Land Use Prof Blog

Infill in a venerable old city …

   Infill in a western city might mean building a garden apartment complex on land formerly used as a parking lot of the edge of downtown; infill in an established suburb might mean construction of three-story houses in a neighborhood of now-disfavored brick ranch houses.  But in an old city such as Philadelphia, infill means creating development that will both be popular and will fit with neighborhoods that were largely completed before the automobile.  In the city of brotherly love, an initiative called “Infill Philadelphia” is promoting designs to revitalize older city neighborhoods.  The projects will seek to bring back to life underutilized or abandoned buildings and to bring new development ideas to moderately sized empty spaces in the city.  And cities such as Philadelphia have far too many such spaces, both because houses have been abandoned and because small industry and businesses have moved elsewhere.   
    One special challenge that faces Philadelphia is its large stock of 19th century row houses, which were perfectly reasonable forms of urban housing back then, but seem too cramped, too narrow, and without enough modern features for many 21st century American families -- even the low-income families that make up much of Philadelphia's population.  Among the design challenges of infill plans are to adapt these houses –- either by remodeling, expansion, and sometimes teardown –- to make the old neighborhoods both appealing to today’s families, affordable to low-income households, and able to stand up to the stresses of life in Philadelphia today …

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Infill and neighborhood control, in Tulsa and elsewhere …

  One of the dilemmas of infill –- allowing new construction in an already developed area –- is that it often upsets the expectations of landowners and residents concerning the land use and density of the community.  Whether it is allowing stores in an area that has been exclusively residential, or allowing larger houses in a neighborhood of one-story ranch houses, infill often faces strong local opposition, or at least local skepticism.  And political scientists tell us that legal efforts often fail if they offer, on one hand, broad but thin public benefits (as some infill does, by counteracting sprawl) and, on the other hand, narrow but concentrated costs upon citizens (such as those owners whose expectations may be upset) who fill tooth and nail against the plan.
    Infill may seem especially jarring in the cities in the nation’s interior, where sprawl has seemed especially natural, considering the open spaces and relatively low land prices.  I still remember my surprise when, as young lawyer on one of my first cases, I visited Casper, Wyoming, and saw the pattern of central city neglect and suburban sprawl replicated even in a small city on a Western plain.  Today, even such interior cities are tackling the issue of infill, both because of market pressure for more central development and policies encouraging it.
    Tulsa, Oklahoma, is currently undergoing such a debate.  In the face of a variety of infill plans, the city has proposed authorizing some “neighborhood conservation districts,” which would give some power to neighborhoods to regulate their land use.  Some see this as a means of controlling unwanted infill; others see it as an odious regulation of private property.  Whither infill in Tulsa?  Not surprisingly, the Tulsa Metropolitan Area Planning Commission stated last week that it is in no rush to change its policies with regard to infill.  Stay tuned …

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Infill week …

   Infill!  One can’t tune into the domestic policy debate this year without encountering assertions that we are experiencing a sea change in the nation’s metropolitan land use: the end of cheap oil, the end of rapid sprawl, and even the end of the promise of single-family homeownership.  If this cataclysmic change is truly happening, the response of metro governments should be to encourage more infill development, shouldn’t it?  Because the U.S. population will grow by at least 30 million in each of the next couple of decades (that’s more than an entire New York and Georgia combined), law must allow for much greater density in already built-up areas, musn’t it?  And if we will no longer drive 25 miles to work in a world without cheap gas, law has to allow more mixing of housing and business, doesn’t it?  This week I will explore some frontiers of “infill” law in the United States. 
    In Los Angeles, the great exemplar of 20th century sprawl, notable efforts at infill have made the news … and triggered much hostility.  The city council voted unanimously last year to change complicated zoning laws to allow for more density and more infill.  In one notable example, the city is helping to subsidize a high-rise (for L.A., at least) complex in North Hollywood, a modest-income area in the San Fernando Valley that is on the new rail transit line.  The mayor has touted the development as a model for infill and density.  But not everyone is happy.  Urban scholar Joel Kotkin has warned against rapidly changing SoCal’s fundamental “DNA.” He blames the rush to “Manhattanize” Los Angeles on pressure from developers.  Kotkin cites the famously anti-density L.A. supervisor Zev Yaroslavsky in questioning whether more density would “improve the quality of life.”
  To me, the question for land use law is NOT whether infill will “improve the quality of life” for resident Angelenos.  There’s no doubt that an established single-family-house resident is likely to become marginally less happy at increased traffic and the blocking of the California sunshine that a high building nearby might cause.  But the reason for infill is not that it will make existing residents happier.  (To make them truly happier, the L.A. basin should return to its 1920’s population of less than a million people living in a sunny city of open spaces, clear beaches, orange groves, and good public transportation.)  Rather, infill is a way to cope with an increasing population (from many directions, including those coming from foreclosed homes in the exurbs) in an efficient manner. 
  And complaints about increased neighbor traffic are misplaced, urbanists can argue forcefully.  While of course more people means more car traffic, at least in the short run, the long-term idea is that infill near transit creates a culture in which many people ride public transportation to work.  (And yes, I realize that the existing resident might respond by grumbling, “In the long run, I’ll be dead.”)  Moreover, efforts to restrict infill cannot be defended as protecting property interests; property “belongs” to the private landowner first, and the greater community’s interest as great as that of the existing neighborhood residents.  Infill is just as reasonable a land use policy as government-enforced sprawl. 
  So while it may not make sense to try to turn Los Angeles into Manhattan (that would be an awfully big Manhattan), how about London? Paris?  Or (easy now, Angelenos) San Francisco?          

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The LULU of offshore drilling ...

   One more post about federal land law use before a return to local law next week.  The big domestic news this week was President Bush’s call for lifting the moratoria on drilling for oil off American shores (okay, it’s not really a federal land use issue, but a federal sea use issue).  In light of current high gasoline prices, this was not unexpected, and neither was John McCain’s agreement.  What was surprising, however, was the thumbs-up from Florida Governor’s Charlie Crist; one of the reasons for the moratoria has been that coastal states (whose citizens would share only a fraction of the benefits of offshore oil) have opposed drilling because they would bear the full risk of potential spills and other environmental harms.
    Now, I find persuasive the argument that offshore drilling probably wouldn’t affect supplies for many years, and would have only a minor effect on the world price for oil.  However, let’s realize what our policies have meant.  We have in effect said, “We want oil from around the world to feed our thirst, but we don’t want any of the dirty risks associated with its offshore extraction.”  This is a win-win policy when the world price is low, but somewhat off kilter when it is not.  It reminds me of local zoning laws that exclude unwanted land uses, such as landfills, sewage plants, and low-cost apartment housing.  While the community needs all of these land uses (and even wealthy citizens need low-cost housing somewhere, if only to house their maids and firefighters), influential citizens don’t want any of these uses anywhere near them.             
  And although I understand the argument that the oil reserves off American shores amount to only a fraction of the world’s demand, let’s not fool ourselves into believing that the environment takes precedence over gasoline for most Americans.  If there were enough oil off Alaska and Florida to deflate rapidly the price of gasoline by a couple of dollars, the clamor to drill immediately (the risks of spills be damned) would be overwhelming …

What to do when the water rises? …

  Just as we Floridians begin to worry about the approach of another hurricane season, overflowing rivers in and around Iowa remind us that far more people are harmed by interior fresh water than by salt water.  Both types of flooding raise the land use law question of whether government policies should try to discourage construction in risky areas –- the floodplains in Iowa and the coast in Florida -- and what form this discouragement should take.  Ironically, risk aversion methods must take account of the policies of government-assisted flood insurance and disaster relief, which work to encourage residence (or at least dull the effect of discouragement policies) in flood-prone areas.  How can law both protect people who are hit by disasters and at the same time encourage them to live so as to avoid risk?

   Proposed solutions such as the complete removal of government-sponsored insurance are simply too glib; such an effort would most often harm the poor, and wouldn’t solve the problem of what to do about people who have relied on assurances that they would receive some protection from the government.  And then there’s the problem of rapidly changing assessments of risk.  Hurricanes in the South have increased in intensity in recent years, and once-in-a-century floods have now occurred twice in 25 years in the upper Mississippi basin.

   One town that is getting a lot attention is little Chelsea, Iowa, which was seriously flooded in 1993, after which there were calls to move the entire town.  Eventually, some but not most residents took government assistance to move to higher ground.  Some who stayed behind are now regretting it, and it would seem easy to criticize those who didn’t act to anticipate another flood.  But such a reaction would be too facile.  Many Chelsea residents are coping with the flood, pumping out their basements, helping neighbors, and surviving with minimal government assistance, as this story explains.

   If we truly are entering an age of heightened threats from floods, there are no silver-bullet land use law solutions to adaptation …   

Some surprising data about the biggest culprits in land use and greenhouse gas emissions …

   So, it’s finally time for land use policies to take account of global climate change and carbon footprints, right?  Sure.  But what types of consumer activities contribute most to the dilemma of too much carbon in the atmosphere?  Often, policy discussions quickly focus on automobile emissions, with the subsequent policy prescription to favor public transportation and shorten commutes.  Okay, again.  But a recent study by the Brookings Institution (no corporate lackey) suggests that residential density and electricity generation are perhaps the most important factors in a metro area’s carbon footprint.  Of 100 metro areas that Brookings studied, Los Angeles (yes, that great mecca of the auto lifestyle) came out as the second most carbon stingy area, just behind Honolulu.  Residents of both these cities save carbon because of their pleasant climates, and Angelenos (defined helpfully to include only L.A. and Orange counties) use relatively less carbon because they live fairly densely and in fairly modest-sized houses.
    Which factors contribute most significantly to a big carbon footprint per capita?  Bad weather, a smaller metro area (which tends to be less dense), and, perhaps most significantly of all, whether the local electricity comes from coal.  Nearly all the biggest carbon users per capita were in the Mississippi and Ohio River basins (Lexington, Ky., Indianapolis, and Cincinnati were the worst).  Western cities use far less carbon for residential use.   Here’s Brookings’s policy brief, and here’s the list of the metro areas, along with maps.
   So, yes, let’s work on improving and encouraging public transportation.  But if we’re really concerned about carbon, let’s worry just as much about density and electricity, even if it doesn’t meet our preconceptions of the wasteful American lifestyle …      
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The housing bust and the role of the government …

   Here’s a shocker:  The Washington Post reports today that the U.S. Department of Housing and Urban Development encouraged Fannie Mae and Freddie Mac to purchase subprime-mortgage-backed securities early in the decade.  This encouraged risky loans that are now often resulting in foreclosures; as many as three or four million families may be unable to pay off their subprime loans.  Like other articles on the topic, the Post article implies incredulousness at the practice of terming such loans as “affordable,” and an academician is quoted as calling HUD’s policy “indifferent” as to whether the loans eventually hurt their recipients.    
   What articles such as this miss is that it had long been federal housing policy is encourage as many families as possible to purchase a home.  Lenders were chastised for not offering loans to low-income families and members of racial minorities.  Subprime loans did precisely this, and enabled many low-income and minority families to buy a home for the first time.  Many such families have been able to pay back their loans, even probably though more of them have been pinched by rising mortgage interest rates and falling equities. 
  Yes, it is true that many of these loans should not have been made, because they were unlikely to be completed successfully, with adverse consequences for the borrower, the creditor, and the economy.  But we must remember that these were voluntary market transactions (putting aside the issue of whether lenders effectively fooled borrowers as to the terms).  Considering the long-standing national policy of favoring widespread “affordable” homeownership, it seems a little silly to assign much of the blame to government authorities, as opposed to the parties to the loans.  After all, where were the protests from low-income advocacy groups in front of HUD, Fannie Mae, and banks with signs reading:  “Stop allowing risky mortgage loans to poor families!”?
   Now that housing credit has shriveled and that builders aren’t constructing new developments in exurbs far from jobs (especially with $4 gasoline), government housing policy will have to change to encourage more in-fill and encourage more dense housing, in spite of local zoning laws that restrict such housing.  The changes in policy are likely to include a number of missteps, but we shouldn’t be surprised when government is slow is recognize adverse and unexpected consequences ….         

Bucking the anti-oil land use trend, in South Dakota …

  With much of the domestic politics in the nation addressing plans for a future with less oil (such as the big climate change bill now pending before Congress) and efforts to develop energy from sources other fossil fuels, energy companies are finding it more difficult to get land use approval for expanded fossil fuel facilities.  But while companies know that it’s good to talk “green,” they also realize that America’s demand for fossil fuels is not going to diminish significantly anytime soon.  And not all places in America object to the idea of a new fossil fuel facility.

   The big news in South Dakota today is that citizens in Union County (in the southeast corner of the state) voted to approve a land use plan to rezone a rural area to allow the construction of a large new oil refinery.  A news report suggested that voters from the suburbs of Sioux City, Iowa, tended to vote in favor of the change (and the prospect of new jobs), while voters in rural areas (whose jobs are tied more closely to farming) tended to vote against it.  The report also stated that it would be the first new refinery built in the United States in 30 years.  Not only are South Dakota voters more likely to accept such a facility than are voters in other regions, but the refinery would be close to old fields in Canada, which is the United States’ largest source of imported oil –- a link that could, somewhat ironically, strengthen as global warming makes arctic oil sources more accessible …

Land use and the maybe-navigable L.A. River …

     The federal Clean Water Act has long served as a thorn in the side of land developers, in large part because construction work that dumps soil or fills in a stream or wetland can be considered a form of water pollution that is regulated by the Act and, if even allowed, requires a federal permit.  These land use complaints have reached the Supreme Court, which in recent years has issued two opinions that narrowed the reach of the Act (with Justice Scalia calling the government an “enlightened despot”) –- except that the Court’s fractured rulings did not result in any new clear statutory delineation.    

    In an application that may be the most contentious yet after the latest ruling, the U.S. Army of Corps of Engineers (which issues the permits for the dumping of “fill” material) reportedly has written a draft decision that excludes Clean Water Act coverage for many tributaries of the Los Angles River, the intermittent river (like most in southern California, of course) that reaches the Pacific after running though concrete beds in the city of angels.       

    The complicated legal issue has many parts, but the most significant comes in applying the Act’s lynchpin term “navigable waters.”  In part because it was defined by Congress to include the term “waters of the United States,” just about everyone agrees that the term can’t be defined simply by asking “Can boats navigate on it?”  Yes this question seemed to play a large role in the Corps’ tentative decision.  The reasoning seemed to be that because the L.A. River itself isn’t navigable by boats, its tributaries can’t be covered by the Act.  But even the most restrictive of the opinions (Justice Scalia’s) in the most recent Supreme Court decision (Rapanos v United States, 547 U.S. 715 (2006)) stated that “navigable waters” includes “streams.”  And shouldn’t the fact that the L.A. River reaches the Pacific Ocean (which is navigable by boats, of course) cover all tributaries whose waters eventually flow to the ocean?  The fact that the L.A. River may be dry for much of the summer also seems to be to be largely irrelevant, to me, as pollution that sits in dry beds in summer will likely move rapidly downstream after winter rains.

   To me, the only sensible way to approach the question of regulating water pollution is to ask:  Is the dumping of pollutants likely to work its way into water bodies at some point in the future?  If yes, it should be considered water pollution, and land use developers should have to deal with pollution regulation.