Land Use Prof Blog

A scene from the quiet expansion of impact fees …

  While news reporters tell us that the public is putting environmental concerns on the back burner during our current financial recession, this lack of national attention doesn’t mean that  environmental steps in land use law are not moving forward –- more quietly, and often through administrative law and the courts –- at the state and local level.  From El Dorado County, Cal., in the northern Sierra Nevada comes this week an interesting case about a small advance of environmental demands in land use law.  Under an ordinance adopted in 1998 by the mostly conservative county, developers must pay (or mitigate for, either on-site or off-site) for potential harms to rare plants in the area.  This is one of many interesting adaptations of the concept of impact fees that are working their way into state and local land use law.
     The county argued in the case that the fee relieved a developer of having to do an environmental impact report under the state's complex Environmental Quality Act.  Not so fast, said a California Court of Appeals, reversing a lower court.  Although the fee serves to mitigate potential harm to rare plants in the area, it does not cover all the purposes of the impact report, which include addressing a wider range of plants and the effects that the specific project might create.  The case is California Native Plant Society v. County of El Dorado, No. C057083 (Cal. Ct. App. 3d Cir. Jan, 28, 2009).      

Time for leadership, not honoring …

   President Obama has promised as his one of his first major actions to approve the funneling of federal money to local infrastructure projects and other economically stimulating land use projects.  But the latest word from Congress is that proposed bills would impose … now this is shock … a lot of pet projects that would do little to immediately stimulate the economy or change the face of American development.  If the President refrains from using his currently enormous popularity and clout to make Congress bend to his will in this matter, when would he?
   Meanwhile, here’s a less significant land use step that President Obama might be wise to take.  There are reports of local governments seeking to change street names (and create holidays) to honor our current president.  Honoring today’s politicians is always a bad idea.  (Witness the wise postal policy that no living person may appear on a stamp.)  It’s time for the President to nip in the bud this unwelcome manifestation of Obamania ….

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Inaugurations, crowds, and the problems of bus transportation …

    As the world watched the presidential inauguration this week, and the world’s first impression of the new regime was the Chief Justice’s botching of the oath of office and a part-fake classical music performance (reportedly, the music heard was prerecorded), I was thinking about … land use, of course ….  Having spent some of my winter break in Washington, I heard much concern over the expected crush of millions of visitors to the nation’s capital on January 20.  What about traffic gridlock?  What about potential disasters?  As it turned out, the logistics worked fairly well (as they did on Election Day), through prudent closing off of many streets and encouragement of visitors to walk, bike, or use public transportation, and a commitment to giving a priority to efficient bus and rail travel …
     This success made me think more about public transportation, a topic that I don’t often focus on in this blog (in part because transportation can swallow up land use discussions).  Although I sometimes scoff at the notion that Americans will regularly give up their cars, I do try to test out public transpiration in new places.  Two weeks ago, I took the San Diego bus system to many locations (inducing the beach) and found it to be clean, on-time, and relatively efficient.  But, as my bus made its way slowly up Sixth Avenue, one point highlighted the difference between bus and train travel: the frequency of stops.  City buses tend to stop much more frequently than do urban trains (in part because there is no need for a “station”).  In a sense, frequent bus stops reflect a policy choice: They are good for those who have no real choice but to ride the bus (good, because they can board or alight near their starting point or destination) but bad for those who may consider the bus as an alternative to driving (because bus trips are so slow over long distances).  For long, American bus systems have been designed largely to serve the former audience (which includes many poor people, college students, and the elderly), and with good reason.  But frequent stops do not serve to attract passengers who have choices.  If we really want to encourage drivers to use the bus, we need bys systems to offer more express-type service, which trains and cars in effect provide …

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Where will the planes land? …

   What’s the biggest and most potentially controversial public land use in metro areas?  Airports, of course.  They are essential to a city, need to be fairly close to downtowns, but use enormous tracts of land and are not welcome neighbors.  As a result, in our contentious age few big airports are built (consider, for example, Denver’s newish airport, which is almost half way to Nebraska –- well, it just seems that way –- or the controversy over plans to expand at London’s Heathrow). 
    In San Diego, the venerable Lindbergh Airport is directly adjacent to downtown at the top of the arched San Diego Bay.  Because of its location, airliners come screaming in over the bills of the city –- seemingly close enough to touch.  Combine this with a contrast rush of naval aircraft over the area, and we have a situation for potential disasters.  But because the city is hemmed in by mountains and development and Mexico, there appears to be no good location for a new commercial airport.  A potential solution?  Build a large airport in the middle of the San Diego Bay, as reported today in the Union-Tribune.  The benefits?  It would allow planes to approach mostly over water, and would be conveniently located near the poor areas of town, on the south bay.  Indeed, similarly hemmed-in cities such as Hong Kong have built airports by filling in water.  The drawbacks?  Such built land-moving projects are almost impossible to do in the United States anymore, considering the environmental considerations (even though the bay has been in effect a naval and pollution dump for decades) and other land use roadblocks.  It seems impossibly difficult politically, but there may be no other choice, other than continue to put up with planes scrapping the trees of Balboa Park …

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Senses, surf, and seals in San Diego …

     In San Diego for the first time in more than a decade this week, I find that the city’s once-proud main street, Broadway, still holds more homeless people pr block than almost any place in the nation, that the downtown revival shopping mall, Horton Plaza, still holds up as perhaps the best example of its type (admittedly not a difficult competition), and that the downtown waterfront has sprouted so many new sleek condo and apartment high-rises (most of which actually appear to be occupied) that from some angles it almost looks like Vancouver.  Always in the shadow of its not-to-spoken-of colossus to the north, San Diego remains an extraordinarily pleasant city.
    One of the benefits of travel is learning about fascinating controversies of local land use law.  I was told today about the long-simmering debate over a specially isolated Children’s Pool Beach in La Jolla, which in the 1990s was colonized by ocean seals.  Because humans on the beach harass the seals (arguably contrary to the Marine Mammal Protection Act) and because seals posed a threat to children, the planned human use did not mesh with the seals’ presence (with an interesting but not unexpected dash of classism in assertions that wealthy La Jollans preferred seals to human visitors from poor neighborhoods).  After some years of debate and legal wrangling, the seals appear to have won their right to the beach.  This sounds like the right choice to me; special beaches can be created many places, whereas homes for embattled marine mammals are far and few between.

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