Eighty-six
years ago, the U.S. Supreme Court validated the practice now known as modern-day
zoning. Thanks to the court’s decision in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926), the substantial majority of
American cities today enjoy a separation of the various land uses in a manner
that seeks to prevent conflicts and nuisance problems. In addition to
regulating the aesthetics of a community, one of the primary end goals of a
zoning ordinance is to prevent land use conflicts that could have an adverse
effect on the public health, safety, or welfare.
However, as urban patterns change — both voluntarily and involuntarily —
contemporary land use conflicts emerge. Today, many local governments and other
special-interest groups are focused on the social utility of protecting and
incentivizing certain land uses with some level of conflict a necessary evil.
As a practicing land use attorney in California, I have witnessed three
interesting land use conflicts in the past several years.
Agriculture vs. Housing
Modern-day
agricultural uses are often complex commercial and industrial operations. They
use a significant amount of water, require numerous diesel truck trips, produce
large quantities of animal waste and byproducts, utilize chemical pesticides,
and attract bacteria.
Gone
are the days of a new proposed residence bumping up against a small rural
farming operation with a few head of cattle. It is no longer a debate about
flies and odors; today’s agricultural/residential conflicts involve significant
environmental concerns, including air quality and greenhouse gas emissions,
traffic, noise, and waste disposal. Often, environmental justice concerns are
also implicated.
In
California’s Central Valley and throughout the nation’s agricultural regions,
agricultural/residential land use conflicts have in some cases become more
heated since the collapse of the housing market. During the housing boom,
single-family residential development pushed through and past the suburbs into
areas traditionally reserved for agricultural use. Following the housing market
collapse, as a result of a lack of available credit, coupled with an inability
of homeowners to quickly exit residences with underwater mortgages, there is
heightened immobility in the residential market. Further, throughout America’s
exurbs, housing developers failed to complete numerous infrastructure and
mitigating improvements that were promised to municipalities and to the home
buyers. Consequently, normal buffers such as new roads, sound walls, and
screening landscaping were never put in place to separate conflicting land
uses.
In
previous years, residents offended or annoyed by adjacent land uses could
institute self-help by moving away from the use. Today, with restricted
mobility, homeowners are unable to relocate or pay to install mitigation
features, and both municipalities and agricultural interests are hearing the
complaints.
TOD vs. the Single-Family
Suburban Residence
Another
interesting contemporary land use conflict is simmering in suburbs across
America. As commercial real estate developers search for financeable
development opportunities, residential apartment complexes have become a
desirable investment. These multifamily developments have also been widely
encouraged throughout the country in connection with sustainable and smart
growth development strategies. In states like California and Virginia,
high-density developments are cropping up around transit hubs, largely as a
result of legal incentives and competitive financing available to developers of
multifamily product.
Because
Americans have traditionally regarded the suburbs as a bastion of single-family
residences, the influx of large multifamily residential developments has
concerned many long-time suburbanites. Common themes include concerns about
traffic, noise, and impacts on public safety response time. In this context, it
is the secondary impacts caused by the multifamily land use that makes it
offensive, not necessarily the land use itself.
Churches vs. Shopping Centers
As
a result of federal legislation in place for about the past 10 years, land use
planners and decision-makers evaluating religious land uses have also been
presented with challenging, almost compulsory, land use conflicts. The
Religious Land Use and Institutionalized Persons Act, commonly referred to as
RLUIPA, precludes local agencies across the country from imposing or
implementing land use regulations that would impose a substantial burden on
religious uses, unless the local agency demonstrates that the imposition of the
burden is in furtherance of a compelling governmental interest and is the least
restrictive means of furthering that interest. The law also prohibits local
agencies from imposing land use regulations on religious uses on less than
“equal terms” with a nonreligious assembly or institution.
Recently,
it has become quite common for religious end users, such as churches and parochial
schools, to seek available assembly halls, facilities, and other gathering
spaces in atypical locations such as shopping centers and industrial parks.
Land use planners and other end users in the shopping centers and industrial
parks cite a wide variety of potential land use impacts caused by churches and
other religious uses, in opposition to the siting of such uses in these
atypical locations. However, because RLUIPA is seemingly as close as you can
get to an exemption from a zoning ordinance, it often forces exactly the land
use conflicts traditional zoning ordinances have sought to prevent for eighty-six
years.
As
the above examples briefly illustrate, the planner’s utopia that a perfect
zoning scheme could theoretically create is impacted by present-day economic
forces and government regulation. The economic downturn causes conflict that
perhaps would not have existed under strong economic conditions, and the
government in some cases creates land use conflicts when it seeks to solve
other social dilemmas. Even in Euclid, Ohio, the city on Lake Erie that eighty-six
years ago opened the door for modern-day zoning, land use planners and the City
Council continue to face new, contemporary land use conflicts.
Kristina Daniel
Lawson is a partner in the Land, Environment, and
Natural Resources Division in the San Francisco office of Manatt, Phelps & Phillips LLP. Contact her at klawson@manatt.com.