Consumption Junction

After another successful holiday season, where we've collected and given piles of loot to one another, it seems as good a time as any to reflect on this acquisitive culture in which we find ourselves. The spark that brought me to this topic was a wholesome story my fiance and I picked up on a Toronto talk show a few days before Christmas as we drove along the New York Thruway. As they explained to the enthralled host, a couple who had lived many years in the bustle of Toronto decided to pick up their belongings, leave their families and head for the "great north" in Yellowknife, Northwest Territories. Despite the remote nature of the settlement, the husband and wife team expressed no regrets for their decision. She took a job to study the thawing permafrost in the area, and he seemed to have a lot of extra time on hand to pursue his hobbies. She touted her five-minute commute, by foot, to the office -- ten if she stopped to window shop. He lamented the brief visit back to the "big city," and yearned for a speedy return back to his new utopia.

The quaint Canadian couple, along with our cross-country travels a few weeks before, got me thinking about America's urban-oriented mentality, and how most of us (since most of us live in cities and suburbs) will never know what it's truly like to live the "rural way of life." Sure, new developments on the urban fringe attempt to recreate this existence by incorporating the natural environment, be it prairie or forest land, into the residential and commercial structures that rise from the soil. Names of new places evoke what had to be removed to permit us to move in. But living in Yellowknife is still very different from buying into a new townhouse development in central New Jersey.

This divergence in lifestyle choice is clear, but it is not the end of the story. As mentioned last time, no matter how sleepy or "empty" their environs, Americans have learned to make productive use of property, even if it does not have skyscrapers rising above the surface, and subways running below it. If people are present, electric lines must be strung, roads must be built, and septic tanks must be dug. Residents must have a source of water, and they inevitably produce a stream of refuse that must find a home separate from the settlement. Even pastoral farms must have irrigation systems and gas-powered machinery to plant and harvest their products. There may be less people populating rural expanses, but there are people there nonetheless. The consumption of materials, resulting in waste products, is, at its most mundane level, the human condition.

So when that couple from Yellowknife recounts life in that "slower" part of the world, it's hard to overlook the fact that they enjoy many of the same "necessities" of modern human life, down to their satellite cable keeping them connected to what's happening to the South. Land use is land use, be it in midtown Manhattan or the Northwest Territories. There may be less people in their humble settlement, but the consumption mentality remains, down to the Yellowknife couple's window shopping on the way to work. And in this season where we try to find common bonds that unite us all, land use, oddly enough, is one of those connections. The universality of the land use process, which is how we decide to organize our settlements, makes it a common question for all of us stationed on this planet, wherever that might be. This is perhaps not the most heart-warming sentiment for the season, but, take a drive down the street you live on and see the garbage bag upon garbage bag of wrapping paper after Christmas. Viewing such a spectacle shows that it is the day-to-day realities of our existence that ties us tightly together, and brings us together to live in towns and cities strewn across the continent.

The Open Road

After thirteen days, twelve roadside motels, a speeding ticket or two, countless meals ranging from mediocre to just plain scary, and an experience that can never be forgotten, my fiance and I have completed our over 4,000-mile journey across this great nation. From Los Angeles to New York, with a detour up the Pacific coast to Seattle, we saw that what it means to be an "American" can mean almost an infinite number of permutations. In San Francisco, Portland and Seattle we saw vibrant city centers occupied by earnest city dwellers. Aided by geography and land use planning, these towns have preserved their core settlements, despite the pull of sprawl impacting all three. Even Portland, a model of land use efficiency, has Nike's world headquarters stationed on its outskirts in suburban Beaverton. Ellensburg, Washington is a sleepy town along Interstate 90 that survives thanks to the influx of spending power of Central Washington University and its students. We passed a night in Gillette, Wyoming, which the denizens happily tout as the coal capital of the nation. Mount Rushmore, and the tourist-dependent Keystone, South Dakota, at its entrance, mine the Black Hills for modern-day sources of income from the land. We drove along the edge of the behemoth that is Chicago, and observed the aggressive push of the metropolis into the Illinois prairie.

The examples were endless across this nation, of people adapting the land where they have settled to a hospitable and profitable place to live. What I came to realize was that no matter what the land offered, its inhabitants have found a way to make "productive" use of it. Even out in the expanses of South Dakota and Minnesota that we drove across, the plots have been subdivided into separate tracts whose owners cultivate the soil for agricultural purposes. In the grasslands of Wyoming, the federal government has leased these lands for grazing by cattle, sheep, llamas and any other domesticated animal seen fit. In Oregon, we wandered off the Pacific Coast Highway to seek out a fish hatchery, and saw fishermen parked along the side of the road, standing in the stream that ran along side. Even in the Crow Nation's reservation in Montana, cell towers rise along the roadway where on either side it appears there is "nothing."

This of course is not meant to imply that every square inch of the continent is occupied, but it is to say that land use takes many forms. Most of the press and attention does go towards what's happening on the urban fringe, and to big developments meant to revitalize city centers. But in all that "in between" space between the two coasts is an enormous amount of activity that cannot be ignored. Putting aside the metropolises that aren't located on an ocean, the world that is rural America offers a fascinating glimpse into why people choose to live in places that aren't hot real estate markets. Each place provides an attractive reason, whatever it may be. Otherwise, the settlement would have completely crumbled, just as it has in western "ghost towns" that some attempt to revive as tourist attractions.

If anything, our excursion across the nation reminded me of the richness of this country and its people, and the need to keep that in mind whenever seeking to explain the collective decisions by this country. From a land use perspective, it opens up for me a new interest in rural land use, and how it interacts with metropolitan pressures. Coming from "the city," it reminds me that in my future work, rural concerns are just as critical as those that impact the existing built environment, because the rural world is as much a part of the economy and the debate as the urban realm. If only the press would realize that as well. Apparently all it takes is a two-week sojourn across the continent.

Fees, Glorious Fees

One of the less heroic chores during my days as a land use attorney was making sure that before we submitted a land use application with a municipality, the application fees and escrow amounts to serve as retainers for board professional reviews were computed properly. Some were straightforward affairs, requiring flat fees for projects. However, other localities’ formulas required the combined mathematical powers of our office to arrive at the correct figures. Sometimes it would take careful conversations with the town to ensure accuracy, and perhaps haggle for a better price. Constructing overly complex computations based on a variety of factors – square footage of construction, lot areas, etc. – town officials would take great glee at spotting our “errors” to extract additional funds from the applicant. Those situations would lead to the query often lamented by lawyers: “Is this why I went to law school?”

Clear for a time from those moments of frustration, I recently read an article from the Los Angeles Times about the cry from builders over an increase in “impact fees,” or payments required by municipalities and other governmental units to finance new services and infrastructure required by new development. As one builder from the piece notes, “[t]he added costs have made many new homes unaffordable.” At best, this statement is pure hyperbole. Although different from land use application fees and escrows, impact fees derive from the land use process, and often are tied to approvals as conditions that must be met to permit the drawing of building permits. If builders could not sell their products, they would simply stop producing them.

The push and pull over impact fees boils down the issue of who should pay for the needs created by new development within a community. Municipalities argue that existing residents and businesses already pay taxes. To require additional payments from these constituencies would not only threaten local politicians at the ballot box, it would be inherently unfair, imposing a double taxation on the community. On the other end of the debate, new residents (and the builders who pass along the costs to them) argue that they are being discriminated against, and that the old residents benefit from new roads, more firemen and increased funding for schools just as much as the new inhabitants.

In the end, as is the case with any change, all parties have to pay. New residents pay, as part of their purchase price into the community, for the infrastructure and services the town will provide. The town pays by having to grow its bureaucracy to accommodate the needs of the newcomers. The existing residents pay by losing some of the qualities that attracted them to their homes or places of business in the first place. To require monetary payment from the consumers of new development may be the most affordable cost amongst the respective groups “impacted” by the new construction.

But all of the affected parties also receive a benefit for the changes that come from new development. Obviously, the new residents have paid to enter because they receive the benefits that the town has to offer. The town itself will increase its tax base, and no doubt the prestige of being the home for new businesses and homes. Finally, the existing residents will be enriched by the influx of new personalities and ideas into the community. There is a reason for the fees. In the end, they are more often than not well worth every penny.

Next time, I'll delve into the journey my fiance and I just completed -- a two-week odyssey on the road from Los Angeles to New York -- and the facinating ways in which we use and occupy the North American continent.

Drosscape

I just finished a fabulous book called Drosscape: Wasting Land in Urban America, by Alan Berger. Published by the Princeton Architectural Press, the book just came out earlier this year. Berger, an associate professor at the Harvard Graduate School of Design, states the case for redevelopment, particularly in the context of “dross,” or wasted land within the built environment of metropolitan areas. Berger calls for the adaptive reuse of properties that have fallen into disuse on account of deindustrialization, post-Ford economic shifts and technological innovation. Sites contaminated by industrial processes, dying shopping malls, old landfills, decommissioned military installations, areas bordering infrastructural improvements, redundant sports stadiums, and transition areas for residential communities are just a few of the targeted parcels.

Berger makes the astonishing argument, which makes the pro- versus anti-sprawl debate irrelevant, that “there is no growth without waste and that urban growth and dross go hand in hand.” Comparing the growth process of metropolitan areas to any other living organism, Berger asserts that just as a living thing grows, cities produce waste in their pursuit to expand. “Dross” is an unavoidable byproduct of metropolitan growth. Nonetheless, Berger notes with great enthusiasm that these underutilized areas are great opportunities for designers, not to mention developers and other land use professionals, to return these parcels to productivity within the modern economy.

The greatest virtue of Berger’s work, however, is the phenomenal collection of aerial photographs that he has compiled while hanging out of an airplane high above his targets. Over half of the work is comprised of Berger’s capturing of the sites he discusses in the text. Berger chronicles the shifting dynamics in cities today by concretely showing how Americans use the land they occupy. New residential units, malls and warehouse facilities sprout on the far edges of existing communities. Central cities attempt to cope with this movement by redefining its place in the metropolitan area’s overall future. Berger supports these photographic examples with statistics displayed in easy-to-decipher graphs.

Essentially, Berger advocates using redevelopment to return the “dross” to the mainstream of the built environment. He notes the Kelo decision as an occurrence “for better and worse” but he misses the finer points of the Supreme Court’s decision. Nonetheless, Berger firmly stands behind its overarching vote for municipal power to carry out his “drosscape” agenda. Despite its glossing over of the existing land use process, a nagging problem with redundancies in the text and its calls for change without specifics commonly found in academic tracts, Drosscape offers a wonderful overview of the state of affairs in modern American land use. The vivid pictures alone are worth the price. It also demonstrates once again the power that land use holds over American psyches – even those deep and meaningful psyches that walk the greens of Cambridge, Massachusetts.

L.A. Story

This week, after a stay of just over a year, my fiancé and I are packing up and leaving Los Angeles. Based on many factors that work themselves into such an equation, we have decided to move back to our place of origin – New York City. We turn back towards the east, knowing that New York is where we want to be. But as we tape up the final box, I look back at our time here with great affection. I came out here to try my hand at writing for television and film. Although I see it as a success, meeting a number of wonderful people, and I intend to continue my pursuit in New York, I did not “make a sale” while here. But the other learning experience I had while living in Los Angeles was the ability to enjoy a first hand experience of one of the most intriguing metropolitan regions on earth from a land use perspective. Los Angeles has always been the model of what not to do when it came to land use planning. Smoggy, sprawly and just plain ugly, pundits, politicians and professors have relegated it to one of the most ill-conceived settlements on earth.

Having driven the freeways, breathed the air, walked the beaches and explored its canyons, I leave this place better educated about why people continue to move here and grow this behemoth of a metropolitan area. Sure, the driving is terrible. The drivers, in fact, are even worse. There are days when it’s difficult to breathe (especially if you’re sensitive to bad air like I am). When it rains around here, the television meteorologists declare a state of emergency. Not having seasons does make you got nuts. The Los Angeles Times devotes a week’s worth of front page space to a celebrity (oh, let’s say Mel Gibson for instance) who gets stopped for having a few too many drinks. And yes, there is more silicone here than the Sahara Desert. But underneath the lunacy that defines Los Angeles is an environment that adds up to an oddly, but extremely, livable place.

Any observer of the urban condition will tell you that the key to a successful community is creating pedestrian-scale neighborhoods patched together by a collective sense of ownership. The very old joke in L.A. is that no one walks. For the most part, this is true. But nonetheless, “Los Angeles,” as constituted, is a patchwork of neighborhoods, one that blends into the next. If you travel down Sunset Boulevard, moving from the water inland, you weave through a multiplicity of different and distinct areas. Pacific Palisades leads to Brentwood. Cross over the 405 freeway and enter Westwood, which passes along the entrance to Bel Air, which evolves to Beverly Hills, which morphs into West Hollywood, which changes over to Hollywood, and so on, and so forth. You can take any path across the gigantic Los Angeles basin and find yourself traversing through a constant turnover in neighborhood after neighborhood, each with its own character and collection of denizens. The beach is very different from the Valley, the Hills provide a vast departure from Pasadena. The list and comparisons are like an old Love Connection episode, where each pair discusses how far apart the two of them live, all in the interest of dinner and a movie.

Depending on which numbers you believe, the Los Angeles metropolitan region is the densest area in the United States. The sprawl has morphed into really dense sprawl. In the process, the inhabitants have forged for themselves a place to live comfortably, for the most part. Los Angeles offers the wonderful escapes of beaches and forest, winter and summer sports all at the same time. And the places where people spend most of their time in a given year, although clogged with traffic, still provides a spot on an individual level, even to walk around once in awhile. Therefore, even though it’s time to leave, our time in L.A. was extremely well spent.

Let's Give Thanks

During the week of this most gluttonous of holidays, we should reflect on the meaning of the event in the context of land use. Most conversations on land use assume the modern-day axiom that there is no further question as to the legitimacy of “Americans” on the soil they call home. The question isn’t so much who owns the property but rather, what will be done to said tract. Yes, the well-worn story of European aggression leading to the wresting of the North American continent from native peoples underlies this query. But where does this narrative stand today?

An intriguing story comes from upstate New York, the home of the Oneida Indian Nation. The Nation has grown in stature, with the aid of profits generated by its Turning Stone Casino and Resort complex just off the New York Thruway, about an hour’s drive east of Syracuse. Its economic strength has also increased its political clout in the region, something that is not always welcomed by the other inhabitants of the area, who make up about 99% of the population. In March, 2005, the United States Supreme Court, in City of Sherill v. Oneida Indian Nation of New York, held that the Nation, which attempted to reacquire ancestral lands and reintegrate these new purchases into the autonomous lands of their tribe, still had to pay property taxes on these new tracts. The Court reasoned because the Oneidas had waited so long to reassert authority over these lands, they could not use the tax exemption that would typically apply. Moreover, the Court was concerned that if the Oneidas were allowed to reassert control over their recent purchases, the Nation could also claim that it was not subject to local zoning requirements that the non-Nation properties still face.

The decision is not the end of the story. The Nation responded to the adverse decision by filing with the United States Bureau of Indian Affairs (BIA) an application for the territory at issue to be taken into trust, which would have the same effect as being declared sovereign territory. Senator Charles Schumer has voiced his alignment with the impacted localities against the Nation. “Simply put, where no legitimate land claim exists, the BIA should be very hesitant to reward tribes – and harm counties and municipalities – by placing non-contiguous land into federal trust.”

From a land use perspective, having the localities remain sovereign over the new Oneida lands on its face appears to make sense. Consistency of application is a rule common to the American experience. But doesn’t it seem a little disingenuous to have the Supreme Court and Senator Schumer side with the municipalities on the bases of fair play and other equitable justifications? Who has been harmed more over the course of the last five hundred years? As always, the issue is less about history and more about the almighty dollar. Jealous of the Oneida’s successes, both the local and state governments cringe over the potential tax revenues that would be lost if all of the Nation’s earnings were free from levy. Tax revenues are always a factor in the land use calculus. Municipalities are always on the prowl for the all-important “ratables.”

But in this case, there is more at play than a question of money. Sovereignty and home rule are precepts that municipalities continue to fight to preserve in the face of regionalization. This very same fundamental right is what the Oneidas are seeking. The land use process is part of the self governance equation, and would not be ignored by the Nation, as it has not been on the property that currently falls within the tribe’s control. At this time of year, when we can reflect on the origins of our ritual of turkey and football, isn’t it worthwhile to think about the importance of thanks, and sharing, after all that has come before?

The Future!

This Friday, after a four-year hiatus, the James Bond franchise returns to the silver screen with Casino Royale, the original story from Bond’s creator, Ian Fleming, and a new fellow filling the tuxedo, Daniel Craig. I look forward to it with great anticipation. But what does this have to do with land use, you ask? Well, aside from the commercials depicting a fight scene atop a half-completed skyscraper, the return of Bond got me to thinking about the role of film and television in portraying the land use process, and if, along with the high profile of Kelo, has the mass media portrayed it accurately, or with sufficient care? Professionals, and those in “the know” often complain how Hollywood distorts the “truth” of their vocation. Surgeons look for egregious mistakes in operating room scenes, psychologists scoff at laughable therapy sessions, and police officers cringe at shoddy techniques employed by those who only “play them on T.V.”

The crooked land developer is a common villain, from the shady fellow who built on old Indian burial grounds in Poltergeist, to just about every bad guy who uttered the line “if it wasn’t for those pesky kids” on Scooby-Doo. In a more recent example, John Sayles, a respected independent film director, made Sunshine State, an ensemble piece analyzing the personal and political dynamics of a proposed development in a coastal Florida town. The film even throws in a few board hearing scenes to provide a pretty solid picture of the process. Finding examples of land use-themed fiction is not hard. Finding memorable ones is more of a challenge.

Luckily, one of the greatest villains of all time, in one of the greatest movies of all time happens to be a land baron: Noah Cross in Chinatown. Loosely based on the real-life water grab from the Owens Valley to usher in modern Los Angeles, Chinatown is the greatest portrayal of land use to date because it captures the personality and politics behind the process. Early in the film, Jack Nicholson, as smarmy private investigator J.J. Gittes, begins his investigation of a suspected philandering husband at a City Council meeting. He eyes his prey while the drama of the meeting occurs around him. The talk is of water, and how the city needs it to grow. Unhappy ranchers from the region’s outskirts make their point for a new aqueduct from the Owens Valley by running a herd of sheep down the council chambers’ aisles, demanding water for their livestock. Gittes yawns, but we see the messy process at work.

Behind the push for water is Noah Cross, played by the renowned director John Huston. From Cross, Gittes, and the audience, learn the true importance of the water scheme. As Cross explains, “Either you bring the water to L.A. or you bring L.A. to the water.” Gittes probes deeper, wonders why a fabulously rich man like Cross would want to get involved in something as mundane as water. “The future, Mr. Gittes. The future!” In that one line, the film captures what it is that makes land use such a critical part of our democratic system. What we want to be, and how we want ourselves to look, largely depends on the decisions we make in land use meetings across the nation. The power of Chinatown, as the quintessential land use film, resides in the simplicity of Noah Cross’s words.

Of course there are other examples out there, and I invite comment on your favorite depictions of land use in fiction. At the bottom of it all, I’m just thankful that Bond is back. Speaking of being thankful, next week is a holiday designed to do just that. We’ll take a look at the celebration, in the context of land use.

War Stories

A few months ago, my apartment building manager knocked on our door, looking for help. In her Eastern European accent that I still haven’t been able to pinpoint, she asked if I could attend a land use board meeting to tout the virtues of our apartment building. “Tell them that you enjoy living in the building. Also say that you have no problem parking, and that everyone has a spot that wants one.” As a land use lawyer on sabbatical, this peaked my interest. I decided to probe for what was really going on under the surface. “The city is giving us a hard time,” she replied. To me, this meant she wasn’t quite sure what was happening.

On the day of the meeting, the manager collected me, and led me to a silver luxury SUV, and introduced me to the owners of my building, a pleasant couple in their sixties, clearly New York transplants who left for the sun of Los Angeles long ago. As they told the story on the way to the meeting, in between their bickering as to what was “the real story,” I learned that back in the seventies they had decided to subdivide a few of the larger units in the building, something they, of course inadvertently, neglected to tell the city. The added units created additional parking requirements that they could not supply with the spaces they had originally allocated for the building. A city building inspector, during his periodic investigation, had discovered the oversight. “What they really want is an affordable housing set-aside, which is what they can demand whenever an older apartment building is improved,” the husband informed me. “They can do whatever they want,” the wife added.

When we reached the meeting room that morning, we found a single planner stationed at the head of the space. The owners’ lawyer was there, and he filled me in on some of the nuances of practicing land use law in Los Angeles. The multiplicity of boards across fragmented Los Angeles County, the politics of working with city officials, and the other day-to-day hurdles that I remembered fondly from my days in New Jersey. The hearing was a straightforward affair, and the owners gained their approvals (yes, approvals, since they did the same thing at another building they owned), subject to their affordable housing concessions – the pound of flesh that the city was after. I like to think I played a small role, confirming that parking was not really an issue (despite an angry neighbor who voiced his view to the contrary – there’s always one). With a triumphant air, I congratulated the attorney, idly suggesting, “I wish they were all that easy.” The attorney responded, “Easy? Well, not if you count the year of work it took to get to this point.”

At then it hit me: the memories of the real work it takes to navigate through the process. The back and forth, give and take procedure behind the scenes is critical in putting on a good show at the public hearing. If this initial ground work is not there, then you face the wrath of an ornery board. Of course, this luxury of setting the foundation, and getting a board behind a development, is not always possible. Pubic hearing requirements often forbid board members from discussing pending projects out of the earshot of the general citizenry. I have distinct memories of applications that dragged for over a year because of the stops and starts of the approval process. Board chairs wielding power to stall applications at a particular meeting if they don’t meet their very specific requirements.

But my indoctrination in Los Angeles land use reminded me of the beauty of the system, and the personalities and politics that drive it. Sure, it’s a maddening process. Yes, it suffers from the need for a more regional oversight. But is there a better way to do it? Does it have to be a little “messy” for it to work at all? I vacillate on this question, especially when things go south on an application for seemingly silly reasons. But this is the nature of land use, especially since it can often be a very emotional affair. The owners of my apartment building lived and breathed every day with their applications for nearly two years. This emotion, oddly enough, has been a great source of drama in fiction, particularly the movies and television. This is where we turn next time.

Ballot Initative Update

The big news from Election Day, aside from the party shift in Congress, is the

“Response to Kelo,” i.e., the ballot initiatives seeking to curb eminent domain. According to the Castle Coalition, a property rights group, the results are as follows:

YES:

Arizona: 65% to 35%

Florida: 70% to 30%

Georgia: 80% to 20%

Louisiana: Passed in September

Michigan: 80% to 20%

Nevada: 65% to 35%

New Hampshire: 85% to 15%

North Dakota: 65% to 35%

Oregon: 65% to 35%

South Carolina: 85% to 15%
__________________________________

NO:

California: 45% to 55%

Idaho: 25% to 75%


The impact of these initiatives will take months, and probably years, to sort out. But for the moment, it is clear that the “Rage of Kelo” remains burning in the minds of many Americans.

Regionalization, Part Do?

Despite the history of municipal control over its own land use decisions, the pall of county and state interference has always hung over cities and towns. As the Supreme Court confirmed in the seminal Euclid zoning case back in 1926, localities are “creatures of the state.” Yet, as land use planning has become more intricate, scientific and exact, taking the long and wide views of metropolitan growth has meant that each site plan and subdivision application considered by local land use boards receive increasing scrutiny from higher governmental powers. As mentioned in my last post, the scarring effects of sprawl contributed greatly to the movement towards a more regional outlook of land use decision making. Beginning in the 1990’s, and into the current decade, this crusade fell under the umbrella of the “smart growth” movement, which undertook various approaches around the country to wrestle control from municipal land use boards.

For instance, in Maryland, Governor Parris Glendening pushed through the Smart Growth and Neighborhood Conservation initiative in 1997, an attempt to discourage development on the urban fringe by cutting off state service money for these projects. Yet, the program has since wallowed under the tutelage of current governor Robert L. Ehrlich. Nonetheless, private groups such as 1000 Friends of Maryland are attempting to breathe new life into the program. In New Jersey, then Governor James McGreevey, before his “confession” (it should have been “confessions,” considering the accusations of graft carefully swept under the rug with his other bombshell – but that’s another story), attempted to carve up the state into areas, from urban to rural, and assign levels of preferences the state would provide when new developments were proposed within each. Although this proposal died, another regional body sprung to life, the Highlands Commission. Assigned to oversee the northwest quadrant of the state, the Commission has been granted powers to review all applications for new projects in the region. Its companion organization, the Pinelands Commission, which has similar regional power in a portion of the southern part of the state, has been in operation for over two decades.

But when it comes to a metropolitan region that has embraced the concept of a regional approach to land use, look no further than Portland, Oregon. Aided by a state land use framework, Portland created a regional structure of review back in the 1970’s, with the Metro Council overseeing its growth needs. The Metro Council is the only regional government in the United States with a home-rule charter and directly elected representatives. The Portland area also adopted an urban growth boundary, a line beyond which development cannot occur, to keep projects on the fringe within a defined area set aside for new construction on previously green land. And yet despite its successes, Portland is a model that largely stands alone, rather than an example setter for other metropolitan areas that have followed in its path. There are other states that have comprehensive approaches, such as Hawaii. But regionalization inches along in piecemeal advances. For instance, see the advocacy group Smart Growth Network’s pamphlet “This is Smart Growth,” which charts victories on a development by development basis.

With all the talk of more unified, far-reaching land use planning, America still resists the urge to regionalize. Municipalities enjoy their relative autonomy to plan based on their own selfish needs. This is not to say there aren’t good things in this arrangement. The highly democratic system solicits everyone’s voice. But there is a need for a system of even greater inclusion in today’s highly mobile society, where people find themselves using the services of many different municipalities over the course of a day (to live in, to work in, to shop in, to play in, etc.). Why not open up the worldview when it comes to the next big project coming to town? Sure, this approach invites the probability of additional bureaucracy, and added time and expense, but isn’t the land use approval process pretty costly and expensive already? Isn’t the perception that it’s getting worse? Why not get better planning decisions out of a process for which that is the purpose? Next time, we’ll look at the current state of affairs on the board level, and discuss how “bad” it really is.

Regionalization, An Introduction

Three hundred million strong, and growing, America continues to burst from the edges of its metropolitan areas in search of new places to build homes, and the businesses that support them. With this push outward comes the pull from central cities and inner suburbs to remain relevant and vibrant. Often, there is no one integrating these two forces into the overall vision for the regional community. Municipalities make land use decisions with little input, or even consultation, from neighbors. Each town acts as their own fiefdom, with little regard for the impacts their new projects may have on adjacent burgs. However, entire metropolitan areas, counties and states are increasingly entering the day-to-day role of reviewing and approving land development projects once reserved for towns and cities. This “regionalization” of land use springs from the negative impacts of planning decisions over the past half century.

Most of the mistakes made regarding land use over the last fifty years have been attributed to “sprawl,” or the low density, single-use development that requires the use of the automobile to perform even the most simple of tasks during one’s daily life. Some land use commentators, such as Joel Kotkin and Robert Bruegmann, contend that sprawl is a natural historical progression, and that if it were so bad for America, then Americans would not choose it as the predominant national land use pattern. Although such arguments at least question an abject denunciation of the phenomenon, sprawl does raise issues of resource allocation and costs (to one’s pocket book, to one’s health, to one’s well-being, etc.) that cannot be ignored. An hour and a half commute, each way, has real effects on the American way of life.

Many land use advocates have pointed to “redevelopment,” or the reuse of land in central cities and inner ring suburbs, as a critical tool in stemming the tide of sprawl. They see it as an answer to the problem that growth is a given, and it “has to go somewhere.” Nonetheless, for meaningful projects to locate in these areas, a developer must acquire a large enough parcel on which to build, the very problem New London, Connecticut used eminent domain to solve in the Kelo case. Municipalities must employ full-time staffs to: (1) track down property owners, (2) undergo quiet title actions when the owners cannot (or choose not to) be found, (3) find suitable relocation situations for tenants, (4) negotiate with owners who do wish to sell, and, if necessary, (5) conduct eminent domain actions with those owners unwilling to negotiate.

But the real question, as it was in the case of Kelo, is who should be at the controls of this process of “growth” that shapes our built-up environment? Some combination of development on the urban fringe, and redevelopment that will recycle previously-used parcels appears to be in order. But shouldn’t someone be keeping an eye on what’s going on all over a metropolitan region? Who should have the ultimate say? These are the same questions put forth in my last post, but now we’re closer to the answer with the foundation of the issue before us: namely, that regionalization seeks to curb the negative by-products of sprawl. Next time, we’ll explore some examples of regionalization that seek to look at the “big picture” whenever a new development application lands in the lap of a land use board, and figure out if these approaches really work.

The Response to Kelo

Last week we kicked things off with Kelo v. City of New London, the Supreme Court’s answer to redevelopment in modern urban America. Thanks to this decision, many Americans now believe that the key mantra of land use law is as follows: “they can take your house for any reason and give it to developers.” This simplistic approach creates an initial hurdle that land use professionals and boards alike must overcome in earning the trust of citizens who must enter and use the process. If those not familiar with the procedure believe the system is rigged against them (even though it is almost the direct opposite), it may be impossible to ever earn their trust.

The country’s legislators have fueled this belief in a broken land use system. New laws and ballot initiatives have clogged legislative agendas in the last year, each designed to nullify the Kelo decision. According to the property rights website PropertyFairness.org, twenty-four states have adopted some type of anti-eminent domain measure, prohibiting takings that are designed to stimulate economic development. For instance, Illinois’s S.B. 3086 prohibits any act of eminent domain from benefiting a private entity. However, the new law does allow the use of eminent domain for a private development if the area is declared “blighted” and the developer enters into a redevelopment agreement with the applicable locality. Likewise, Pennsylvania’s H.B. 2054/S. 881 prevents the use of eminent domain for public enterprise, but exempts the state’s current urban redevelopment framework. As for the rest of the states, they have just about all attempted to push through similar measures, some still with the potential for passage.

The ballot initiatives put before voters in twelve states this fall seek “reforms” to the eminent domain question. Already, Louisiana citizens adopted a constitutional amendment in September that is similar to the Illinois and Pennsylvania examples, with the major exemption there being port properties. However, several initiatives in the West, particularly California’s, go even further. The model for the proposal comes from Oregon's Measure 37, which requires compensation to property owners impacted by regulations under the state’s strict land use framework. Affirmed by the Oregon Supreme Court earlier this year, the measure has opened up the floodgates to claims of “regulatory takings.” California seized on this initiative, drafting Proposition 90, which would actually require “just compensation” not only for real estate, but any personal property impacted by most state regulations.

Behind all of these legislative actions is the enduring rage of Kelo. Its profound impact can be felt in every state in the Union, as each tries to interpret, and manipulate its meaning. But underneath this vocal campaign is a potentially more harmful impact on the existing American land use system. Sure, there have been abuses on the part of localities in exercising eminent domain, but the call for “reform” also threatens the inherently democratic nature of the system itself, and the control over one’s destiny that is the hallmark of the land use decision making process. Eminent domain can play a critical role in redeveloping underutilized urban areas. But more importantly, the bright focus on eminent domain, with it being such a small part of the overall land use mechanism, puts undue emphasis upon it. With this issue as the “face” of land use, it paints a picture that may lead to further erosion of local autonomy, a process already progressing across the nation.

Proponents of these eminent domain initiatives tend to expound on the need for autonomy of the property owner. Ironically, these plans bring further governmental oversight to the process, and take the decision making out of the hands of local actors. In fact, these initiatives hand the decision making largely to the courts, the same branch of government that handed down Kelo in the first place. The question I pose then is this, in the context of the larger land use process: who is best to look after our land use needs? Is it the local boards and legislative bodies? Is it property owners, as regulated by the courts? Or is it a more regional type approach, as is the trend towards which most of America is heading? Perhaps some combination of these choices is the best approach?

Next time, we’ll move beyond Kelo to discuss the question of regionalization, and how it impacts another “hot button” issue when it comes to land use: urban sprawl.

The Rage of Kelo

Ever since last year’s Supreme Court decision in Kelo v. City of New London, the American public has been talking about eminent domain, or the taking of private property by a government entity in exchange for “just compensation.” As a land use attorney, formerly practicing in New Jersey, I applauded the decision, but not for the proposition for which it stood. Although I agreed with the Court’s reasoning, which allows municipalities to take property for the “public purpose” of economic development, I cheered more so because the case brought land use law to the forefront of the national debate, crowding out talk of Brangelina and Iraq, at least for a few minutes. The outrage with which property rights proponents responded, and their sheer numbers, got me to thinking about the power and sometimes ridiculous results of land use decisions.

For the moment, I’ve taken a step away from practicing law. However, I still enjoy keeping watch over the wonderful world of land use law. The beauty of it is that decisions on where to locate what, and how big, is a highly democratic affair, even greater than voting or serving on a jury. For each site plan or subdivision application, anybody can stand up and voice their opinion by simply showing up to a land use board meeting. The decision makers are members of the community, who may or may not have some expertise on the subject. Of course there are lawyers and politicians to keep a watchful eye, but in the end, it is truly “the people” that decide what to allow within their burg. And yet, many people who enter the process without a formal introduction find it foreign, and, in the end, a highly unsatisfying experience.

With this blog, I set out to open up a forum to allow people to vent their frustrations with this system that determines our built-up environment. It shall strive for neutrality and communal support. For this introductory message, I ask for input from those out there who have been shortchanged by the process, just like Suzanne Kelo claims to have been. (In the end, the plaintiff in the Supreme Court case was able to keep her house). Have you ever seen an unwanted use go up near your house? Have you ever had to battle a neighbor over home improvements which required board approval? Have you ever had to fight the local government for a seemingly trivial request? For that matter, are there any of you on the municipal side who have something to gripe about regarding applicants? I invite your comments, from any and all perspectives. Ultimately, the objective is to demystify the process, and allow us all to understand the highly complex dynamics involved in a dispute. Land use is an inherently local affair, but behind the specifics of each locality’s process is the universal search for the “right decision.”

A recent Los Angeles Times op-ed piece, reflecting on the passing of the 300 million mark in American population, argued that there’s plenty of room to grow, so there’s no need to worry. Like most media produced in Southern California, the article is wholly out of touch with reality. Is there really somewhere left where someone wouldn’t notice a 200-home subdivision being built, not to mention have something to say about it? The land use process provides a forum to vent. I offer this forum as a place to vent when the process goes horribly wrong.