©2007 UrbisMedia
Previously, in these pages [No. 42.3] we considered that urban planning might be regarded as a process of getting things (land uses) in the proper places, like getting one’s socks in their sock drawer and underwear in their underwear drawer. We are nothing if not facile at metaphorizing, so we now consider what might be called “the pig in the parlor” and the subject of the proper organization and administration of our cites by likening them to rooms in out houses. [1]
Alas, I can take no pride of authorship in this fine (swine?) turn of phrase, since it comes from a seminal Supreme Court case of yesteryear—1926, which is quite yester. But is was important because it was the first case to establish the constitutionality of what we call land use zoning. Zoning is a little bit like the sock drawer metaphor, but with the force of law, if not the force of intuition behind it.
The case, Euclid vs the Ambler Realty Company (272 US 365) dealt with a city’s legal right to regulate land use by establishing separate zones for different uses—residential, commercial, industrial, etc. I won’t go into unnecessary detail here except to say that the case was about whether apartments should be allowed in single-family residential zones. The answer the court gave (6 – 3) was “No.” [2]
The majority opinion was written by Justice George Sutherland, who stated that allowing a land use in the wrong location was like allowing “a pig in a parlor.” [3]
Now why dredge up all this old legal history? [4] Because like a lot of public affairs this one has a lot of contemporary relevance. Seems that a lot of people have forgotten why we have these laws and what they are based upon. For example, today in San Diego there are three land use issues that are illustrative of the continuing debate over the regulation of urban space.
Briefly:
• A developer erected a building in the flight path of a private airport. The building is three stories above what the FAA considers a safe height. The developers insists that the City gave him permission to build that high, but it is the City now that has enjoined him to lop off the top three floors.
• The City of San Diego created an ordinance that would prohibit big box stored like Wal Mart from building their store with the city limits. The ordinance was passed by the City Council, but vetoed by the Mayor. As things stand I might be looking out my window at a Wal Mart tomorrow.
• In the adjacent, and redundant, City of National City (actually, it is completely surrounded by the City of San Diego), the City is attempting to use the power of eminent domain to compulsorily acquire the property of a Mexican-American boxing club for boys. The land would subsequently be sold to private developers.
What we have here are some issues that can be used to illustrate what everyone should know about their local land use control if they don’t want a Wal Mart next door. There are two fundamental and related concepts, themselves intimately related to the concept of a civil democracy, that must be appreciated to grasp the purposes of land use regulation. These are the Police Powers, and the Public Interest. [5]
The Police Powers are those powers conferred by state constitutions or statutes that allow municipal corporations (cities) to regulate the use of private property. They are power that are there to “protect and enhance the general public health, safety and general welfare.” [6] So, the city can say that you cannot put an adult bookstore within a thousand feet of a residential zone because it might entice children in naughty behavior. They might not say that you can’t put one anywhere, just not close to where kids are busy surfing porn sites (just joking). So it’s to protect their welfare. It is important that the City be able to establish a connection between adult bookstores and welfare if this ordinance is to survive a legal suit.
So we can see that there is a good reason to make that builder lop off the top three floors of his building in the flight path—it’s a hazard to pilots. But what about prohibiting those Wal Marts within the city limits? Not so easy a case to be made there. Where is the obvious protection of the public health, safety and general welfare in prohibiting Wal Marts in the city? Well, there’s the visual blight, but the courts have been loathe to stretch the police powers to aesthetics. Protecting small business from the monster business? Well, that would fly in the face of competition, an essential feature of the religion of capitalism. The anti-Wal Mart ordinance probably would have lost in the courts even if the mayor hadn’t vetoed it. Zoning canregulate the way a land use behaves, but it can only prohibit with zones that are designated for other land uses.
The boxing club in The City of National City is another matter. The power that is being applied in that case is not zoning, but eminent domain , which is the power of the state to take property for a public purpose or use. Without it we would not be able to build freeways, acquire easements, parks and school sites, stuff from which the whole public benefits and are built and maintained by a public entity.
But along came those anti-regulation types in the Reagan years, who want to privatize anything that might be squeezed for profit. The De-Reg people think it is a good idea to use the power of the state to grab whatever property they would like to develop. There was precedent for the use of eminent domain to acquire land for some private development under the urban renewal programs, but it was necessary for the integrity of overall projects and the property had to be blighted.[7] It should be said that “fair compensation” has to be paid for “condemned” property. But the National City case does not appear to meet the requirements. Indeed, a counter case might be made that the boxing club serves a public purpose by keeping boys off the streets. If it goes to court the law should not permit this egregious misuse of municipal authority and eminent domain for private and greedy purpose.
Society needs laws to regulate and even acquire private land for there to be orderly and healthy land use and land for public use. But there will always be those who will oppose any “intrusion” of government into the rights they feel are absolute in their ownership of property. And there will be those who will twist and suborn those laws for their own purposes. The law is something like a hammer with which we try to anneal a just and orderly society; but it depends on who is holding the hammer. That means that one should regularly check who, or what, is in the parlor.
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©2007, James A. Clapp (UrbisMedia Ltd. Pub. 7.10.2007)
[1] OK you want to call parlors living rooms if you have to be so damn 20th century about it.
[2] Conservatives, who usually detest zoning as some liberal or commie plot, should take note that the Chief Justice of the court was William Howard Taft, who ruled with the majority. So there! And, if you want more detail on this case you might write to contemporary Justice Clarence Thomas. He will probably respond by telling you his inflated opinion of his own genitalia, which is the only opinion he will ever be remembered for.
[3] I already said you could call it a living room! And, yes, there was pig discrimination in those days, too. Pigs just can’t seem to get a break.
[4] No, I am not lonely and will talk to anybody about anything. Anyway, it was a rhetoricalquestion.
[5] All you Anarchists, Objectivists and Libertarians may now go off in a corner and slit you own throats.
[6] Sometimes we will even find ”morals” added to this list, something that is totally ridiculous in Red States.
[7] It should be noted that liberal legal minds can become conflicted on this matter. In the much-debated New London case of eminent domain in 2005 it was mostly the liberal justices who were in the majority (5 – 4) in ruling that the City had the right to condemn a row of homes which were not blightede but stood in the way of a project that would add economic development and contribute more to the city’s tax coffers. The conservative Justices, plus Sandra O’Connor, dissented on the basis that this was an inappropriate “taking” by government. By allowing a questional interpretation of “public use” the liberal justices might have set a trap for themselves once the term becomes whatever the most powerful political or economic entity says defines it to be.