How Would We Zone For This Today?

I saw this article circulated by Planetizen, The High Cost of Ignoring Beauty, and wondered about some our more creative structures. Given the strictness of zoning, could uniqueness be foreclosed upon?

Hammond Castle, Gloucester Built 1920's

Searles Castle, Great Barrington, circa 1888

Usen Castle, Waltham, circa 1928

Blantyre Castle, Lenox, 1903

These are just a few of the Castles of Massachusetts.

This Land - Maybe I'm Old

Heard a child, probably 5 years old singing "This Land." However, it wasn't the version we are all used to. I looked up the version, and saw discussions saying the parody has been around for years and sung, by kids in the hallways, in many schools. I even saw one post where Arlo suggested Woody actually wrote the parody.


The ideals of the original and the parody provide stark contrast.


This Land is Your Land, This Land is My Land


Whether we agree or not, these lyrics make a statement that the land, America, belongs to all of us, and we all have a stake in the country. In contrast,


This land is my land, it isn't your land


Provides us with a statement that the land belongs to the haves, and others need not apply. It could be viewed as a broad statement on slamming the doors on immigration (with or without proper papers), we are here, now close the doors on all others. Woody's original lyrics are all enclusive, the parody sung by a five year old, clearly exclusionary.


From California to the New York Island

From the Redwood Forests to the Gulf Stream Waters

This Land Was Made for Your and Me


The land is the whole country, it belongs to all of us. We all have a stake in its future. While definitely Woody had a socialist bent to him, the song was an inspiring one about how we all share a common fate.


I got a shotgun, and you don' got one


If you don't get off, I'll blow your head off


This land is private property


Might makes right, threat of violence. Quite the statement on its own, shocking when it comes from a 5 year old. Instead of This Land being a song about all of us being in this together, we get an anthem for private property and violence.

Beyond the context of the words being issued by a 5 year old, to which myself and several other adults listening shook our heads, one can think about many societal issues. From a planner's perspective, the Private Property Rights interests versus the Henry George thoughts that all private property value comes from government investments.

We actually see it everyday. One property owner strips or regrades their property and those down hill have to deal with the water that runs off the property. Their "private property rights" interfere with another's private property rights. The parody words for This Land and the whole private property movement it reflects flies in the face of the old cowboy adage Don't Fence Me In as reflected in the Cole Porter song of the same name which states, in part:

Oh, give me land, lots of land
Under starry skies above,
Don't fence me in.
Let me ride through the wild open
Country that I love,
Don't fence me in.
Let me be by myself in the evening breeze-
Listen to the murmer of the cottonwood trees,
Send me off forever, but I ask you please,
Don't fence me in.
Just turn me loose,
Let me straddle my old saddle
Underneath the western sky.
On my cayuse,
Let me wander over yonder
Till I see the mountains rise.
I want to ride to the ridge
Where the west commences,
Gaze at the moon till I lose my senses,
Can't look at hobbles and I can't stand fences,
Don't fence me in.

Avulsion, Accretion, Re-Nourishment, Sea Level Rise, My Head Is Spinning

So I got curious about the law surrounding a news article this past week in the Cape Cod Times, Chatham land claim turns the tide. It seems that the breach of the Chatham Spit, and avulsion, has provided a windfall to nearby property owners through the accretion of sand on their properties.

So I got curious and Googled the question, about how the changes in land affects property rights and found that exactly that question has landed in the U.S. Supreme Court, Stop the Beach Renourishment, Inc., Petitioner v. Florida Department of Environmental Protection, et al. and here. It is a discussion that has people buzzing on both sides of the issue. On one side is the property rights people who want to protect the new beachfront property owners "rights" to beachfront property. On the other side are people who feel that restoring the lost beach area will provide future protection to the new beachfront property owners.

The case may have relevance MA should we ever codify the boundary defined as "Mean High Water." In Florida they have codified, post recent hurricanes that the present mean high water line as a property boundary defined as a new Erosion Control Line (ECL). Essentially the state has "taken" land that lies below the mean high water (essentially by the deeds land that now belongs to the public trust). The law allows the state to renourish beaches below the ECL. By establishing the formal property boundary as this new ECL and only providing easement rights to the water for adjacent property owners, property owners claim there has been a taking of their "land" as it has "taken" their waterfront rights after the state renourishes the beach.

The issue is also presently being played out in New Jersey Courts where there are several different issues progressing at once. First there is the City of Long Branch v. Liu case which involves a property owner whose land is being taken by eminent domain. He is seeking compensation not only for the upland area, but also for a beach area that was restored at public expense. The state courts, so far, have ruled that he has gained no personal value from the public expenditure. Separately there is a begining of another case known as Harvey Cedars and here. In this case, it appears that Harvey Cedars, NJ has issued an eminent domain easement taking in order to restore dunes. The dunes will be restored and the town will maintain control of the land for dune maintenance. As the MSNBC article illustrates, there are significant divisions between land owners. Without the maintenance some appear at risk of losing their homes to the ocean.

The Cape Cod Times article deals with accretion of sand. The accretion has resulted in "lands" that were formerly in the Public Trust being converted to private property. While generally, Public Trust lands cannot be taken by adverse possession, there are many deeds written in such a fashion that as the mean high water line changes, so do their property (and that of the Public Trust).

The Florida and New Jersey situations illustrate the problem, do we pursue beach renourishment as a mechanism to protect private property from the impacts of storm surges? If we do, what are the public rights to that property? With Sea Level Rise, will we be simply delaying the inevitable? One estimate I saw for the Harvey Cedars project was that the renourishment would cost $25 million plus the costs associated with the eminent domain takings - valued within the past week as $480,000 on just one property. Obviously losing these coastal properties to the ocean will have a significant impact on the town's overall property values, but could the overall costs be put to a better use such as preparing the community for the day when the ocean takes this area as it is trying to do?

I do believe it is necessary now, and going to be even more necessary in the future to protect our coastal properties, but do we do this in areas where the property owners cannot recognize the long term value to themselves of these public actions? This really gets to the heart of all of these issues, the public good is to protect private property from flood damage. Looking at the storm surge impacts of the recent major hurricanes, it is easy to see justification for these efforts.

In the Florida case, the questions asked by the Supreme Court Justices as to the added value to the adjacent properties due to the public expenditure to protect their properties, need to be considered. The costs in New Jersey to protect 82 homes from the ocean could be viewed as using public money for private benefit. Far more than a taking issue, this should be viewed as a situation where a public/private partnership is needed. The public, the town and the Army Corps have anted up their share, the property owners are simply being asked to allow the proper erosion controls to be placed on "their land." Land that from the looks of the MSNBC site will soon be in the Public Trust if the ocean is allowed to continue to have its way. Or, perhaps the homeowners in all these cases should be required to undertake the appropriate measures at their own costs?

This will all be interesting to watch. However, it clearly raises the question, should we do something to officially establish a boundary for the Public Trust lands now? We clearly have better surveying equipment today than was had in colonial times. Something to think about.

I'm Not Growing Older Just Wiser...

So, as some of you may know, I have spent much of my Planning Career following court cases and trying to figure out the direction we are heading in. Over the years the Tahoe Regional Planning Agency has been a leader in the Planning field, they have wound up before the U.S. Supreme Court twice over this leadership. In the 1980's the Regional Planning Agency was challenged over growth moratorias. It took years to roll its way through the courts and ultimately wound up being decided by the US Supreme Courtover the question as to whether a temporary moratoria amounted to a compensable taking. You can find a summary of this court case here: Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency.

In the 1990's the Tahoe Regional Planning Agency again was taken to the Supreme Court. The second time was over development prohibitions to protect Lake Tahoe. The second case involved a parcel that was determined to have transferable development rights, but due to various factors could not be built upon itself. Again the agency was challenged on the taking principle, and again the agency prevailed, however, on a ripeness argument the second time around. This second decision Suitum v. Tahoe Regional Planning Agency became one of a set of court cases in the mid-1990's that helped to define takings and development exactions.

So, what is all this about? Well I just read the following article, Tahoe faces new development battle: green vs. green, and from the court history we have been exposed to, it seems odd that environmental groups are criticizing the Tahoe Regional Planning Agency as being too pro-development. From an outsider's perspective, the exact opposite would seem appropriate.

As you read the article it becomes clear that the Tahoe Regional Planning Agency really has not changed from its positions in the 80's and 90's. They are promoting smart growth, encouraging re-use of sites over stripping greenfields for new development, and ultimately hoping that smart redevelopment can undo the years of destruction that occurred to the Tahoe environment before their creation. The opposition appears to prefer that these greyfield areas be reverted to greenfields.

So, now 28 years after the creation of the original moritoria on growth the battle lines over the Tahoe Regional Planning Agency are still drawn, the agency's position does not appear to have changed much, but one's perspective on the agency may have changed. The Tahoe Regional Planning Agency has grown wiser.