Land Use Prof Blog

A donkey in the wrong place ...

  The most remarkable thing about nuisance law is its flexibility -– conduct that might be perfectly reasonable in a rural area isn’t acceptable when the area becomes more crowded.  NPR ran a story today about – no, not a pig in a parlor, but about a donkey amidst sprawl.  In Golden Valley, Nevada, just north of Reno, the population boom in the Silver State has brought homeowners to an area that was once rural.  A resident successfully sued to enjoin the braying of a donkey on an adjoining 4-acre lot on land that is zoned as agricultural.  Although the donkey has been on the corral for seven years, most of the surrounding land is now residential.

    Should the claimant have lost because he “came to” the nuisance?  Golden Valley responded with an ordinance that affirmatively informs new residents of the existence of animal noises and smells in the community.  Relying on the famous Arizona precedent of Spur Industries v. Del E. Webb Development Co., perhaps a reasonable solution would be for courts to recognize the changing character of an area and put the donkeys out to more distant pasture, while requiring neighbors (or perhaps the town as a whole?) to compensate the animal owners.  NPR’s story comes complete with the donkey’s braying.

No new mobile homes, please …

   What’s less popular with suburban neighbors than a small mobile home?  Why, a large mobile home, of course!  In an interesting decision handed down today, a Connecticut court held that old mobile homes in a nonconforming mobile home park could not be replaced with new and larger homes, because to do so would work an unlawful “expansion” of the nonconforming use.  (The case is Wiltzius v. Zoning Board of Appeals of the Town of New Milford, Nos. 27787, 27788, 27789 (Conn. App Ct. Feb. 26, 2008)).
   The mobile home park argued both that the park itself (not the homes themselves) was the conforming use, and that a state statute enacted while the case was pending supported this argument.  The Court reasoned however, that the new law didn’t apply retroactively, that larger mobile homes would constitute an unlawful “expansion” of nonconforming buildings, and that public policy argues for abolishing nonconforming uses as soon as possible. 

The ascent of single-family suburban slums?

   I often write skeptically about the long-predicted demise of the suburbs and the return of urban living.  But some interesting counter-arguments are made by Christopher B. Leinberger, of Brookings and the University of Michigan, in the March issue of the Atlantic Monthly.  Like others, he asserts that Americans are beginning to reject the auto-dominated suburban culture and today desire "walkable" places.  (Although the choice of Northern Virginia's Reston Town Center as an exemplar seems to me to be simply a revision of the suburban ideal, not a rejection of it.)  Most provocatively, he suggests that much of the isolated suburban developments built during the recent the housing bubble may be so undesirable in coming decades that they end up as the refuges for the very poor, posing tremendous challenges for local government and land use law.

Preserving culture on the Sea Islands?

  Can land use law succeed in preserving a local culture, in the face of changing economics?  We often hear about fears of “gentrification” in urban neighborhoods, but one of the most interesting stores comes from the rural coast of South Carolina and Georgia, where the Gullah –- African Americans who have kept much of their African culture, in large part because of the long-time isolation of the region –- find their traditional homeland coveted by developers.  The South Carolina government has created a Cultural Protection Overlay District that restricts new development, while Congress has established a Gullah/Geechee Cultrual Heritgage Corridor.

    But just across from St. Helena Island, S.C., is the booming resort, golf, and beach community of Hilton Head.  On the island itself, the Publix grocery chain plans to build a new store; other stores would be built nearby.  While supporters point out that the grocery would be within size limits permitted by the land use laws, others fear that the store will be another step in the transformation of the region into just another piece of generic America.

It’s not a car, it’s not a pedestrian, it’s a …

   One striking modern American invention is our reliance on the automobile for tasks undreamt of even a generation ago.  In much of America, including outer St. Petersburg, Florida, where I travelled today, there is now a mini rush-hour from noon to 1:30, as thousands of workers drive to lunch and then back to their workplace.  How could land use law discourage such behavior?

   The vehicles called Segways offer transportation that is faster and less taxing than walking, but not as environmentally harmful or congestion-generating as driving.  But where should these moderately paced vehicles travel?  Most states have enacted laws that allow Segways on sidewalks and bicycle paths.  But some cities chafe at the prospect of the computer-guided chariots on busy sidewalks, especially when bicycles are not allowed.  A proposal in St. Louis would impose a fee for using the two-wheeled wonders in the city’s Forest Park.  Among the potential complications are complaints from handicapped persons in favor of Segways.   

   As I see it, the problem with Segways is a magnification of that with bicycles -– they may be too fast and unwieldy for busy sidewalks and Saturday park paths, but too slow for streets.  Safety should come first, but law should also be kind to anything that encourages Americans to leave their cars in their parking spaces …

Looking for the future …

   Once upon a time, innovations in land use came from the United States—the skyscraper, the shopping mall, zoning, the drive-through burger joint.  But as United States land use law has discouraged innovation, other countries have taken up the challenge.  In Abu Dhabi, United Arab Emirates, the government is building what is called the world’s first carbon-neutral city: Masdar, with the assistance of designers and firms across the globe.  The city will take advantage of abundant sunshine to soak up solar energy, offer free public transportation, provide a system for easy recycling, and supply desalinated water from the Persian Gulf.  The plan is for the city to house 50,000 residents within eight years.

   Will Masdar become a model for “green” urban design and laws?  Can its features be put in place in societies without top-down control?  I’m not sure, but I do know that Masdar sounds a lot like the “ideal” cities I used to draw with a pencil when I was 12, as did countless other kids across the world.  Perhaps we might be able to agree on “best practices” for urban design before the century is out … 

Parking, transit, and a public purpose …

  The flurry of post-Kelo state legislation designed to limit eminent domain caused some observers to predict that local governments would be hampered in their ability to engage in useful public projects.  Just such an example arguably is playing out in Denver, where a pending bill (a couple years later than most) would limit the Regional Transportation District’s power to take property for expanding the light rail FasTracks system by eminent domain.  The bill would allow the taking of private property only for “public transit purposes,” which threatens the ability to take land for parking and for transit-oriented development.  Without parking, the authority expects limited use, which in turn would dry up federal funds.

  I don’t see why parking is any less for “public transit purposes” than is the land for a station or for a slope on the side of tracks – the ability to park one’s car is an integral part of urban rail systems in our age.

  As for the transit-oriented development, the necessity seems less strong.  If rail stations result in a demand for land uses such as apartments, retail, and mixed use (as we all assume it should), these can be achieved through rezoning and letting the supply respond to the demand.

[Comments must be approved and thus take some time to appear online.]

Sprawl: the ogre that wouldn't die …

  Sprawl is slowing down, right?  This has been the prediction for quite some time.  But here is a Census-derived map that appears to paint a different tale.  The map of county population growth over the first six years of the new century shows that the old trends have continued.  Where are the fastest growing areas of the east?  The answer continues to be the exurban counties of Atlanta, the outer suburbs of the Twin Cities, and the booming counties of northern Virginia –- despite the reputation of all three areas for hellish traffic and soulless planning –- and the amorphous developments of central Florida.  Locations in the West tell a similar story –- suburbs of Denver, exurbs of Salt Lake, counties outside Dallas and Fort Worth, Riverside County, Cal., as well as that colossal suburb they call Phoenix –- continue to be the fastest growing areas.

    Yes, such data can be misleading.  Nye County, Nevada, grew more quickly than Clark (Las Vegas) in part because its population is so small relative to its huge neighbor.  And the map fails to recognize the truth of the small but significant revitalization of many cities.  But as to the question of whether exurbs have continued to fill out in the new century, the answer clearly is yes.   

  Since 2006, of course, we’ve experienced the full burst of housing bubble, as well as record-high gas prices.  So experts will predict a significant slowdown in exurbanization over the next decade.  By 2018, they’ll finally be right, yes?  Surely.  Absolutely.  No doubt … Stay tuned …

Affordable housing –- from direct set-asides to indirect …

   Land use law is unique because land is unique.  Because location is so important, real estate can’t always be easily replaced by trying to buy it in the market.  This is a reason that “set-asides” are such a powerful tool for getting low-cost housing built and maintained.  Because developers so desire the legal right to built, they will agree to “set aside” a share of a residential development for low-cost housing, as long as it gets them their cherished government permit.  The great incentive of profit gets low-cost housing built.

   Thus it’s sad to read of the failings of the set-aside program of Montgomery County, Md., just north of Washington, which was one of the vanguards of set-asides back in the 1970s.  According to the Washington Post today, many developers have not been held to their obligations, and many have been relieved of their duty by paying money to a housing fund.  This is reminiscent of New Jersey’s complex affordable housing system, in which localities may pay, in certain circumstances, to avoid their obligation to build a “fair share” of low-cost housing. 

   It may be in the nature of government bureaucracies to prefer a system in which they receive money that they control, rather than have the private sector spend money.  But if we want low-cost housing built quickly and efficiently, tapping the profit motive is likely to more effective than indirectly giving funds to a government fund.

The plateau of decisions …

   How should land use law balance environmental concerns with essential economic needs?  I remember the argument, back in the 1970s, that we should replace much of our unreliable foreign sources of oil with good ol’ American coal.  Today, we’d reject such a suggestion, in large part because coal is such a nasty generator of greenhouses gases.  But what about American lands that offer new sources of oil and gas?  And what if they are environmentally special?  In many instances, plans to extract these fossil fuels pit the local and state governments (who stand to gain only a share of the benefits but all of the potentials harms) against the national desire for fuel.  In my state of Florida, the state has fought efforts to drill for oil in the Gulf of Mexico, where a spill could threaten Florida’s tourism.   And on the Roan Plateau of western Colorado, the state government is trying to use land use law to prevent the Bush Administration’s Interior Department from issuing more gas leases –- leases that have suddenly become profitable with the spike in world fuel prices.      

  There should be no doubt that if places like the Roan Plateau (or Alaska’s North Slope) held reservoirs of fuel in amounts like those in the Persian Gulf, the benefits to the nation would outweigh most environmental concerns.  But with relatively small benefits, it may still make sense to leave the risks to foreign nations, so long as we have the cash to pay for their resources.

The right to live as one desires?

   How far can or should government go in regulating the details of residential land use?  When does a regulation infringe on a resident’s “rights”?  I saw on TV this weekend a segment about the ongoing battle in Coral Gables, Fla., a tony suburb of Miami, over its detailed rules for residential living, which include restrictions on the paint hues of homes and, most pertinently, a ban on parking a pickup truck on the street or driveway overnight.  A short-term renter challenged the pickup rule and won –- the court concluding that the no-pickup rule infringed on his “rights.”  The vehicle rule was irrational, in part because it did not ban other large motor vehicles.  (Hmm  ... why would an affluent town ban pickups but not Ford Explorers?)   

    One problem with judicial decisions such as these is that they are ad hoc.  They lend little predictability as to whether a future court would find that an amorphous and specified “right” has been infringed upon, or where it will find the limits to the usual deference to a locality’s land use judgments.

   I suggest that one way to do so would be to create a model set of limits on how far governments can go in regulating residential land use for the “public welfare.”  A starting guideline would be the law of nuisance:  If a regulation is of the type that nuisance has traditionally regulated (noise, odors, disease, etc.), the law will stand.   If it fails to rise to this level, but is merely “desired” by neighbors for beenfits such as attractiveness -- such as with paint color or type of vehicle –- then the locality is entitled to no deference.  Still too unfocused?  Hey, it’s a start …