On July 15, 1975, by a vote of 23 to 19, the House Interior and Insular Affairs Committee voted to table the National Land Use Bill, HR 3510. The measure is likely to be revived in comparable form in future Congresses and we do well to consider the objectives and content of the bill that was tabled. In brief, HR 3510 would have provided total funding of $500 million to be given states over a six year period to develop state land use planning and regulations. The grants would be made on a 75 percent Federal, 25 percent state-matching basis. An Office of Land Use Administration would be established within the Department of the Interior to administer the program.
To qualify for an initial grant, the state would have to establish a land use planning agency and an advisory council composed of local officials and farm district representatives. To receive additional grants after it had been given three annual ones, the state would have to develop a land use program in accordance with guidelines set forth in the bill. These would require the state program, among many other things, to "consider" the location, and environmental, social, and economic impact of large scale developments of "regional impact," and to regulate development within "areas of critical state concern" (the term used in this bill to include what has been more commonly referred to as areas of "critical environmental concern"). Other provisions would require the state to promote use of lands for food and fiber production, and to encourage land use practices designed to conserve energy. Court review would be provided to states denied grants, certain public hearings would be required, and within 60 days after notification Congress could by concurrent resolution reject any guidelines, rules or regulations issued under the act.
This article is adapted from a statement opposing H.R. 3510 presented to the House Interior and Insular Affairs Committee by Professor Bernard H. Siegan.
One hears quite frequently that there must be a new attitude toward land use, that we can no longer live with the policies of the past. These words usually preface an argument favoring strong national or state land use regulation. Controls at these higher levels, it is claimed, will prevent waste and misuse of land and end urban sprawl. "It will preserve the land for generations yet unborn."
I submit that there is little substance to merit the flowery prose. The proposed controls will accomplish more of what proponents say they want to prevent. Instead of conserving a precious resource, more of it will be misused and wasted.
This point can best be explained by considering the general objectives of the legislation. The bill seeks to carefully screen and/or prevent development in areas considered "environmentally sensitive" or, as it is phrased by the legislative draftsmen of HR 3510, "areas of critical state concern." Areas of critical state concern are defined and described in Sections 103(a) and 302. A reading of the general language used suggests that an enormous amount of real estate is involved, possibly substantial portions of western states. Consider just the designation contained in part of Section 302:
(A) natural or historic lands with significant scientific, educational, recreational, or aesthetic values, such as significant shorelands of rivers, lakes and streams, rare or valuable ecosystems and geological formations, significant wildlife habitats and fragile areas…
However, regardless of the language or intent of its sponsors, it is not likely that all development will or can be prohibited within these areas. What will happen in all probability is much more of what is already occurring under local zoning. There would be less development and real estate prices would increase. However, relatively few of the critical areas would be preserved in their natural setting.
There are two reasons for this. The more important one concerns the "taking" provisions of Federal and state constitutions, i.e., that private property shall not be taken for public use without just compensation. The second reason is that the regulatory process tends to solve controversies through some compromise formula, an approach which would be reinforced in this situation by the provisions of taking clauses. The regulators would probably seek to resolve most problems by requiring less intensive land use. For example, instead of preventing construction of an apartment building containing 100 units on a site adjoining the ocean, the development would be allowed, but the number of apartments reduced to say, 65 or 85, with possibly an easement to the water and additional landscaping required. A slim five story building might be transformed to a squat three story one. A proposed house might have to be set back further from the ocean, and reduced in size.
PLANNING IN PRACTICE
The foregoing examples illustrate the course generally being followed in California under its Coastal Zone Conservation Act, which is intended to control development for environmental purposes within 1000 yards of the coastline. The experience under that law suggests how others of similar intent will fare. Although many changes have been required and there is increased cost, considerably delay and red tape, only a fraction of requests for development have been denied.
During 1973, 6,236 permit applications were received by the six regional commissions in the state administering the act. Of this total, 5,191 were granted and 146 denied; the remainder were being processed as of the beginning of 1974. Professor M. Bruce Johnson reports in REASON magazine [July, 1974] that in its first 14 months of operation, the commission he served on approved 95 percent of the applications received for single family dwellings, but granted only 60 percent of the single family units requested on these applications. While 77 percent of the multi-family dwellings received approval, only 51 percent of the units applied for were allowed.
The results should be similar in most areas of critical environmental concern. Development would take place, but with less intensity of use and, while there would be more open space, it would be privately owned and not normally accessible to the public. Even if public access to a body of water were required, it is doubtful that many non-residents would avail themselves of the opportunity. It is even questionable that better views would be provided, since the buildings might also have to be aesthetically compromised. Some developers can be expected to try to beat the game by asking for more than they really want—and that would mean that the entire process would accomplish nothing more than waste the public's time and money.
These restrictions would also lead to increased use of land in other places to provide for the demand for housing or industry that remains unsatisfied. There would have to be other confrontations with environmental objectives since nature, wildlife, scenic or unusual terrain, trees, lagoons might also exist in these other areas. Land supply in and around the critical environmental areas would suffer, reducing competition and pushing prices upward. Similar situations might prevail throughout the general area because land supply might never catch up. The consequences would be uneconomical and wasteful utilization of land.
The results of land use legislation will be particularly harmful to the less well-to-do, since they are least able to cope with higher prices. Political scientists Kenneth Godwin and Bruce Shepard have studied the policies of these states that have adopted land use regulation: Hawaii, Vermont, Florida and Oregon. In a recent monograph published by Oregon State University titled State Land Use Policies: Winners and Losers, they foresee dire prospects for the less fortunate members of society:
The regulatory stalemate which produced the laundry list of goals rather than an integrated set of priorities not only indicates that the accomplishments of state land use planning will be relatively modest, but may also produce a situation in which the position of the lower and lower middle classes will be further weakened as regulatory politics increasingly take on the characteristics of distributive policies. In particular, the availability of adequate housing for these persons may be severely reduced. Unless measures are taken to reduce this trend, the "progressive" state land use policies will further reduce the level of social justice in the society.
Higher prices and unavailability of housing are not the only ways the non-wealthy will suffer. Section 509(d) provides that nothing in the Act shall be construed to "enhance or diminish the rights of owners of property as provided by the Constitution of the U.S. and the constitution and laws of the states in which the property is located." For Howard Hughes that may be comforting. But for the small landowner it is close to meaningless. No matter how wicked and confiscatory a regulation is, a bolt from heaven will not strike it dead. It can only be declared unconstitutional by a court of law, and this means that an owner must be in a position to use costly and lengthy court processes to sue for such a ruling.
The situation faced by affluent owners would be entirely different from that of the less affluent. Consider, for example, the case of wealthy and not wealthy landowners, each confronted with a proposed harsh and probably unconstitutional regulation of their land. From the moment the regulation is even contemplated (just a glimmer in a planner's eye), those financially able will begin employing lawyers and experts to protect their interests. They will be in a far better position to defeat or modify the proposal than those who cannot afford representation and have to represent themselves (if at all), especially where the regulators are located in the state capital many miles away.
If the regulation is adopted, the cleavage between rich and average owners will become even greater. Before owners could obtain court rulings declaring a law unconstitutional, the following must exist or occur:
1. They must have sufficient funds to hire a lawyer to file a lawsuit against the state.
2. They must be prepared to litigate the case in the state's highest court, for if the state loses in the lower court it would probably appeal. The proceedings may drag on for two to three years, and they will have to spend many thousands of dollars. During this time, the owner will have to continue paying taxes and possibly interest on a mortgage on the land, the amount of which these days may be in excess of 20 percent.
3. They must be willing to risk changing market conditions which may make their hoped-for use unfeasible. Recent events provide an example. Construction that was profitable from 1971 to 1973 was frequently no longer so in 1974 and 1975. There is also risk in possibly incurring the wrath of authorities who may not look kindly in the future on those who sue them.
4. The higher court judges will have to find the law unconstitutional and unless all commercial use of the property has been prevented, there can be little certainty as to how they will decide. It is also possible that the court may find some technical error that will cause it to dismiss the case or send it back for retrial.
Under these circumstances, even the biggest owners, builders, or developers might not consider the filing of such a lawsuit a reasonable business risk. The problem is infinitely greater for those of less means. They may have to settle for give-away sales, await future appreciation or just pray that some day the meek will inherit the earth.
But, it might be said, aren't there organizations prepared to help the ordinary citizen, perhaps the civil liberties groups? Hardly. For property rights would be involved and these groups seem to have read the provision safeguarding them out of the Bill of Rights. Nor, of course, would the public defender be authorized to intercede even though an owner can lose as much money because of government land use restrictions as he or she could from being fined for committing a significant crime.
The big owners and developers have the capability and will frequently defeat regulations. While the state authorities may find it difficult to overcome such people, they will easily succeed against those who cannot fight back. In other words, the law in practice will do exactly the reverse of what is written and intended: It will enhance property rights for some (rich owners) and diminish those of others (average owners).
LOSERS IN INDUSTRY
Construction is one of the most sick and ailing industries in the country today. This is, therefore, about the worst time imaginable to impose a new set of regulations on it, and that is what HR 3510 will accomplish. Already the industry may be among the most regulated. Hardly a nail goes in without numerous governmental approvals.
The bill will cause a large number of rules to be superimposed on a large number of existing rules, and the very least that will result will be confusion and uncertainty for owners and land developers. Every government level will then have a piece of the zoning pie. Land use will be regulated from Washington, from the state capital, and locally. It may be necessary to hire counsel and experts in all three places to determine what the new rules are. Many small builders who cannot cope with such expenses will thus be forced to drop out.
The legislation would operate to impede construction as follows:
1. The bill attempts to restrict development in "areas of critical state concern." Only broad definitions of this phrase are given and much construction may be frozen until the term is finally defined, either by the state or the courts. It is possible that a locality may try to prevent local land from being removed from its jurisdiction by seeking redress in the courts. The legal proceedings would be lengthy and the property unavailable for use while they are going on.
2. The bill does seek to overcome local exclusionary zoning practices by giving the state some authority over a large scale development project and a "development of regional impact." I doubt if this will do much for housing since the bill has an environmental orientation giving priority to limiting rather than increasing development. At the Federal level, authority is vested in the Interior Department whose concerns are more pro-conservationist than pro-development. Moreover, most state legislatures are suburban-rural dominated. Legislators from these areas frequently represent the same point of view as the local politicians who adopt zoning ordinances. It's hard to believe that they will force much development against the wishes of their constituents. Thus, the New York state legislature, as a result of pressure from town and village governments in 1973, stripped the Urban Development Corporation of its power to override local land use regulations.
Moreover, if the state does give its approval to a large scale development, the developer may still face much delay. The locality may sue to stop it and this would prevent construction while the legal proceedings are pending.
Implicit in the push for national land use legislation is the notion that new or better urban planning can solve major existing problems of land use. I submit that this premise is wrong. Public planning of land use is erratic, chaotic and largely irrational. It will produce many more problems than it solves. This is clearly the lesson of fifty years of zoning experience in this country. Zoning, like any other regulation of land use, is supposed to be a tool of planning and its history, therefore, has much to tell us about the operation of the planning process.
There is obviously much appeal in the notion that we must have more and better planning. After all, goes the refrain, if we had only planned our cities better, there would be less congestion, no slums, more beautiful buildings, etc., etc. There is always someone who can describe in exhausting detail some local horror that could have been avoided by: (1) better, (2) stricter, (3) sounder, (4) some, or even (5) any planning. On investigation, it frequently develops that the local planning department had approved that particular horror. The argument continues: do not individuals and corporations carefully plan their activities and outlays? Why then should government not be allowed or required to engage in this selfsame activity?
The simple, yet highly profound answer, is that public land use planning is doomed to failure in a representative society. Public land use planning means or implies an orderly, rational arrangement of or for the use of land for the present or the future, directed or controlled by detached experts in planning.
Although this definition raises many questions, it represents what most people think they are saying when they speak or write of planning. The assumption seems to be that there is something precise, measurable or quantitative about planning or its standards; in other words, that it is, or is comparable to, a science.
This assumption is exceedingly difficult to substantiate and few of even its most ardent proponents make the effort. Is there some precise measurement available to determine the "best" use of some or all of the land, of growth and anti-growth proposals, of whether the land is better suited for trees, lagoons or the housing of people? Should the land be developed with two, eight or twelve housing units to the acre, or perhaps is it better suited for a mobile home park or shopping center or should it be retained as open space? By now, after fifty years of zoning experience in this country, it should be clear that there are respectable, distinguished and knowledgeable planners who would disagree in many if not most instances to any or all of these alternatives. Planning is unquestionably highly subjective, lacking those standards and measurements that are requisites of a scientific discipline.
To settle any doubts on this score, simply read the record in most zoning cases. Typically, one finds testimony from two planners, one supporting the plaintiff (landowner), and the other favoring the defendant (city). At the trial level, many zoning cases have become verbal duels between planners, each promoting a substantially different position. Accordingly, what goes under the name of planning is an opinion by someone who has studied and is learned in the creation, growth and development of cities. The country's zoning experience raises serious doubts that such training and knowledge provides any special insights, either in evaluating the present or predicting the future.
Planners confront serious problems in fulfilling their responsibilities. Theory and education alone cannot substitute for the actual experience of making practical decisions and suffering their consequences. Few planners have ever been part of the construction or development industry, nor responsible for actual decisions in the development of residential, commercial or industrial projects. Even if they once had been, their information about prices, materials, innovations and trends, consumer desires and preferences must necessarily now come from secondary or more remote sources, not directly from the "firing line." How then can planners possibly be as familiar with the need for or development, construction and operation of shopping centers, housing developments, nursing homes or mobile parks as those who develop, own and operate them? Owners and their mortgage lenders risk substantial funds on their success. Yet planners are expected to regulate all of them, which is akin to asking the blind to lead those who can see. Unfortunately for the community, in lieu of solid information, they will tend to rely on their own experience and background, and this inevitably creates hardships and problems for those of different perspectives, tastes and attitudes.
But, regardless of their knowledge, training and abilities, the fact is that planners are not destined to make a significant impact on the regulation of land use. The decisions and controls will be adopted by politicians or those appointed by politicians. They can be expected to and will respond to a variety of pressures and concerns, a principal one being the interests of those who place them and keep them in office. In short, zoning and other land use regulation is and has to be a tool more of politics than of planning.
Consider these limitations on the power of the planner. First, he is a paid employee and cannot be expected to espouse with any degree of consistency policies contrary to those of his employers. The basic rules are established by those elected to govern or appointed to administer. Confrontations are probably rare because a planner is not likely to be hired or seek employment if his basic orientation appears to differ substantially from that of his prospective employers. Planners committed to growth could find life quite uncomfortable in the "no growth" communities. And, of course, the reverse is equally true. Disagreements will occur and be tolerated—within limitations.
Secondly, even if a proposed plan appears to accord with the general desires of the lawmakers or administrators, and its preparation may actually have been commissioned by them, there will still have to be public hearings and debates before it can be adopted. Amendments required for passage can easily change the meaning and impact of the proposed legislation. In practice, the "perfect" plan stands little chance of remaining intact against the opposition of a group of voters or politicians, the pressures exerted by political supporters or contributors, the payment of graft or perhaps even the voice of the local newspaper. Accordingly, the "perfect" plan is likely to be quite imperfect by the time it emerges from the legislative process, whether it be on a local or higher governmental level, and it might be ravaged still more as administered. And it is possible that the courts ultimately will lay some or much of it to rest.
CHANGE OF PLANS
Nor is the plan or law that is finally passed likely to remain intact very long. From the moment of its adoption, special interest groups such as environmentalists, developers, and civic clubs, will seek to change it to their own benefit. It will never allow enough open space for the many environmentalists hostile to development.
Nor will those who can reap huge profits by changing the regulations sit idly by. They will make every conceivable effort to change the classification on their properties. They will attempt to increase the number of units per acre or change the category from residential to commercial or apartments to industrial, or vice versa. Civic groups, likewise, will sooner or later find the plan wanting in some or many respects.
Many of these pressures are bound to succeed and that superplan will shortly have little more value than as a reference document for the historian. The changes will be made on a piecemeal basis and promiscuously, guided principally by political rather than planning considerations. And that, incidentally, is precisely the description given Los Angeles zoning by a distinguished committee appointed by the mayor of that city.
There is no reason to believe that the same scenario will not recur at the regional or state level, except for a change in the cast of characters, pressures and locales.
Consequently, I submit that control of land use and development through public planning and regulation is akin to performing surgery by a team consisting of faith healers, exorcists and surgeons. While the patient may not die instantly, he may well wish he had.
There may also be a result not fully anticipated by the proponents of state zoning control, and it has to do with graft and personal influence. Graft and corruption have always been factors in local zoning, but the problem is far from universal and there are many municipalities where corruption is nonexistent, such as in the bulk of affluent post World War II suburbs. What will happen if one or two state agencies acquire great power over land use? Incidents have occurred in the past few years in at least a half dozen states involving state officials that do not inspire confidence in the state as a repository of important powers.
Corruption in itself is bad, but it also causes severe distortions in the decision-making process. Once it infects a state agency, many decisions of that agency will be made to compensate for those issued as a result of corruption. Similar results would follow if the board is subject to special influences. Those who do not corrupt and are without influence would suffer detriment regardless of the merits of their case. Enormous distortions could occur on a statewide basis.
A STEP IN THE WRONG DIRECTION
A small step; little impact; a modest proposal.
These are some of the descriptions given the various national land use bills pending last year in Congress. HR 3510 seems even milder than last year's version. Some Congressmen who are usually vigorous opponents of increased Federal powers have been persuaded that the proposed legislation will not appreciably augment the Federal role in land use. They could not be more wrong. The adoption of any legislation in a field where none exists is always an act of major consequence.
Entering a room through a locked door is much more difficult than through one that is slightly ajar. Once regulatory authority has been established, it is far less of a problem to increase that power by subsequent amendments that individually may be minor but in the aggregate produce major changes.
Moreover, it is becoming increasingly evident that there can be little certainty about the importance of any legislation until after it has become law. Remember that modest resolution of Congress under which millions of Americans saw service in Viet Nam? That was the Tonkin Gulf resolution. It was not a declaration of war and contained only six paragraphs; few legislators who voted for it imagined that it would be used by two Presidents as authority to carry on a major war in Southeast Asia.
Unfortunately, there is no way to forecast the effectiveness, cost, and consequences of proposed government regulations. We learn most of these matters after, not before, controls are adopted. By then it is too late; many vested interests have been created and it is very difficult to do away with the laws that were passed.
When one considers all of the land use problems that proponents of the legislation have been able to conjure up, each of the proposed measures is indeed a modest one. Why then so mild a bill? Because, it is frankly acknowledged, only a modest proposal could get through Congress. Hence, even before its enactment, we have already been informed of its inadequacy, and that is how it will always appear to some or many who will continually attempt to enlarge it.
Theirs is the never-ending quest for that Camelot where the sun shines all day and it rains only at night. Unfortunately, in legislating toward that end, history shows they will only create blizzards and storms for the rest of us.
Copyright © 1975 by Bernard H. Siegan
Bernard H. Siegan is Distinguished Professor of Law at the University of San Diego School of Law. He writes a weekly column presently published in 23 newspapers in various cities across the country. Prof. Siegan graduated with a J.D. degree from the University of Chicago Law School in 1949. He is the author of Land Use Without Zoning (1972, D.C. Heath & Co., Lexington, Mass), and his newest book, tentatively titled Other People's Property, will be published by D.C. Heath in early 1976. He has written many articles on zoning, land use and urban planning, published in professional journals, newspapers and magazines.