Land Use Prof Blog

An oily change to federal land use policy? …

   My question about the upcoming presidential election is whether gasoline prices will be a major issue of the campaign … or whether it be the only major issue of the campaign.  What does this have to do with land use law?  A recent poll suggests that a sizeable number of Americans want our land preservation policies to be altered to allow for oil drilling.  Not only may be the decades-long effort to drill in Alaska’s Arctic National Wildlife Refuge finally achieve the necessary public support, but opposition to more derricks offshore and in other protected areas might be open for serious discussion.  Yes, I understand the argument that allowing drilling inthe  ANWR and elsewhere probably would decrease prices by only a couple of pennies –- years from now.  But when the public demands action, politicians want to appear as if they are acting.  Now let’s hope there’s no oil in Yosemite Valley or under the Washington Monument …      

Today, granny flats; tomorrow …?

   Where do Americans go when their houses are foreclosed?   The enormous downward movement in housing demand is likely to increase the pressure on local governments to allow more non-traditional forms of housing units, such as “granny flats” and other accessory dwelling units.  Localities have typically objected to these forms of housing because they harm the “character” of the community, upset expectations, and raise density unacceptably.  But the heavy demand for cheap housing is pushing governments from the east coast to the west coast to take small steps to allow more accessory units for least elderly relatives –- if not for the cousin's family who walked away from their mini-mansion because they couldn’t make their mortgage payments.  In an era of earth-shaking changes in the American housing market, such small steps may represent portentous cracks in legal attitudes towards residential density …

Libertarianism and land use law ...

   The Libertarian Party is holding its presidential convention this weekend in Denver.  This year, some expect that the libertarian message of “get government off our backs” might appeal to a large enough number of conservatives to affect the election.  In this blog, I often write from a viewpoint that is skeptical of land use regulatory solutions to solve community problems.  But when one reads stories such as those today about the apparently shoddy construction that lead to the collapse of schools (while  government building stand) in Sichuan Province, China, count me out of the libertarian agenda.  Skepticism of land use laws does not mean libertarianism.  It means, rather, that we must think closely before accepting claims of quick governmental solutions.  But for some kinds of land use laws, including building safety codes, I am very happy that government regulates the “liberty” of my fellow Americans.      

Cutting out cul-de-sacs?

   Suburban sprawl usually conjures up images of massive exurbs outside a big (or formerly big) city.  But even smaller American cities have experienced residents leaving the central town for planned subdivisions with big houses, winding streets, and “choke” points at community exits clogged with SUVs and pickups.  One method of tweaking land use law to improve traffic flow and cut mileage is to discourage the creation of new cul-de-sac developments.  Long popular with suburbanites, dead-end streets (to use the older and less fashionable name) are a classic example of a land use that benefits the on-site residents but works to the detriment of others in the community.  Even cities such as Fayetteville, Arkansas, perceive the problem of suburban cul-de-sacs to be significant enough to consider a new policy of discouraging their construction in most locations.  The Northwest Arkansas Times quotes a city planner as suggesting that the change would improve traffic flow and might even encourage some Fayettevillers to get out of their cars and walk to buy their gallons of milk.  Even the craziest dreams start will a single step …   

LULUs, natural gas, and local versus national needs …

    How is a liquefied natural gas terminal like a low-cost housing project?  Both are LULUs -– locally unwanted land uses.  But both are also necessary for the wider community –- the metro area (at least) in the case of the housing project, and the nation, in the case of the LNG terminal.  And sometimes it takes the courts to vindicate the greater public interest over local desires.  This is my assessment of the decision this week of a federal appellate court that Maryland authorities could not use their coastal management law to stop an LNG terminal from being built outside Baltimore.  (The case is AES Sparrow Point LNG, LLC v. Smith (U.S. Ct. App. 4th Cir. May 19, 2008)).   

    There was once a time in which Maryland and its leaders would have cheered any plan to bring jobs and industry to Sparrows Point, just east of Baltimore, which was once the site of America’s largest steel mill.  But times have changed, and a plan to built an LNG terminal, which would transfer natural gas from ships to a pipeline to Pennsylvania, is no longer supported by a majority of citizens in Baltimore County.  Among many reasons is that the terminal would pose a small but real risk of a colossal disaster.  Accordingly, Baltimore County tried to use its right to regulate coastal development, under the Coastal Zone Management Act, to prohibit the terminal.
   But the U.S. Court of Appeals for the Fourth Circuit, which sits in Baltimore, held that the County action did not overcome the federal Natural Gas Act, which gives the primary power to approve an LNG plan to the Federal Energy Regulatory Commission.  If the federal authorities did not hold such authority, local interests might make it difficult to build any new natural gas project in the United States, with adverse repercussions to Americans nationwide who devour natural gas and howl about high fuel prices.
   Does this system mean that environmental and local safety concerns don’t get enough attention?  Yes.  But some land use decisions are too important to be left solely to local government.  I believe so with regard to low-cost housing projects, and with regard to liquefied natural gas terminals …         

Hot times for American farmers …

  The temperature in Sacramento is supposed to reach 103 degrees today, but even the early arrival of summer won’t stop the enormous farm production of California’s central valley, which is one of the greatest efforts of land use in human history.  Law and engineering have turned the skillet-flat valley into some of the most valuable rural spaces in the world. 

    Further east, the U.S. House of Representatives passed yesterday a new comprehensive farm bill, whose cost over five years is estimated at close to $300 billion.  Although President Bush has threatened to veto it, the House approved the bill by more than enough to override a veto.  Critics say that the bill includes too many subsidies in an era of high farm income, but, if history as any lesson, it is probably too early to tell how the details of the subsidy systems will affect rural land use.   

   Meanwhile, a state assemblyman in California has introduced a bill that would allow farmers to sell processed foods, such as jams and pies, from roadside stands, without having to meet tough state health and safety requirements.  Farmers claim that the requirements force them to dispose of tons of damaged but still useable produce each year.  The bill would also allow them to sell bottled water and soda.  I wonder whether grocers in Sacramento, who have to meet the stringent health requirements, are hot under the collar over the proposal …

Give me liberty and give me clothespins! The right to dry?

      Alongside the right to free speech and the right to exercise one’s religion, should law establish the “right to dry”?   Environmentalists and libertarian activists are taking aim at community rules, covenants, and land use laws that prohibit the drying of laundry on clotheslines.   Here’s the website of an advocacy group that supports the “right to dry” movement, including links to state and local laws that enshrine the right to air one’s undies.  The movement touts the environmental and energy-saving benefits of line-drying, and has recently generated sarcasm on NPR and media vignettes from Oregon to Ontario.    

    Opponents of clotheslines argue that it depresses property values –- always the fallback argument to justify rules that restrain one’s neighbor.  In certain circumstances, this may indeed be true.  But just as strong is a psychological reason that’s the flip-side of the reason that so many citizens avoid riding the bus:  Drying clothes outside identifies one as poor or “low class,” which bothers many people, including some neighbors.  There is also the almost-fundamental human desire to be nosy into one’s neighbor’s life, and to clamp down on anything that might be perceived as harming one’s enjoyment of property.

Green lights for brownfields development?

   Among the many hurdles to revitalizing the central city is the problem of brownfields.  Sites that used to hold industry or commerce may be contaminated with hazardous materials, which both makes development unattractive and may impose tremendous environmental cleanup costs to the current owner.  All of this encourages new development outside the central city, and exacerbates the problems of unused land in the central city.

    The latest National Brownfields Conference was held last week in Detroit, a city that has been infamous, of course, for its abandoned industrial spaces, shrinking population, and social problems.  Just a glance at a picture of Detroit’s riverfront shows the errors of the past –- the hulking Renaissance Center of the 1970s (now the home of General Motors), standing like a blank fortress, isolated from the dangerous city below.   Modern brownfield plans are more subtle, using various techniques to transform places such as old warehouses and machine shops into lofts, stores, and small businesses.  A essential key to the efforts is government, which has both assuaged the financial penalties for being the owner of contaminated property (the federal Superfund act was amended a few years ago to encourage the purchase of land known to hold some contamination) and can provide tax breaks for cleanups and urban redevelopment.

Some of the more interesting sessions at the conference (I couldn’t make it) included how to establish good communication with community stakeholders (something too often ignored by developers in decades past) and using natural biological processes to help clean up contaminants.

   Now is the time for urban redevelopment.  With crimes rates down, land prices reasonable, and high gas prices making people look longingly to short commutes, it’s now or never for places such as Detroit to make their big comebacks.

Will billboards destroy Vermont?

    A handful of states, including Vermont, have long banned the placement of billboards along the state’s roads.  But in an effort to protect a cute painted barn mural with a 1940s-looking car on it that says, “See Bellows Falls, Vermont” (check this link for a picture), the state legislature passed last week an exemption to the much cherished billboard ban.  (A state agency earlier had ordered the mural taken down (or, more likely, painted over)).  The exemption would allow –- uh, essentially the Bellows Falls mural:  the signs would have to be hand-painted, on an old building, give only directions to a town, and be not far from the town promoted.  But the exemption is generating a lot of hand-wringing in Vermont, where some see it as a crack in a dam that could lead to Vermont’s resembling a tacky suburban retail strip on a Saturday afternoon.    

    I’ve never quite understood the dislike of billboards.  In my memory, billboards bring to mind the quaint “South of the Border” signs (advertising a restaurant just over the state line in South Carolina) that I used to look for as a kid in my parents’ ’71 Falcon station wagon as it rumbled its way south to Florida.  Or old “Drive through a tree – only 20 miles ahead!” billboards wilting in the rain of coastal Oregon.  One of my favorite writers, the late westerner Edward Abbey, thought that it was silly to protect the “beauty” of roads and their views.  It’s when one gets OFF the road and into the forests, mountains, and meadows, on one’s two feet, that one finds the true beauty of a state such as Utah or Vermont.

   And it also seems a bit naïve to believe that a motorist who is driving with a GPS screen in their face, ads blaring on the satellite radio, and the kids chortling to a screaming DVD in the back will be disappointed by the low-tech intrusion of billboards on Vermont roads. 

   It’s usually bad policy to craft a legal rule that is focused on one discrete person or act.  But I’m glad that the barn mural gets to stay.  Now, I must get back to planning a summer vacation.  Hey, I’ve heard that Bellows Falls, Vermont, is quaint …

Big plans in Las Vegas … with a twist …

  "Make no little plans; they have no magic to stir men's blood.”  The famous dare of century-ago century Chicago architect Daniel Burnham proved to be a daunting challenge in the last century for American cities.  Big projects such as the government centers in Boston and Albany turned out to be anti-social and ill-fitting products of urban planning as sculptural design.  In part as a result of these efforts, few American cities have tried big makeovers in recent years.
    But Las Vegas is not any city, of course.  One of the fastest growing cities in the nation over the past few decades, Las Vegas has struggled to make itself a great city that happens to have giant casinos –- not just a grouping of giant casinos and parking lots with a city attached.  The city is trying to build a new downtown (Las Vegas’s old downtown withered in recent decades, as have many in the nation) called “Union Park” just west of the old downtown.  The hope is that new residences, a performing arts center, and big office towers will provide a ready-made city center. 
   One concern with the plan is that big buildings don’t a downtown make; many American cities (especially in the Sunbelt) are filled with big buildings to which visitors travel and leave almost exclusively by car.  Horizontal development (restaurants, small shops, etc.) is more likely to make for a vigorous urban setting.  But the Las Vegas plan also doesn’t seem to hold the attributes of the carefully packaged retail walking spaces that have been fairly successful in places such as Reston, Virginia.  Moreover, the current plans include a lot of open space, which reminds one of the enormous, human-dwarfing wind-swept plazas that made places such as Boston’s Government Center so unpleasant.  (In Las Vegas, of course, it would be a sand-swept plaza).  And the idea of adding new condos in a city with soaring foreclosure and vacancy rates seems like an unreasonable gamble.         
   Perhaps the bottom line is that the United States simply doesn’t do big public spaces well –- we are a culture only of pleasant “private spaces.”  But, like Burnham, let’s appreciate Las Vegas for trying … 

Left and libertarians and big bad boxes …

    What’s an article from the libertarian “Reason” magazine doing reprinted in “Utne Reader,” an alt-left reader with a picture of Barack Obama on the cover this month?  The reason is an essay by Michael C. Moynihan arguing that land use laws restricting big box retailers such as Wal-Mart are silly and unnecessary.  The reason?  Big boxes chains don’t know their clientele as well as local retailers, and many customers prefer the local touch and knowledge –- many of the same reasons touted for land use restrictions.  Moynihan relates the success story of an indie music-and-sundries store that has outlasted big-box music retailers in Boston.  Its secret?  Tattooed employees (among other factors, I’m sure) that appeal to hip young Bostonians. 
    I’m not sure that Moynihan’s choice of music retailing is the best example (downloading and online shopping has all but killed off the industry entirely) but his larger point seems sound.  He also relates the story of the fears back in the 1920s that big retailers such as Woolworth’s and A&P (young people: ask your grandparents about these) would kill off mom-and-pop stores, just as Wal-Mart-phobes do today.  The lesson seems sound:  If people want to shop at a big box, land use laws probably won’t do much good (they will simply drive till they find one) and those who prefer locally oriented stores will patronize them.  And there always a lot in the later group, at least in certain places.  So now we see why it’s in Utne …