Land Use Prof Blog

What fast-food breakfasts tell us about land use law …

[New Suburbia: One of a series about new aspects of the suburban realm.] 

  Critics of the suburbs like to excoriate fast-food joints as the quintessence of soulless, auto-bound, conformist, fattening suburbia.  But it is interesting to relate the fate of McDonald's, the nation's most famous fast-food purveyor, with the attitudes of Americans about where they chose to live. (As for me, I haven't partaken of the golden arches since law school, which was a long time ago.)   As McDonald's' popularity flagged in recent decades, some linked it to the oft-predicted but rarely-documented rejection of suburbia by Americans in favor of a more healthy and imaginative lifestyles.  But the recent news is that McDonald's' sales are back up, in large part attributable to soaring breakfast purchases; many more Americans are driving to McDonald's and then eating as they make their long driving commutes. 

  Either this expanding phenomenon is an example of Americans' accepting (embracing?) the lifestyle of ever-longer commutes from exurban homes to their jobs, or, as some critics might suggest, the sad result of land use laws and policies that "force" Americans to live far from their workplaces.  Let the arguments about the lessons of McDonald's breakfasts begin …   

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Housing Law as Potter …

    Over the Christmas weekend I watched again "It's a Wonderful Life," the great 1947 film about housing and credit (and other things, I suppose).  This year, I was struck by a scene early in the film in which the evil financier Potter chastises the saintly operators of the Bailey Building and Loan for granting mortgage loans to those without a solid credit history, including "garlic eaters" who bought pleasant little homes in easy-credit-fueled "Bailey Park."   

  It occurred to me that the current spate of proposals for laws to toughen mortgage credit requirements is an echo of Potter.  (This is not to suggest, of course, that most mortgage lenders over the past decade were spurred by Bailey-like altruism.)  The result is that far fewer loans will be given to families without a strong credit history, and far fewer loans made to immigrants and lower-income members of racial minority groups.  For land use, this will mean far fewer "Bailey Parks" -- that is, there will be a greatly diminished demand for modest homes.  This will translate into a drying up of new construction for small houses -- perhaps for many years -- and a concomitant increase in the demand for apartments, by families who otherwise would have been buying.  It remains to be seen whether local government land use law will be able to respond nimbly to these changes in housing demand.  It's not always such a wonderful life …      

Dimmer red lights in Amsterdam …

   Here's another striking example of land use law being employed as a surrogate for other social values.  In Amsterdam, the famous and infamous red light district has long been one of the city's most popular "attractions."  In 2000, the Dutch government made prostitution fully legal, in the hope that it would transform it into just another occupation, with rules, regulations, and protections for workers.  But the crime and abuse that surround prostitution have not been easy to cleanse.  Accordingly, Amsterdam's mayor announced this week a new plan to transform much of the red right district into new, non-sex-related development.  While closing many of the brothels will no doubt push some prostitution "underground," the government appears to hope that making prostitution more difficult through land use may help ameliorate some of the social problems that the trade generates.  It reminds one of the failed experiment of Zurich, Switzerland, with its "needle park" in the 1980s, when the Swiss attempted to control heroin use by legalizing and regulating it in one particular area of land. 

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Requiring a walk before a drink …

  Other nations may now be as automobile-crazy as America has been for decades, but I doubt that any nation can touch the United States for the amount of things that one can do in one's car.  Although Americans have largely abandoned the novel practice of watching a movie from one's car (this is now most often done at home), Americans line up to buy donuts and burgers, watch DVDs, sleep, make love, and purchase alcohol from their cars.  But a growing number of jurisdictions are banning the practice of drive-through liquor stores.

   The government of Charles County, Md., a booming exurb south of Washington, is working on a plan to prohibit drive-through sales as part of the requirements for liquor licenses.  Interestingly, the reasons for the ban appear to be two-fold.  First, the county wants to burnish its image from -- well, the kind of place where people buy beer at drive-throughs -- to a more sophisticated suburb of comfortable residential developments.  Second, the county apparently believes that drive-throughs encourage drinking and driving.  A switch to walk-in only liquor stores won't stop everyone from drinking and driving, of course, but it does require more effort to park one's car and enter a liquor store on foot -- and we already know that Americans don't like to leave their cars.  Accordingly, marginally less alcohol would be sold.  Once again, land use law is used as a means to indirectly foster other policies -- here, the effort against drunk driving -- with the prospect of rather uncertain results …

Requiring buildings to take the LEED in being “cool” …

   Because of their voracious gobbling of energy for heating and air conditioning, buildings directly or indirectly account for a large share (estimates range from 30 to 50 percent) of the United States’ emission of greenhouse gases.  As the American legal effort on climate change shifts to a variety of non-federal sources, it is no surprise that many are calling for office buildings (which may not account for more energy than residences, but which presumably can afford more expenditures) to abide by energy-saving “green” designs.  And it is no surprise that San Francisco is near the front of the pack.  Yesterday, the mayor of the city by the bay announced a legislative proposal that would require new large buildings to comply with tough LEED standards of the U.S. Green Building Council.

   While some developers are voluntarily seeking out energy-saving designs, the private sector doesn’t usually like government to tell it what to do.  And there’s the fear, as the “public choice” school of criticism warns us, that a regulation touted as “green” may in fact be a mask for helping certain private interest groups—such as contractors who may benefit from putatively green design and products—at the expense of others.  It’s good to see, therefore, that the San Francisco plan would track the LEED standards, which have got good reviews from many quarters.  If the experience from the federal environmental laws is any guide, a requirement to follow a prescribed set of technology generates a lot of complaints about “command and control” and excessive costs, but holds the benefit of being straightforward and relatively easy to monitor.  Until the world adopts a more “efficient” planetary system for trading in all types of pollutants, of course …

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Planning for a more diverse future with a diversity of housing …

[“New Suburbia”: This is one of a series on the changing aspects of suburbia.]

  While most reports have emphasized the demand aspects of the home mortgage crisis -– homebuyers of meager means were given the ability by lenders to buy middle-class houses –- another way to look at the issue is from the “supply” side:  High housing costs steered many homebuyers into risky loans for houses that, upon reflection, they could not afford.  One way to avoid a repetition of this problem is for suburbs to offer more low-cost housing. 

    A handful of suburbs outside Chicago (not the most affluent, of course) are touting their efforts to plan for a greater variety of housing types over the next quarter-century.  In particular, a recent report, published through Chicago Metropolis 2020 and the Metropolitan Mayors Caucus, notes that seniors and Latinos will constitute much of the growth in the area’s population, and that these groups will “likely seek out small single-family homes, townhomes and apartment units in larger complexes” –- the kind of housing that is not provided for in many suburbs, in large part because of the restrictions of land use law. (And there are more than 200 local jurisdictions in Chicagoland!).  The report was discussed in a recent issue of the Economist.   

  The Chicago metro organizations have also published maps for workforce housing, showing where, for example, a local firefighter can afford to live.  While a firefighter can afford to rent (if not own) in many of the affluent old north shore suburbs, the situation is worse in the outer suburbs.  I suspect that this is because the old suburbs, many of which were built up before 1950, include a greater variety of housing stock, with greater density, than in newer areas.  But this has not made today’s suburbanites shun these north shore suburbs …

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Gated communities -- neither boon nor doom?

[“New Suburbia”: This is one of a series on the changing aspects of suburbia.]

   Left-leaning social critics have long disparaged the phenomenon of “gated communities” as an anti-social reflection of white suburbanites trying to hide from “the other,” with unsavory undertones of racism and an irrational fear of crime (when the suburbanites aren’t worried about their children being poisoned by Chinese toys).  Transportation planners sometimes fret that the isolated nature of gated communities makes integration into road systems difficult.  Barbara Ehrenreich recently published an essay arguing that gated communities don’t really provide the safety that they offer, referring to anecdotes and studies about crime within gated neighborhoods.

    To me, the gated community is an unsurprising manifestation of the human desire for a sense of security –- whether or not it is effective.  Haven’t fancy Manhattan apartment houses always had a doorman?  Don’t middle-class walkup apartments have a locked door and a buzzer system?  Hasn’t the European vernacular of townhouses often presented a forbidding aspect to the street, with life centered on a secluded courtyard (unlike the British vernacular of a more inviting front door)?  Aren’t fences and gates far more ubiquitous in many other non-Western nations, which can’t be tarred with charges of American racism?   

   To the extent that Ehrenreich is correct that a gated community provides no refuge from crime, I would like to use this assertion to bolster my contention that the old chestnut about a sharp dichotomy between “city” and “suburb” makes little sense in today’s America.  Affluent old neighborhoods in big cities that have no gates (and yes, many “cities” include single-family homes) often have low crime rates, while gated communities in suburbs can be plagued by crime, especially if they are offer moderate-cost housing (a growing phenomenon) or are close to a poorer neighborhood.  Land use law acts like an ostrich if it clings to outmoded notions about a homogeneous and bland realm of suburbia.

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Fewer Stonewalls, and other losses of the city …

   If you wanted to figure out whether a neighborhood was safely hip back in the 1990s, you might have asked whether it held a Starbucks.  And if you wanted to know whether a “dirty” urban neighborhood was being cleaned up, you might have asked whether there was a gay bar—as gays often were urban middle-class pioneers.  But today the urban gay bar is a disappearing phenomenon, according to Robert David Sullivan in a fascinating assay in this week’s Boston Globe.  Gay bars offered a sense of community for gays back in the 1990s, he writes.  Today, that sense of community is being lost, along with other unique urban commercial places, such as independent bookstores.

    Sullivan wisely attributes the loss of urban gay bars to a number of factors—some lamentable, such as the pushing out of all but the wealthy from many urban neighborhoods, and some welcome, such as the more tolerant nature of today’s America.  The author also points out that gay bars, like bookstores, are suffering because gay men now meet (and buy books) on the Internet. 

  I would have emphasized even more another factor in the loss of unique urban commercial places:  the continuing, relentless suburbanization of America.  In my pleasant little middle-class suburban town of Gulfport, Florida, for example, there appear to be at least two gay bars.  If one wants to find a second-hand bookstore or a Czech-Tanzanian restaurant nowadays, the best place to look is often not the city, but some corner of a strip mall in a middling suburban community.  For better or worse, this is where diversity can still be found in abundance. 

[“New Suburbia”: This is the first of a series on the changing aspects of suburbia.]

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The invasion of college students on a slippery rock …

  As I tell my students, no category of prospective neighbors shoots fear into the hearts of property owners as much as the prospect of … college students!  In Slippery Rock, Pa., the township’s decision to approve a planned apartment development designed largely for college students (of the eponymous adjacent university) was recently affirmed by a Pennsylvania appellate court.  (The case is Ligo v. Slippery Rock Township, No. 2216 C.D.2006 (Pa. Commonw. Ct. Nov. 29, 2007.)

   The challengers raised 15 arguments against the township’s approval of a “planned residential development” (PRD).  Among the most striking of the challenges were arguments that the local zoning ordinance requires a PRD to be primarily single-family houses, and that the buffer zone must be three feet per unit (there are 244 units planned) around the entire development, which would require a 732-foot buffer!   The appellate court rejected these and other interpretations, in part with the principle that, “To the extent there is an ambiguity, a zoning ordinance is to be read in favor of the landowner and against any implied extension of restrictions on the use of one’s property.”  Is this a “slippery” slope?  (I couldn’t resist.)

If you build it, will they walk? …

  It was certainly no surprise that the metro areas of Washington, Boston, and San Francisco were at the top of a ranking of the most “walkable” large areas in the nation, according to a detailed new report of the Brookings Institution.  Interestingly, New York was only 10th, just two places ahead of Los Angeles.  (Sadly, my area, Tampa Bay, was at the bottom of the 30 listed areas.)  On the Marketplace radio show yesterday, Brookings’s Chris Leininger ascribed the booming popularity of “walkable urban places” in new locations, such as Pasadena, Cal., in part to young adults who were raised by watching hip walking Manhattanites on “Seinfeld,” “Friends,” and “Sex and the City.”  (Was he joking?)  More seriously, Leininger suggested that land use law needs to be modified to accommodate more mixed use, walkable neighborhoods that combine apartments, offices, shops, and entertainment, which young people are clamoring for.  Attaboy … 

“Irrational” rent control is alive and well in California …

  Conservative critics of the reviled 2005 eminent domain decision of Kelo v. City of New London face the dilemma that their criticism amounts to an argument for judicial “activism” in “legislating” over the heads of the people’s elected representatives.  Despite considerable reaction to Kelo in the halls of the state legislatures, its effects continue to reverberate.  Yesterday, a U.S. Court of Appeals held that a rent control law does not violate the Constitution, citing Kelo as precedent.  (The case is Action Apartment Assoc. v. Santa Monica Rent Control Board. No. 05-56533 (U.S. Ct. App. 9th Cir. Dec. 3, 2007.)

   Landlords in Santa Monica, which like much of the Los Angeles area is both diverse and expensive, argued that changes in the housing market have made the city’s rent control laws (first adopted in 1979), especially rules that make it difficult to evict residents, both “arbitrary and irrational.”  But Kelo and other precedent hold that a court must defer to a legislature, even in the face of factual evidence that the later’s decision was unwise or outmoded.  The federal court cited a precedent from 1991 that rent control “substantially alleviated hardships to Santa Monica residents.”  The court did not add, but could have, that even if it could be shown that more renters are harmed by the laws than helped, it is up to the legislatures, not the courts, to make these policy decisions.  As conservatives are wont to say, if you don’t like a law, don’t complain to a court; rather, tell your elected representative:  “There oughta be a law!”