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."

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.