Land Use Prof Blog

Five grand for a short commute … but which way?

  It is always more palatable for government to give a “tax break” for behavior it wants to encourage, rather than to impose extra tax for behavior that it doesn’t.  This is true even when the category of “good” citizens might be as large as that of “bad” ones.  So, instead of trying to penalize residents for long, gas-guzzling commutes (such as through a higher gas tax, as relentlessly advocated by Thomas Friedman), the state of Maryland is rewarding citizens for having a short commute.  A new program rewards homebuyers up to $5,000 to defray settlement and closing costs, if the new home is within 10 miles of their work, or within the same county. 

   Such a program undoubtedly will affect some residents’ buying choices, even in a fairly dense state such as Maryland (and let’s hope, for taxpayers sake, that the documentation that the state gets is better than that collected by subprime lenders over the past decade).   But, like any subsidy, it may have some unwanted consequences.  More than half of Maryland’s population lives in a handful of large suburban counties that spread more than 20 miles in either direction.  Thus, a lot of buyers in sprawling subdivisions far from Baltimore, Annapolis, and Washington will be subsidized as “short commutes.”  Next, because many inner suburbs tend to be wealthier than outer suburbs (as low-cost housing drifts further out), much of the subsidy may end up going to buyers of big old close-in houses instead of less affluent buyers on the low-cost fringe.  And, finally, if some homeowner decisions are affected by the grant, might the subsidy also affect some decisions of employers as to where to locate –- such as away from an urban area and into the middle of a sprawling new suburban realm?

Yes, we’re New Jersey, but progressive thinking only goes so far…

    Here’s a kind of story that I probably could write about every day.  A town rejects a plan for compact, lower-cost housing because it fails to meet the density “character” requirements of the community, with the loss of apparently socially friendly housing.  In this case, the town is Harding Township, N.J., where, according to the New York Times, the government has rejected a plan to build 32 small, “eco-friendly” houses because they don’t meet the town’s five-acre minimum lot size requirement.   Will this rejection preserve the “rural” character of the township?  Perhaps.  Will it push development pressures elsewhere and further out, causing greater environmental harms, and further exacerbating the low-cost housing crunch in the state as a whole?  Probably.  And this is in New Jersey, a state that has often been at the vanguard of encouraging land use law to consider more than just the parochial desires of the locality, and to consider greater social needs.  Sigh …

Mixed use is affordable housing … at least in Massachusetts …

   Land use law is unusual in the American legal system, in that it often works to the detriment of what poorer people would get in the free market—often explicitly, in the case of exclusionary zoning.  Thus it makes sense for governments to sometimes give a break to “affordable housing.”  Massachusetts law did just that last week with a high court ruling that a state statute designed to grease the wheels for affordable housing can override local zoning laws, even when the project includes a commercial use.  (The case is Jepson v. Zoning Board of Appeals of Ipswich, No. SJC-09914 (Mass. Nov. 20, 2007)).

   The local YMCA in Ipswich, north of Boston, helped plan an apartment building, with 18 units, that would meet the state law requirements for affordable housing, which among things include a pledge that all the units will forever be reserved for low-income households.  The first floor would be used for commerce, including a YMCA center, a bank, and a coffee shop “or similar establishment.”  The Massachusetts Supreme Judicial Court held that it was permissible for the town government to grant a fast-track, comprehensive permit for this mixed-use building, regardless of the fact that a routine commercial development would have required more scrutiny. Nothing in the state affordable housing law prohibits “incidental” commercial uses in an affordable housing structure, the Court noted.

   Such a benefit for mixed-use buildings might naturally provide an incentive for developers to re-characterize commercial-dominated developments as “mixed use.”  In the Jepson case, the trial court concluded that the development was not a “subterfuge for commercial development.”  This leaves open the questions of:   What would be a subterfuge?  Would it have to be an “intentional” effort to “abuse” the affordable housing law?  And, considering the court’s citing of the purpose of the law to encourage more low-cost housing, would a finding of a “subterfuge” be a valid ground for a court’s setting aside a town’s approval?  Lawyers, start your engines …   

Not so crazy about ethanol distilleries …

  Few developments have galvanized the American farm belt in the past century as much as the ethanol craze, which promises to bring wealth and world attention back to the land of grain.  But ethanol distilleries are not farms, and plans to build an army of them in midst of farmland is raising considerable opposition, under local land use law.  Even in states that hold "right to farm" laws that hinder suits by newcomers who might otherwise complain that farms' smells and noises constitute a "nuisance" are balking at the installation of large factories that appear like oil refiners in the middle of farmland.  This goes to show that the disruption of land use expectations - even if touted as a great boon the local economy - are likely face local hostility, from urban NIMBY to suburban exclusionary zoning to Midwestern hesitation over the new farm economy.

Growth and towns in a Rocky Mountain exurb …

   Growth and wealth do not necessarily mean more land use laws for a jurisdiction.  Douglas County, Colorado, pleasantly situated between Denver and Colorado Springs, is one of the nation’s wealthiest counties and one of the fastest growing.  It is an exemplar of the continuing expansion of metro areas, turning once rural areas into exurbs.  But its rapid growth didn’t prevent the state from declaring, this week, that ten “towns” in Douglas County will no longer be legal recognized as towns because they have failed to maintain governments.  The story behind the story appears to be that some “town” landowners want to retain the designation because it might enable them to develop their own land use law and allow them to sell to developers for more intensive development than is generally permitted in the county.  Many residents outside the towns don’t want more density, of course.  Like any good wealthy exurb, in much of Douglas County only one residential lot for every 35 acres is allowed …

No Name Key considers the modern world …

  Most often, land use law helps shape residential and commercial development.  But other times, major decisions in development will shape what kind of land use law regime a community must consider.  On “No Name Key” in the chain of islands in far southern Florida, the community is facing the prospect of joining its fellow keys on the electric power grid—something that many residents have resisted in the past.  While some cherish the island’s isolation from the complications that electricity brings, other residents want power to facilitate life on the island, which is just off U.S. Highway 1, which connects the lower keys with the rest of the United States.  But once electricity comes, won’t greater development, including winter homes, more asphalt—and, eventually, the need for stricter zoning and land use laws—come with it?   

Where have all the city groceries gone?

   The rich are different, F. Scott Fitzgerald said, but the poor are different too—especially the communities in which they live.  Many young people in poor towns or city neighborhoods never visit a restaurant; a fancy meal means carry-out.  This is true because there simply aren’t many true “restaurants” in poor communities.  Disturbingly, a similar problem is arising with regard to big grocery stores.  The Chicago Sun-Times recently reported about the supermarket “food deserts” that cover most of the South Side.   For residents of these areas, groceries are typically purchased at small retailers—where prices often are higher and selection lower than at large chain stores.

   Why don’t big retailers open stores in poor areas?  Should government do anything about this problem?  The chief reason for capitalist hesitancy apparently is the fear of special problems of working in poor communities, such as vandalism, theft, and other crime.  In the face of this reticence to market to demand, one could make an argument that government incentives to encourage low-cost grocery stores might provide more economic (and health) benefits for poor people than a raft of other government programs.  Another problem is an urban variant of the “Wal-Mart effect”—that certain residents oppose big box entrants because they will “push out” smaller retailers.  As always, the challenge is to separate supposedly worthy reasons for protectionism (such as the promotion of entrepreneurial role models in certain communities) from less savory ones, such as the protectionism of less inefficient businesses, under various masks, with the chief effect that local food-buying residents pay more and get less for their food dollars.

Meshing common law, statutes, and the constitution …

  It’s been nearly a century since statutory law began to supplant common law as the chief source of land use regulation.  But the old concepts still pop up once in a while.  In an interesting decision this week, the Missouri Court of Appeals upheld the application of a county ordinance that requires companies that store certain inventory outdoors to have fences around their properties.  (St. Chas. County v. St. Chas. Sign & Elec., Inc., No. ED89506 (Mo. Ct. App. Nov. 6, 2007)).  This doesn’t sound too revolutionary.  But what’s intriguing is that the trial court had struck down the application on the ground that ordinance in effect declared all such outdoor storage a nuisance, which was too broad a conclusion.  The Court of Appeals made clear that the ordinance did not declare such land use a nuisance, but rather that it was merely a potential nuisance; the law was a justified use of the police power to avoid unsightliness and potential hazards to the public.

  So everything is straight now, right?  Well, the appellate court concluded by stating that the ordinance also was not a regulatory taking because it is “a valid exercise of the police power.”  Hmmm … maybe the meshing of different strands of law isn’t so clear.  The Missouri courts haven’t helped, through precedent stating that a regulation constitutes a taking when it “goes too far.”  988 S.W.2d at 106.  Gee, I wonder where this unhelpful test came from? 

Mood swings in Oregon …

  The mood of the voters moves to and fro.  In some years, voters’ consternation over taxes impels them to restrict government; in other years, they want government to make our communities more perfect.  In Oregon, the voters yesterday approved by a wide margin a change in state law, called Measure 49, that rolled back some of the property-rights provisions that they approved three years ago, through Measure 37.  Democrats, environmentalists, and metro residents typically supported the latest change.  Among many complicated provisions, Measure 49 restricts new housing and commercial development in certain areas.  While Measure 37 was sold as “protecting property rights” from government laws that lower property values, Measure 49 was touted as shielding areas from “excessive” growth.  As such, it’s not surprising that voters voted for both … or that property-rights advocates are already gearing up for the next round of referenda in Oregon.   

  Meanwhile, although the turnout in Oregon was said to be fairly good, the turnout for the “off-year” election near me in St. Petersburg, Florida, was reported to be about 9 percent.  Democracy at work ….

No smoking in this town’s apartments …

  Life for smokers continues to get tougher in the United States.  A growing number of localities are banning the practice of smoking in apartment buildings, as a way of ensuring that neighbors don’t have to put up with smoke wafting their way.  Such laws have not been pursued as vigorously as bans against smoking in public places because the problem of second-hand smoke is obviously more acute in a place such as a bar or restaurant than it is through the walls of an apartment.  But anti-smoking advocates argue with force that it is difficult to confine all smoke inside a single apartment unit.  Indeed, there are instances of legal claims against apartment mangers under the federal Fair Housing Act, asserting that a failure to limit smoking is a failure to reasonably accommodate a smoking-sensitive handicap, pursuant to 42 U.S. Code sec. 3604(f).

  Libertarians might suggest that the market could resolve this seeming clash of land use desires.  For those persons who are unusually sensitive to second-hand smoke, landlords might attract them with advertisements that their buildings are smoke-free.  For smokers, other landlords might attract them by imposing no limits on lighting up.  But this is not the trend of our laws, at least in certain parts of the country, where the anti-smoking lobby appears to have the biggest clout.

Why isn't an apartment a "home"?

  Today, let’s move up the economic ladder from the homeless and talk about the problem of affordable “homes” in Los Angeles.  In the news this week was the heart-warming story of modest-income families moving into new houses built by Habitat for Humanity and its most famous hammer swinger, Jimmy Carter.  This is good news for the handful of lucky new homeowners, but it won’t, of course, solve the broader phenomenon that the median price of a single-family house in Los Angeles is more than $500,000.  And with the mortgage crunch, families with modest incomes and shaky credit history find it difficult to obtain mortgage loans.

   What troubles me in particular, however, is the commonly expressed perception that ONLY a single-family house is a “home;” small apartments aren’t worthy of such a designation.  Both the L.A. Times and NPR suggested this in their reporting on Los Angeles this week.  Earth to the United States:  In almost all nations of the world, nearly all families, from poor to rich, live in apartments, not in single-family houses.  From Paris to Buenos Aires to Osaka, it is accepted that the advantages of living in a big city come with the drawback of having to live in an apartment.  But not in the United States, and especially not in sprawling cities such as Los Angeles, where the American Dream is dying hard.  But with nearly 18 million people (more than the entire state of Pennsylvania, and more arriving all the time) in the fixed space of the L.A. area, the old luxuries simply can’t be expected anymore. 

  Our land use laws need to be loosened to allow (and maybe even encourage) more construction of apartments (how about on land currently occupied by foreclosed single-family houses?) to house the millions of new urban Americans.   

The never-ending debate over L.A.’s skid row …

  The problem of homelessness continues to evolve both as a public debate and as a feature of nuts-and-bolts land use law.  The nation has evolved both beyond the old days of viewing homeless people uniformly as unworthy “bums,” and beyond the days of the 1980s, when many suggested that homelessness was largely the result of heartless Republican policies.  Nowhere is the new, nuanced view of homelessness a bigger issue of public debate than in Los Angeles, the nation’s second-largest city, where a mild climate allows thousands of homeless people to live on the streets—mostly notably in the city’s infamous downtown “skid row” (although the term apparently originated in Seattle).

    In the city of angels, the government has struggled with the issue of whether to enforce laws against sleeping on the sidewalks.  In a recent opinion column in the L.A. Times, Philip F. Mangano and Gary Blasi criticize the practice of criminalizing sidewalk-sleeping, by pointing out how expensive it is for taxpayers.  One point that they fail to emphasize, however, is that one of the primary reasons for arresting people for anti-social conduct isn’t simply to stop the arrestees, but also to discourage others from engaging in the unwanted behavior. 

  The comentators point out that many homeless persons suffer from mental or other illnesses—a point that helps disprove both of the old stereotypes.  This fact also makes it more difficult for some homeless people to accept changes that might be good for them.  Moreover, the sheer number of homeless persons in Los Angeles makes the preferred solution—providing warm and protected housing for the homeless—tougher in L.A. than elsewhere.

  I suggest that when the political support does not exist for the best solution, governments should consider a second-best solution, such as semi-permanent “shelving,” with a fixed communal restroom, that at least would be better than a cardboard box or a tent on the sidewalk.

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