories are in the news.  First, the Arizona Daily Star reports on the growth of impact fees on new development in Tucson, one of America’s fastest growing cities.  The city argues, with considerable force, that such fees are justified to help pay for additional city services that are generated by new development.  But some property owners, including some commercial property owners, argue that Tucson’s high fees are helping push new development out of the city and into rural areas that don’t have such fees.  But of course one of the theoretical arguments for impact fees is to encourage developers to “infill” in areas in which there is already infrastructure, and to avoid “sprawl.”  But the Tucson practice seems to be encouraging the opposite!  Once again, the ideas of land use law work best if done at a regional level, not locality by locality.

   Meanwhile, the Los Angeles Times reports that Caltrans, the state’s road-construction agency, is increasingly seeking impact fees, and even suing to gather them, from developers whose projects would generate higher demand for highways.  Some developers use a special word to refer to the state’s use of such fee … yes, “extortion,” the term famously quoted by Justice Scalia, writing for the Supreme Court in the 1994 Dolan case, about land use exactions.

    A problem with the use of impact fees for California roads is that almost any new development would generate the need for more road construction and maintenance, whether it is a new project in Orange County that would overburden the jammed freeway system, or a new town in the Sierra foothills that would require building new roads fro scratch.  But then again, the principle behind incentive-based rules is that law encourages parties, such as developers, to look for development that would generate the LEAST in new traffic.  I suppose a downtown L.A. new urbanist project of dense housing, stores, and offices might support a successful argument that it would have the effect of REMOVING some cars from the highways, thus justifying the imposition of zero impact fees.  But maybe an “impact award” from the government? …

A brownfield that is turning green …

   Good news is rare, and good news about land use law is no exception.  But USA Today published today an interesting story about the revival of Jersey City, N.J., just across the Hudson River from Manhattan.  Once reliant on railroads and other “rust” businesses, Jersey City has long been considered a sad exemplar of the difficulties faced by working-class urban communities as the United States turns away from an industrial economy.

    But Jersey City’s economy is on its way back up.  A lot of factors have contributed to the rebirth, including a government with a reputation for avoiding corruption.  Another obvious advantage is the fact that because it is so close to lower Manhattan, Jersey City enjoys a “spillover” of businesses looking for lower-cost office space and office workers looking for convenient apartments and condos.  The growth is dense “smart growth,” of course, because of the population and space pressures so close to the big city.  To this extent, it appears that Jersey City might be “gentrifying,” with all the potential benefits and drawbacks that this phenomenon implies.   

   One factor especially caught my attention in Jersey City’s revival.  Because the city’s industrial economy collapsed so completely, much of its land, especially on the waterfront, was abandoned or otherwise not occupied.  Accordingly, there were few residents to complain about the shape of new development, or businesses to complain about changes in the area or new competition.  When there’s no one nearby to complain, a developer doesn’t have to worry much about NIMBY.  It’s as if the area was such an extreme “brownfield” that it eventually enjoyed some of the advantages for new construction of an unoccupied “greenfield.”    

No more slam dunks?

   While downtown Chicago worries about façade-ectomies, a suburb worries about basketball hoops.  According to this article, the zoning laws of Crystal Lake, an exurb northwest of Chicago, define a freestanding basketball hoop as an accessory structure, which is prohibited in the front yard.  Although a former mayor has applied for a variance and a permit, the city does not seem anxious to enforce the rule against hoops-playing residents of the city.

    In most deed-restricted communities, of course, a thing such as a basketball hoop in the front yard would be unthinkable.  With the rise of such communities, is it any wonder that even our pro male hoopsters can’t win the Olympics anymore?  … But maybe we can still be competitive in video gaming …

Façade-ectomy?

   What’s the purpose of historic preservation?  Is it mostly visual, in that old buildings are pleasant to look at?  Or is it also cultural, so that we save buildings that exemplify a style of architecture or an historic event?  Because they serve as museums of a former age?   Is it more mystical –- that an historic building acts as some kind of silent and inanimate witness from the past to the turmoil of the present?

    The Chicago Tribune published this week a thoughtful piece by its architecture critic, Blair Kamin, on the common practice of “façade preservation” –- what Kamin also refers to a “façade-ectomy” (actually, shouldn’t it be everything-but-the-facade-ectomy?) –- in which only the facade of an historic building is preserved, while the space behind it is transformed to modern needs: a modern office building or even a parking garage.  Kamin’s article, which is critical of the practice, points out successes in fixing up the entirety of some structures for modern use, such as the famous landmark Reliance Building (now the Hotel Burnham) in Chicago, or even reconstructions in which only the girders are saved.

  I too am a fan of historic preservation laws, even when I think they sometimes go too far.  Like the protection of endangered species, if we allow an historic building to be demolished, there’s no way to get it back.  But I’ll differ from Kamin on his view of façade preservation.  In the “exuberant” era –- say 1870 to 1920, which also matches the “golden age” of Chicago architecture –- many structures were built largely as facades; behind many a splashy street exterior of stone and sculpture lay a rather functional and bland brick and plaster building of a nation focused on business.  Many exteriors were built purely as visual treats, and it does not seem improper to treat them as such today.   

New urbanism, yes, … but children, no …

    Stories about new urbanist developments such as Seaside, Florida, often include the phrase “victim of its own success.”  One problem with Seaside as a model for American development, the critics argue, is that the well-designed, densely packed houses are so appealing that the price of even a small one quickly rose out of the reach of middle-class families. 

   A new “victim of its own success” story concerns Washington Town Center, a new-urbanist-inspired 400-acre community in central New Jersey, with clustered houses and a design that encourages walking.  The community has been so popular that families have rushed in, not only driving up prices but filling up the local schools.  The school crunch appears so acute to local officials that they are considering using eminent domain to stop expansion of the community.  What a cockeyed situation!         

     I discuss famous land use cases in my Property law class this time of year, and it’s always difficult to explain to students why government uses its power to, in effect, discriminate against families with schoolchildren.  Aren’t we supposed to have a pro-family society?  Why aren’t there protests in the streets –- or at least the level of protests that followed 2005’s eminent domain decision in Kelo –- against land use laws that try to discourage families? 

   Here’s a bedrock principle to law to follow –- land use law should never be used to discriminate against or discourage schoolchildren or families.  If in-migration puts pressure on schools (a pressure that would simply be pushed elsewhere, of course, if a restrictive land use law were adopted), the state government should act to spread revenue for schools so that no jurisdiction finds a need to discourage schoolchildren.

   Would such a policy be too extreme?  Well, let’s start with a policy that says a jurisdiction with a popular smart-growth, new-urbanist area will get aid for schools from the state to ensure that the locality doesn’t discriminate against schoolchildren.  It’s a start ...         

Closing the barn door on condo conversions …

  One criticism of governmental responses to social problems –- a criticism made by both the left and the right –- is that government is often too slow to act.  In fact, once government does create new rules, the perceived problem may have already been resolved, or the proverbial horse may already have left the barn.

   An example is playing out in San Diego, where the city government has tentatively approved a plan to limit conversions of apartments to condos by restricting to 1000 per year the number of conversions the city would approve.  The plan has been created in response to litigation by opponents of such conversions, who have argued in court that the city has been approving condo conversions without going through all the legally required steps, including an assessment of environmental impacts.

   It may well be that the settlement is justified in order to ensure that the city government is following the law.  But as a governmental response to the perceived problem of condo conversions exacerbating the “affordable housing” problem in San Diego, one of the nation’s most expensive cities in which to find housing, it comes very late.  Had restrictions been in place in 1998, they would have done much more to keep in place some rental housing that otherwise “went condo.”  Today, the housing market has cooled, condo conversion plans are being shelved by market forces, and the city is now responding by closing the proverbial barn door …

Affordable housing?… Try that less regulated big city in Texas …

   Last week I wrote about the effort to limit new apartment construction in the relatively unregulated Houston metro area.  This morning NPR reported on the flip side of Houston housing market –- its low cost of single-family houses and the fact that Houston is not suffering from the rapid slump in new housing starts that so much of the United States is experiencing.  Why is the median price of a house in Houston still only around $150,000, and why are so many of them still being built?

    Houston enjoys a number of low-cost, easy-construction advantages.  For one, “sprawl” is available in all directions –- there are no mountains or seas to limit growth.  Its resource-based economy is doing fairly well in these uncertain times.  And most significant all, of course, is that Houston famously holds (lacks? enjoys?) some of the nation’s loosest development laws, including no comprehensive zoning in the city.  If I were a free market advocate, I might relate the lack of regulation with the ease of new construction … and the fact that Houston is perhaps the most “affordable” of the nation’s very big metro areas. 

Once gay … but tomorrow …

  Should land use law work to preserve the “character” of a community because of the special characteristics of its residents?  This new AP story discusses the phenomenon of city neighborhoods that were formerly gay and lesbian enclaves, but which today are being infiltrated by more and more straight people.  The result, from one perspective, is the loss of an identifiable and special “place,” such as San Francisco’s famous Castro district.   

  For decades, gay people have been at the forefront of rebuilding many urban neighborhoods, including many sectors from which middle-class families had decamped to the suburbs.  Unencumbered by children and supportive of the urban lifestyle of patronizing city stops such as coffee shops, art galleries, and theaters, gays and lesbians made great urban “pioneers.”  But with city-living back “in” among more straight people, some traditionally gay neighborhoods are losing their special character.

   Here’s a tough question:  Just as some jurisdictions limit the number of bedrooms in apartment units so as to limit the number of school-demanding children, should a government consider the request of gay leaders to limit the number of family-friendly housing units, as a means of trying to preserve the gay character of a community?

Wal-Mart, fighting to get into small towns … and big …

[The Wal-Mart wars, continued …]

    The latest battle in the Wal-Mart wars arises from Marvin, N.C., where the Union County Board of Adjustment approved a plan to build a new store, only to see that decision set aside by a state court judge, who found that late-stage changes to the plan required starting over the approval process.  Last week, Wal-Mart argued to a state appellate court that the changes were not significant enough to require re-doing the process.  According to the Charlotte Observer, opponents have spent hundreds of thousands of dollars opposing the plan; no doubt Wal-Mart has spent a similarly large amount.

   This is the kind of enormous battle that occurs in local governments all across the nation; often, a Wal-Mart battle is the biggest and most complicated decision a local government has ever made.  Sometimes, the issues overwhelm the capabilities of the local jurisdiction.  In the current North Carolina matter, the central County government opposes the Wal-Mart plan and is arguing against its own Board of Adjustment.

   Should such complicated matters of local decisionmaking be made through some higher-level form of government, such as through a multi-jurisdictional board or a state authority, which has the resources and ability to handle such matters well?  Then again, size of government does not necessarily mean that it handles Wal-Mart matters well.  The world’s largest retailer recently suffered defeats in its effort to open its first stores in New York City, through a process so expensive and time-consuming that Wal-Mart’s CEO was quoted as saying that it wasn’t worth the effort to try again.  The story was also interesting for its focus on labor unions (which of course oppose Wal-Mart’s employment policies and practices) as the chief antagonist of Wal-Mart.  I question the wisdom of government’s using labor concerns to make land use decisions.