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

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Making “Smart Growth” Smarter

Steve P. Calandrillo*

Chryssa V. Deliganis**

Andrea Woods***

ABSTRACT

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.

TABLE CONTENTS

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

I. THE NATURE OF U.S. PROPERTY RIGHTS MAKES

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.

–  –  –

INTRODUCTION

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.

Id.

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

<

23 See, e.g., REID EWING ET AL., NAT’L WILDLIFE FED’N, ENDANGERED BY SPRAWL: HOW

RUNAWAY DEVELOPMENT THREATENS AMERICA’S WILDLIFE (2005), available at http://www.

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.

–  –  –



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