Land Use Prof Blog

The lonely carpool lanes …

   Once upon a time, carpooling was a common way for citizens to avoid the costs and drudgery of the daily auto commute.  Back when more jobs were in central downtowns, when more people worked regular schedules, and when fewer families had multiple cars, it was quite common for co-workers to establish a carpool to bring them to and from their 9-5 jobs.  But today, has our more fractured society left carpooling in the dust?

   From Boston comes a story about the underutilized carpool lanes in the recently opened Big Dig tunnel system.  In a city infamous for some of the worst traffic in the nation, studies have shown that some “high occupancy vehicle” lanes average only about two or three vehicles per hour, during rush hour!  Faced with a similar lack of attention, other locales have changed HOV-3 restrictions to HOV-2 restrictions, with minimal effect (other than to facilitate the use of “dummy” passengers).

  Does this criticism lead to a suggestion that Americans won’t leave their personal vehicles for more communitarian forms of transportation?  I won’t say it.  But I will suggest that encouraging carpooling probably isn’t the best way to get Americans to stop driving alone.  I suggest that dollars spent on carpool lanes would be better spent on expanding bus-only lanes in congested routes, along with a heavy investment in big parking garages at residential bus hubs.  Perhaps a better way to get Americans out of their individual cars is to allow them to drive a part of the way towards work …       

Take a parking lot, and put up paradise …

  The problem of abandoned houses didn’t just arise with the current foreclosure boom.  In cities with depressed economies, such as Flint, Mich. (the subject of Michael Moore’s film "Roger and Me"), and New Orleans (which had thousands of empty houses even before Katrina), abandoned properties have long been local sore points, in that they attract crime and decrease the values of nearby occupied properties, pushing the communities into downward spirals.  If local government is allowed to steer development through land use law, it certainly should be allowed to take steps to solve the social problem of abandoned property.

    As NPR reported this morning, Genesee County, Mich., which includes Flint, is encouraging, through a county land bank, alternative uses for abandoned houses.  A property that is foreclosed for non-payment of taxes can be re-sold for one dollar to neighbors and other organizations that pledge to tear down unused buildings and turn them into community-friendly places, such as gardens, parks, etc.  This system often results in better uses for land than with properties sold at auction, at which houses are often bought by speculators who have no immediate plans to do anything with the property. 

  It is truly a remarkable society in which development in a former large city can turn into a plot of gardenias and sunflowers.  But the globalized economy demands that Flint “downsize,” and it makes sense for government to control its downsizing in a least-painful manner.

From London 1666 to San Diego 2007 …

   New ideas of land use law took formative steps after the great London fire of 1666, when the English government learned the value of urban construction that resisted fire.  But fires continued to plague London until modern times.  In southern California, the fires of October 2007 may generate another major step in the continual drive of laws toward requiring tougher construction.  In particular, much attention is being given to a group of tony private developments in Rancho Santa Fe, outside San Diego, where fire resistance was a top priority.  Noncombustible roofing materials, copious numbers of sprinklers, and fire-avoiding plants (no palms, pines, or eucalyptus) are among the rules.  Nearly all of the homes in these communities emerged unscathed, with many residents still in their homes, even through they were in the path of one of the biggest fires.

   Should the fire-tested lessons of construction and landscaping lead to mandatory laws?  Or should they simply be a matter of private choice?  On one hand, slowing a fire is a public good.  On the other hand, homeowners don't want to be told what to do by their government.  And some environmentalists may be uneasy with the idea that improvements in building might serve as an alternative to the calls for fewer houses in the desert hills.

“Retreat” from risky regions?

   The huge fires in southern California this week are likely to revive calls for a reassessment of land use laws and polices that allow, and sometimes even foster, development in disaster-prone areas.   One thing that many of these areas have in common is that they are especially appealing to development. 

   Eighty-six years ago today, a hurricane hit Tampa Bay in Florida, where I live.  If such a hurricane hit today, it would cause colossal damage, as such a hurricane would do almost anywhere along the coast of the Florida peninsula.  Yet thousands of new residents move to Florida each month, attracted in large part by the water, which also poses to them a great threat.  Much of the debate in Florida politics over the past few years has swirled around how and whether the state government should support insurance for homes in risky areas.  Meanwhile, the federal government also props up flood insurance.

  Across the continent in California, new residents are drawn to the beautiful desert hills; this attraction has become especially strong in recent years, as most of the lowland areas of coastal southern California have in effect been filled up.  But these hills—steep, dry, and covered with oily bush—are some of the most dangerous places to live after a bone dry California summer.  And the winter rains may bring mud slides.

  Is it too late to call a “retreat,” or at least to call a halt to policies—guided by sympathy for landowners in such areas—that encourage such risky development?

The San Francisco Bay area is now closed; please move elsewhere …

   Conservationists and developers frequently clash over the designation of “open space” in a metropolitan area.  For the former group, more open space discourages sprawl, helps nature, and provides for breathing room (sometimes literally) for crowded metropolitans.  For the later group, designation means both a loss of potentially profitable land and an assurance of upwards pressure on housing prices.  Nowhere in the United States is this conflict sharper than in the San Francisco Bay area, in which environmentally minded governments have designated large amounts of open space in a metro area that is already hemmed in by water, mountains, brush, and farms. 

    In SFGate.com this week, home builder Joseph Perkins argues that far too much of the Bay area has been designated as off-limits to development, with the result that the region has a critical shortage of affordable housing both today and in the future.

   It is easy to be cynical and assume that home builders use the affordable housing argument as a leverage to gain greater opportunities for profit.  Regardless of this, the housing crunch in the bay area is undeniable.  Perkins asserts that the Bay area will grow in population by 1.5 million by 2030, but that there’s no place to house these new residents, who will come through births and migration.

  But is the bottom line for some conservationists this: They simply don’t want the Bay area’s population to increase?  Can local governments say, through land use law, in effect, “The Bay area is now closed to any new significant migration?”  To those who were lucky enough to live here already, congratulations, but for others –- well, look elsewhere?  Is this a valid role for government's land use law?

This is a porno book; this is not; this is …

    On Friday, I wrote about the entanglement of government with religion in deciding land use cases.  Today, I write about the need to scrutinize speech in order to determine an issue concerning land use and the press.

   A challenge to the “adult bookstore” rules of Fulton County, Ga. (which includes Atlanta), was rejected on Friday by the U.S. Court of Appeals for the Eleventh Circuit.  (The case is Starship Enterprises of Atlanta, Inc. v. Fulton County, No. 06-15448, decided Oct. 19, 2007.)  The plaintiff store sought to challenge the county’s rule that imposes a special use permit requirement for any “adult bookstore,” which is defined as “having a minimum of 25 percent of its stock in trade” as sexually explicit merchandise.  (Fulton County Zoning Res. sec. 3.3.1A.)   The county concluded that the store, soon after it opened in 2004, contained more than 25 percent sexually explicit material.  The store disagreed, leading to the lawsuit.  Under the Fulton County ordinance, could a store avoid an “adult” designation simply by dumping thousands of old ordinary magazines and comic books “for sale” in the back of the store, in numbers that overwhelm the number of “adult” materials in the front of the store?  If the ratio appears to be close, what sort of fact-finding has to be undertaken:  Is each and every non-duplicative piece of merchandise to be categorized separately in calculating the ratio?

   Happily for the bookstore, its location was then included within the newly created City of Sandy Springs, which was not so tough on the store. It granted a business permit earlier this year and the store is now in operation, making the case moot. 

When government and religion clash, the results are …

   One of the most intractable issues of public law concerns the effect of laws on religious groups.  On one hand, if a wide-ranging law imposes a burden on religion, it may be considered an infringement of the constitutional right to exercise religion freely.  On the other hand, if exceptions are made, this may cause an unconstitutional “establishment” of religion.

   In Westchester County, N.Y., a Jewish school won this week a land use challenge against the Village of Mamaroneck, which had denied a special use permit application to expand the school.  (The decision is Westchester Day School v. Village of Mamaroneck, No. 06-1464-cv, U.S. Ct. App. for the Second Circuit, Oct. 17, 2007).

    The school argued successfully that the town violated the federal Religious Land Use and Institutionalized Persons Act, in which Congress in effect enacted a variant of the existing constitutional law.  When a land use regulation imposes a “substantial burden” on “religious exercise,” the regulation is lawful only when it furthers a “compelling” governmental interest and is the “least restrictive means” of furthering this interest.  See 42 U.S. Code section 2000cc(a)(1).  Needless to say, each of the quoted terms raises more questions than it answers.

    Although one of the purposes of the Act was to avoid government “entanglement” with religion, in practice even a religious protection law often results in just such an entanglement.  In the Westchester case, both the federal trial court and the U.S. Court of Appeals delved into facts of how Jewish religious education was practiced at the school, as a means of supporting the courts’ conclusion that the school’s inability to expand would harm the school’s religious education, not just peripheral school functions such as recreation or office space. (But query:  If a school can’t administer itself adequately, how can it carry out religious education?)            

   After the courts found that the permit denial burdened religion, they then concluded that the town didn’t have a compelling interest in denying the special permit.  The courts relied on the fact that the town had initially approved the permit application, but then reversed itself after complaints from neighbors of the school.  The courts found that the neighbors had an “undue influence” on the town’s decision.

  But what kind of influence is “undue”?  There was no assertion of bribery or any such unlawful action.  If local governments were not allowed to make decisions based on complaints of neighbors, this would demolish land use law as we know it.  This doesn’t mean that the town should have won, but it does point out that neither I, nor most other attempts at resolving such controversies, provide a fully satisfactory means of reconciling government-religious clashes …       

 

Government by referendum?

  Imagine if the government held a public vote on many issues pitting the supposed public interest against one party’s putative freedom.  You want to live far from work and emit a lot of greenhouse gases during your commute?  Let the town vote.  You want to send your kid to private school, thus exacerbating racial segregation in the community?  Let’s vote.  You want to change your factory’s production line to robots, thus saving money but putting people out of work?  Let’s vote.       

   If these sound preposterous, consider that referenda are becoming a more common method for deciding land use questions.  Because government’s land use decisions are supposed to be based on the “public interest,” and because public referenda seem to embody democracy at its purest, the courts have largely approved local governments’ decisions to punt … er, rather, to refer to the people … the decision whether to approve a land use plan.  (For example, City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976)).

   But the public is not very good at considering the argument of private property rights and interests, especially when the typical citizen has little interest (in both meanings of the word), other than to decrease traffic.  I humbly suggest that a governmental body, such as planning or zoning agency, which has the time and inclination to consider both sides of an issue, with the approval of elected representatives, is the best body to make land use decisions.  (And yes, I recognize the greater likelihood that such a small governmental body will come under the sway of wealthy developers.)  Sometimes representative government is better than direct democracy. 

   Yet many localities are considering more public referenda in land use decisions.  In Sarasota County, Florida, a forthcoming referendum would require a 4-1 supermajority of county commissioners to approve changes in the comprehensive plan to increase density.  A “yes” vote would lend support to the idea that most citizens aren’t opposed to growth per se, they just don’t want it near them … 

Too many bank branches? …

    When was the last time you visited a brick-and-mortar branch of your bank?  Despite the growth of online banking, many banks apparently find that the presence of a bank near home or work remains very appealing to customers (both to those who do not bank online often and to those who, unlike me, have high finance to conduct in person).  The result is a proliferation of bank branches in American cities.  It has become so prominent that some cities are taking steps to restrict new bank branches by zoning law, on the assumption that banks don’t add much to the “buzz” of a city neighborhood trying to revitalize and keep residents from decamping to the suburbs.  Chicago already restricts bank branches from being too close to each other on designated “pedestrian streets.”   Washington, D.C., is considering a similar step.  Behind this is also a policy of desiring to support the idea of small business owners (flower shops, bakeries, etc.) at the expense of big impersonal banks.  If everyone were like me, and visited their bank only once a year, we wouldn’t have this unusual land use policy dilemma …

Protecting art’s inspiration?

    Should land be restricted in its use because it was the subject of art?  The Cape Cod Commission voted last week to scrutinize more closely the plans to construct a house that would stand in the view from the Massachusetts beach home of painter Edward Hopper, who often painted what he saw out his window.   

   In one sense, a famous “vista” could be treated like an historic building.  Legal restrictions could be justified on the ground that preserving the existing land use enables visitors to see what witnessed some past event –- a famous person’s home, or a famous painter’s inspiration.  But an interesting essay in the New York Times suggests that what truly matters is the “inner view” in the work of art itself, not its outside inspiration.

Calling “retreat” on the Gulf Coast?

   Retreat!” is the cry of many environmentalists and some economists in regard to government support of human development on risky coastal areas.  Historically, federal and state programs have given developers and owners insurance and security to build in attractive but storm-prone coastal regions, such as those along the Gulf of Mexico. 

   But in some places, such as Bay St. Louis, Miss., which felt the full brunt of hurricane Katrina in 2005, a debate is raging over a change in policy.  Among other things, the U.S. Army Corps of Engineers is offering a buyout of homes, in the hope of rebuilding wetlands (which act as a buffer to storms) and discouraging the rebuilding of houses along the coast.  Among local concerns about the plan is the worry that reconstruction will be done in a patchwork manner –- with a rebuilt house next to a bought-out lot.      

   Our land use policies have typically bent over backwards to help homeowners (who are often affluent) who have built in risky areas –- insurance and buyouts have helped residents who otherwise wouldn’t have had protection from the private insurance market.  To the extent that predictions suggest that it’s too risky to live in certain locations, and that the long-term public good would be served by more wetlands, government should discourage people from rebuilding –- or at least not give them insurance.

Water, land use, and drawbridge protectionism ...

   Who should make decisions as to water supply -– state or local governments?  Whose responsibility is it to try to deliver enough water for a growing region?  And whose decision is it that land use growth needs to be slowed on account of an insufficient supply of water? 

  These questions are currently at issue in southern Florida and in many other places where the local supplies of fresh water are no longer adequate to fulfill the needs of a thirsty and burgeoning community.  In Broward County, the regional water management district (which issues permits) has in effect halted some new developments until local governments acquire new sources of clean water.  The water management district must try to balance many competing demands –- ecological demands to keep more fresh water flowing to the Everglades, local citizens who want more water to keep prices low (and Florida’s water prices are among the nation’s highest), and developers that point out the inevitable rise in demand in popular locations.  South Florida currently gets most of its water from the limited supplies in underground aquifers, thirstily eyes the larger water supplies of north Florida, and debates whether to spend millions on the expensive and risky but potentially problem-solving solution of desalination.

   Considering these competing demands, it makes sense to me that slow but steady increases in water prices would help spur conservation (especially among large users such as farms and industry) and help ameliorate both the ecological and consumption dilemmas.  More troublesome, however, is the likelihood that advocates of “slow growth” policies (which is some circumstances can be characterized as drawbridge protectionism and NIMBY) will use water dilemmas in order to keep out prospective newcomers.  Small water supply problems shouldn’t be a mask for decisions on broader policy issues of land use development.

Favoring wine-growing in Oregon?

  The wake of Oregon’s Measure 37 in 2004, which enabled many property owners to challenge the state’s famously restrictive land use laws, was bound to include calls to stop new suburban sprawl in certain areas.  Interestingly, the group that is leading a push for an amendment this year is winegrowers.  Here’s an official state document concerning proposed Measure 49.  Among other things in the long and complicated ballot measure is a restriction that subdivisions would not be permitted on “high-value farmland” (which has its own long and complicated definition).  Regardless of whether one supported or opposed Measure 37, the proposed new law would, in my view, impose an unwelcome favoritism for one certain type of land use –- wine-growing –- over others.

    The Oregonian newspaper opined this week in favor of the proposed restriction to help vineyards.  Without more controls, it argued, development would “jeopardize thousands of acres of potential vineyard land [that wine growers] need for expansion.”  Understand this:  Law would be imposing restrictions on land use because of an expectation that one kind of business –- wine-growing –- might want to buy the land in the future.  Is this the proper rule of government?

   A prominent argument in favor of the measure is that the wine business is of growing economic importance to Oregon.  But do we trust government, as opposed to the forces of the free market, to make decisions as what kinds of land use are the most economically valuable?  Some growers argue that wine tourism will suffer if developments simply are allowed nearby.  Is this what government is for –- to foster wine tourism (which tends to be engaged in by wealthier people, of course) over factories and stores that give jobs to lower-income people?  Why wine-growers and not turnip farmers?   Which group is more likely to be able to run a well-funded ballot campaign?

From mortgages to murder? …

In this newspaper opinion article, the treasurer of Cuyahoga County, Ohio, appears to pin the blame for a rise in violent crime in the Slavic Village neighborhood of Cleveland on lax mortgage lending –- which led to many risky mortgages, which led to a lot of foreclosures, which in turn led to a lot of abandoned houses, which in turn to criminals taking advantage of the vacant houses.
    Perhaps a more direct way of stopping this sort of crime would be laws that encouraged both lenders and borrowers to keep homes occupied before and after foreclosures.  This seems far more direct than blaming crime on loose lending practices …