The Unholy Alliance, Part Four

When you read this April 25, 2005 column from Dr. Ronald D. Utt of the Heritage Foundation, think about the letters that have been in the Daily News recently concerning "smart growth." Think especially about the proposed changes to the Whitman County rural residential ordinance. Under the aegis of "conserving the environment," all that is being preserved is the rights and lifefstyles of the “already landed” middle and upper class.

Can Both Sides of the Sprawl Debate Find Common Ground on Property Rights?

One of the great myths spread by opponents of suburban development is that the land-use patterns we have today are the result of free-market forces, greedy developers, and unregulated property rights. Contrary to urban legend, gaudy strip malls and tacky subdivisions are more often a consequence of over half a century of zoning and land-use planning conducted under the guidance of professional planners in cooperation with elected officials. What repel us today are not the unintended consequences of free enterprise, but planning concepts from the 1960s that have dropped out of fashion.

Having failed us once, planners are asking for a second chance—along with more regulatory power than ever before—to impose their aesthetic sensibilities on the rest of us, the philistine masses. Instead of letting the planners have their way, communities should work to restore and strengthen individual property rights. Part of this is giving property owners and builders the freedom to construct housing that people want, not what the planners want to impose on them.

Erosion of Rights
Until the 1920s, property rights in America were seen to be nearly inviolable. The Takings Clause of the Fifth Amendment to the U.S. Constitution states, “nor shall property be taken for public use without just compensation.” This was considered the literal law of the land. (The Fourteenth Amendment extended the Fifth’s protection to actions by the states.) Property rights advocates argue that the Takings Clause also covers “regulatory takings” that limit the property’s use (and thus diminish its value), such as zoning restrictions. If so, either regulatory takings would be prohibited or, at the very least, the government would have to compensate property owners for land-use regulations that reduce the value of their holdings.

The courts, however, have not held this view. Their rejection of the idea of regulatory takings can be traced back to several decisions early in the 20th century. One of the most notable, or infamous, is the Supreme Court’s 1926 decision in Village of Euclid v. Amber Realty Co., which upheld comprehensive zoning and laid the foundation for many of today’s limitations on individual property rights by sanctioning restrictions on land use.

At around the same time, the executive branch of the federal government was working to undermine property rights. During the Harding and Coolidge Administrations, the federal government became an active proponent of zoning and land-use planning. Under the direction of its Secretary, Herbert Hoover, the Department of Commerce created federal advisory committees on zoning in 1921 and published A Standard State Zoning Enabling Act in 1924, followed by A Standard City Planning Enabling Act in 1927. These model laws helped states and cities to create their own planning regimes.

The Smart Growth Movement
Despite the rapid spread of zoning in the 20th century, local officials and zoning boards still tended to respect the rights of landowners, often granting reasonable requests for variances from master plans. This careful balance between freedom and regulation began to tilt away from property owners in the 1990s, when the Smart Growth and New Urbanism movements rose to prominence. The activist wings of these movements gained traction by vilifying the suburbs and their residents. In response, many communities altered their zoning laws to slow the pace of suburbanization. The consequence has been to encourage leapfrog development—in what we now call exurbs—and even more sprawl.

It is revealing to look at the list of model communities that advocates of smart growth hold out as worthy of emulation. The Sierra Club conducts anti-sprawl tours in the Washington, D.C., area, and its guides highlight the beautiful neighborhoods of Old Town Alexandria in Virginia and Georgetown and Capitol Hill in Washington. Elsewhere in the country, anti-sprawl activists hold up Charleston and Savannah, both elegant cities, as role models, along with Society Hill in Philadelphia, Oakleigh in Mobile, the Garden District in New Orleans, and Beacon Hill in Boston.

These communities share a common trait besides their exquisite beauty and historical status: All were built before the advent of zoning, government planning, building codes, building inspections, building permits, and restrictive covenants governing the color of downspouts and window shutters. In short, they represent the spontaneous order of a cowboy capitalism long since regulated out of existence. Indeed, no enterprising developer could construct any of these communities today; the zoning ordinances of most of America’s counties and towns would stop him flat. Typical zoning provisions establish minimum lot sizes, minimum front and side setbacks, and minimum street widths. They make driveways and garages mandatory and prohibit mixed commercial and residential development. The lauded neighborhoods of the past, held up as examples of an ideal, wouldn’t measure up to today’s zoning. Building a neighborhood like that today requires local zoning and planning boards to grant a myriad of variances from existing rules. The boards, however, are seldom willing, in large part because citizens oppose higher density housing and the congestion it creates.

That zoning and planning laws effectively prohibit the construction of “ideal” neighborhoods reveals one of the ironies of the current debate on suburban land use: Advocates of smart growth and new urbanism are among the major casualties of land-use regulations that diminish property rights, despite their large role in encouraging such regulation.

Criticizing typical suburban developments with single-family detached houses on quarter-acre lots, smart growth advocates encourage higher-density development (smaller lot sizes) to conserve land and other resources; increased “walkability” and transit use to discourage auto use; greater social interaction among neighbors; and a mix of commercial and residential establishments. While some in the smart growth movement consider these high-density developments a lifestyle choice that should compete with typical suburban subdivisions for buyers, the movement’s activist wing would mandate high-density living. The activists would prohibit new lower-density suburbs because of the social costs that the activists say they impose on society.

These more extreme elements of the smart growth movement rely on harsh criticisms of suburban subdivisions to promote their alternative. In the process, they level many outlandish charges against suburbs and suburbanites—a sort-of national vilification. Typical of the abuse heaped on the inhabitants of cul-de-sacs is a recent Atlantic article by new urbanist James Howard Kunstler:

When we drive around and look at all this cartoon architecture and other junk that we’ve smeared all over the landscape, we register it as ugliness. This ugliness is the surface expression of deeper problems—problems that relate to the issue of our national character.

Not to be outdone, former National Governors Association executive Joel Hirshhorn argues that sprawl kills:

Know this: Sprawl is killing people, some 300,000 premature deaths annually because of the sprawl sedentary lifestyle, and it is killing our natural environment, scenic vistas, biodiversity, rural towns, and much more. The pursuit of happiness by the few profiting from sprawl land development is killing the future pursuit of happiness by the many. Spread this idea virus: sprawl kills.

Movement Hijacked by the NIMBYs
But these efforts to shame American consumers into high-density living have badly backfired. The campaign was cleverly hijacked by the suburban-based Not-In-My-Back-Yard, or NIMBY, anti-growth movement. Posing as believers in the lofty goals of new urbanism and environmental conservation, the NIMBYs are working hard to further diminish property rights with even more restrictive land use regulations in thousands of communities. As one planner puts it:

If a community or region refuses to grow, the result may be higher prices, economic displacement and hardship, and dangerous crowded housing in exchange for keeping a desirable quality of life for the “already landed” middle and upper income groups. If the local voters are willing to pay this price, why should planners try to prevent it?

One of NIMBYs’ major tools to deter growth and exclude less affluent residents is changing zoning to reduce densities and raise housing costs. Among the more common measures is “down zoning,” by which raw land previously zoned for, say, five houses per acre is rezoned to allow only one house per acre—or even one house per five, 10, or 20 acres in some communities. Additional regulations may require greenbelts and mandatory set-asides for conservation and prohibit building homes on land currently zoned for agriculture. Such rezoning also precludes, or greatly limits, the construction of apartments, townhouses, small-lot, cluster-type developments, and other high-density arrangements. In contrast to the country’s average lot size of about one-third of an acre, today’s growth control strategies require minimum lot sizes of five, 10, or 20 acres—beyond what many homebuyers want or can afford.

The consequence is more sprawl—sprawl that has little to do with the free market. Larger lots lead to fewer houses (and people) per square mile, which means that more space is needed to house a given population. This spreading out, in turn, leads to traffic congestion from more long-distance commuters, more expensive housing, and a diminished quality of life as commuters exchange leisure time for more affordable housing and longer commutes. The biggest losers under today’s restrictive land-use regulations, aside from moderate-income households who find themselves priced out of the market, are new urbanists, whose developments have become nearly impossible to build.

A Backlash Emerges
These costs and inconveniences are burdensome enough that well-organized resistance to today’s restrictive zoning practices is beginning to form. This resistance is coming from all points of the political spectrum, including some new urbanists and particularly planners and architects who consider current zoning practices to be one of the greatest obstacles to the development of their ideal communities. If it continues to grow, this resistance may have the potential to reverse the trend toward greater land regulation.

Further fueling the resistance is resentment of the growing abuse of eminent domain for purposes of “economic development.” Like anti-sprawl measures, the government’s power to force the sale of land with eminent domain is increasingly being used to displace the poor and replace them with richer people who pay higher taxes and need fewer services.

Is the tide turning? Perhaps so. In 2004, Oregon voters endorsed a referendum to hobble the state’s world-renowned “growth boundary” experiment, which prohibits development outside of specially zoned areas. The referendum requires Oregon municipalities to compensate those who own land outside of the boundaries or let them develop their land as they see fit, boundaries notwithstanding. In effect, Oregon law now makes no distinction between a regulatory taking and an eminent domain taking, and the citizens of the state have had some of their lost property rights restored.

More states and municipalities may follow suit, but their efforts are no substitute for action by the U.S. Congress to clarify and strengthen property rights in federal law. With property rights enshrined in the Constitution and explicitly imposed on the states, it is incumbent upon Congress to ensure that the courts—both federal and state—uphold them.

Unfortunately, I don't hold out much hope for us. The proposed Whitman County rural residential zoning ordinance tramples property rights so badly it can't even pass constitutional muster, the Washington State Supreme Court endorses the ravages of eminent domain, and the state's Growth Management Act, supposedly meant to protect the environment, has, according to a WSU Center for Real Estate Research study, caused a loss of affordable homes in all of Washington's 39 counties. And the voters have bought into all this. Given a chance to increase property rights by reining in Critical Areas Ordinances last election, they soundly rejected I-933. The legislature promised relief this session, but I have yet to see any proposals. The environmentalists and activist smart growthers have successfully allied with the NIMBYs to wield unprecedented power.