Land Use Prof Blog

Holidays v. law? …

  To end the year, two vignettes about clashes between private “holiday” displays and the strictures of land use law.   First, in Anchorage, Alaska, the city has for a number of winters battled a large snowman on property.  Although it received much attention, neighbors complained about the traffic.  This year, the city declared it a public nuisance; “snowzilla” supporters have started a website. 
  And in Frederick County, Md., a homeowners association levied fines against an allegedly excessive display of holiday lights, prompting an uproar and media attention.
  In both cases, the clash between rules and holiday sentiment apparently has been resolved in favor of … need I say?  Happy new year!   

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Not much hope for homeowners so far …

    What’s as difficult to find as a new private housing development?  Perhaps it’s a successful large-scale government program to help Americans in difficult housing financial condition.  After the disappointment of the effort to help New Orleanians find “the road home” (see my Aug. 29, 2007, entry), the ballyhooed “Hope for Homeowners” project of HUD’s Federal Housing Administration has been deemed a failure so far, with only a handful of homeowners submitting applications since inception of the project in October.  Among the problems, according to critics cited by the Washington Post:  a reluctance of creditors to agree to refinancing, restrictions against a high payment-to-income ratio for homeowners, and a required pledge by the homeowner that he or she didn’t provide false information on the original loan application.  (A combination of these latter two would dissuade a lot of troubled homeowners, wouldn’t it?)  And so the search continues for a way to keep homeowners in their houses, to provide reliable payments to creditors, and to stem the tide of foreclosures and abandoned homes that is causing neighborhood predicaments across the nation …

Here comes the money … but where is it going? …

     Some of the first things to go in a time of economic recession are grand ideas of public policy.  But David Brooks –- sometimes dismissed as merely “the conservative” columnist for the New York Times –- laments this week that president-elect Obama’s leading economic plan for 2009 –- pouring money into infrastructure proejcts as soon as possible –- will fail to foster metropolitan density and good planning that the 21st century –- and especially a more sober 21st century society -- needs.  I think he’s correct in his skepticism that Obama will do little to link the money to urban planning; – after all, Obama, like Bill Clinton before him, appears to be a traditional Democrat for whom issues of job numbers and social justice are far more important than green or land use ideas.  And of course even if Obama were Al Gore or James Howard Kunstler, it’s often difficult for the federal government to use money to effects plans at the local level.  So we’ll likely see billions funneled into new roads and bridges, with relatively little of it heading to public transpiration of transit-oriented development.  After all, there’s a recession on, haven’t you heard?

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A clash of laws … and another victory for local control of cell phone towers …

    Few land use topics involve a clash of federal and local law as much as cell phone towers.  The issue creates a social conundrum: everyone loves cell phones, but everyone hates the ugly towers.  Federal law, pushed by the economics of national commerce, generally favors construction.  On the other hand, local land use law often is encouraged to push towers to adjoining localities, so that the community can “free ride” on towers placed a distance away.  Then there’s the complication of environmental concerns –- while some fear the potential exposure to radiation, there is perhaps an even bigger fear that local governments will use health concerns as a mask to push towers to their neighbors.  In the Telecommunications Act of 1996, section 704 (47 U.S.C. 332(c)(7)) limited the ability of local governments to exercise their zoning powers against towers, especially when environmental arguments are asserted or when one company is disadvantaged.  But some cases have interpreted local power more broadly than perhaps Congress (and the cell companies) might have wanted.  One of my favorite cases upheld a New Hampshire town’s decision to deny a variance request in order to protect the scenic vista in a hilly area from a plan to build a tower disguised as pine tree (493 F. Supp. 2d 199 (2007)).  Hurrah for the environment and local control, one is tempted to say – except when one thinks of potential cases in which a town may be encouraged to favor one company’s service at the expense of your own company’s.
    Score another victory this week for local control.  The federal government has decided to pull back planned federal regulations that would have required all cell phone towers to have at least eight hours of backup energy.  The idea is to keep phone service going even after an accident or disaster.  But the federal Office of Management and Budget concluded that the FCC hadn’t justified the regulation adequately.  Among other problems, the bulking up of existing cell phone towers with big batteries or generators might cause huge clashes with local zoning and land use laws …

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