"Life, Liberty and the Pursuit of Happiness" An Argument Against Zoning?

It is always interesting how the Constitution, Federalist Papers, and now even the Declaration of Independence get drawn into the land use regulatory sphere. In the linked opinion letter, the writer uses the basic principles of the Declaration of Independence to support an anti-zoning position.

"We hold these truths to be self-evident: that all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed..."

The letter writer opines that their "pursuit of happiness" extends until it infringes upon the rights of others. It is the writers belief that it is their right to develop property free of any restrictions until it is proven that they are harming others.

They seem to lose the point that the pursuit of happiness by one individual may, necessarily, conflict with the pursuit of happiness by another. My "happy" asphalt plant might conflict with his "happy" housing development. From these inate conflicts, whether in land use or just about any other endeavor, made us into a land of laws.

Zoning provides a framework within which people can pursue a level of happiness, with an understanding that their neighbor's pursuit will be in a similar vein. As I noted in a previous post, there is no conflict between land use regulations and the goals of our founding fathers. These conflicts are generally only found when the desires of a special segment attempt to ignore society in general to tie into the exemplary writing of our founders.

And Yet They Still Oppose Wind Power

They do not believe the radiation is from VT Yankee, but then blame Chernobyl....

Radioactive Fish Near VT Nuke Plant Deemed Common

Given the problems in the Gulf, and the leak at VT Yankee this past week, I am hearing strains of the Beach Boys "Don't Go Near The Water."

Imagine a Land Development Process Like This….

Imagine a land development process where months if not years of planning, review and permitting could be undone in short time. That appears to be a part of the land management process in Israel. The “Sheves regulation” allows a development permit to be modified increasing development intensities by 20%.

The story can be found here: Back door to build more.

The process seems more convoluted than even Massachusetts Chapter 40B in that the process plays out AFTER the normal permitting process has been completed. The story reports as much as a doubling of building heights under “Sheves” permits. This approach is quite unbelievable, and seems to defeat public participation and any semblance of fairness.

History Repeating Itself

As planners we deal with numerous social issues. Homelessness, overcrowded housing, lack of adequate employment opportunities, etc. Often we find ourselves on the frontlines on these issues or even in the crossfire. Whether it is the changes in Arizona’s laws as they relate to undocumented aliens, the case about the college student or various factory raids that have occurred, we can find precedent for these actions in our nation’s history. Economically hard times seem to increase these tensions.

The immigrant groups that historically have drawn the most attention have been those that arrived in the deepest levels of poverty. Whether it is the Irish of the Potato Famine, Asian boat people, or the present influx of Hispanics from South and Central America.

It is interesting when one reads a historical piece about some of these groups, their habits are all generally the same, and the reaction of U.S. society is pretty much the same. For instance, the following items illustrate almost a name your large immigrant population list:

• “Upon arrival in America, the ____ found the going to be quite tough.”
• “With no one to help them, they immediately settled into the lowest rung of society and waged a daily battle for survival.”
• “…their city was undergoing nothing short of an unwanted "social revolution"….”
• “______ took any unskilled jobs they could find such as cleaning….”
• “…they fell victim to unscrupulous landlords….”
• “There were only a limited number of unskilled jobs available. Intense rivalry quickly developed between the _____ and working class [American]________ over these jobs.”
• “Their resentment, combined with growing anti-_____ and anti-[religious]_________ sentiment among all classes in ______ led to 'No ______ Need Apply' signs being posted in shop windows, factory gates and workshop doors throughout the city.”
• “Wherever they settled, the ______ kept to themselves to the exclusion of everyone else, and thus were slow to assimilate.”
• “Militant anti-[immigrant]___________ formed a third political party nicknamed the '______' seeking to curtail _______ immigration and keep them from becoming naturalized Americans in order to prevent them from ever gaining any political power.”
• “Throughout America, anti-_____ sentiment was becoming fashionable.”

This history truly could apply to just about any major immigration group. These immigrants all took on the menial jobs many others would not touch. Today it seems fine to many to take advantage of immigrants by giving them temporary H2B visas to allow them to work in motels and restaurants cleaning toilets and such. But, it seems society does not want to provide these immigrants with any opportunities to advance themselves.

As planners we see both sides of this equation. With any affordable housing or public transportation project we hear the “we do not want those types in our community." We find ourselves having to fight the mentality that affordable housing or public transportation breeds crime.

From where I sit, I fear the current economic and political climate is throwing us back and causing us to lose almost a hundred and fifty years of progress and understanding.

By the way, all the passages above came from a piece about the Irish, the Potato Famine and societies reaction to the arrival of Irish into our communities. Did you read them and place some other immigrant group into the blanks?

Planning Funnies? Maybe Not....

Citing the Constitution and the Federalist Papers planning and zoning has come under fire. Maybe my Political Science background will really come in handy after all.

It is not a new thing to see the Constitution cited when fighting land use regulations. However Penn Central and several other major cases have clearly illustrated that some level of regulation is necessary and allowable. Obviously we will always be dealing with those who feel that any regulation that limits what can happen on a property results in taking of their property. In the Winona example, the Constitution is used to fend off new flood zone restrictions as well as protections for the tops of bluffs. As we have all seen in the course of the first several months of 2010, whether in Massachusetts or Tennessee not protecting against inappropriate construction in at-risk area creates hazards to personal property and safety. Risks not just borne by the individual property owner, but all of society under some conditions.

Bringing into play the Federalist Papers is something new that I have not encountered before. The citation in the Hutchinson, Kansas situation:

"Federalist Papers" (No. 12, Nov. 27, 1787), "The prosperity of commerce is now perceived and acknowledged, by all enlightened statesmen, to be the most useful as well as the most productive source of national wealth; and has accordingly become a primary object of their political cares."

The concept argued in this passage is being used to argue that the pursuit of wealth outweighs everything. It is being used in Kansas to argue against home occupation restrictions which would otherwise prohibit manufacturing type uses within residential settings. Essentially the pursuit of individual wealth, at the expense of ones neighbors is being argued to be more important than the protection of ones neighbors individual property rights.

These two cases provide an interesting juxtaposition. I could take the argument being made in the Hutchinson, Kansas situation to argue that by allowing a home occupation that includes a machine shop or other noisy use, the City of Hutchinson is taking my property value as it relates to how I enjoy my own property. I know some will argue that this is a stretch of the takings clause in the Constitution, but it is not an unusual one - look at most challenges to permits allowing development and the appellants are arguing exactly that, diminished property values.

Looking back at the Federalist Papers, James Madison noted (Number 10, November 22, 1787)

"But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government."

So, Madison noted that property is not equally distributed, such unequal distribution was a cause for problems between people, and that resolving these conflicting interests was a necessary part of governmental regulation. One could say that Madison anticipated and addressed Hamilton's commerce issues.

Further on, in Federalist Paper Number 54, the issue was addressed again:

"Government is instituted no less for protection of the property, than of the persons, of individuals."

This document, which is credited to both Hamilton and Madison, also notes the role of government in the broadly stated protection of people and property.

The conclusion, both Alexander Hamilton and James Madison seem to have anticipated the inevitable conflicts involving property and protecting both people and property. In crafting the Federalist Papers, which helped to form the Constitution and is used to interpret the Constitution, they anticipated the need for legislation to protect property and people. Whether it be the flood zone and bluff area protections under discussion in Winona or the home occupation discussion in Hutchinson, when taken as a whole, neither the Constitution or the Federalist Papers really provide much basis to support those opposed to these proposed zoning controls.

Oil? Wind?

Last week Cape Wind passed a major hurdle. No sooner had it cleared that hurdle than a number of opposing voices came forward pushing for legal challenges.

We are all also reading about this massive oil spill in the Gulf. Most recent analysis suggests that this spill now exceeds the Exxon Valdez spill. All the while the spill continues to flow.

The opposition to Cape Wind comes from many angles. One is the potential impact of these platforms on sea life.

Dead turtles and other sea life have started to wash up along the Gulf Coast from the current oil spill. Reports are that if the slick is caught up into the Gulf Stream Current the spill will move out of the Gulf and into the Atlantic.

Cape Wind is reported to "occupy" 25 square miles. Of this, about 54 acres will be truly physically occupied.

The 1975 "Florida" oil spill in Buzzards Bay impacted 5,000 acres of ocean bottom and 500 acres of marsh. These areas illustrated "95% of the animals collected were dead." The more recent "Bouchard 120" spill impacted 90 miles of shore line.

So, why are these planning issues? The reasons are clearly many. First, economically, as many have stated, we need economic independence. Yes, more oil development can provide that, but at what cost? Is it appropriate for other entire industries to be injured when a large or small spill occurs? How will the fishing industry cope in the Gulf? How about the vacation industry when pristine white beaches are spoiled by oil?

Wind may not be as economical (in direct costs) as oil. But environmentally, it appears more sound. When oil starts to pay for society's costs (air pollution, water pollution, health issues due to smog) the two energy sources start to balance out.

Cape Wind, on-shore wind farms, solar farms, geo-thermal all need to be part of our future.

Of course, to ensure clean energy meets "clean" standards, we also need to ensure that these facilities are manufactured within the US as our environmental control standards for manufacturing exceeds those found anywhere else.

Now This is Different

Read this from CBS News

"Straw Man" Battles Zoning Law With Wall of Hay

Would our enforcement laws provide us similar considerations?

Hollow Victory - Water Conservation A Needed Program

I was reading the following article about water shortage issues in Atlanta, Harvesting rainwater to east Atlanta's water woes, when I was reminded about changes that the state of Massachusetts attempted to implement in the water withdrawal registration renewal process recently. You can read about that case here.

Starting with the case in MA. The courts found that the state had acted improperly in attempting to enforce conservation efforts on the renewal process for existing water withdrawal registrations that were simply being renewed. The court noted a few things, first, that the state could impose water conservation on anything that required a permit (permits being differentiated from registrations in that permits were issued for new water withdrawal requests and registrations were to continue withdrawals at levels that were in existence prior to the original state permit/registration process). The court also felt that the state could also place conservation requirements on registration renewals, but needed the regulations in place to do so. Ultimately, in January of this year, the court found that the state had not established such a regulation.

I see this as a hollow victory in two ways, first the towns that challenged the state simply delayed the inevitable. While ruling for the towns, the court clearly found the state could do what it had intended, it just had to follow the proper process. It is also a hollow victory as water is a limited resource, and conservation measures are needed whether imposed by the state or not. If existing local water use is not controlled there is limited water that will be available to support economic growth. Ultimately it means these towns beat the state, but did not really help themselves.

So how is this tied to the Atlanta article? Ultimately, the water conservation efforts we adopt will need to look at how we can contain the seasonal fluctation of rainfall, collect it, and then reuse it in the drier times of the year. This means finding ways to harvest run-off (which could reduce the flooding concerns we have experienced here in the Northeast this past spring), containing it, and then using the collected water for summertime irrigation - and removing irrigation from being a draw on the public water supply.

Some areas can clearly look to irrigation ponds. But this is not necessarily a good solution in residential neighborhoods (mosquitos illustrating one of many issues to consider). It may be more appropriate to consider requiring water containment as part of site design, whether for single family homes or commercial plazas. Underground cisterns could provide significant water storage opportunities. These devices could contain water that would usually runoff a property into our rivers and streams reducing flooding, and provide irrigation opportunities in drier months. This irrigation also providing some opportunities for groundwater recharge during these dry periods.

As we planners in MA start to think about meeting this 65 gallon per capita water use limit that was imposed prior to the court case, we need to start to build into our planning discussions real water conservation measures.

Economic Stimulus Bill

The Massachusetts State Senate yesterday passed SB 2345, a bill aimed at streamlining state permitting, getting rid of duplication of permit requirements across state agencies, and to make it easier to move through the state permitting process. The goals are clearly laudible.

Having not read the entire bill as of yet, I will withhold passing judgement. However, the bill is not without its issues. One of which I will discuss below.

Section 122 of the bill as posted on the Senate's website (SB 2345) includes provisions extending the life of numerous local permits, licenses, variances, etc. These permits are extended for a period of three years beyond the "normal" life of the permit. Thus a permit for one year, becomes one for four years, a two year approval becomes 5, and so on.

A few highlights of what permits are extended:

• Chapter 21 extends, among other things, wastewater permits;
• Chapter 40 governs all municipal regulations and by-laws other than those specifically identified in other chapters;
• Chapter 40A extends all special permits, variances and other project approvals regardless of the fact that certain provisions in chapter 40A specifically limit the maximum period a permit is valid for and identifies certain actions that could lead to the rights granted in a permit to no longer be valid;
• Chapter 40B extends all Comprehensive Permits for an additional three years;
• Chapter 91 governs all waterways licenses; and
• Chapter 143 governs all building permits.

Finally, Section 122 includes the catch-all phrase, "and any local by-law or ordinance" which will extend its reach to any local permit or license a community may have adopted under its home rule powers that could be considered to impact "development." "Development" being very broadly defined to include the division, excavation, and filling of land, construction or change of use of structures.

Process already exist for addressing delays in the construction process. These processes involve returning to the permitting agency and having a proper determination made as to whether the provisions and findings surrounding the original approval are still valid. This proposal by-passes that process and for the next few years, overrides other local actions such as zoning changes which may have modified the final plan approval or outright prohibited the proposed use.

In my opinion, Section 122 should be removed. In its place, the state might want to urge communities when considering extending a lapsing permit, weigh the current economic situation. Section 122 does not do anything to immediately stimulate the economy. In fact, it supports actions that might delay new construction projects by extending a time-frame for construction which may encourage developers to wait for a better economic climate.

Chapter 40B and Land Use Reform

The next few months should be quite interesting. Two sides are squaring off on the question of whether Chapter 40B should be repealed. Many of the same parties are involved in discussions of whether or not the current land planning structure in the Commonwealth should be overhauled.

All to often in these discussions the good ideas get mixed in with not so good ideas, and we wind up with campaigns that are as much innuendo as fact.

Take Chapter 40B. There is little argument that Chapter 40B has created housing. There is quite the debate though as to what it has meant to housing affordability. One side wants you to consider the pure numbers of housing units created. The other side argues the growing affordability gap illustrates the failure of the system.

Looking at the arguments, both are right. Chapter 40B has succeeded in seeing affordable housing built. Chapter 40B has also promoted the construction of between 3 and 4 market rate housing units for every affordable housing unit constructed. If 75% or 80% of the units constructed are market rate, it becomes quite apparent that Chapter 40B is contributing to the continued growth of higher end housing in numbers larger than that of the affordable units.

Moving to Local Planning and Zoning, much of the same issues play out. Communities have many diverse interests. Many of these are directed by various state or federal mandates. Here are a few examples:

• Recent flooding has illustrated the problems with growing urbanization. Fewer areas are available for storm water to absorb into the soil. Federal flood initiatives direct communities to work on plans to improve storm water storage for flood management. Various forums have even suggested undeveloping areas to reduce flood risks.
• We are also all directed to develop and maintain local Open Space and Recreation Plans. These plans direct communities to provide particular amounts of open land areas for recreational purposes based upon the number of residents. These plans are also directed to promote methods to implement open space initiatives in the State Comprehensive Opens Space and Recreation Plan. Again, planning documents directed to protecting development.
• The state has mandated towns develop housing creation plans. These plans are intended to identify the strategies cities and towns are going to pursue to meet local affordability targets. When developed locally, these plans can be crafted cooperatively with the two planning projects noted above.

Recently, efforts have started to push to reform the state planning act. These efforts have come from two sides, much like under Chapter 40B. There is the side that calls for improving the planning and zoning process to give communities more control over their own future. This control coming in the form of new local planning requirements, and improving the zoning process.

The alternate proposal calls for changes to planning and zoning focusing on a development approach to planning and zoning, as opposed to the more traditional community vision approach. The push for these efforts have come from the side of the equation that feels that local visions, local development controls, etc., are stymieing the state economy. To some extent, the changes proposed ignore, if not walk all over, the other local mandates.

The arguments over planning and zoning reform face the same issues as reforming Chapter 40B. One side strongly believes that the system is broken and that communities cannot properly address the growth needs of the Commonwealth. The other side argues that the current system is broken and that provisions such as approval not required land division, and generous grandfathering rights destroy local planning abilities before a community could ever properly develop a city or town vision.

While both sides agree that provisions in the current planning and zoning structure in the state need to be fixed, there is clear disagreement on what is broken and how it should be fixed.

The Chapter 40B discussion ought to be interesting, if not for any other reason than to learn if community interests or land development interests will prevail. One sure thing, a reasoned approach to affordable housing will be the ultimate loser. This reasoned approach can only come about by looking at the broken system, and developing a consensus that promotes properly created affordable housing.