Land Use Prof Blog

Saving energy ... by building like a beetle …

  Which steps will be the most successful in cutting greenhouse gas emissions?  While the media focuses on low-emission vehicles and technology for power plants, one of the most promising trends is the development of new technology for the most voracious category of greenhouse gas users –- buildings.  This article in the Economist explains how designers are using techniques and lessons from nature to develop building systems that use much less energy and impose fewer adverse environmental impacts.  It may become an integral part of “green building.”

   Among the techniques are ventilation systems based on anthills, which during warm days draw in cool air at the bottom and vent warm air out the top.  Lessons from beetles allow buildings to capture condensed water from humid air.  And a system of gills, modeled on camel nostrils, can desalinate saltwater without the huge energy costs of traditional desalination systems.

   Law could foster successful techniques through a judicious combination of requiring “best practices” and setting up a system for trading energy savings.  As energy prices continue to rise, expect to see more governments stepping up to help the market advance these energy-saving measures in our built-up world.

L.A.’s Cocoanut Grove to meet the wrecking ball …

   The most compelling argument for preserving historic buildings is that, like endangered species, once they are gone they can never return.  So it’s understandable that preservationists are upset over the decision of the Los Angeles Board of Education this week to tear down the building that housed the Cocoanut Grove.  The famous nightclub was a focal point of the city’s nightlife and entertainment scene for decades.  It was part of the old Ambassador Hotel, which witnessed the fatal shooting of Robert F. Kennedy in 1968; the hotel was demolished by the school district, which owns the land, last year.  The plan is to build a large new school complex on the site.

    The chief reason that the school board decided to demolish the nightclub building is that it appears unsafe in its current condition, and that renovations to make it withstand earthquakes would impair its use as a building.  The loss of the historical structure is sad, but safety is paramount in today’s America (even the name “Cocoanut Grove” brings up harrowing lessons of safety).  And I’ll suggest that buildings that witnessed history but that are not particularly architecturally distinguished (as the hotel and nightclub were not) deserve a lower priority in preservation than buildings whose walls and windows themselves provide inspiration.

The case of the fixed … and mobile … little Mexican food stand … in St. Paul …

   How can one sell enchiladas from an open-air trailer on one’s own lot in St. Paul?  That was the dilemma faced by Jose Ponce, who ran a food business called “Mi Pueblito” in the Minnesota capital, and may do so again after winning a land use case yesterday against the city government (Ponce v. City of St. Paul, No. A06-1883 (Minn. Ct. App. Sept. 25, 2007)).   

    From my reading of the facts, Ponce got stuck between a rock and a hard place.  On one side, St. Paul’s zoning ordinance required him to get a conditional use permit to operate a “fixed” and “outdoor” business; on the other hand, he was in effect told by the city that he shouldn’t apply for a renewal of the permit because his stand violated a state law against operating a “mobile” stand for more than 21 days.  (In fact, this appears to have been a misreading of the law).  After losing a hearing and decision before an administrative law judge, Ponce appealed to the court and finally obtained relief.  Because he was in effect misled about violating the “mobile” law, he was unfairly dissuaded from renewing his conditional use permit.  The Court reinstated his permit to allow him time to reapply.

   This is the sort of case that restores our faith in due process, and shows that every person may, through perseverance, earn their just sopapillas.

Of mosques and minarets ...

  The construction of mosques is one of the most contentious new issues in land use law.  In both the United States and Europe, growing Muslim populations demand more mosques, while opponents use a variety of techniques to stand in their way, including seemingly “neutral” zoning rules that have the effect of making new construction difficult.  Here’s an interesting essay in the Economist.   

   This Friday, a large new mosque in Boston will hear its first prayers, after a long legal struggle.  Similar controversies are bubbling in many European cities, many of which hold large Muslim populations.  The Economist points out that, despite the supposedly closer relations of many European countries to Islam, the United States holds one of the world’s strongest freedom-of-religion laws, which makes discrimination against mosques (when proven) clearly unlawful.  This is not true in some European countries. 

   Some opponents of mosque construction fear that the houses of worship will become centers for the dissemination of extremism.  A powerful counterargument, however, is that denying a population a place to worship would likely stoke the flames of extremism more than would tolerance.

Changes in attitude, changes in altitude (and density) …

  With housing credit now tighter (despite the Fed’s recent rate cut), the United States may experience a breather from its longstanding national goal of relentlessly increasing the homeownership rate.  If the trend lasts, we may see a rise in the acceptance of zoning for multi-family housing, especially in the suburbs. 
   Such a trend is already underway in crowded Los Angeles.  Although it holds a reputation as a premier “sprawl” city of low density, planner Todd Gish writes, in an opinion column in the L.A. Times, that Los Angeles has a long and venerable history of multi-family housing.  Nearly half of the population lived in other than a detached, single-family housing as recently as 1924.  And many affluent old areas, such as Wilshire Boulevard, retain many apartment buildings.
   The growth in childless households increases the demand for dense housing.  So does immigration, which brings many poor families with no immediate expectation of a   picket fence to places such as Los Angeles.  Successful suburbs, such as Cerritos, southeast of the big city, are today the goal of many immigrants –- although Cerritos itself historically has been a classic sprawling suburb, as the Economist explains.  My guess is that suburbs such as Cerritos will hold a lot more quality multi-family housing 20 years from now.  And that’s a good thing. 

Heavy metal thunder .. and two-wheeled racks ..

   One potential solution to overcrowded highways and high fuel prices is a move to two-wheeled vehicles.  But a rise in motorcycle usage is prompting some local governments to take legal steps to curb noise pollution.  Here’s a story from today’s National Public Radio.   At the same time, more cities are requiring that new apartment buildings have “parking” for bicycles –- something that that law has long done in connection with motor vehicles.  I’d like to see law require that every new development -– residential or commercial –- include well-built, well-placed bicycle racks.  (Can you tell that I’m a cyclist?)

Of open space, spot zoning, national parks … and Fat Mama’s Tamales …

    A parcel designated as “Open Land” in Natchez, Miss., has been used as a paved parking lot.  This says a lot about the nation’s “open space” laws.  But the lot may soon become the new home to Fat Mama’s Tamales, thanks to a Mississippi court opinion that upheld this week a city decision to rezone the land.  (Adams v. Mayor and Board of Aldermen of the City of Natchez, No. 2006-CC-00699 (Miss. Ct. App. Sept. 11, 2007)).

   Fat Mama’s had to move from its previous location when the federal government took the land by eminent domain for a national historical park facility.  Neighbors of the “open land” complained that the decision to re-zone for business constituted “spot zoning.”  But the appellate court concluded that spot-zoning violations typically are found only when zoning is done “to favor” someone (and no evidence of that here, of course).  The court upheld the change, concluding that the re-zoning would not be “out of harmony” with the area, which already holds a number of businesses.  So let’s shed a tear for the loss of one more “open space” in the United States, and let’s order a pitcher of margaritas … 

A slowdown in the West's transformation to natural gas production ...

  Although a stereotype is that most coal comes from the mountains of Appalachia, the largest coal-producing state in the nation is Wyoming, especially in the Powder River Basin.  With a new push for domestic sources of energy, the government has plans to expand leasing to extract underground coal bed methane, which is a natural gas.  This week, however, the U.S. Court of Appeals for the Ninth Circuit upheld a partial injunction on coal bed methane development in the Powder River Basin.  The Court affirmed a lower court ruling that the Bureau of Land Management did not create a sufficiently detailed Environmental Impact Statement; extraction can resume when and if the agency creates a sufficient study.  (Northern Cheyenne Tribe v. Norton, No. 05-35408 (U.S. Ct. App. 9th Cir., Sept. 11 2007)).   

    While the government controls the subsurface minerals in the Power River Basin, farmers and ranchers own most of the surface.  Environmental problems with coal bed methane extraction include the pollution of rivers with groundwater, the lowering of the water table, and aesthetic harm of wells and machinery on the surface. 

   The case highlights our nation’s conflicted view of domestic resource production:  We prefer to be less reliant on foreign sources of energy, but dislike the land use injuries caused by mineral extractions.         

Learning not to be too bright in Las Vegas …

   Use, height, and area are the three features of land most traditionally regulated by land use law.  What about brightness?  Las Vegas, that center of dazzling architecture, is considering tougher limits on the intensity and flashing of its ubiquitous signs, especially in order to avoid distractions for drivers. 

   We live in a world of increasing visual distractions, in everything from the wattage levels indoors (today’s interiors are far brighter than they were 70 years ago) to an increasingly distracting ads on internet sites.  But it seems that one realm in which law should impose some visual quiet is on the road.

Without zoning, it’s a roller coaster ride …

    Zoning laws were justified in the early twentieth century in part through horror stories about industrial land uses in a rapidly urbanizing nation being built next to established homes.  Such stories are still possible in freedom-loving Texas, where big news this week was the opening of a new commercial roller coaster, the “Broadway Bullet,” right next to an old home in Kemah, Texas, on the Gulf Coast.  The owners had refused to sell to commercial interests who wanted to further develop the waterfront area.  Like some other cities in Texas, Kemah has no zoning.  Here is a story, along with an entertaining video, from the Houston Chronicle.

   Would a Texas court enjoin the roller coaster a nuisance?  Or is the house now simply in the wrong spot?  Is such a tale a justification for zoning?   Should the city buy out the house through eminent domain?

   Even if the owners can’t get any relief from law, they might get some assistance from another source: A roller coaster aficionado has indicated that he might be interested in buying the house.  This might not be so bad –- Do you remember the story of Alvy Singer’s youth in Woody Allen’s “Annie Hall”?

Exclusion + bubble + single adults = a demand for apartments!

   What happens when exclusionary zoning meets a housing equity bubble, which in turns meets a boom in immigration and single-adult households?   What happens is that huge houses are built, which then turn into de facto rooming houses for single adults.  The Washington Post calls the phenomenon “McMansions Turn ‘McApartments.’” 

  This effect is already resulting in calls for tighter limits on the sizes of houses and tougher enforcement of laws restricting the number of non-related persons who may live in a “single-family” house.  These calls will be especially loud in places where large numbers of immigrants (many of whom migrated to the area to work in the housing construction industry) are living in the big houses.  After all, since the days of Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), American law has viewed the apartment building in a residential area as a “parasite.”

  We are likely to hear less frequently, however, the reasonable plea that the exurbs –- where so many immigrants and other single-adult households now live, because this is where the jobs are –- desperately need a greater supply of apartment housing.  Our exclusionary zoning laws keep them out.  No where else does government regulation work so powerfully against the forces of the market to restrain the happiness of the less powerful, in favor of the more powerful.