FREE ELECTRONIC LIBRARY - Online materials, documents

Pages:   || 2 | 3 | 4 | 5 |   ...   | 10 |

«Making “Smart Growth” Smarter Steve P. Calandrillo* Chryssa V. Deliganis** Andrea Woods*** ABSTRACT The “smart growth” movement has had a ...»

-- [ Page 1 ] --

Making “Smart Growth” Smarter

Steve P. Calandrillo*

Chryssa V. Deliganis**

Andrea Woods***


The “smart growth” movement has had a significant influence on land

use regulation over the past few decades, and promises to offer the antidote to

suburban sprawl. But states and local governments that once enthusiastically

touted smart growth legislation are beginning to confront unforeseen obstacles

and unintended consequences resulting from their new policies. This Article

explores the impact of growth management acts on private property rights, noting the inevitable and growing conflicts between the two sides that legislatures and courts are now being asked to sort out. It assesses the problems with creating truly intelligent urban growth, ranging from political motivations to inconsistent judicial determinations to NIMBYs to constitutional takings jurisprudence.

This Article predicts dramatically increased land use litigation as the likely result of smart growth legislation in the coming decades unless legislatures and courts enact sensible reforms today. If we want “smart growth” to live up to its name, we must remove it from local politics, get serious about consistently enforcing urban growth boundaries or priority funding areas, and even consider reforming America’s individualistic notion of private property rights as we know it.


OF INTRODUCTION................................................. 831


GROWTH MANAGEMENT AN UPHILL BATTLE........... 835 * Charles I. Stone Professor of Law, University of Washington School of Law, stevecal@uw.edu. J.D., Harvard Law School; B.A., U.C. Berkeley.

** Principal, Calandrillo & Deliganis. J.D., Harvard Law School; B.A., U.C. Berkeley.

*** J.D., University of Washington School of Law; B.A., Gonzaga University.

The authors offer their gratitude to Todd Wildermuth, Dr. Anna Deliganis, Tres Gallant, Alyse Merritt, Jonathan Moskow, Irwin Yoon, and George Webb for helpful comments and ideas. Our thanks as well to Julian Beattie and Dave Cromwell for their excellent research and drafting assistance, and to Marian Gould Gallagher law librarians Alena Wolotira and Ashley Sundin for stellar bluebooking. Finally, we sincerely appreciate the financial support provided by the Washington Law Foundation and Charles I. Stone Professorship. This Article builds off of a condensed paper published in the Cornell Real Estate Review, Vol. 13, No.1, published by the Cornell University Baker Program in Real Estate.

–  –  –


Over the past century, ever-expanding urban and suburban growth in the United States has offered a clear sign of America’s economic vitality, but it has not come without unique challenges of its own. Indeed, efforts to promulgate “smart growth” legislation as an antidote to suburban sprawl have proliferated in the past three decades, but it is time we ask ourselves whether their benefits outweigh their unintended consequences. States and local governments that once enthusiastically touted such legislation are beginning to confront unforeseen obstacles—and litigation—that raise the need for immediate reform. This Article explores the impact of growth management acts on preexisting property rights, noting the inevitable and growing conflicts between the two sides that legislatures (and courts) are increasingly being forced to confront. We assess the problems with creating truly intelligent urban and suburban growth, from political pressures to inconsistent judicial determinations to NIMBYs1 and even constitutional takings jurisprudence.

Let us briefly consider a few examples that highlight the nature of the land use and property law conflicts involved: Point Wells, Washington; Rajneeshpuram, Oregon; and Windsor Tract, Florida.

Point Wells, a scenic area designated to become a luxury condominium development, rests on the Puget Sound waterfront.2 Formerly owned by Standard Oil and used as a fuel facility,3 this area contains beautiful beachfront property nearly a mile long, with stunning views of Puget Sound and the Olympic Mountains beyond.4 It is nestled on the southern part of Snohomish County, and is adjacent to the northernmost city—Shoreline—of another county, King County.5 When 1 NIMBY is an acronym for “Not In My Back Yard,” an expression of opposition to the locating of an undesirable project close by in one’s neighborhood. See NIMBY, MERRIAM-WEBSTER DICTIONARY, http://www.merriam-webster.com/dictionary/nimby (last visited May 10, 2015).

2 BSRE Point Wells, LP, Point Wells... A New Vision for Living, POINT WELLS, http:// pointwells.com (last visited May 10, 2015) [hereinafter Vision].

3 Noah Haglund, Status of Point Wells Still in Limbo, HERALDNET (July 16, 2013, 12:01 AM), http://www.heraldnet.com/article/20130716/NEWS01/707169935.

4 See Vision, supra note 2.

5 See Haglund, supra note 3.

832 THE GEORGE WASHINGTON LAW REVIEW [Vol. 83:829 developer Blue Square Real Estate6 decided to create a residential community there, it was not difficult to appreciate the enormous financial rewards of constructing dwellings featuring “million dollar views.” Blue Square’s proposed plan for Point Wells would create the largest condominium development in Snohomish County, with 3000 luxury units, retail spaces, and a public pier.7 The fate of Point Wells, however, was not that simple. Situated between two cities, Woodway and Shoreline, Washington, and without any preexisting services of its own, the negative externalities8 required to support a community of its size would largely fall upon Point Wells’s relatively small neighbor to the south, Shoreline.9 In order to get permission to develop, however, Blue Square successfully lobbied its northern neighbor, Snohomish County, to designate this former fuel facility as an “urban center” for land use purposes.10 This redesignation of a significant tract of land—positioned, as it was, closely to other municipalities—raised all the important questions of land use with which states across the country are grappling. To introduce a community of the size suggested by its developers implicated issues of resource management, environmental preservation, affordable housing, housing density, and negative externalities: in other words, the myriad of intersecting issues at play whenever urban (or suburban) sprawl occurs.

Just to the south in Oregon’s Cascade Mountains, when a meditation center sought incorporation as its own city, a non-profit advocacy organization opposed its incorporation on the grounds that it would increase urban expansion in an unauthorized area.11 Determining whether incorporating the new city of “Rajneeshpuram” on a 64,000acre ranch was legally permissible depended on whether or not incorporation constituted a “land use decision.”12 This lawsuit implicated questions of county versus city powers, including the ability to desigBlue Square Real Estate is a large petroleum and real estate company with holdings in Israel, Europe, and the United States. Haglund, supra note 3.


Economists typically define negative externalities as costs or harms that are created by one person’s activity but fall onto another party. See, e.g., EDWARD M. GRAMLICH, A GUIDE TO BENEFIT-COST ANALYSIS 18–20 (2d ed. 1990).

See Haglund, supra note 3.

See Vision, supra note 2; see also Brief for Futurewise as Amicus Curiae Supporting Petitioners at 8–9, Town of Woodway v. Snohomish Cnty., 322 P.3d 1219 (Wash. 2014) (No.

88405-6), 2013 WL 5676370.

1000 Friends of Or. v. Wasco Cnty. Ct., 703 P.2d 207, 213 (Or. 1985).

–  –  –

nate areas to fall within Oregon’s famous land use planning tool: an urban growth boundary (“UGB”).13 Across the country in a Florida wetland area known as Windsor Tract, developer Estuary Properties had plans for massive residential and commercial building.14 Estuary sought to develop 6500 acres of land, including 2800 acres of coastal rim.15 The property was home to red and black mangrove forests.16 Estuary had big plans—anticipating housing as many as 73,500 people in the space, creating some twentyseven man-made lakes, and changing the elevation and topography of the land.17 Anticipated destruction of forestland was the most controversial element of the proposal.18 Because of the location of the proposed development and the anticipated environmental impact, the governing board of county commissioners denied Estuary a permit.19 On appeal, the court was asked to consider the competing interests of the developer’s private property rights—and whether or not denial of a development permit constituted a “taking”—and the interests of the surrounding region, such as the environmental impact on forests, waterways, and population growth.20 Although the developer initially won an order providing for its development permit over regional environmental objections,21 the Florida Supreme Court ultimately handed a victory to neighboring

landowners, stating:

The concern of public officials over environmentally endangered lands is a laudable one and is shared by all of our citizens. On the other hand, the right of an individual to own and enjoy property was one of the foundation stones on which our government was formed. As government grows the individual property rights diminish, for we focus our attention on the welfare of the majority at the expense, and ultimate destruction, of the property owner. If one foundation stone crumbles, our form of government will fall.22

–  –  –

Estuary Props., Inc. v. Askew, 381 So. 2d 1126, 1128 (Fla. Dist. Ct. App. 1979), aff’d in part, rev’d in part sub nom. Graham v. Estuary Props., Inc., 399 So. 2d 1374 (Fla. 1981).

15 Id.

16 Id.

17 Id.

18 Id. at 1129.

19 Id. at 1129–31.

20 Id. at 1139.

21 Id. at 1140.

22 Graham v. Estuary Props., Inc., 399 So. 2d 1374, 1385 (Fla. 1981), aff’g in part, rev’g in

–  –  –

The Florida Supreme Court’s language, and indeed the problems highlighted in each of the above-mentioned lawsuits, identifies the growing tension between environmental welfare and private property rights in the United States. This tension touches upon a broad, longrunning, and interdisciplinary challenge faced by the American legal system: smart land use, and the much-discussed issue of sprawl.23 Efforts to make wise, coordinated land use planning a priority have been met with extreme political and legal difficulties.24 Much of this difficulty is rooted in the very nature of private property rights in the United States.

At its core the problem is this: land is a finite resource, and its use has significant effects on quality of life, environmental sustainability, and fundamental fairness. Given the growing conflicts created by sprawl, our legal system can and must do a much better job of passing effective legislation to combat and resolve these conflicts in a sensible way. We must also consistently uphold and interpret that legislation to provide predictability and stability to private property holders, while stemming the tide of litigation that has been coming our way.

This Article explores the problems inherent in many states’ noble efforts to enact sensible growth management laws, and offers normative suggestions for meaningful reform. Part I provides historical background with respect to the development of private property rights in America, including some important implications for land use and growth management. We address (the failure of) national land use planning efforts and the resulting problem of sprawl that consumed much public discourse over the past few decades, as well as other legal impediments to sensible growth management. Part II details the rise of the “smart growth” movement as the legal antidote to sprawl, examining the well-meaning but internally conflicting growth management legislation efforts passed by several states.25 Not surprisingly, substantial litigation has been the inevitable result, and neither pre




nwf.org/pdf/Wildlife/EndangeredBySprawl.pdf; Reid Ewing et al., Relationship Between Urban Sprawl and Physical Activity, Obesity, and Morbidity, 18 AM. J. HEALTH PROMOTION 47 (2003);

Robert H. Freilich & Bruce G. Peshoff, The Social Costs of Sprawl, 29 URB. LAW. 183 (1997).

24 See, e.g., 1 JAMES A. KUSHNER, SUBDIVISION LAW & GROWTH MANAGEMENT § 3:1, at 3-2 (2d ed. 2002).

25 At least thirteen states have tried their hand at smart growth legislation: Delaware, Florida, Georgia, Hawaii, Maine, Maryland, Pennsylvania, New Jersey, Oregon, Rhode Island, Tennessee, Vermont, and Washington. See David R. Godschalk, Smart Growth Efforts Around the Nation, POPULAR GOV’T, Fall 2000, at 12, 13, available at http://www.sog.unc.edu/pubs/elec tronicversions/pg/pgfal00/article2.pdf.

2015] MAKING “SMART GROWTH” SMARTER 835 dictability nor smart growth has necessarily been enhanced. Part III further analyzes these efforts in order to identify common problems in growth management from which we need to learn lest we repeat the failures of the past. Finally, Part IV offers bold legal and public policy solutions to these common dilemmas that legislators can and should take up immediately. We must remove smart growth efforts from local political manipulation, and create durable land use solutions that address the inherent conflicts of interest involved. If we fail to do so, smart growth efforts will surely never be capable of living up to their name.

–  –  –

Pages:   || 2 | 3 | 4 | 5 |   ...   | 10 |

Similar works:

«British Journal of Educational Technology Vol 43 No 1 2012 71–84 doi:10.1111/j.1467-8535.2010.01142.x Student attitudes towards and use of ICT in course study, work and social activity: A technology acceptance model approach_ 1142 71.84 Rob Edmunds, Mary Thorpe and Grainne Conole Dr Robert Edmunds is a researcher within the Human Factors group at the University of Cranfield, UK. Mary Thorpe is Professor of Educational Technology and Gráinne Conole is Professor of eLearning, both at the...»

«Int. Journal of Applied Sciences and Engineering Research, Vol. 1, Issue 3, 2012 www.ijaser.com © 2012 by the authors – Licensee IJASERUnder Creative Commons License 3.0 editorial@ijaser.com Review article ISSN 2277 – 9442 Variance of “municipal solid waste generation and constraints in its scientific management” in the state of Madhya Pradesh, India – A case study Patel Munna Lal, 2Chauhan Janardan Singh 1Executive Engineer, M. P. Pollution Control Board, Bhopal, India, E-5, Arera...»

«Jak rozwiązać konflikt izraelskopalestyński? Opracował: Patryk Wiśniewski I Gminne Gimnazjum w Koczargach Starych Koczargi Stare, ul. Akacjowa 12 05-080 Izabelin Koczargi Stare, Luty 2009 r.1. Wstęp 3 2. Powstanie państwa Izrael 4 2.1 Zakłócona narracja 6 2.2 Pięć hipotez w sprawie sojuszu Ameryki i Izraela 8 2.3 Widok z Polski 9 3. PalestyńczycyKim są? Gdzie żyją? Dlaczego nie mają własnego państwa? 10 3.1 Intifady 12 3.2 Organizacja Hamas 12 3.3 Organizacja Hezbollach 12 3.4...»

«Page 1 Hardardóttir Ph.D. thesis Metal-rich Scales in the Reykjanes Geothermal System, SW Iceland: Sulfide Minerals in a Seawater-dominated Hydrothermal Environment Vigdís Hardardóttir Thesis submitted to the Faculty of Graduate and Postdoctoral Studies In partial fulfillment of the requirements For the PhD degree in Earth Sciences Department of Earth Sciences Faculty of Science University of Ottawa © Vigdís Hardardóttir, Ottawa, Canada, 2011 Page 2 ii Hardardóttir Ph.D. thesis I...»

«EQ 81.3 (2009), 195–209 Predestination in the century before Gottschalk (Part 1) Francis X. Gumerlock Francis Gumerlock teaches Latin and theology in Colorado, and is translating works of Gottschalk of Orbais for publication in English. KEY WORDS: predestination, early middle ages, Gottschalk of Orbais, Pelagianism, Sedulius Scottus, Smaragdus of Saint Mihiel, Alcuin of York, Agobard of Lyons I. Gottschalk: a solitary voice? In the mid-ninth century, a wandering monk named Gottschalk of...»

«Halka Arz SPK Yatırımcı Bilgilendirme Kitapçıkları 2 T. C. B A Ş B A K A N L I K S E R M AY E P İ YA S A S I K U R U LU HALKA ARZ SPK Yatırımcı Bilgilendirme Kitapçıkları-2 Ankara, Şubat 2012 Uyarı: Bu kitapçık tasarruf sahiplerini bilgilendirmek amacıyla hazırlanmıştır.Bu kitapçıktaki bilgilere dayanarak alınacak yatırım ya da benzeri kararların sonuçlarından Sermaye Piyasası Kurulu sorumlu tutulamaz. Bu kitapçığın tüm hakları Sermaye Piyasası...»

«leadershipleadershipleadershipleader shipleadershipleadershipleadershiple adershipleadershipleadershipleadersh   Leadership  ipleadershipleadershipleadershiplead Movies and Television Shows  ershipleadershipleadershipleadershipl   A collaborative effort among    Leadership@ASU  eadershipleadershipleadershipleaders The Lattie and Elva Coor Presidential Chair  Arizona State University, School of Public Affairs    hipleadershipleadershipleadershiplea...»

«International accounting standardization : the institutional legitimacy of a private standards setters Gregory Heem To cite this version: Gregory Heem. International accounting standardization : the institutional legitimacy of a private standards setters. The objective of this paper is to analyse the sources of legitimacy of the producing organization. 2007, 14 p. halshs-00856207 HAL Id: halshs-00856207 https://halshs.archives-ouvertes.fr/halshs-00856207 Submitted on 30 Aug 2013 HAL is a...»

«Performance-Vesting Provisions in Executive Compensation J. Carr Bettisa Arizona State University, Incentive Lab John Bizjakb Texas Christian University Jeffrey Colesc,* Arizona State University Swaminathan Kalpathyd Texas Christian University This Draft: January 7, 2014 JEL Classifications: M52, M55, J33, G34; G32, G13, M41. Keywords: Performance-vesting provisions, executive compensation, stock awards, option awards, timevesting, performance measures, CEO pay, corporate governance. a W.P....»

«8 -11TENNESSEE STATE SOCIETY Organized January 2, 1909 Tennessee Website: rootsweb.com/≈tnusd/ NATIONAL SOCIETY UNITED STATES DAUGHTERS OF 1812 Founded 1892 National Headquarters & Museum 1461 Rhode Island Ave. NW Washington, DC 20005-5402 (202) 745-1812 National Website: www.usdaughters1812.org Motto: Liberty, Fraternity, and Unity Flower: White Carnation Colors: Blue and Gray The insignia of the Society is a single star resting upon an anchor enriched with a narrow gold bank the Star of...»

«Thursday, 1 December | 8:30 9:45 am Strand: Accountability Improving Instruction through the Certificated Evaluation Process Learn how to create a strong certificated instructional evaluation system that builds a districtwide common understanding of what good teaching looks like. The San Luis Coastal USD will explain their three-year process for creating a new system that included the formation of a joint labor/management evaluation committee, selection of a framework for teaching, development...»

«IMPROVISATION: METHODS AND MODELS in: Generative processes in music (ed. J. Sloboda) Oxford University Press 1987 Jeff Pressing (text only) I. Introduction II. A survey of pertinent research (a) Some physiology and neuropsychology (b) Motor control and skilled performance (i) Theories of motor control and skill (ii) Special issues relevant to improvisation A. Skill classification B. Feedback and error correction C. Anticipation, preselection and feedforward D. Hierarchy vs Heterarchy E. Time...»

<<  HOME   |    CONTACTS
2017 www.thesis.dislib.info - Online materials, documents

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.