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.