"Slumburbia"

A very interesting read from Wednesday's Opinionator Blog.  

The final few paragraphs relate Californian cities' land use regulation to the current status of their respective real estate markets.  Cities that did not permit or encourage [relatively] unchecked urban growth are not feeling the pain of empty homes and foreclosed properties.  That makes sense.

I suppose one aspect of this piece really troubles me, though, and it is going to put the U.S. in quite a catch-22.  Maybe this comment was made tongue-in-cheek, and I just missed that.  The author, rightly so, suggests that the ever increasing U.S. population will, assuming the homes are affordable, eventually even out this empty home mess.  But that solution comes with some complications.  Can areas such as the San Joaquin Valley actually support the population required to fill those homes?  When the residential real estate market recovers, won't more new homes be constructed, only perpetuating the problem?  Is there something other than a more-home-for-less-money appeal that is going to attract buyers to exurban communities?

I don't have any answers to those questions.  But I think they are evidence of how long we as a country might be dealing with the fallout of this Great Recession. 

Let's Talk About E.D.

Have you talked to you city councilperson or state legislator about E.D.?

No, not that E.D., although we will bring up Viagra maker Pfizer.

Rather, I am referring to eminent domain, the state's power to seize private property for public use.  The concept looks, sounds, and feels very Big Brotherish.  It seems to fit better in a medieval monarchy or a World War era dictatorship.  But eminent domain is very much a part of sovereign power in the United States.  Its foundation is in the Fifth Amendment to the Constitution, which provides that a person shall not be "deprived of . . . property, without due process of law" and that "private property [shall not] be taken for public use, without just compensation."  So while this language seems to generally prohibit government taking of private property (a "taking"), it actually works to permit takings, so long as the property owner receives due process and just compensation in the action.

Why the out-of-the-blue eminent domain discussion?  E.D. has been on my mind because of three scenarios.

1.) Post-Kelo Irony: The 2005 Supreme Court decision in Kelo v. City of New London set the stage for the firestorm of E.D. debate in the last five years.  While some legal scholars believe that Kelo is a logical extension of the Court's prior eminent domain precedent, this particular case sparked public outcry in the name of private property rights.  And maybe the circumstances warranted that.  Briefly, the case arose out of New London's plans to redevelop its sliding Fort Turnbull neighborhood.  Plans for the revitalization of the neighborhood - including a waterfront hotel, restaurants, shopping, and marinas- were anchored to some degree by a new research and development facility for pharmaceutical giant Pfizer.  When some existing property owners balked at selling to the development authority (a public entity), the city exercised its eminent domain powers to acquire the properties.

What distinguished the New London acquisitions from more typical E.D. cases is the purpose - economic redevelopment rather than more traditional public buildings, roads, etc.  The real rub of the case is that the eminent domain powers were used to essentially transfer property from one private owner to another.  That fact, no doubt, further fueled the ire of the landowners who stood to lose their homes to the government plan.  The property owners challenged the city's authority to take their property for economic development.  The case went all the way to the U.S. Supreme Court, where, in a close 5-4 decision, the Court held that economic redevelopment was a valid "public use" under the Takings Clause of the Fifth Amendment.

But that ruling should not be considered as wide-sweeping as my statement makes it appear.  The justices, particularly swing-voter Justice Kennedy, relied on the fact that New London had formulated a "carefully considered" plan for its redevelopment of Fort Turnbull and that the prospective economic benefits would not be minimal.  Thus, while there would certainly be some incidental private benefit to the new developers, such as Pfizer, the public benefit of Fort Turnbull's revitalization justified the economic development takings.

Nearly five years later, the story lives on thanks to Pfizer's September announcement that it will close its New London facility in the wake of its merger with Wyeth.  What happened to New London's "carefully considered" plan that apparently won the day in 2005?  Very few of the other pieces of the plan have fallen into place in the last half decade, so Pfizer's announcement is, in effect, a grand slap in the face.  The news, no doubt, validates, at least in the minds of the Kelo plaintiffs, their resistance of New London's acquisition for the project.  It will almost certainly further galvanize property rights advocates who fight the use of eminent domain in the name of property owners.  

What interests me is whether Pfizer's departure and the seeming failure of New London's plan will change judicial scrutiny in eminent domain cases.  Only time will tell.  I should note that, in the wake of Kelo, 43 states enacted legislation designed to restrict eminent domain powers.  Regardless, leading scholars and practitioners believed that, generally speaking, a comprehensive plan backed by data and studies would allow a government entity to justify use of eminent domain powers, so long as it fit within permissible statutory schemes.  My question is whether the failure of New London's redevelopment plan will heighten the scrutiny with which such plans are reviewed.  Will governments seeking to effect an economic development taking be required, at least to some degree, to guarantee or predict success? Further consider the tough economic market, particularly for real estate, and governments could find a tough row to hoe for redevelopment and urban renewal projects.

(A corollary issue is whether we even want judges making such decisions.  Their role is to decide legal issues, not to make judgments about data, research, and projections that government officials spend months, years, and careers ruminating and scrutinizing.  I am going to sidestep my soapbox here, but this is certainly worth some thought.)


A final note before I leave Kelo.  A sequel recently went to the Supreme Court for appeal.  The Goldstein case arose from similar circumstances, this time in Brooklyn.  The Atlantic Yards project will house a new arena for the New Jersey Nets, office buildings, high-rise apartments, and a hotel.  Homeowners challenged the city's authority to acquire their property via eminent domain and transfer ownership to the project's developer, Bruce Ratner, also owner of the Nets.  The Supreme Court declined to hear the appeal.  Technically, that decision has no precedential value, but it does indicate that the Court is not ready to reopen the economic development takings issue.  Given that three new justices have come to the Court since Kelo (C.J. Roberts, along with Justices Alito and Sotomayor), it will be interesting to see the result if another eminent domain case does find its way to the Court in the near future. 


2.) RTD's use of eminent domain for FasTracks light rail expansion: The Regional Transportation District, the governmental entity that operates the Denver-metro area transit system, has been in the news as well.  RTD is empowered to use eminent domain to acquire property necessary for the operation of the local buses and light rail.  The district has garnered negative headlines in the last two years because of its exercise of that power as part of the FasTracks project, which aims to expand light rail service to more of the metro area.  Some homes and several local businesses have been impacted as RTD has sought to acquire property necessary for the new rail lines and related infrastructure.


Opponents cried foul on the moves, claiming that they were economic development takings, rather than actually necessary for transit infrastructure.  And those claims were not entirely inaccurate.  Transit-oriented development (TOD) is an element that RTD and other transit proponents hope to incorporate into the rail expansion.  TOD aims to incorporate commercial and residential elements into the communities surrounding transit.  Ideally, instead of a gigantic park-and-ride lot, a transit stop features some nearby living options and necessary commercial services.  At the least, perhaps there is a coffee shop or small grocer on the ground level of a parking deck.  Regardless of the form, obviously RTD will not be operating the Starbucks that goes in next to fair booth.


Capitalizing on the anti-E.D. sentiment that has been growing since Kelo, state lawmakers attempted to pass a bill that restricted RTD's eminent domain authority to stations, parking, and maintenance facilities.  The bill ultimately died in committee, but it - and the rest of the property rights resistance RTD is facing - illustrates that governments will endure strict public scrutiny, even if they ultimately face no legal scrutiny.  Use of the eminent domain power must be judicious, strategic, carefully executed and cleverly publicized in order to avoid a property rights maelstrom.

3.) Eminent domain of wind rights: Finally, the following case from Minnesota came to my attention.  There, a government-owned public utility is seeking to use eminent domain to acquire the "wind rights" necessary to establish a wind farm.  The utility owns the property on which the farm will sit.   But state law requires any wind farm owner to obtain the wind rights of adjacent property in order to ensure free flow of wind into the farm turbines.  As the second linked article indicates, some private wind farm owners have succeeded despite this regulatory twist.  The current case is intriguing because the use of eminent domain to acquire such rights is unusual.  It is also interesting because the state, through its utility, is seeking to promote renewable energy sources.  As one commentator suggests, maybe there are better ways to advocate for alternative energy.  Regardless of its shrewdness, he also notes that, even under a narrow interpretation, the acquisition of these wind rights is probably a constitutionally permissible taking.  I will be interested to see how this scenario is ultimately resolved.


I suppose my fascination with eminent domain is that it directly pits sovereign authority against private property rights, a concept whose role cannot be underestimated in this country's founding, settlement, and expansion.  While affirming private property rights and a person's right to due process and just compensation, the doctrine also recognizes that private property rights are far from absolute.  And rightly so, I think.  What good is government authority if it must yield to private interests?  As I said before, I do believe sovereign powers like eminent domain require careful consideration and judicious exercise.  I am certainly not advocating for abuse of power.  But I am advocating for a government's right to make assessments of and decisions about what best promotes the health of its community - socially, economically, philosophically, environmentally.  While controversial and often tough to swallow, tools like eminent domain are necessary to make those decisions reality.

For People Who Hate Driving and Long Commutes

U.S. News and World Report: 15 Cities for People Who Hate Driving and Long Commutes

I like this report because it balances two often opposed concerns: (1) wanting to drive less and (2) maintaining a reasonable commute time.  As the article notes, some cities with heavy public transit ridership did not make the list because of the time it takes to commute on public transit.  That statement may be a little misleading.  There are certainly other factors to consider in those long-transit-commute cities - auto traffic, parking availability and cost, convenience - that make public transit the preferred option for folks despite the time commitment.  Cities in this category should not be surprising: New York City, San Francisco, Chicago, Boston, among others.

The cities that did make this list have a common element - compactness.  That characteristic makes non-motorized commuting a viable option.  There should also be little surprise that several college towns make the list - Chapel Hill, Boulder, Eugene, Madison, and others.

The desirability of commuting options - including walking, cycling, and the like - has led some cities to try and incorporate elements of the named towns into neighborhood design.  Denver's Living Streets Initiative is one example.  Some of the aims of the initiative are multi-model transportation access (including non-motorized transportation) and increased mobility for the population in general; efficiency (increasing convenient stops per outing); sustainability; community; and encouraging a healthy lifestyle.  The initiative is integrated with the zoning code revision that I have written about several times recently, particularly the new code's Main Street districts.  In some neighborhood commercial areas, for example, the initiative would narrow lanes to slow car speeds and allow for wider sidewalks.  I live near the University of Denver in Denver.  The restaurants and shops along both Evans Avenue and University Boulevard are perfect for such a design.  For one thing, parking is not sufficient.  It is incredibly frustrating to try to drive to and park at many of the restaurants, especially during peak times.  Secondly, because of the rate at which traffic moves along both Evans and University, I sometimes do not absolutely safe walking, particularly at night or when I have either my dogs or infant son with me.  In short, the skeleton of great, compact, walkable neighborhood are there, so why not implement the necessary policies and physical changes to encourage that profile?

Such planning is not without its critics.  A recent opinion column in the Denver Post criticized and ridiculed the Living Streets Initiative.  But I think the author is ignoring an important aspect of the initiative - it will not work for every street in Denver.  Two of the roads he mentions, Colorado Boulevard and Hampden Avenue are major arterial streets (three lanes in most places) and serve very busy commercial districts.  While it might be nice to make those commercial areas more accessible, the reality is that it would require significant alteration of the infrastructure already in place.  Any of you who live in Denver and know the areas to which I am referring know there is a vast difference between Evans near DU and Colorado Boulevard.  I could also counter the author's arguments about traffic and induced congestion, but I will not belabor that point.  I will say, generally speaking, that advocating the status quo,  as the author does, certainly will not alleviate and is more likely to perpetuate the complaints he describes.  At least a fresh perspective represents a chance at progress, even if it ultimately fails. 

For those of us who feel tied to our cars, the cities in the U.S. News and World Report article are encouraging and inspiring, even if a bit aspirational.  Personally, I appreciate the efforts of my city to provide myself and fellow Denverites with options.  

Living With the Land: An Experiment Worth Watching

A new town is being developed outside Portland, Oregon, the goal of which is to chip away at the established boundary dividing urban and rural. This boundary is particularly pronounced in Oregon, where legally mandated urban growth boundaries (UGBs) set firm limits on the expanse of urban development into surrounding farmland and green space. If all goes according to plan in Damascus, the town will maintain active commercial farming in productive soils while less-productive tracts will sprout housing and other structures necessary in the town. There remain some questions as to whether the town will be able to legally accomplish its aims under Oregon's statewide land use regime. Proponents intend to be creative with the regulatory tools available to them, and, thus far, state regulators seem willing to at least entertain those ideas. Read more about Damascus in this article from OregonLive.com.

Aside from the legal and regulatory issues that I find interesting, the thing I want to applaud in the Damascus experiment is the idea of centering a community on the land where it exists - farmland - and fostering a lifestyle that incorporates what the land has to offer rather than subduing and altering the land to fit a lifestyle. Proponents in Damascas have visions of farmers' markets selling local produce, restuarants featuring those products, and education centers where residents can learn to cook with, use, and preserve the local items readily available to them. It would be a perfect model of the slow food movement here in the U.S., a movement that has quickly gained popularity in Oregon.

There are so many overlapping concepts embodied in the proposed development of Damascus that they are hard to segregate and pinpoint. Let me try to sum up my feelings with a few statements. Many of us spend a lifetime fighting against the land we inhabit and the habitat in which we exist. We want to grow green lawns in the desert. We want to raise crops suited to climates of far away regions. We want to do what we want where we want to do it, often without regard to the basic practicality of doing so, much less the myriad of potential consequences of that action. To an extent, the people of Damascus, Oregon, will be bucking those trends. Farming, already the predominant economic engine of the region, will continue to fill role because that is the use to which the land is suited. The products raised locally in accordance with local practices and climates will nourish the residents. As envisioned, Damascus would become a pocket of localization in a continually globalizing world. In doing so, that town would express to the world its commitment to community, to the environment, and to the general wellbeing that these concepts promote individually and in concert.

I will certainly be tracking the progress of the Damascus experiment.

Be sure to check out the OregonLive.com article, as it provides more details than I have in this post. "Bluring the Urban-Rural Line in Damascus," OregonLive.com, August 8, 2009.

Thinking Comprehensively About Development

In an interview with PBS's Blueprint America, Rep. Jim Oberstar discusses the current state of transit policy in the U.S., his theory on how that policy needs to be reformed, and how his Surface Transportation Authorization Act of 2009 would help steer the country in that direction.

I appreciate that Rep. Oberstar recognizes that land use and growth should drive transit development rather than the opposite. Though his bill deals specifically with transit funding and planning, the fundamental principle he seems to advocate is a comprehensive analysis of all aspects of proposed urban or suburban development. A common pattern in the U.S. today is for a new road to be built first, and development around that road comes later. This generally promotes piecemeal, spotty development. Such an approach really prevents planners from accurately projecting the needs of transit, utilities, and public services required for the development.

To me, Rep. Oberstar is promoting an approach that will strive, as much as possible, to get things right the first time. Comprehensive planning could help to avoid such problems like needing to retrofit a larger roadway or a rail system onto an area that is designed to accommodate it. Such planning relates to the sustainability of development. Are we promoting development that will be accessible, livable, and desirable for years to come? Or are we thinking only about capitalizing on opportunities in the short-term? Ideally, projects could be developed in a way that attempts to satisfy both the goals of attracting private investment and building a community that will become and remain a community rather than just another place on the map.

A Few Thoughts on Sustainability

To kick off this effort, I would like to put some of my ideas about "sustainability" on paper. I do not intend for this blog to become one purely or even primarily dedicated to sustainability. However, I do hope sustainability will be one of the considerations by which to weigh some of the ideas, policies, and decisions that will be discussed herein. In other words, I plan to consider the ramifications of a particular policy or action on the sustainability of the affected community and the sustainability of individuals' lifestyles within that community.

Now, what do I mean by "sustainability," a term that has quickly become a prevalent buzzword in today's culture. I think sustainability is too often linked to modifiers like "eco-" and "green"; by such use, its scope is unfairly limited. Dictionary definitions define the root word, sustain, more generally in terms of longevity, prolonging, or keeping up. With this denotation, sustainability becomes an evaluator with much broader application, and with that tool, we can examine each action, idea, and policy with an eye toward each's long-term value and applicability. This is no doubt the type of analysis conducted by shrewd executives and investors in evaluating proposed deals with significant financial stakes.

It seems intuitive, then, that this same analysis should be forefront in the minds of elected officials, public deciders, and policy makers who have our communities' and citizens' futures at stake. However, these persons must act and react within a fast-food life context - instant gratification and what-have-you-done-for-me-lately. Thus, decisions are driven by this short-term, quick-fix attitude, and such decisions do not often stand the test of time. I would be unfair if I did not require the elector to shoulder equal blame as the elected. After all, finger-pointing is not my aim. Rather, I want us collectively to recognize the foundational problem at hand and, by doing so, take the first step to rectifying it. Thus, I believe that each issue, no matter the subject, deserves a sustainability analysis in terms of the longevity of its benefits, consequences, and relevance. Questions of economic policy, healthcare reform, transportation goals - for each we should ask how this decision will help each of us prolong a viable lifestyle that benefits and upholds our community as an economic unit, social group, and geographic environment.

A final word about sustainability. Sustainability will not just happen. Nor will a top-down type scheme really do the trick. Sustainability builds from everyday decisions of everyday persons. Not to make it appear black and white, but each decision we make in our daily lives often has a more sustainable and less sustainable option. Some of these I hope to address with some thought here on this blog. Others might pop up as tweets as I confront them myself here in Denver. To make my intended point, a sustainable lifestyle requires some measure of individual responsibility, with a mind toward the social impact of that individual responsibility. I am currently reading a Wendell Berry commentary in which one of the main themes discussed is his idea of defining the individual in terms of his community. I hope as I get a better grasp on Berry's philosophy, perhaps I will be able to incorporate it in my musings here, as one of my aims in these writings is to explore how we each fit into our present communities and the reciprocal relationship in establishing and sustaining the viability of each.