Land Use Prof Blog

Clash of history and density …

   It’s common to think of community-oriented land use laws – historic preservation, smart growth, pedestrian-friendly design – as being complementing pieces of a whole.  But this is not always the case:  sometimes one goal clashes sharply with another.  
   Let’s continue with the Pacific Northwest focus this week.   From Portland, Ore., comes this interesting story about locally unwanted apartment development in Irvington, a close-in neighborhood with many “grand dame Victorian” houses, and, as in many such neighborhoods, one that has seen its ups and downs (with the present being “up”).  The focus is on residents who purchased Victorians in the “Irvington Conservation District,” only to discover that an apartment building was planned for across the street.
   “Exactly how,” asks the Preservation magazine, “does a developer get permission to construct an out-of-scale, out-of-character building in a Portland conservation district?  In a word, zoning.”  Well, that’s not all.  Not only is much of the area zoned for high-density residential – something that a buyer who can afford a grand dame should have been able to figure out – but Portland follows a famous state policy of encouraging close-in, high-density housing.   So density and historic preservation don’t always match; here, they clash.  And just maybe density is a more important social policy for land use law.  
   Although I might feel sorry for Irvington homebuyers who have to look at “out-of-character” two-story apartment buildings across the street, I can assure them that if they want to buy a big old Victorian in a place such as Dubuque, Iowa, these homes are currently cheap, plentiful, and in single-family residential zones, and there’s a great chance that nobody will be asking to build a big new apartment building across the street.   

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Bright line or discretion in land use law?

   The heat of summer draws the mind to the coolness of the Pacific Northwest.  But there is a story in the Portland Oregonian that highlights interesting questions about the difficult choices between bright-line rules and discretion in land use law.
    Land use laws for farms are among the most interesting because they often reflect both a policy preference in favor of preserving the putatively valuable agricultural land use (perhaps ironically, especially often when the farms are close to urban areas, where the land might be more valuable as developed land) and the recognition that legal preferences may encourage landowners to abuse the preference.  Thus we have frequent stories of wealthy landowners placing a few head of cattle on land used for a mansion in order to take advantage of legal breaks for “farms.”  To prevent this kind of abuse, land use laws often restrict what a farmer can do on the land.
    Northwest of Portland along the Columbia River is Sauvie Island, where a farmer rents his spread for weddings, picnics, and classical music concerts.  Is this an abuse of zoning for farms?  According to the story, Oregon law restricts non-agricultural income on farms such as this to 25 percent of the total.  For now, the farmer has stopped some of his non-farm events as he applies for a new land use permit.
   It’s easy to side with “discretion” here: Let the nice farmer hold his classical music concerts, right?  But allowing significant non-farm uses on areas zoned for agriculture might open the door for other clever skirts around the law by wealthy landowners.  Maybe a “bright-line” is the safest course.  But some Mozart and Oregon Riesling on a cool Northwest evening does sound very pleasant right now …

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“Exacting” a riverfront greenway in Philadelphia? …

      The city of Philadelphia, one of the nation’s oldest, used to have a reputation for being somewhat staid.  And this traditional conservatism has been reflected in its land use law.  Until recently, Philadelphia followed an unwritten and very old-world-style policy that no building would be taller than the statue of William Penn atop the enormous masonry 1901 City Hall tower.  In the 1980s, however, the practice was finally broken with a number of New-York-like office towers.  Philadelphia also has lagged behind other big cities in turning its waterfront into a public recreation area.  Once one of the nation’s busiest ports, the wide Delaware River would be turned into a “greenway,” in part through an ordinance adopted last week by the city council.
     According to the new law, a “continuous recreational experience along the riverfront … will enhance public space and economic vitality of the area.”  Toward this end, the law specifies what kinds of businesses are permitted (no adult book stores or guns shops) and requires that new construction to be largely glass at the ground floor.  Most significantly, the law requires a setback from the river of 100 feet (or 10 percent of the lot, if this is less than 100 feet).  No new construction in commercial areas here will be permitted unless the owner creates a recreational trail within the riverfront setback and creates an access path to the setback.  
     In this way, of course, the city intends to create a public greenway without having to buy land or use eminent domain.   Developers are already arguing that the setback and trail requirements are an unconstitutional “exaction” of land to the public without just compensation.  Stay tuned …

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Pace Environmental Law Review is now peer-reviewed and seeking articles …

  Continuing with the environmental theme this week, the Pace Environmental Law Review has asked me to pass along the announcement below.  As we learn, for example. how suburban lawns affect water quality, how housing density affects air quality, and how sprawl affects wildlife habitat, enviornmental law depends more and more on land use law, and the two inform each other ...  

Pace Environmental Law Review Announces Shift to Peer-Review
Established in 1982, PELR was one of the first scholarly environmental law journals.  As of August 1, 2009, Pace Environmental Law Review (PELR) will use a new Peer Review process to select articles for publication.  Submissions will be reviewed internally and then forwarded to a select group of Peer Reviewers − academics, practitioners, and experts in the field, including members of Pace Law School’s world-renowned environmental law faculty.  The Peer Review process will offer new and distinctive opportunities to foster continued debate and reflection upon some of the most pressing topics within the field of environmental law. Articles selected for publication will benefit from:
•       Expedited editorial processing of 8 to 10 weeks from acceptance.
•       Single-article hard copy publication.
•       Inclusion in a bound volume distributed to PELR’s wide-ranging list of subscribers.
All articles submitted to PELR must be original scholarship and not previously published.  Exclusive submission not required.  Scholarship related to the intersection of land use law and environmental law very welcome.
We invite authors to submit articles either via ExpressO or directly in either MSWord or PDF format to the PELR Development & Acquisitions Editor at [email protected].
For more information, please visit the website at http://www.law.pace.edu/pelr

International perspective: land use law and property in the Amazon

   When I was kid in the 1970s, I thought that if I really wanted to get out of going to school, I could head for the Brazilian Amazon, which on my atlas seemed like an endless expanse of impenetrable rainforest.  Later, when I started to read about political theories, I was very curious about socialism, which seemed attractive to my teenaged mind (as it should to all at this age, said Clemenceau).  Today, neither the Amazon nor socialism is what it once was.  But both are back in the news.  
   Earlier this month, the Brazilian legislature passed a new law that would regularize some claims to private property in much of the Amazon region, as long as they were established before 2005.  The claims would be limited to 1500 hectares in size.  But it would not allow future claims – in large part to try to protect the region from further deforestation.  The remainder would be made in effect public land.  The law obviously is compromise between the claims of land-starved Brazilians for more land on which to farm and graze, and environmentalists, who wish to preserve as much of the carbon-sink Amazon as possible.  While environmentalists welcome stronger restraints on settling and logging, they criticize the law for not including proposed tough restraint on resales, among other things.
   All in all, the compromise seems to owe a little to private enterprise, a little to socialism, and a little to environmental protection.  This is the sort of compromise that seems to be universal these days … 
  
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Striking at the conformity of domestic requirements …

   “Conformity” is a failing of land use that I often attempt to skewer.  But as the United States becomes more diverse in myriad ways, and the benefits of diversity become more widely know, governments are slowly breaking down some of the barriers of conformity in land use law.  
   The Florida legislature recently passed a bill that would allow home owners to trump any homeowners’ association rules or local ordinances that otherwise would require nicely watered grass lawns, if the homeowner has a “Florida-friendly landscape” of plants and soils that tolerate heat and drought.  Under the current law, only rules and laws adopted since 2001 can be trumped.  The bill would also clarify that citizens may abide by drought emergency rules without being penalized (lawfully) by their HOA.  After years of drought and continual pressure on fresh-water supplies in a growing state surrounded on most sides by salt water, many environmentalists suggest that domestic water conservation is one of the important land use steps that Florida needs to take.  
   Slowly, the ideas of conformity – such as the idea that house property in a hot, sandy state such a Florida has to include stereotypical northeastern grass lawns simply because this is what most people have thought it SHOULD look like – are losing their grip.  Good thing …  

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Who “pays” for land use lawsuit judgments against a town?

   One of the benefits of a system of litigation that allows for the award of punitive and other open-ended “damages” is that the litigation may force the defendant to “internalize” the full costs of its actions.  A negligent driver not only has to pay for the medical bills of the person that he or she inures, but also for the “pain and suffering” that the negligent act has caused.  In this way, one economic model suggests, people are encouraged to avoid conduct that might cause a large amount of “harm,” as broadly defined.  But a system of open-ended damages can also have powerful effects upon people who are not parties to the litigation.  In the famous nuisance case of Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y. 1870), a business that clearly was causing a land use nuisance to the plaintiff was not forced to stop its conduct, in large part (the court ruled) because this might have caused the loss of jobs at the business.  And even some liberals are encouraging President Obama to support caps on medical malpractice litigation awards, in order to curb the costs of medical care.
   An interesting land use example of this phenomenon is playing out in the small town of Westfall, Pa.  There, according to the story, a developer has secured a judgment of about $20 million against the town; the developer argued successfully that local government officials – in the 1980s – conspired unlawfully against him to change zoning and land use laws to stop him from building a condominium development .  Now many years and many litigation steps later, the town government, whose budget is only a fraction of the judgment, has filed for bankruptcy protection.
   It remains to be seen whether the bankruptcy action will proceed, or whether any Westfall jobs will be lost as a result of the judgment.  And skepticism of the judgment in no way excuses the conduct of the town.  But just as open-ended damage awards force a defendant to internalize the full costs of its unlawful conduct (and deter them), court should realize that a judgment involving a government’s land use action is likely to have adverse repercussions that may be “paid” in part by people who are innocent of the town government’s conduct …

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When efforts to curb sprawl backfire …

   Ask an economist what happens if you regulate by law the supply of a good, and the economist will tell you that, not only will the price of that good rise, but that people will seek out alternatives that are not so regulated.  Thus the economic concern about metro areas that seek to combat sprawl by limiting the provision of governmental services is that the regulation may push development even further out.   While anti-sprawl regulations may indeed hamper sprawl at the edges, the metro area’s jurisdiction probably extends only so far.  Once we get beyond the jurisdiction of the governmental authority, rural land may seem more attractive.  Thus, efforts to combat traditional sprawl may engender extreme sprawl.   
     Does this theoretical effect really happen in practice?  A designer and author in Minnesota asserts that it did happen in southern Minnesota in the recent go-go housing boom.  Writing in New Geography last week, Rick Harrison tells of an extraordinary boom in the price of rural land outside the Twin Cities’ Metropolitan Council’s jurisdiction.  Although the famously integrated Metropolitan Council has planning control over seven counties, one can avoid it by driving 40 miles out of downtown Minneapolis.  With good highways, moderate gas prices, and jobs in the suburbs, many developers and homebuyers were lured to these rural locations, resulting in a remarkable “bidding war” over developable land, according to Harrison. 
  While the housing bust has slowed this extreme sprawl, the economic lesson is clear:  When you regulate something, you encourage people to avoid the restriction, with a result that the purposes of the regulation may be frustrated.  This is not to say that anti-sprawl policies are always bad (indeed, some may say that the story should encourage planning control at an even wider geographic level).  But policymakers in land use law should be prepared for the flies that appear, with the regularity of science, in their ointments …

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What – Not every city protects it history?…

   Tomorrow the climactic game of the National Hockey League season will be played at Joe Louis Arena in “Hockeytown,” Detroit, Mich., where thousands of rabid fans will pack the downtown riverfront arena.  The sight (more crowded for games than those at the suburban basketball arena) will be a rare one in Motor City.  Less than a mile to the east is the headquarters of General Motors.  Enough said.  And a little more than a mile to the west is the empty shell of what used to be Michigan Central Station.  With its cavernous Roman waiting room and huge office tower behind it, the station was once one of the world’s most impressive rail temples (here’s a photo back in the glory days), but was abandoned by Amtrak in 1998.  It is now empty, with window glass shattered.  The city government voted earlier this year to demolish it, but local preservationists are struggling to save it.
   If the station were in, say, Chicago or Boston or Seattle, where historic preservation is an essential part of local government, the station no doubt would have been transformed into some sort of public arts center or mixed-use facility.  (Here are some fascinating photos of the graffiti-covered but apparently still-structurally intact station.)  But it’s easy to forget that the powerful preservationist instinct is not nearly as well-developed in other places, such as Detroit, where the politically powerful have shown little interest in preserving hundred-year-old Roman temples, in the face of problems such as unemployment, crime, and falling populations.  And it doesn’t help that auto interests have never looked kindly on rail interests.  In cities such as Detroit, it is not easy to raise public funds for preservation of a history, an architecture, and a culture that seems remote to both the typical citizen and the average politician.  And this indifference to historic preservation is not likely to change any time soon. 
   Perhaps some of them can take solace in hockey triumphs.  Go Wings …

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Protection for nude dancing, deep in the heart of Texas …

   Whenever I mention to students that some courts have held that “nude dancing” businesses receive some first amendment protection, I get back snickers and looks of disbelief.  I then quickly add that not everyone agrees with this conclusion.  Last Friday, however, a state appellate court held that a state tax of $5 per customer on “sexually oriented businesses” (with the humorous acronym of “SOB”) violates the First Amendment of the U.S. Constitution.  I also stress to students that courts in some states (New  Jersey comes to mind) tend to create more intrusive land use rules than do other states.  But this SOB ruling comes from the Court of Appeals of Texas.  The tax (imposed in 2007) is at Texas Business & Commercial Code § 47.052(a).  The ruling is Combs v. Texas Entertainment Ass’n, No. 03-08-00213-CV (Tex. Ct. App. June 5, 2009).   The Court of Appeals of Texas concluded that the tax was a “content-based” regulation of “expressive conduct,” which is treated as “speech.” This entitled the challenger to “strict scrutiny,” which the government conceded was a standard it couldn’t meet.

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Who needs the city council?

  What’s the role of the local legislature in the creation of land use laws?  The history of the past 100 years has been one of a general accretion of power and authority away from city, town, and county councils, and towards zoning and planning commissions with the expertise and attention to detail necessary to craft land use laws.  Does the legislature still play a significant role in the process?     
   The city of Bridgeport, Conn., appears to have taken these points a bit too far.  According to a recent news report, land use changes in the city were halted because of the city council’s failure last year to approve a new city master plan.  Apparently, some people thought that the city council’s lack of attention to the master plan submitted by the city’s Planning and Zoning Commission meant that it simply went into effect.   The relevant Connecticut law states, somewhat obtusely, that  “[t]he legislative body or board of selectmen, as the case may be, may hold one or more public hearings on the plan and shall endorse or reject such entire plan or part thereof or amendment and may submit comments and recommended changes to the commission.”  Conn. Gen. Stat. § 8-23. 
   Bridgeport, which technically is Connecticut’s largest city (albeit with only a population of 138,000, less than in 1920) has a history of industry, which led to its economic decline for much of the past 50 years.  But, as in New London and other old Connecticut mill towns, there are plans aplenty.  In fact, the city was planning to vote this week on major changes to the zoning regulations.  It’s just that the city council at least has to vote on the master plan first.  But good news:  there’s no indication that the founding Subway restaurant, located in Bridgeport, is imperiled … 

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If you love land use and politics …

   Scenes from a nation with greater political control over land use: A Chicago alderman was indicted last week for allegedly taking bribes in order to push a major zoning change, while members of Congress yesterday chastised the auto company executives (among our newest public wards) for moves to close dealerships.  Stay tuned for more excitement in this brave new world …  

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Growth control? Don’t you know that there’s a recession on? …

   Florida Governor Crist signed this week a controversial new law that makes it easier to build new development in the sunshine state.  Here’s a nearly final version.  Much criticized by environmentalists, the bill was signed into law with little ceremony.  On the radio this morning, a somewhat defensive-sounding Crist fell back on the last refuge of politicians:  “jobs, jobs, jobs” was his clichéd rationale for the new law.        
   The enormous piece of legislation makes one’s eyes glaze over.  But an obviously important provision redefines a “dense urban land area,” in which tough transportation and infrastructure requirements do not have to be met, to include any county that has 1000 people per square mile (or just over one per acre) or any county with 1 million in population.  Counties may also designate “infill” areas with fewer requirements for infrastructure.  The critics assert that these changes gut important parts of Florida’s landmark growth management law of 1985 and open the door for greater sprawl in a crowded and environmentally sensitive state that continues to attract new residents from elsewhere.
    I won’t claim to pass judgment here and now on the wisdom of the changes, or even whether it makes sense to limit growth in a state such as Florida through the process of requiring that infrastructure be planned “concurrently” with a new development.  Rather, suffice to say here that the new law’s passage, with obvious discomfort from the governor, shows how an economic recession spells bad news for efforts to protect the environment and restrict sprawl, even in a time of housing glut, because of siren song of promising jobs …

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