The Outsiders

There's a lot of news in the world out there lately. Here in New York, Mayor Bloomberg's plan to bring "congestion pricing" to lower Manhattan fell on deaf ears in the state legislature. In addition, there was a big hubbub about a parking space that costs $225,000, and has a waiting list, in Manhattan's Chelsea's neighborhood. HBO Sports released a marvelous documentary on the Brooklyn Dodgers, which carefully charted how Power Broker Robert Moses prompted the move of the beloved baseball franchise to Los Angeles by denying Walter O'Malley access to the Atlantic Yards, which are currently being fought over again as the future site of a basketball arena. Beyond the confines of NYC, down South, atop the Florida aquifer system, development pressures are putting an intense stress on the underground water supply of the region. If current trends do not change, saltwater will begin to encroach on the dwindling freshwater supply. News from the post-Katrina Gulf coast indicates that despite, and evidence indicates because of, the slow pace of redevelopment occurring in this region after the devastating storm, the people that have returned to the region, left with little of the social institutions they once enjoyed, have turned to the casinos that line the Gulf for solace. Casino operators are reporting record revenues, largely due to locals turning to them for escape.

But out of the spotlight of these bigger stories comes a simple example of the American land use system working as it always has -- on the local level seeking to solve small, yet vital issues that mean most to communities and their residents. Recently, I found myself sitting in on a Town Board meeting on the east end of Long Island. I was there to monitor a topic on the Board's agenda relevant to my practice. Aside from learning the Board's thoughts on this issue, I left with a reminder as to why land use regulation exists, and the undercurrents that so often go unsaid. The item on the agenda that caught my attention involved the Town's problem with dealing with out-of-towners who are using the Town's beaches, to great ire of the locals. Although each of the people who weighed in on the issue carefully sidestepped the obvious implications of the proposed action, which would make it more difficult for the "outsiders" to use the Town's beaches, everyone could see the white elephant occupying its spot in the Board's chambers.

At the core of the issue, the residents, one after the other, voiced their complaints that these "out-of-towners," "none of whom had New York state license plates," were using their beaches, leaving behind garbage, using the sand as their personal toilets, cleaning their day's catch on the street outside their houses. The angry residents suggested to raise the price of day passes to their beaches, increase police presence around the beaches and generally discourage these unwelcome visitors from coming back. Sure, they prefaced their remarks with, "I don't see anything wrong with people using the beaches," but then they proceeded to express how to keep them away. Granted, the way these visitors were treating their destination was deplorable, and something should be done. But such comments as, "my grown children were appalled when they came back and saw what was happening," and "it's not how it used to be," suggests that deep down, if these residents could put a fence around their town, and require people to present photo I.D.s to get in (which is essentially what they were suggesting to the Town Board), they would do it. By the end of the discussion on the agenda item, I was fearful they would spot me as an interloper, and throw me out of Town.

This issue of providing public access to beaches is an age old problem. For instance, in Los Angeles, the owners of exclusive homes in the enclave of Malibu go through the never-ending struggle to discourage people from crossing through their community to reach the beach -- even though these beachgoers are within their rights under the "public trust doctrine." Going so far as hiring private goon squads to keep out the public, Malibu types constantly battle with public authorities seeking to strike a careful balance. What causes normally reasonable people to hire private security forces, or to take pictures of people using the beach (as in the case in this Long Island beach community) with their spare cash and free time? What kind of condition creates some of the most important land use cases that have come from the U.S. Supreme Court in the last few decades? (See Nollan v. California Coastal Commission, 483 U.S. 825 (1987), for instance). It is these seemingly innocuous matters that determine whether a community offers a good quality of life, or a burden on top of the other stresses of modern life. The land use system encroaches on the day-to-day lives of all of us, no matter how big or small, and every decision has consequences. Who knows what the ultimate outcome of the battle waging on the eastern end of Long Island will be. But in the end, another issue will no doubt come along to raise the ire of the locals, oftentimes caused by those pesky "outsiders."