Land Use Prof Blog

No minimum lot size exception for you! ….

  A developer sues and get the right to subdivide into smaller lots than otherwise permitted under local zoning rules, through a state statute designed to build more affordable housing.  Can a purchaser from the developer take advantage of this special zoning?  No, according to a New Jersey appellate court holding yesterday (Tanenbaum v. Township of Wall Bd. of Adjustment (N.J. Super. Ct. App. Div. May 27, 2009)).  
   A couple had bought a large lot in the development and sought to split it into two parcels, both of which would have been large enough under the zoning granted to the developer through New Jersey’s complicated “Mount Laurel” laws for affordable housing.  But because the couple had not been a party to the developer’s lawsuit, the township and court both found, the couple’s plan was “non-Mount Laurel construction,” and thus they were bound by the pre-lawsuit minimum lot size requirements, which would not allow two lots on their land (which might be surrounded, of course, by smaller lots subdivided by the developer).
  It may be said that New Jersey townships have fought the implication of the Mount Laurel principle at every turn and in every way, sort of like the Russian Army at Stalingrad (perhaps they see the consequences of doing otherwise as similar), and this decision is yet another chapter … 

         
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Decline of the yard and rise of the rowhouse …

    For most of a century, the detached home has been the American ideal, and land use laws were crafted to match, foster, and nurture this ideal.  But cracks are starting to form.  Today, I don't focus on the usual suspects – high gas prices, traffic, suburban alienation, or the attractive buzz of the city.  Rather, I’ll focus on the observation that appeal of the “lawn” – a place to plant flowers, toss a football, or shoot the breeze with a beer and a lawn chair – may be dying out.  
      First, here’s a story about the growing popularity of rowhouses in the Chicago suburbs.  Unlike detached houses, these smaller, yard-less houses have kept most of their value over the past couple of years, unlike big detached houses.  There are telling quotes from buyers who don’t mind the lack of a yard and appreciate the lower price.
    (Meanwhile, isn’t it interesting that developers are marketing them as “rowhouses?” A generation ago, a “rowhouse” conjured up unfavorable images of working class folks on the stoops in t-shirts in a declining urban neighborhood, while “townhouse” seemed much more posh.  Today, with “townhouses” having sprouted up adjacent to strip malls in many suburbs, the word “rowhouse” now connotes a certain neo-urban chic.  Expect developers to market suburban “tenements” by 2011 …)
    Then, there’s this story the extraordinary amount of time that the typical American teen spends texting.  From my generation, I ask:  When do they get time to wander the malls if they’re always texting?  I suppose they do it at the same time.  For their generation, for whom most waking hours are spent looking at a screen of some kind (phone, computer, TV), what good is a yard?  Will governments begin to craft land use laws with a presumption that rowhouses are as acceptable for new zoning as detached houses?
   And finally, here’s a story about a nearly vacant development of expensive detached homes in Homestead, an exurb at the very southern edge (hence the name) of the Miami metro area.  Imagine, in a growing Sunbelt mega-metro, pinned in on all sides by sea and protected wetlands, a housing development going unsold!  Perhaps the houses will be snatched up once the economy improves; but it also makes one think that maybe these houses should be torn down and replaced with exurban rowhouses …     

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Too many businesses … of your kind, that is …

  The fundamental purpose of the “variance” in land use law is to provide an outlet when the zoning does not make sense for a particular parcel.  Zoning is inherently a blunt instrument, and simply drawing zones on a map may not address the peculiarities of a particular parcel.  It makes sense that a variance should not be so extreme that it conflicts with the basic idea behind the zoning – it would be extreme, for example, to allow a variance for oil refinery in a residential neighborhood.  But many land use ordinances go beyond this, to require broadly that the requested use variance meet some sort of “the public interest.”  This requirement, which in practice allows governments wide discretion in second-guessing the specifics of landowner plans, seems to be to be contrary to the thrust of zoning laws, in which government regulation is limited to categorical restrictions.
   An interesting example is a case decided this week by a New Jersey appellate court, concerning a variance application in Roseland, a suburb in Essex County.  (The case is Seung Chang v. Board of Adjustment, No. A-5248-07T3, 2009 Westlaw 1361677 (N.J. Super. Ct. App. Div. May 18, 2009).)   The applicant leased part of a one-acre parcel in an area zoned for townhouses and garden apartments.  But the zoning ordinance requires, as stated by the court, “a five-acre minimum lot size for townhouses and a nine-acre minimum lot size for garden apartments.”  (I assume that this prohibits three-unit townhouse clusters.)  The applicant wanted to open a nail salon in a building that had previously been used as a fuel oil company.  The land across the street was zoned for businesses.
   The court affirmed the decision of the borough’s zoning board to deny the variance.  The application didn’t meet New Jersey’s “public good” requirement for a variance because, the board concluded in large part, there were two other nail salons nearby and the applicant could have opened up a nail salon elsewhere in the borough.
   This kind of thinking goes against a wise conception of the variance, in my opinion.  It would be one thing to conclude that a small business would be incompatible with the residential zoning of the area.  But it’s another thing for the government to tell the applicant that there are too many nail solons in the area, while another business that would have an identical land use impact (perhaps a hair salon?) would be acceptable.  This kind of decision is subject to abuse and leaves the zoning authorities in the position of going beyond land use regulation and unwisely regulating competition …  

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A “sign” of the times …

   One can either frown, chuckle, or ignore the story of the efforts of Reading, Ohio (north of Cincinnati), to regulate the placement of a busty mannequin as an attraction outside a barbecue restaurant.  (After asserting that the mannequin was an unpermitted sign, the city’s Design Review Board reportedly required that she be covered up; the barbecue owner reportedly plans to appeal.)  One can also not care whether the case raises issues of first amendment rights to free expression, or is just a case of regulating commercial advertisement.  But one cannot deny that we will be hearing more land use cases such as these, as American commercial land use advertisements become, like our society as a whole, more confrontational (consider the punch-counterpunch commercials between Apple and Microsoft), more approving of “shocking” behavior, and more obsessed with selling through titillation …

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The limits of the appeal of the car-free community …

    Can American communities exist without cars?  The New York Times published last week a “running commentary” on whether American towns can be successful that ban cars, or at least relegate them to outskirts.  As assessed by expert contributors and hoi polloi commentators, some of the keys are an efficient public transportation system and mixed land use, in order to make tasks and travels easy without a car.  
   Here are my two cents:  As shown by many of the citizen commentators, car-free living is not so unusual any more.  Despite Witold Rybczynski’s odd assertion that “there are only six American downtown districts [two areas of NYC, Chi., SF, Boston, and his own Phila.] that are dense enough to support mass transit” (uh, ever been to Washington or Seattle or Portland, for example?), there are many American urban neighborhoods today that look like the Arlington, Va., picture at the NY Times site: dense, mixed-use land use with grocery shopping, apartments, nightlife, and mass transit to nearby offices.  Even Tampa, Florida, near me, famously among America’s least-walkable cities, holds a Hyde Park District in which apartment and townhouse residents can shop for lettuce, sip coffee, hear a band, and walk or catch a bus to work without a car.  Many do.     
   But Rybczynski and others are correct in suggesting that the key question is not whether car-free neighborhood can prosper—they clearly can – but whether a large percentage of Americans truly want to live in such neighborhoods.  Car-free sectors are almost certainly going to be apartment, condo, and townhouse neighborhoods.  It is much tougher to build a car-free community of single-family houses with yards.  Accordingly, while many young urban professionals embrace a life of apartment-above-a-Starbuck’s-with a-Whole-Foods-down-the-block, it’s another for an American family with kids to do so.  Unlike in Germany, a suburb in which the Times focuses, far fewer American families have accepted the car-free lifestyle.  Many factors go into these decisions, including (and this is a point rarely mentioned by optimistic urbanists) dissatisfaction with urban public schools.  Attitudes may be changing, but let’s recognize the limitations of the appeal of the car-free community …    

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A new chapter of the American Dream in Orange County, California …

   For people like me who grew up in 1960s & 70s, Orange County, Cal., and its city of Anaheim seemed like the quintessential white-bread America: Disneyland, outdoor sports, and a sunny sea of suburban houses inhabited by conservative whites, many of whom lived in Orange County because it wasn’t Los Angeles – just as millions of American white people across the nation moved to suburbs during this era to get out central cities.   
   Things have changed.  Anaheim, home to Mickey Mouse and the biggest city in Orange County (more than 340,000), now holds a majority Latino population.  And the city’s Latinos have brought their preferred land uses – soccer in the park instead of baseball, flea markets, outdoor wrestling matches (quiz for lawyers and students: Do you remember the 1936 Orange County case of Swartzbaugh v. Sampson?), and small Mexican food outlets.  But what is most interesting to me about this story from the Los Angeles Times is the happy lack of the word “foreclosure.”  Unlike the construction-and-foreclosure-boom exurbs of Riverside County, for example, Anaheim has always held many small and sensible houses – places that attracted ex-GIs with middling incomes in the 1950s and, today, many Latino families with moderate wealth.  This is not a primarily a destination for immigrants, but rather for American families, who happen to be Latino (most of Anaheim’s Latino residents are American-born), pursuing their own chapter of the dream …

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Another perspective on whether cars are loosening their grip …

   Are Americans forsaking their cars – at least to some extent?  I’ve had a number of posts on this over the past year or so.  Here’s an interesting perspective from super statistician Nate Silver, in Esquire, who reports on his creation of a regression model that takes into account both gas prices and unemployment in predicting automobile usage.  Applying this model, Silver asserts that driving is down significantly in 2009 from what would be expected.  He speculates that this might be a delayed reaction to 2008’s spike in gas prices.  But it also might be “a paradigm shift in Americans’ attitude towards their cars.”  The plummeting sales figures for automobiles of all kinds over the past year also appear to be deeper than most models would predict.  Certainly a combination of a weak economy, decreasing retirement portfolios, foreclosed exurbs, and fluctuating gas prices might be forming a perfect storm for questioning the car … and stoking interest in high-density land use.  Stay tuned …

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The land use (and other) costs of our non-urban university system …

   Commentaries are filled these days with stories about the crunch on college students, whose savings (or parents’ savings) have diminished, while college fees continue to rise, especially at state schools, whose own parent governments typically are desperate to raise more revenue.  What are we to do about the financial hurdles to an affordable education?     
   Here’s an interesting report from public radio’s Marketplace about the debate in Germany over whether to charge higher fees for universities – something that the country has been loath to do.  In much of western Europe, universities have been considered, in effect, akin to libraries: free for anyone.  By contrast, here’s a separate story about the financial dilemma faced by a Los Angeles student who hopes to attend UC-Berkeley next year, although the total cost of $27,000 would be difficult for a family that earned “only” $58,000 last year.  
   What’s wrong with this picture?  And what does all of this have to do with land use law (you might ask)?  There is a connection.  Here’s my thought:  One overlooked reason that European university education has been so much more affordable (at the cost of being less “competitive” and thus perhaps less effective) is that most European university students live at home (from my anecdotal experience).  On the continent, most major universities are in cities, as are all other major institutions, and students tend to attend their local urban universities.  But in the United States, we followed – especially with our public universities, unfortunately – the “Oxbridge” model of the prized university in a small city or even rural setting (consider the original settings of colleges such as Penn State or the U. of Illinois), and then expected these large state schools to serve large areas.  It is the American university equivalent of the anti-urban and low-density utopian ideal that has filled so much of the American land use psyche over the past 100 years or more. 
   So let’s return to a Los Angeleno student who can’t figure a way to afford the $27,000 it costs to go to Berkeley, which is more than 350 miles away.  Why can’t she live at home and attend UCLA?  The NYTimes article asserts that costs would be “nearly as high” at UCLA (the NYTimes quaintly refers to it as the “University of California campus[] in Los Angeles,” in case you’re a Manhattanite who’s never heard of UCLA).  Surely this can’t be true, I thought?  I checked UCLA’s website, which states that fees for in-state students was only about $7500 this school year (although it also suggests a “budget” that includes an equal amount for food, transportation, and other personal things – wow, that’s a lot more pizza, beer, and gasoline than I used in college!).  One problem, I suggest, is that too many American students have become used to the idea that living away from home (and thus paying for meals as well as a car) is an essential part of the college experience.
  When governments consider new public college campuses in the future, they should do what urbanites have been clamoring for governments to do in other aspects of land use law.  These colleges should be built in central cities, with access to public transportation, and convenient to as many people as possible, in order to enable students to live with their families, and to enable the college dream to be available for more students with modest incomes. 
  Now that’s new urbanism …      

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Walmart wars (no hyphen any more), an update …

   It’s become a cliché that the most notable American business that is doing well in the recession is the biggest one of all, which also happens to be the haven of the penny-pinched American:  Walmart (and here’s a note to all journalists and writers out there: the company no longer uses a hyphen in the name).  And so the Walmart wars continue, as local governments debate whether to allow the big retailer into their communities.
    Here are two current stories.  First, according to the Charlotte Observer, city advocates are trying to encourage Walmart to build along Independence Boulevard, the big thoroughfare that leads southeast out of the great banking and trade city that in part symbolizes the recent financial boom (and bust, in part); the route today holds too many empty storefronts.  A big complication – ironically, for opponents who charge that Walmart is the embodiment of sprawl – is that the city’s zoning rules limit construction near the highway, in order to allow for possible future expansion of the route as sprawl continues outward in the future.  Will expectations of sprawl stop this Walmart?      
    A more traditional battle is playing out in Orange County, Va., where the retailer would like to build a store near the locations of the famous battles of the Wilderness (it’s not really wilderness anymore, but it is still largely rural) and Chancellorsville.  A number of county supervisors appear to favor the plan as a way of stimulating economic development, while a number of groups, including the Civil War Preservation Trust, oppose it.  Recently, both the wealthy landowning King family and famous nearby resident Robert Duvall (who has often been associated with Republican causes) have expressed skepticism of a quick decision to approve the store plan.  But they, of course, do not need to shop at Walmart …

  
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