Land Wars: The Politics of Property and Community 9781626373778

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LAND WARS

EXPLORATIONS

IN

PUBLIC POLICY

SERIES EDITOR James J. Gosling, University of Utah

EDITORIAL BOARD Charles W. Anderson, University of Wisconsin Dennis J. Dresang, University of Wisconsin Marc Allen Eisner, Wesleyan University Stephen L. Elkin, University of Maryland Jeffrey R. Henig, Teachers College, Columbia University Cathy Johnson, Williams College Ira Sharkansky, Hebrew University of Jerusalem

LAND WARS The Politics of Property and Community

John G. Francis Leslie Pickering Francis

b o u l d e r l o n d o n

Published in the United States of America in 2003 by Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.rienner.com and in the United Kingdom by Lynne Rienner Publishers, Inc. 3 Henrietta Street, Covent Garden, London WC2E 8LU © 2003 by Lynne Rienner Publishers, Inc. All rights reserved

Library of Congress Cataloging-in-Publication Data Francis, John G., 1943– Land wars : the politics of property and community / John G. Francis, Leslie Pickering Francis. p. cm. — (Explorations in public policy) Includes bibliographical references and index. ISBN 1-55587-684-6 (alk. paper) 1. Land use—Decision making. 2. Land use—Government policy. 3. Real estate development—Decision making. 4. Right of property. 5. Community power. 6. Land use—United States—Decision making. 7. Land use—Government policy— United States. 8. Real estate development—United States—Decision making. 9. Right of property—United States. 10. Community power—United States. I. Francis, Leslie, 1946– II. Title. III. Series. HD108.6.F67 2003 333.3—dc21 2002036608 British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library.

Printed and bound in the United States of America

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The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992. 5

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For Sarah, Laura, and John P. Francis

Contents

1 Property and Community: Localist Paradigms

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Localist Paradigms of Land Use: Property Rights and Community, 2 Conflicting Claims to Land: The Grand Staircase of the Escalante, 8 Use in Movement: Rivers Upstream and Downstream, 13 A Note About Methodology, 15 Conclusion, 16

2 Misreading the Paradigm of Private Property

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Three Stories of Ownership, 20 Private Property Rights: The Absolutist Paradigm, 27 Constitutionalizing Property, 37 Conclusion, 53

3 Legal Accommodation of Private and Public Values Two Examples of Access, 61 Takings Jurisprudence in the United States: Striving to Maintain a Balance, 64 The British Example: Accommodating Private and Public Values, 86 Conclusion, 90

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Contents

4 Concepts of Community and Land Use

101

The Suburb as Rural Community: Bedford, New York, 103 Local Regulation of Land Use, 105 Community and Land Use: Enduring Appeal and Changing Understandings, 114 Proximity and Land Use, 117 An Identified Community at Perpetual Risk: The Scottish Crofters, 122 Between Countryside and City: The Critique of Suburbia as a Form of Community, 125 Beyond Farming: Constraining Metropolitan Expansion or Preserving Rural Retreats in Debating the Greenbelts, 133 Rethinking Community and Metropolitan Life: Implications for Land Use, 136 Conclusion, 141

5 Beyond Locality in Land Use Decisions

145

The Model of Exit, Voice, and Loyalty, 147 Global Change and Local Identity, 150 Magnetic Localities, Extended Communities, 156 Assessing Movement and Attachment in Local Land Use Decisionmaking, 167 Conclusion: Giving Voice to the Extended Community, 174

6 Guardianship of Global and Systemic Problems

177

The Everglades and Global Warming: A Paradigmatic Systemic Problem, 178 Consequentialism and Interconnected Obligations, 181 Nonconsequentialism, 186 Conclusion, 189

7 Land Use in an Interconnected World

193

References Table of Cases Index About the Book

199 215 219 229

LAND WARS

1 Property and Community: Localist Paradigms

L

and use is no local matter. In this book, our goal is to explain and challenge the apparently platitudinous but deeply controversial localist claim. The claim is apparently platitudinous because of the nature of land itself. In some respects, land is the most local of entities: the unmovable substrate on which communities settle and build. It is the place where people live, work, and play, where they are born, where they worship, and where they bury their dead. When people move, their land does not travel with them. The claim of localism for land is also apparently platitudinous because land use decisionmaking in Western democracies has traditionally been undertaken principally by local entities. At the same time, the claim of localism for land is—and should be—deeply controversial. Land use decisions have far-reaching effects on the memories of emigrants, on the hopes of tourists and immigrants, and on the fortunes of those near and far who depend on the land’s resources or are otherwise affected by how the land is used. In current discussions of land use, two localist paradigms predominate. The first is the localism of property rights: that owners’ voices should control what is done with land. The second is the localism of spatially defined community: that those who live on or near the land should have the most to say about its governance. We contend in this book that each of these localisms is far too simplistic. Land use decisionmaking, like land itself, is messy and complex. It should be treated as a balance of competing and interrelated move1

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ments, voices, and claims. Our preliminary goal in this volume is to defend the complexity of land use decisionmaking against the localist paradigms. Our ultimate goal is to chart a way through the complexity to construct a more global paradigm for decisionmaking about land.

Localist Paradigms of Land Use: Property Rights and Community In the United States and in Britain, claims of property owners historically have been the dominant starting place for discussions of land use. The proprietarian argument has been that owners have an unfettered right to decide what will be done with their property. Land use decisions, the argument goes, must just work around that right. Writers in the utilitarian tradition—the tradition in moral philosophy that we should maximize pleasure, happiness, or welfare—have based arguments for property on the contention that owners have incentives to take care of their land and ensure its productivity. In other philosophical traditions, property rights in land have been seen as the subject of invested labor, as integral to identity, or as existing on some other grounds. Even writers in these traditions who disagree on the extent to which property rights are absolute generally agree that regulatory initiatives of modern governments affecting what owners may do with their land require justification in the face of ownership rights. In the United States, this property rights paradigm, as we shall call it, finds legal expression in constitutional doctrines such as the takings clause requirement that property may be taken only for public purposes and then only with just compensation. In Western democracies, moreover, political decisionmaking with respect to land has been implanted typically at the level of local government. In the tradition of utilitarian liberalism, the justification for this location has been that members of the local community are more knowledgeable about and have a greater stake in what happens to the land than those who live far away, and as a result will make more thoughtful decisions about it. In the social contract tradition, parties to the contract are seen as hypothetically dealing antecedently possessed rights in exchange for protection of themselves and their property, land included. Writers in the social contract tradition, how-

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ever, with the notable exception of Rousseau, largely ignore the problem of generating a theory of political boundaries from the commitments of a collection of landowners. Locke, for example, argued that any group of free men may join together into political society. But in the Two Treatises on Government, he did not discuss what to do if a property owner in the midst of other owners refuses to join in the contract, leaving holes in the pattern of territorial authority (Locke 1988, 105).1 Voices less clearly in the liberal tradition have also been raised in support of placing land use decisions at the local level. Some writers claim “local knowledge” should be called upon to enrich decisions. This may be taken to mean that care for the land will be generated out of a love for the land or that prudential stewardship will lead to the realization of the community’s economic just deserts. Others argue in a related vein that if political decisions track bioregions, the result will be better management of the land. Still others, representing more standard forms of communitarianism, argue that locating decisions with the community will better protect community values about the appearance of the land, activity on the land, and preservation of areas of special iconic or religious significance. In this book, we shall refer to the wide range of positions favoring local decisionmaking as the community paradigm. Individual owners and communities thus each can claim extended traditions of moral and political argument in favor of their assertions of control against restrictions on how they use land. More recently, however, as interest in land use has shifted from agriculture toward recreation, pollution control, and environmental protection, each of these paradigms has come into question. Adherents to the property rights paradigm have been challenged to defend their claim that their justifications are adequate to show that property rights are unlimited. Perhaps owners’ rights do not include destroying property, using it in ways that damage others, or developing it despite adverse environmental impacts—and perhaps these limits are built in from the very bottom as defining what the “owner” rightfully “has” in the first place. Or perhaps owners’ rights are sometimes overridden by community or broader social concerns, in which case the constitutional question arises under U.S. law of whether there has been a taking requiring compensation. The community paradigm has been challenged by regulatory

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approaches that rest on the assumption that what happens on and to land may have national or even global repercussions. If the owner of a wetland builds a shopping center on it, and it was a critical section of a flyway for migratory birds, that decision will have effects far beyond the desires of the locals for employment and ready access to goods. Similar points can be made about decisions that affect waterways or ambient air quality. But far-away effects are not confined to environmental examples. Consider destruction of a natural wonder that is a favorite of tourists—flooding of the Grand Canyon, for example. Or consider alteration of a cultural artifact of great significance, such as the Roman Forum or the Wailing Wall in Jerusalem. Not only have the property rights and community paradigms been challenged, but the relationship between the two has come to be recognized as itself unstable. Historically, the two paradigms have frequently been taken together. Some writers, even very recently, have seemed to take it almost for granted that the paradigms cohere. Rawls, for example, in his recent treatment of “the law of peoples,” begins by intermingling property and existing boundaries as the locus of political control: An important role of a people’s government, however arbitrary a society’s boundaries may appear from a historical point of view, is to be the representative and effective agent of a people as they take responsibility for their territory and its environmental integrity, as well as for the size of their population. As I see it the point of the institution of property is that, unless a definite agent is given responsibility for maintaining an asset and bears the loss for not doing so, that asset tends to deteriorate. In this case the asset is the people’s territory and its capacity to support them in perpetuity; and the agent is the people themselves as politically organized. (Rawls 1999, 38–39, emphasis in original)

In this passage, Rawls is not clear whether he means “the people” as collective owner, or “the people” as an aggregate of individual owners sharing a social tradition. Yet it is not obvious that the property rights and community paradigms fully mesh with each other. Indeed, protection of strong property rights has historically been associated with liberal individualism, in possible conflict with the dominance of community. Property and community paradigms are not necessarily incompatible, but under contemporary circumstances there are important sources of tension

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between them. Several concrete factors play into the current shape of that tension. One contributing factor is the virtual disappearance of farming from many areas of the United States and Britain. Historically the apparent coincidence of the property rights and the community paradigms resulted from the fact that much land use was agricultural. The powers of the property owner and the local community were linked in the Jeffersonian celebration of the yeoman farmer, who worked diligently and thrived in a stable and harmonious community. These agrarian images, powerful and enduring in the United States and in the European context as well, bring with them linkages between the interests of owners and the interests of the community. Land is seen as plentiful and bountiful—the more so as community members work together. This celebration of agricultural proprietarianism is by now a distortion, however, as farming has virtually disappeared in many areas of the United States and Britain. Property use is varied and market possibilities are extensive; subdivisions sprout up on former farms ever more distant from city centers. The economic interests of the individual proprietor no longer coincide with community efforts to retain character or open space. Communities are rarely settled, and the ties that bind are progressively less likely to be locally defined. Indeed, this is a second explanation for the tension between the property rights and the community paradigms. As people have become more mobile, the definition of local community has itself become increasingly problematic. In Democracy in America, Alexis de Tocqueville (1966) celebrated both agrarianism and the political power of the local community. Rutherford Platt, in his classic on land use and society, describes how towns in New England and counties in the South became focal points for land use decisionmaking. Local government, he concluded, was a sacred element of the U.S. civil religion. Municipalities usually could not go beyond their corporate limits in the exercise of their allotted powers (Platt 1996, 143–144). This nineteenth-century embrace of localism waned as the twentieth century progressed. Local governments increasingly were seen as inadequate to the tasks they were assigned. For example, many states authorized extraterritorial powers for local communities so they could develop public water supplies when they lacked adequate sources within their incorporated areas. Platt concluded that municipalities undermined themselves by using such strategies:

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Once the proud legal expression of the autonomous medieval city, the municipal corporation in America is now an ironic metaphor for governmental inadequacy in the face of external economic, political and environmental forces. It is the victim of its own success, having been replicated in such vast numbers that each individual municipality retains only a fragmentary role in the management of the overall metropolitan area. (1996, 149)

Over the course of the twentieth century, mobility expanded ever more quickly; agricultural communities had experienced particularly rapid depopulation by the century’s end. Aging farmers or their offspring sold off land that became part of ever-expanding suburbs or more pastoral residential or commercial areas. As people moved away, the range of those identifying with the locality contracted. Rural ghost towns are now the subject of nostalgic feature articles in newspapers and magazines. The recent bioregionalist interest in aligning political and ecological boundaries is one of many renewed efforts to define community along more localized lines. Wendell Berry reflects this view when he writes, If the word “community” is to mean or amount to anything, it must refer to a place (in its natural integrity) and its people. It must refer to a placed people. Since there obviously can be no cultural relationship that is uniform between a nation and a continent, “community” must mean a people locally placed and a people, moreover, not too numerous to have a common knowledge of themselves and of their place. (1993, 168)

For Berry, the nation is an assemblage of many communities; it is pluralistic, but not pluralistic in the sense of embracing a set of aggrieved groups and individuals. In like vein, Bruce Williams and Albert Matheny argue that the community perspective assumes a democracy where political values are to be hammered out by people working together in communities. They are concerned, however, that community is often vaguely expressed, and so they describe it thus: “A specific political community may be defined by a residential neighborhood, a workplace, or both: we argue that the strongest democratic communities would be situated around both workplace and residence” (Williams and Matheny 1995, 46–47). In the tradition of John Dewey, Williams and Matheny identify self-interest as emerg-

Property and Community

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ing from social interaction and association. Attempting to develop community identity through a sense of place, bioregionalist communitarians (e.g., Kemmis 1990) seek to use natural forms to align individual and community interests. But individual and community interests may not track along bioregional lines. In Chapter 5, we criticize identification of community with residence in a circumscribed locality as far too facile to capture the complexity of contemporary life. Extended communities based on part-time residence, family ties, or work away from home may be important additional voices in land use decisions, or so we will argue in this volume. Theoretical attempts to link liberalism and communitarianism also point to a third explanation for the tension between the property and community paradigms. Liberalism as autonomy, it has been argued, conflicts with the understanding of the self as embedded in community. Against this contention, Will Kymlicka (1989) has argued that communities may represent the “context of choice” within which people realize autonomy. Communities provide the support and structures needed for people to establish identities and pursue chosen forms of life. Thus protection of group rights is compatible with liberal autonomy, at least when the group seeks protection from outside interferences with its cultural or linguistic heritage. An example would be protecting the integrity of a group’s educational system against externally imposed requirements about the language of instruction. But not all group practices are liberal. When groups coerce their own members, as by preventing members from leaving the group, they violate their members’ autonomy. Schools may be protected from outside influences, but group members may not be forced to send their children to group schools. Protecting groups against outside interference with their cultural heritage may allow individuals to exercise autonomy effectively within their cultural contexts. When groups engage in illiberal coercion of their own members, however, the tension between liberalism and communitarianism once again emerges. If an individual is not allowed to leave her community, the community has become a source of oppression rather than the locus of choice. With respect to individual rights, therefore, Kymlicka argues that the group should be protected against interference from outside except when it engages in coercion of its own members. With property rights, however, the situation would appear to be reversed. The case for protection against interference from outside

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weakens when the group is using its land in ways that affect those who live beyond its borders. An example would be the imposition of generally applicable pollution control regulations within the borders of group-controlled land. Here, outsiders have interests that can be injured by actions on the group’s land. Similarly, the case for allowing a group to coerce its own members in the interest of preserving the integrity of the group’s territory is stronger when group members would seek to put group land to individual use. For example, Julia Martinez, a member of the Santa Clara Pueblo, wanted to bequeath her possessory interests in Pueblo lands to her daughter rather than follow rules about tribal membership.2 Pueblo rules provided that children born of male members and female nonmembers were tribal members, but children born of female members and male nonmembers were not. Pueblo rules also provided that only tribe members could hold possessory interests in Pueblo lands. Martinez raised a civil rights challenge to these rules, but the U.S. Supreme Court held that tribal self-governance prevailed. This case illustrates how there may be serious moral flaws with group practices; the Santa Clara Pueblo’s rules of inheritance protect the children only of males, not females, who marry outside the pueblo. This book challenges both the property rights and the community paradigms as assumptions of localism. Through these challenges, we hope to make room for debate about the claims of those more distant, in both space and time, to a say in what happens now to land. Concomitantly, we will explore in Chapter 6 the obligations of those who live far away to help out when those who live nearby are expected to incur burdens to protect land. As we said at the outset, land is messy and complex, and so are our claims. As with land itself, however, our claims’ very messiness increases their attraction.

Conflicting Claims to Land: The Grand Staircase of the Escalante To illustrate the complex nature of land use issues, we begin with an example, the creation of the Grand Staircase–Escalante National Monument in the southwestern United States. The monument includes vast expanses of land owned by the federal government, isolated tracts that are individually owned, and entire towns. Under monument plans, land use will be limited in the interest of preserving

Property and Community

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natural and cultural areas of great value, contrary to impoverished local communities’ desire for economic development. The creation of the monument by President Bill Clinton in the second term of his administration stepped up ongoing controversies about the roles of the federal government, private industry, environmentalist interest groups, and local communities in decisionmaking about land. There are many similar examples involving complexities of individual, group, subnational, national, and supranational claims to land. This example by no means exhausts the richness of disputes over land use decisionmaking. It does, however, provide a contoured background against which to begin the exploration of the property rights and community paradigms. We will use the monument and other examples in the discussion as this book unfolds. The Grand Staircase of the Escalante is a nearly 1.9-million-acre area of the Colorado plateau in southern Utah that Clinton designated as a national monument in 1996. The region features spectacular redrock country, extensive paleontological and archaeological sites, grazing lands, and a wealth of minerals, especially fossil fuels. In designating the area a monument, the president used his powers under the federal Antiquities Act (1906); the designation was accomplished without either congressional or state action. The monument’s creation was thus both presidential and federal. For this and other reasons, the designation has proved controversial. The area covered by the monument is sparsely populated and in general not well-off economically. By far the majority of residents in the region are Mormons. The area is also the traditional land of the southern Paiute Indians. Out-migration has been steady because the region does not generate the jobs needed to continue to hold people economically. The area has a history of concern about the respective roles of development and preservation. Commenting on the 1947 dedication of the paved access road over the Colorado River to Hite Ferry, one of the first efforts to open up areas of remote southern Utah that are now part of the monument, Jared Farmer writes: “Rural Utahns wanted paved roads, they wanted tourists, yet they wanted to maintain their way of life. They saw tourism, ranching, and uranium mining as compatible economic activities, all of which stood to benefit from improved roads. To the men and women gathered by the Colorado River, there was no apparent contradiction between promoting the country to tourists and keeping it like it was” (1999, 57). The monument designation, while likely to increase tourism, is seen

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by local residents as cutting off desired possibilities for economic development that would allow them to keep their communities vibrant.3 Tourism jobs tend to be seasonal, low-paying, and lacking in advancement opportunities—all reasons why the locals favor “harder” employment possibilities, such as those they envision extractive industries might bring. But these are exactly the forms of development environmentalists wish to bar from the monument area. National monuments are designated by the president of the United States under the Antiquities Act.4 The act is unusual in that it gives the president the power to designate monuments without consulting or seeking the consent of Congress (Leshy 1998, 84).5 The presidential proclamation establishing the monument became a legal source guiding monument management. Grand Staircase–Escalante differs from other national monuments because the establishing proclamation designates that it will be managed by the Bureau of Land Management (BLM) rather than by the National Park Service, traditionally a more preservation-oriented organization. In a similar controversial move, the president awarded management of the Arctic National Wildlife Refuge in Alaska to the U.S. Fish and Wildlife Service over the less environmentally friendly U.S. Geological Survey, which is perceived as more supportive of extractive industries, but also over agencies perceived as more environmentally protective than U.S. Fish and Wildlife, such as the National Park Service.6 The Antiquities Act charges the responsible federal agency with providing for “the proper care and management of the objects to be protected.” In the proclamation establishing the Grand Staircase– Escalante National Monument, President Clinton spoke poetically of “a place where one can see how nature shapes human endeavors in the western United States, where distance and aridity have been pitted against our dreams and courage.” He also identified “exemplary opportunities for geologists, paleontologists, archeologists, historians, and biologists” (Clinton 1996) and acknowledged “valid existing rights,” state authority for wildlife management, and grazing rights. The proclamation takes precedence over other federal designations but does not revoke them so long as they are consistent with monument purposes; some commentators therefore argue that wilderness study designations within the monument should remain intact. The “valid existing rights” provision in the proclamation tracks standard land management language that has been linked to

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constitutional takings doctrine, allowing regulation but requiring compensation when property rights are taken over (Keiter, George, and Walker 1998, 90–94). “Valid existing rights” include mineral rights and rights-of-way (Laitos 1990). The proclamation also explicitly grandfathers in existing grazing rights, but does not create new ones. Thus ranchers will be able to maintain but not expand their herds. Ranching interests who are critical of the designation contend that this compromise will result in the ultimate demise of ranching communities; environmentalists contend that it will perpetuate deterioration of the range through overgrazing. The vast majority of the area covered by the monument is federally owned. About 15,000 acres, however, are privately owned (Bureau of Land Management 1999, 2). Some of these in-holdings are clustered in towns, but others are scattered throughout the monument. The BLM may encourage exchanges of property, especially of isolated parcels. It has already concluded an exchange with the state of Utah for 180,000 acres of state holdings within the monument, and it has concluded agreements to purchase coal leases from Andalex and PacifiCorp, two major developers of mineral resources. While the BLM does not have the authority to manage the privately owned parcels, actions it takes on the surrounding federal land may well affect what the private owners can do by way of land development; control of rights-of-way is a particularly important constraint. The BLM may also seek to assert regulatory authority over activities by in-holders that threaten the character of the monument (Keiter, George, and Walker 1998, 97). In developing a management plan for the monument, the BLM proposed using the Federal Land Policy Management Act planning process, which mandates state and local involvement. The planning process, which took place over three years and included thirty public workshops and a two-day science symposium, occurred outside of local governmental units. Five members of the planning team were appointed by the governor of Utah. The BLM also invited participation from members of the public, including Native American representatives; civic organizations; public interest groups; and other governmental agencies. The result was a management plan, effective February 2000, that asserts two basic principles: protecting the monument in “its primitive, frontier state” and providing opportunities for the study of scientific and historical resources (Bureau of Land Management 1999, iv).

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More specifically, the plan provides for very limited development within the monument. Most controversial are the limits on transportation. The management plan designates a set of rights-ofway that are open to motorized transportation, limits the routes on which all-terrain vehicles may be used, and otherwise closes routes to protect monument resources. Also controversial are restrictions on commercial uses within the monument. Commercial logging is prohibited, and no new mineral leases will be issued. In addition, the management plan indicates that the BLM will work with holders of valid existing mineral rights to modify development plans to eliminate adverse effects on the monument, and to the extent consistent with holders’ rights it will not approve plans with adverse impacts. The management plan establishes ongoing means for consultation with those who live within the monument. In addition, there are plans to continue consultation with a number of Native American tribes. An advisory committee was established to make recommendations for implementation and further development of the plan. Relationships between the various interested groups continue to be a subject of concern, however. Local communities believe that they have not been given sufficient say in the planning process—not to mention in the original decision to proclaim the monument. They see the monument designation as a power grab by eastern environmentalist groups that do not understand the issues and needs of the local community and are only concerned with advancing their own preservationist agendas. The Southern Utah Wilderness Alliance (SUWA), an organization with roots and commitments in the region but with national membership support, is seen as a particularly problematic outside intruder into the communities of rural Utah. Indeed, when a proposal to create another national monument in the San Rafael swell area of Utah was rejected by a local vote in 2002, Utah’s Governor Leavitt asked President Bush to withdraw the proposal. The proclamation of the Grand Staircase–Escalante National Monument thus illustrates the interplay between substantive issues and the location of decisionmaking with respect to land use. Limits to development in the monument area were highly controversial at the beginning and have remained so. The clash of preservationists, extractive interests, and local economic development advocates illustrated by the monument controversy is mirrored all over the western United States. Although much of the monument is public land, private property is scattered throughout, and its value may be affected

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by development possibilities in the region. We explore what is involved in such property rights claims in Chapter 2 and consider whether there should be claims for just compensation in Chapter 3. Communities in the monument region include Native Americans and Mormons in particular, and there are other local residents who lack these ties but have other ties binding them to their communities and to the land around them. In Chapter 4, we explore the extent to which the claims of local groups should be determinative in areal decisionmaking over the local land. Native Americans, Mormons, and others who have left the region for economic opportunities elsewhere may still feel ties of identity to the region. Members of SUWA in the east may feel a magnetic attraction to the monument region that is deepened by experiences of hiking or climbing in the area. In Chapter 5, we discuss the extent to which such distant ties to community may also be a basis for consideration in land use decisionmaking. The monument was proclaimed from afar, but imposed burdens on those who live within and nearby its contours. In Chapter 6, we contend that when those who live at a distance expect the locals to bear burdens, they have a reciprocal obligation to make the locals’ sacrifices worthwhile. Citizens of Los Angeles or Washington cannot expect citizens of small towns in the monument area to bear unilaterally the burdens of limiting economic development—a limiting that may be needed to preserve the pristine air of the monument.

Use in Movement: Rivers Upstream and Downstream The Escalante River joins the Grand Staircase–Escalante monument to the Colorado River watershed. The focus of monument designation was preservation of the land, not maintenance of the watershed, but rivers are the quintessential connectors of land, bringing not only water but soil, chemicals, wildlife, boats, and tourists downstream, and sometimes upstream as well. The Columbia, the Colorado, the Mississippi, and many other rivers in the United States have been the subject of important interstate and even international compacts. European rivers such as the Rhine, the Danube, and the Elbe flow through many nations and require extensive cooperation in their management. The Elbe River begins in Bohemia in the Czech Republic and

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flows north through Germany to the North Sea. On August 16, 2002, it reached a 157-year high, flooding the historic core of the city of Dresden, Germany. Because the heavy rains had occurred upstream in tributaries to the Elbe, forecasters could predict the time when the risk of flooding would be the greatest, although they apparently could not anticipate the extent of the flooding. This measured anticipation presents a compelling image of the limits of local autonomy, particularly for someone living in a self-contained village 50 or so miles downstream from another autonomous village upstream. The actions of the upstream village may shape the choices and even the futures of the residents downstream at their own bends in the river. The fact that activity upstream can fundamentally shape the lives of those who live downstream has been clear for centuries. What has changed is our understanding of the extent of the adverse nature of some of those consequences for people living even hundreds of miles downstream. Rivers and their basins are powerful forces in our lives—critical to our water supply, agriculture, transport, and, of course, the very life around us. Upstream activities such as mining, forest clear-cutting, and the use of pesticides may contribute to erosion, augment runoffs and the severity of flooding, and contaminate drinking water downstream. It would be difficult if not impossible to understand the politics of the arid western United States without understanding the water regimes that govern the Colorado River (Miller 2000). The Colorado is a river whose water supply is of central importance to seven western states and the Republic of Mexico. It is fed by watersheds in western Wyoming, eastern Utah, and western Colorado, and it provides agricultural water for the rich farmland of southern California and domestic water for Phoenix, the cities of southern California, and the nation’s fastest-growing city, Las Vegas. If Mexico had not objected to its northern neighbors’ water use, it is entirely possible that no water would ever reach the Gulf of California from the Colorado. Instead, a measured amount now flows to the gulf through Mexico (Fradkin 1996). The management of the Colorado River is governed in large measure by a compact among the states located along its banks and within its basin. The compact recognizes that rivers are different from many other objects of governance in that conventional political areal divisions cannot capture in a politically persuasive way many of the use issues associated with a flowing or moving resource. The

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case of the Rhine is a good illustration of the challenges involved in regulating flowing waters. In the 1950s, the Dutch, who occupy the last downstream lands before the river flows into the North Sea, were instrumental in establishing the International Commission for the Protection of the Rhine (ICPR). ICPR membership is made up of the countries that border the Rhine: Switzerland (where the Rhine originates), France, Luxembourg, Germany, and finally the Netherlands. Not until the 1987 Sandoz chemical spill in Switzerland, however, did the ICPR move to implement a plan to protect or, more to the point, to restore the quality of the Rhine’s waters. Our discussion of bioregionalism in Chapter 5 explores the limits of nearby community as the locus of land use decisionmaking. What we wish to stress here is that river management is a useful context for understanding how choices made at a distance affect others. It is very difficult to defend local community autonomy in the Colorado River basin or the basins of the Rhine or the Danube or many other rivers. Resident populations along a river are continuously reminded of their connectedness by events as pressing as the central European floods of 2002 and issues as everyday as the quality and quantity of their water supply.

A Note About Methodology This book is intentionally multidisciplinary. It is important to note this at the outset, because the extent to which different literatures are juxtaposed may be jarring to some readers. We recognize this difficulty, but believe that multidisciplinarity is a strength of our analysis. As authors, we are ourselves multidisciplinary. One of us (John) is a political scientist and political theorist who has long written about land use policy. The other (Leslie) is a philosopher and law professor who has taught environmental ethics for the past five years. The literatures we draw on come from political science, political theory, law, philosophy, and environmental writing, among other fields. There are, of course, dangers in such multidisciplinarity. One danger is that a literature will be misunderstood or oversimplified. For example, we criticize some writers in the strong property rights tradition for misinterpreting the liberal tradition about property as fully supportive of absolutism. A second danger is that one literature will be mistakenly incorporated into another. Once again, we are crit-

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ical of the strong property rights movement for bringing a model from political theory into constitutional law. If our work is flawed in these ways, we accept the criticism. But we do not think multidisciplinarity itself is a flaw. Indeed, as our worlds have become more connected, so have our disciplines. A second methodological feature of the volume is its comparative dimension. Thinking comparatively allows us to understand that land use patterns are not fixed in time or place. The United States and the United Kingdom share a common legal history. Up until a century and a half ago, the two countries had a great deal in common with respect to autonomy and land use. Nonetheless, land use regimes have changed significantly in each country, particularly over the last century. In the United States, land use decisionmaking has become deeply conflictual in recent decades. In the United Kingdom it would appear that conflict was greater in the past and is less today. U.S. constitutionalization of land use questions has tended to generate more absolutist approaches. Britain, by contrast, has developed accommodationism in significant ways by statute. By placing land use debates in such comparative context, we can have greater latitude to see how practice in one country might inform practice in another.

Conclusion The designation of the Grand Staircase–Escalante National Monument is but one of many contemporary examples on both sides of the Atlantic in which land use decisions of an environmentalist bent have met with formidable challenges. The two challenges outlined above are our principal concerns here: claims based on the rights of property owners and claims resting in the values of community. A first goal of this book is to argue that despite their current political appeal, neither the property nor the community challenge is ultimately defensible. We begin with the property rights challenge. Chapter 2 examines property rights and ways of protecting them. Chapter 3 continues this discussion with a critical evaluation of contemporary use of the constitutional takings clause in the United States. Chapter 4 turns to the community paradigm, arguing that it is a mistake to confuse local residency with community. Chapter 5 continues the community analysis and discusses how extended communities based on visita-

Property and Community

17

tion and multiple residence, employment, and cultural identity may give rise to claims to consideration in land use decisions. Finally, Chapter 6 takes up the problem of duties of those who live afar. We argue that just as those who live afar have at least some stake in apparently local decisions, they also have duties. It will not do to impose restrictions on the locals while those far away ignore their own causal contributions to environmental damage. Both physically and politically, as we conclude in Chapter 7, land use truly is not a local matter.

Notes 1. For the problem of boundaries, see Buchanan 1991. We discuss in Chapter 2 James Tully’s (1993) argument that Lockean politics, representing, as it were, a delegation of property owners, fails to do justice to aboriginal understandings of ownership and to ecological politics. 2. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). 3. Critics of these local aspirations argue that extractive industries are generally in decline and that with appropriate development tourist industry jobs can be made more attractive. See Reeder 1998, 133. 4. 16 U.S.C. §§ 431–433. 5. John Leshy (1998) also notes that although monument designations are often the subject of initial protest, they have almost uniformly been ultimately embraced both nationally and locally. After the designation of Grand Staircase–Escalante, Clinton proclaimed two other immense national monuments in the west, the Grand Canyon–Parashant and the California Coastal, and made other designations in the waning years of his administration. Neither of the other western monuments generated the sort of controversy that has continued over the Grand Staircase–Escalante designation. 6. For a discussion of different agency approaches and inefficiencies in U.S. environmental management, see Stewart 2001.

2 Misreading the Paradigm of Private Property

P

rivate property in land can be the most local of localisms. The image of the owner as a yeoman farmer, tilling his land to flower and be fruitful, is an image of localism. A central claim of this volume is that it is significant that the image of the owner that comes to mind in discussions of property is this individual figure, not the multinational corporation with vast holdings spread across the globe. Property, pictured according to this localist image, gives an individual the right to control a physical segment of the world. Unrestricted, individual owners may exclude others and use the land as they wish, even destroying land features that others might value, and they may claim the protection of the state in any of these activities. At the same time, land ownership may allow individuals to insulate themselves from others, to retain an island of solitude, to build a life for themselves, to create economic value, or to forge a political base. It should come as no surprise that both land ownership and regulatory regimes that affect the powers of owners have been highly controversial politically. In the United States, a focal point of controversy has been environmental policies that affect land use and, consequently, land values. In the Escalante and other regions of the southwestern United States, in wetland areas, and in many other areas where land has come under protective regulation, aggrieved owners have gone to the courts with constitutional claims and have been supported in so doing by property rights organizations such as Defenders of Property Rights, the Mountain States Legal Foundation, and the Pacific Legal 19

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Foundation. Some of these owners have suffered devastating personal and economic losses; others have not. The success of their legal claims, however, may block or significantly increase the costs of government efforts to protect communities and ecosystems (Butler 2000).

Three Stories of Ownership We begin with three contemporary stories of ownership under U.S. constitutional law. The most sympathetic is the saga of Bernardine Suitum.1 In 1972, Suitum and her husband, who were planning to build a home for their retirement, acquired a lot in Incline Village, a subdivision then under construction on the north shore of Lake Tahoe. The average purchase price at the time of lots like theirs was $12,000.2 The Suitums purchased the lot by trading their Sacramento home, then worth about $27,000.3 Perhaps because Mr. Suitum died about ten years after their purchase, the Suitums never built on the land. Theirs was the only lot left undeveloped in their section of Incline Village, and the regulatory world around them changed sharply over the intervening twenty-five years. Lake Tahoe is a 190-square-mile lake of great scenic beauty in the Sierra Nevada mountains of California and Nevada. The highest, largest alpine lake in the world, it is renowned for the quality and clarity of its waters, but it has limited drainage and thus limited ability to discharge pollution. Since the 1950s, development in the Tahoe basin has been extensive, and runoff from the development and increased utilization of the Lake Tahoe region threaten continuing degradation of the lake’s waters. Three years before the Suitums’ purchase, Congress had authorized formation of the Tahoe Regional Planning Compact to address overdevelopment. In 1980, Congress required planning authorities to ban development that exceeded the carrying capacity of the land. In 1987, the Tahoe Regional Planning Agency adopted a usage plan that included a ban on development in what were identified as stream environment zones. A small stream burbled innocently along the boundary of the Suitums’ land. It has been described alternatively as “covered with riparian plants and saturated with groundwater within two feet of the surface . . . a natural runoff from higher elevations”4 and as a “relocated, man-dug channel.”5 When Suitum finally applied for a build-

Misreading the Paradigm of Private Property

21

ing permit in 1987, she was denied permission to build because her land was classified as lying within a stream environmental zone. She was informed, however, that because of the classification she would be allocated transferable development rights that she could sell to owners with otherwise buildable lots. Suitum made no effort to sell or otherwise exploit her transfer rights. Instead, she went to court, claiming that her property had been taken without just compensation. The Tahoe planning authority responded that her claim was not yet ripe because she had not made a final attempt to sell her transferable development rights. Thus, she could not claim that her property lacked reasonable beneficial use. The United States Supreme Court ruled that her claim was ripe, and although her case turned solely on this procedural issue, the briefs elicited extensive discussion of the merits of her situation. Two years later, in the summer of 1999, the planning authority settled with Suitum for $600,000.6 Had she received the full amount, it would have represented an approximately 15 percent annualized return over thirty years on an original investment of $12,000—and less than half of that on her actual investment of $27,000. However, she received only $125,000, with the remainder of the settlement covering legal expenses. She died in the fall of 2000.7 Suitum was in many ways an appealing plaintiff for property rights advocates. By the time her case was litigated, her land was an undeveloped island in a sea of second homes. Many other landowners, similarly situated but for the fact that they had built sooner, were contributing merrily to the Tahoe drainage problem that the restrictions imposed on Suitum were intended to abate. Indeed, the importance of protecting the stream on Suitum’s property from development was most likely increased by the fact that others had already developed their land. The hoped-for benefit is a public one, preservation of the alpine beauty of the lake. To be sure, Suitum’s property was particularly important to that benefit, but that importance is a different issue from the costs to her of providing that benefit to all of us. The transferable development rights she had been accorded were worth an estimated $30,000–35,000, not much more than the value of her original investment, yet the state later settled with her for over twenty times that amount.8 Then the costs of the litigation, which an economist would call transaction costs, consumed much of the settlement. Thus Suitum could not use her land as she had expected, and she experienced sharply reduced property values and bore costs for

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the public, all in the shadow of others’ enjoyment of the development she was forced to forgo. On the other hand, Lake Tahoe is a sympathetic subject for advocates of environmental protection. With development left unchecked, Lake Tahoe would continue to degrade. If restrictions on development are to occur at all, they must start at some point, and that point will surely seem utterly arbitrary to those on the wrong side of it. In this respect, Suitum is not a very sympathetic plaintiff, for she delayed developing her land and perhaps could not reasonably expect that opportunities to use her land would remain unchanged. If intervention required the state to buy out Suitum and all other owners hoping to develop their land, at the owners’ reserved prices, preserving Lake Tahoe might prove prohibitively expensive. Indeed, a suit by 450 other landowners in the Tahoe region was continuing as of the settlement with Suitum in October 2000. These owners contended that the moratoriums on development imposed for a total of thirtytwo months to allow planning to occur for the Tahoe region were total takings of their property for that time period, and they sought the equivalent of rental value in compensation. The Supreme Court ruled against their claim in the spring of 2002, but left open the possibility that either delays or restrictions on development might constitute takings in appropriate cases.9 These owners had resorted to challenging the moratoriums because their right to contest the final Tahoe regulatory regime had lapsed for complex procedural reasons. Settlements with only these owners on their initial takings claims along the lines granted Suitum would have cost the government approximately $270 million at a time when Congress was being asked to appropriate approximately $9 million (about 3 percent of those costs) for land purchases in the Tahoe region. By comparison, the government spends about $400 billion annually on all of Medicare, which provides health insurance to approximately 40 million elderly and disabled people in the United States; only a few more than a thousand lawsuits like the one in Lake Tahoe would equal the entire annual cost of Medicare. Perhaps most importantly, the process in the Suitum case seems utterly unsatisfactory. Suitum first submitted her construction plans in 1989, her case was decided by the U.S. Supreme Court in 1997, and settlement was reached in 1999, ten years after her original application for a building permit. The Supreme Court was not even asked to rule on the merits of her claim; its decision dealt only with

Misreading the Paradigm of Private Property

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whether her claim was ripe for adjudication. Had the case not been settled, litigation might have continued for years. From the ultimate settlement of $600,000, only $125,000 remained for Suitum. For advocates of a strong property rights paradigm, the case represents a travesty of justice, a contradiction of the claim that the Constitution protects property rights. For critics of the paradigm, it illustrates how resort to the Constitution can go terribly wrong, benefiting no one except perhaps those who recoup transaction costs. Now, consider our second story of ownership, that of Anthony Palazzolo, whose case was decided by the U.S. Supreme Court in 2001. Palazzolo is a far less sympathetic plaintiff than Suitum: he protested land use regulations that had been in place at the time he became the property’s owner, and the configuration of the land that remained for him was at least in part the result of his own earlier decisions to sell off more desirable parcels. Like Suitum’s case, however, Palazzolo’s was a long saga, and he encountered regulatory changes over a considerable period of time. This convoluted tale of transfers in property management and ownership is set in Westerly, a coastal Rhode Island town. The land in question stretches along Atlantic Avenue between the north side of the road and the southern shore of Winnapaug Pond, and it encompasses uplands, wetlands, a salt marsh, tidal areas, and a pond bottom.10 The first event of significance to Palazzolo’s story occurred in 1936, when the property’s then-owner subdivided the upland portion along Atlantic Avenue, leaving the remainder as a single parcel. In 1959, by which time he had acquired the entire property, Palazzolo transferred his ownership interest to Shore Gardens, Inc. (SGI), a corporation of which he was sole owner.11 SGI submitted to the town of Waverly a plat subdividing the parcel from the uplands to the bottom of the pond, into eighty lots. Between 1959 and 1961, eleven of the upland lots were sold. Interestingly enough, although the divisions significantly affected the usability of the remainder of the property, this feature of the history of Palazzolo’s land did not factor into the Supreme Court’s eventual decision in the case.12 In 1969, five of these eleven lots were reacquired by SGI, leaving it with seventyfour of the eighty lots in the 1959 plat. The other six upland lots, constituting a land area of approximately 18 acres, consisted mostly of coastal pond and salt marsh. Palazzolo’s entire investment in all of the acquisitions was $13,000.13 In 1962, Palazzolo began more serious efforts to develop the unsold portion of the parcel. On behalf of

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SGI, he made application to the state Division of Harbors and Rivers to dredge the pond and fill remaining areas of the property. His application was returned because it lacked essential information. In 1963, Palazzolo filed another application on SGI’s behalf, this time seeking to build a bulkhead, as well as dredge the pond and fill the remaining areas. This application was apparently superseded by a later one. At the time of these applications, dredging required division approval, but filling wetlands did not. The state regulatory regime was soon to change, however. In 1965, the Rhode Island legislature provided the state’s Department of Natural Resources with authority to limit the filling of wetlands. In 1966, Palazzolo applied once again on behalf of SGI for approval to dredge and fill, this time planning to build a beach facility; he was granted approval to build either the bulkhead or the beach facility, but he did neither. In 1971, that approval was revoked. Also in 1971, the state legislature created the Coastal Resources Management Council, which in 1977 adopted regulations prohibiting the filling of wetlands without a special exception. In 1978, Rhode Island revoked the charter of SGI for nonpayment of corporate taxes. By operation of law, the property passed back to Palazzolo as a private individual, a fact that proved central to the eventual legal analysis of the case, since this term of Palazzolo’s individual ownership began after the wetlands regulation went into effect. In 1983, Palazzolo applied for an exception to the ban on filling wetlands, using his 1963 plan to fill the 18 acres of marsh and build a bulkhead; the application was rejected. In 1985, he applied again for an exception, this time seeking to fill 11.4 acres of wetlands to build a seasonal beach facility along the lines of his 1966 plan; once again, his application was denied. With this denial, Palazzolo appealed for the first time; he eventually lost the appeal in 1995.14 At the same time, Palazzolo filed a takings claim, seeking damages of $3,150,000, a figure he claimed represented his expected profits from developing the parcel with seventy-four single-family homes. The trial judge concluded that no taking had occurred. Eventually, Palazzolo’s case reached the U.S. Supreme Court on the issue of whether the fact that the regulations predated his ultimate individual ownership forestalled a takings claim. The state contended that once the regulations were in effect, subsequent owners acquired property subject to the regulations and so could not claim their rights had been taken. However, in an already high-profile rul-

Misreading the Paradigm of Private Property

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ing, the Court held that the fact that regulations predated the owner’s acquisition of property did not by itself bar a later takings claim.15 The Court remanded the case to Rhode Island to consider whether there had been a taking under its Penn Central test, which balances the nature of the government action, the benefits to the government in comparison to the detriment to the landowner, and the degree of interference with the owner’s investment-backed expectations in determining whether a regulation amounts to a taking requiring compensation. Justice Sandra Day O’Connor, who supplied the critical fifth vote in the 5-4 ruling, emphasized in her concurrence that the decision on remand could consider when the regulation went into effect as part of its analysis of what Palazzolo could reasonably have expected at the time he acquired ownership.16 This idea of reasonable expectations has played a major role in the U.S. legal regime of takings, as we shall see in Chapter 3. As property owner, Palazzolo is far less sympathetic than Suitum. Not only did he acquire the property after the regulations were in place (although by operation of law to dissolve a corporation that he owned rather than by purchase), he also played a significant role in dividing the property in a way that limited the functionality of the parcel that remained by the time of his takings claim. He and his predecessor company had made quite profitable use of the original land area from the time of initial involvement up until the compensation claim was filed. It was indeed true that his remaining plat lacked the value he might have hoped it would have without the regulation, but he could still build the home that eluded Suitum. Finally, his situation may or may not be unique, depending on the impact of the wetlands preservation regime on development in the state of Rhode Island. These are all factors that should be considered in determining whether compensation is ultimately appropriate in his circumstances. As our analysis in Chapter 3 will show, however, the Supreme Court’s divided decision sent conflicting messages about the significance of Palazzolo’s earlier activities and the timing of the regulations. Critics of the decision have voiced the concern that it will encourage land speculators to sell off property piecemeal and then file takings claims when regulations limit development of the remainder. Enter the protagonist of our third ownership story, David Lucas.17 Lucas’s case was decided by the U.S. Supreme Court in 1992 and was central to the lawsuits brought by both Suitum and Palazzolo. As an owner, Lucas has aspects of both Suitum and

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Palazzolo. In the late 1970s, he was a developer building homes on the Isle of Palms, a barrier island in the Carolinas. His developments were consistent with South Carolina’s initial Coastal Zone Management Act, enacted in 1977, and were economically quite successful. In 1986, Lucas purchased two residential lots on the Isle of Palms, on which he intended to build a home for himself. In 1988, the South Carolina legislature adopted the Beachfront Management Act, which prohibited building in the zone in which Lucas’s lots were located. At the time, however, the lots were the only ones remaining undeveloped in the Beechwood East subdivision. Lucas brought suit, claiming that his property had been taken without compensation since it was now unbuildable. The South Carolina trial court agreed, concluding that Lucas had been deprived of all reasonable beneficial use of the land. The South Carolina Supreme Court reversed that decision, on the theory that the Beachfront Management Act was a valid statute protecting a threatened resource from the nuisance of damaging development. The case went to the U.S. Supreme Court, which held, in its Lucas decision, that despite the complexity of the takings clause doctrine, two situations are per se takings of property: physical invasion and the denial of all economically beneficial use. Writing for the Court, Justice Antonin Scalia observed that the Court had “never set forth the justification for this rule” about the denial of economically beneficial use.18 One justification is that from the owner’s perspective, the total deprivation of use value functions as an appropriation. Another is that when all use value is extinguished, it is less likely that the legislature is simply adjusting the benefits and burdens of economic life in a way that provides everyone with some advantages. The Court went on to conclude that Lucas had been deprived of all reasonable use and so on that basis was entitled to compensation. There was, however, the possibility of an exception to this general rule: if the South Carolina legislature was acting to enjoin a public nuisance under the standards of prior South Carolina law, then the case came within the traditional police power of the state and no compensation would be required. Property rights do not include the right to maintain a nuisance.19 The case was remanded to the South Carolina court for a determination of this issue. In the U.S. Supreme Court decision on his case, Lucas was treated as the sympathetic owner, a Suitum who had been deprived of all reasonable beneficial use of his land while others enjoyed theirs.

Misreading the Paradigm of Private Property

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Photographs of his lots as the last vacant areas in a subdivision of immense homes certainly further this sympathetic view. Lucas was invoked by the Tahoe landowners to argue that the moratorium had deprived them of all reasonable beneficial use of their land. Palazzolo also invoked it to claim that he, too, had suffered a per se taking, a contention the U.S. Supreme Court rejected. Critics, on the other hand, regard Lucas as a developer who had built over an entire barrier island and had acquired lots for his personal use at the end, when regulatory changes were clearly in process. They thus see him as gaining from the development overall and then investing unreasonably in the two lots. These conflicts about property rights and regulation are deep, and much is at stake in them. On the one side lies a strong version of the property rights paradigm, that individual owners should be left free to determine what can be done with their property or compensated if the government intervenes, and that these rights should receive constitutional protection. In the words of the lawyers for Palazzolo, If the State’s theory of property were to be accepted, then the principle that property is a fundamental right that may be regulated but not defined by legislative action would have to succumb to the positivist notion that all property, and concomitantly all rights, are a result of state beneficence. . . . More recent scholarship makes a compelling case for the theory that the rise of individual and political liberties in western Europe in general, and in England in particular, was inextricably tied to the developing understanding that property is a fundamental right that is not dependent upon the pleasure of the sovereign.20

On the other side are concerns of environmentalists for the natural beauties and ecological importance of Lake Tahoe, the New England salt marshes, and the barrier beaches of the Carolinas; arguments that strong property rights are unjustified theoretically and are mythical historically; and contentions that resorting to the Constitution circumvents democratic processes.21

Private Property Rights: The Absolutist Paradigm The most famous declaration of an apparently absolutist paradigm of private property was penned by the English legal theorist Black-

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stone: the right of private property is “the sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe” (Blackstone 1973, 2:118). Contemporary U.S. defenders of strong property rights, such as Richard Epstein (1985), Bernard Siegan (1997), and Richard Pipes (1999), have likewise seen property as the fullest possible conjunction of claims and have concluded that interference with any one of these claims is either impermissible or demands, at the very least, compensation. But, traditional justifications for property, including Blackstone’s, were never as absolutist as contemporary portrayals suggest. Indeed, it is arguable that the absolutist paradigm in its strongest form is principally a contemporary invention. There are, of course, many different views of the nature and foundation of private property rights. Because the absolutist approaches to property reflected in strong versions of the property rights paradigm erect the staunchest barriers to governmental actions regulating land, we employ them as a background against which to organize controversies over private property and regulation of land use. The Structure of Private Property Rights Any theory of property represents a set of choices about human control of the things of the world, understood broadly to include objects that are movable and immovable, natural and human-constructed. John Christman (1994) presents a helpful framework for organizing these choices: an owner stands in a relation vis-à-vis others with respect to an object. Each italicization marks a choice. Owners may be individuals (natural persons like Suitum or artificial entities like the Disney Corporation), groups, societies, political units like the U.S. government, all human beings, or all creatures. Relations may be rights, liberties, powers, or immunities, and they may be legal or moral. Relevant others may range from single individuals (in which case the law would term the relation in personam) to all people (legally, in rem) to all creatures. Objects of ownership may be land, ordinary things other than land, abstract constructs, or even relationships.22 This framework for conceptualizing property reflects the centuries-old legal metaphor that the right to property is a bundle of

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sticks, a collection of separable claims.23 The sticks metaphor helpfully indicates the complexity of property relations but conceals an important ambiguity over whether property is a thing or a relation. Sticks are real objects and always have been, even in medieval England; however, at that time they were handed over in a metaphorical transfer of seisin, the then-standard understanding of property rights over land. The concept of property refers both to the object— Suitum’s plot of land—and to the relations making up the claims themselves: what sticks in the property bundle did Suitum possess? This confusion has been important in discussions of land use: if property is the land itself, the owner might contend, any activities affecting the land thereby interfere with property. But if property is the set of relations claimed by the owner with respect to land against specified others, the theoretical door is open to separating and restricting the relations in which the owner stands to that land. Suitum, for example, unquestionably had the right to exclude others from her land and the power to will it to her children, but she did not have the right to build a home on it. The door is also open to recognizing multiple “owners,” each holding one or more proprietary relations over the object at issue; owners within the Cape Cod National Seashore area, for example, were permitted by statute to retain use rights for twenty-five years when the federal government exercised the power of eminent domain (see Hemmat 1986). In current debates over property rights, the bundle analogy has been regarded as a two-edged sword by critics of absolutism.24 One edge is that it opens the door to the insistence that each stick in the bundle must be included for recognition of full property rights. Any diminution in value of any stick in the bundle then might qualify as an abrogation of property rights requiring compensation (see Epstein 1985). The other edge, however, is that the analogy allows for analysis of the complexity of property rights. This was why the metaphor was so appealing to the legal realists: it permits contextualized understanding of what property rights might mean under different circumstances. We employ the bundle metaphor to allow analysis of different aspects of property rather than to express a commitment to each particular stick.25 The canonical analysis of the relations conjoined in legal property claims is Hohfeldian. Hohfeld (1923) delineated two levels of legal relation.26 The first level sets out direct relations between people and things: rights, no-rights, duties, and permissions. On this first

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level, a person might have the right to farm his land, no-right to walk across his neighbor’s fields, the duty to refrain from cutting down trees on his neighbor’s land, and the permission to enter his neighbor’s land for specific purposes such as the rambles permitted under the 2000 British Countryside and Rights of Way Act.27 Hohfeldian relations on the second level—powers, immunities, disabilities, and liabilities—govern alteration of relations on the first level. A legal power is the ability to do something with a first-level relation, such as transfer it. An immunity is protection against some other entity’s power to alter a person’s first-level relations. A disability means that a person lacks legal power; for example, someone declared incompetent may be disabled from entering into contracts and thus creating self-imposed legal duties. A liability means that a person is subject to someone else’s exercise of a legal power. A person might have the legal power to leave use rights in property to another or be legally disabled from so doing if the property is otherwise constrained or the person is not competent. A person might be immune from changes in property rights brought about by other people or the state or might be liable to such changes. Understandings of property rights range from requiring the fullest conjunction to a much more limited conjunction of these Hohfeldian relations.28 On the first level, the absolutist view is that owners have the right to do whatever they see fit with their land; others have the duty not to interfere in any way without the owner’s consent. There are no rights to the property of others, and no permissions either; a grant of permission to ramble or to access a beach across land would intrude on the landowner’s absolute property rights. On the second level, the absolutist position is that the owner has full powers to transfer land (unless the owner lacks legal capacity on other grounds) and is immune from governmental efforts to alter first-level rights. From the view of Epstein and other absolutists, property rights are interfered with whenever any one of these sticks in the bundle—on either the first or the second level—is assumed outright or is otherwise curtailed by the government. Thus, if the government intruded upon any one of Suitum’s first- or secondorder relations with respect to her land or adversely affected such relations, it would have violated her property rights. No trade-offs are permitted in this absolutist view; an overall increase in the value of sticks in the bundle would not, in Epstein’s account, compensate for the loss of even part of any one stick.

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In other, nearly absolutist views, some sticks are regarded as more essential than others. An example is the idea that the right to exclude others from land is central to ownership, in which case the British right to countryside access over open land would be inconsistent with the owner’s property rights. Another example is the view that the second-level power to transfer first-order relations is central to the idea of property; if the government prohibited land sales or transfers to the next generation, it would be interfering with this essential aspect of property. On the other hand, the right to abuse property may be far less central to ownership, least controversially when the property is an animal. According to less absolutist views, property rights need not include all sticks in the bundle. The Hohfeldian analysis of property as conjunctions of relations is generally credited with introducing the idea of the disintegration of property in the absolutist sense (Grey 1980).29 Some disaggregations are particularly important for environmental regulation. An owner might, for example, be allowed to make use of land but not to exclude others, as in the recognition of the right to ramble or in the provision of an easement for a bike path.30 An owner might be allowed some uses but not others if the land is environmentally sensitive; the owners in our stories faced a sharp curtailment in permitted uses for their land. In the United States, environmental groups have recently developed legal strategies for purchasing from owners conservation easements that impose limits on development while the owners retain all other use rights. The creation of national monuments might allow lifetime use rights but restrict the second-order power to leave land to members of the next generation. Although harder to envision in practice, the possibility of second-level property relations without accompanying firstlevel relations is also important in the area of land policy. Owners of great Scottish estates, for example, hold powers of inheritance and alienation, while crofters, who are much like tenant farmers, and their descendants possess use rights to the land.31 According to these less absolutist views, moreover, determining if property has been interfered with may involve an analysis of whether the bundle overall has been diminished, rather than just whether a particular stick has been affected. Less absolutist views thus may allow for tradeoffs among sticks in the property bundle; when governmental action with respect to property is assessed, a reduction in one stick might be compensated for by the overall quality of the rights remaining.

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The identity of owners raises another set of basic issues in conceptualizing property. The absolutist view defended by property rights advocates such as Epstein envisions individual owners. But other possibilities include joint ownership, even by relatively large groups of individuals; group ownership; public ownership within a polity; or common ownership among all people. Some of these possibilities are particularly important in the land use arena. Claims of Native American tribes and Scottish crofters, for example, are brought on behalf of groups rather than individuals. In the United States, approximately one-quarter of the land is publicly owned, and proposals for privatization of public lands have been hotly contested (Lehmann 1995; Francis and Ganzel, 1984). 32 Which sticks are included in the property bundle is logically independent of whether the owner is a collective or an individual. Either individuals or groups might claim absolute rights. Historically, writers in the socialist tradition have contended that private property is likely to be correlated with claims of unlimited use, whereas social property is linked with more limited powers and requirements of stewardship, but this is at most an empirical connection (Reeve 1986, 2–3). Whether there are even deeper links between individual ownership and the maximization of sticks in the property bundle rests in the more basic justifications offered for ownership. A final set of questions about property relations involves the identification of those against whom they obtain. The most absolutist view conceives of individual property relations as holding against everyone in the world—as in rem in legal terminology. But property relations might obtain against distant rather than nearby others; for example, an owner of beachfront property might have the right to exclude nonresidents of the nearby community but not to exclude residents. Such a right could be enforced by a sticker system like those used for resident parking permits. Or an owner might have power to leave property to other members of the community but not to outsiders. Native American tribal rules requiring individually owned tribal land to be transferred within the tribe are examples.33 As with other aspects of the conception of property, the specification of this aspect will differ depending on the justification offered. Justifying Rights to Property The history of moral, political, and legal philosophy is replete with justifications for property. In understanding these justifications, a

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fundamental threshold question is the status of the rights to be justified. Are they natural rights, and if so, in what sense? Or are they conventional rights? Many absolutists, such as Epstein (1985), see property at least as presocial, if not as natural in some further biological or even theological sense. An understanding of property as natural is a congenial view for the absolutist, for if property is conventional then a variety of nonabsolute conventions might be constructed in different social circumstances. Particularly as property becomes understood as a legal rather than a purely moral right, conventional aspects are apparent. Even Blackstone identified natural and conventional aspects of property; he thought that God gave the world to mankind in common and that temporary rights of individuals to use the common stock were privatized out of natural necessity. With population growth, so Blackstone’s story goes, social order and stability require the regularization of individual rights to things. Individual rights so regularized end with the owner’s abandonment or death without further conventions; therefore, a variety of transfer, inheritance, and testamentary powers ultimately became recognized by societies, again as a matter of convention (Blackstone 1973, 2:121–126).34 Justifications have been invoked to support the general right to property for everyone and special rights held over identified property by identified individuals.35 The classical justifications for property rest in labor, autonomy, identity, and utility.36 Contrary to the absolutist position, none of these classic justifications support unlimited property rights in any clear way. Indeed, there is a strong case to be made that the historically great defenders of property were less absolutist than commonly thought. We give only brief accounts here, directed toward several issues in the classic justifications that are particularly relevant to land use. We begin with John Locke’s justification of property by labor, continue with Kant’s argument from autonomy, and conclude with the utilitarian argument that property protects security of expectations. John Locke is the theorist contemporary absolutists such as Robert Nozick (1974) and Richard Epstein (1985) most invoke in support of their position. Locke, famously or infamously, argued that people acquire private property rights when they mix their labor with previously unowned things (Locke 1988). This acquisition by labor takes place against Locke’s background assumption that God gave the world to mankind in common, an assumption some commentators have seen as creating obligations of stewardship (Ryan 1984, 15,

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32ff.). With this background, Locke affixes two limits to the acquisition of property rights by labor: the property must not go to waste in the owner’s possession (the spoilage restriction), and there must be “enough and as good for all.” If either of these provisos is violated, property returns to the common store.37 Despite the invocation of Locke by absolutists, each of these restrictions raises important ecological possibilities. Is the spoilage restriction violated by an owner who allows land to become a toxic waste dump, thus precluding any further use by humans? Is the “enough and as good” limit violated by practices on owned land that degrade any remaining commons? If so, the Lockean account of property incorporates limits that absolutists reject. Locke’s justification for the spoilage restriction is that labor must privatize in order to allow people to use the world.38 If privatization extends beyond use, permitting ownership to continue despite destruction, however, this original justification no longer carries force. Commentators disagree about the strength of the resulting spoilage restriction. The question for our purposes is whether environmental damage constitutes spoilage, and thus whether the restriction builds environmental protection into the basic understanding of Lockean property. A central problem in understanding how the spoilage restriction works is money, which Locke argued that people would agree to as a permanent, nondisintegrating substitute for otherwise perishable things.39 Because money allows accumulation, its introduction certainly means that the spoilage restriction cannot be counted on to guarantee equality, as it could if natural propensities for things to rot meant that people could not amass very much. But it does not follow that money allows waste or damage; in fact, the whole point of money is to avoid waste. What waste means is controversial among scholars of Locke. If Lockean property is interpreted to allow people to use the world for God’s purposes, stewardship obligations might prove quite extensive, thus limiting waste.40 If the standards for waste are entirely subjective, so that property does not waste if it is used in accord with the owner’s preferences, then no owner-preferred use, even a destructive one, will violate the restriction.41 An intermediate account is that property must be used to some advantage, which would mean any positive value, but not necessarily the most careful, the best, or the most sustainable use. 42 Thus it would not rule out using land as a toxic dump if storage itself is an advantage, farming practices that erode land so it is no longer fertile,

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severe overgrazing that destroys range lands, clear-cutting that obliterates a forest, or development that fills wetlands that are critical habitat for migratory birds. All of these are economically beneficial uses, however deeply flawed in the eyes of critics. Nonetheless, even the relatively minimalist idea that property must be used to advantage to avoid the spoilage restriction would imply that the right to property is not the right to use and abuse, and thus that property rights are not absolute in the fullest sense. The provision that there be “enough and as good for all,” sometimes called the sufficiency proviso, affords another route to seeing Lockean property as limited. This proviso has received far more attention from commentators than the spoilage restriction, and its meaning is likewise controversial. Whether it means that property may only be acquired consistently with others’ abilities to acquire equal property or refers only to access by nonowners to the means to labor to meet their basic needs need not be resolved here, however, since either of these interpretations imposes some limits on the extent to which owners may degrade land.43 Ownership practices that are so ecologically devastating as to preclude others from meeting their basic needs are not part of the Lockean corpus of property rights. Examples might be upstream water policies that increase salinity to the extent that downstream land needed for survival can no longer be used to grow crops, or the careless management of nuclear power that led to the accident at Chernobyl. Once again, although the impact of the proviso is limited, it is enough to undermine a fully absolutist reading of Locke. Perhaps because his work is not in the tradition of AngloAmerican liberalism, Kant is less frequently invoked by absolutists. The Kantian idea that property is required for the exercise of autonomy, however, might be an important line of defense for the absolutist position. The absolutist view would be that autonomy implies full freedom to do what one wants with one’s property. But Kantian autonomy, too, can be read in a far less libertarian frame. Sarah Holtman, for example, explores the application of Kantian autonomy to the problem of exclusionary zoning, a strategy by which a community may seek to exclude low-income housing by setting requirements for minimum lot or house size or banning multifamily buildings.44 Holtman’s view is that Kant should be understood as holding that some interests, such as property, are “prerequisite . . . to living the life of a rational agent” (1999, 37). Put briefly, Kantian rational

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agents are individuals capable of laying down the moral law to themselves. It is also part of Kantian rational agency, Holtman maintains, to show “equal and adequate respect” for other rational agents; this follows because the universality of law requires treating like individuals alike. The role of the state is to ensure respect for rational agents as free, equal, and independent citizens; the institution of property is “conditioned on its relation to the freedom, equality, and independence that are central to justice” (1999, 46; Rosen 1993, Chapter 2). Against those who would argue that protection of private property is the function of the Kantian state, Holtman contends that protection of rationality is basic and may demand limits on property. Her argument then develops several intermediate principles of justice and contends that Kantian justice would impose limits on exclusionary zoning when it interferes with the independence of rational agents. This reading of Kant is clearly not absolutist. The utilitarian tradition looks to property as protecting security of expectations, an argument also much favored by absolutists. At the outset, an argument for protecting security in expectations might appear to be circular, depending on the expectations that have been created in the first place. If expectations are never created, their protection is a moot point. On the other hand, expectations might arise naturally from what people need to do to provide for themselves; we might come to expect to use what we have cultivated. If so, security will require protecting at least some expectations. Some utilitarians, notably Hume (2000), argue that there is thus a natural basis for recognizing quite extensive rights to property. Even so, all of the great writers in the utilitarian tradition recognize at least some limits on the support given by expectations for property, often on the basis of careful empirical analysis. A frequent example discussed by the utilitarians is the passing of property by will or intestate succession (that is, by the rules of intergenerational transfer applied to a person who dies without having made a valid will). The full power to leave property to whomever one wishes may not be necessary to security of expectations, although some protection of those dependent on inheritance would be needed. The transfer of property by intestate succession—when the owner has not even made plans for it—would seem even less justified by the need to protect security of expectations, although here too the utilitarians saw a case for protecting dependents who might have been led to count upon receiving at least some resources from their relatives.

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Henry Sidgwick, the last and possibly most meticulous of the great nineteenth-century British utilitarians, analyzed the relationship between protecting security of expectations and several issues that might today be regarded as environmental. One is the right to use property. Sidgwick pointed out that this right need not be exclusive to one individual when a thing is simultaneously or successively usable by different individuals. Common lands were one of Sidgwick’s examples: “Thus, if a piece of land is most useful on the whole as an area for common recreation, it is obviously inexpedient to allow it to be appropriated in separate portions for the separate use or enjoyment of particular individuals” (1908, 67). Sidgwick thought there was a similar utilitarian case to be made for common ownership of oceans and navigable rivers.45 He also noted that an owner’s continuing ability to use land might necessitate restrictions on others. His examples were that use rights might include protection against indirect interferences such as stream diversion or air pollution (1908, 77). The strong absolutist paradigm thus is not the dominant view in the historical tradition regarding property rights invoked by contemporary absolutists such as Epstein (1985). Ironically, contemporary absolutists have been joined by leftist critics of liberalism such as C. B. MacPherson (1962) and Jennifer Nedelsky (1990) in furthering the identification of liberalism with absolutist conceptions of property. As the examples discussed above suggest, however, traditional justifications of property are far more complex than simple absolutism would hold. The identification of liberalism with absolute property rights is perhaps historically transient and more likely mythical.

Constitutionalizing Property A second major doctrine frequently invoked by supporters of the absolutist property rights paradigm is that property should be accorded constitutional protection. Although the move to constitutionalize is foremost among those who hold strong views about which rights are included in the property bundle, it is important to recognize that the issues of constitutionalization and inclusion of specific rights are separable. One could see property rights as quite limited, yet insist that the rights that do exist be given the ultimate in constitutional

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protection. Or one could couple absolutist views about property with more limited constitutional protection. Absolute private property rights need not be joined with constitutional protection. When a political feature such as a political structure, a definition of citizenship, or a right is constitutionalized, it is declared to be part of the basic charter of a polity. As a result, it is insulated at least to some extent from ordinary political adjustment; it holds a foundational status that cannot be ignored by political branches of government. To give any rights constitutional protection, including property rights, is thus to raise a special sort of barrier to intervening with those rights: a constitutional barrier.46 Constitutional doctrine varies about what that protection actually means. It may mean that intervention is impermissible altogether, or is permissible only with especially strong justification (what has been called “strict scrutiny” in U.S. jurisprudence). Or it may mean that intervention may be permissible but only with compensation, thus increasing its costs. Moreover, different conclusions may be reached about the assignment of institutional responsibility for constitutional protection. In the U.S. constitutional tradition since Marbury v. Madison, the interpretation and enforcement of constitutional rights have been thought to be peculiarly the province of courts.47 The further significance, then, of a decision to constitutionalize in the United States is that it moves decisions from the legislature to the courts. It is possible, of course, that a polity could conclude that the legislature or administrative agencies have special competence and authority to protect constitutional rights. In Britain, which lacks a written constitution, the lines between courts, legislatures, and administrative agencies as constitutional actors are far less clear than those lines are under the U.S. doctrine of judicial review. Like the decisions about when and what to constitutionalize, this further decision to judicialize is highly contested. Critics contend that unfortunate situations such as Suitum’s are the inevitable result of judicializing constitutional rights. The significance and methods of constitutionalizing take different forms in the polities under study in this volume; these polities also differ with regard to the presence of a written constitution. In the United States, one function of the Constitution is to afford special protection to rights, through the Bill of Rights and through other constitutional doctrines, such as the due process clause of the Fourteenth Amendment. What rights should be protected, why they should be

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protected, and what protecting them means have, of course, been highly contested over the years since the Constitution was written. It is not our purpose here to present these disputes fully or to adjudicate them; that would be a protean and, given the extent of the controversy, probably an impossible task. What we can do is point out how different views about resorting to the Constitution lead to different ideas about the use of the Constitution in the protection of property. We also compare the United States to Britain, which has a rich tradition of fundamental law even though it has no written constitution, and consider recent developments in European Union law. The kind of land use controversies that have led to calls for constitutionalization in the United States have been handled by legislative or administrative accommodation in Britain. The U.S. and British systems also may be contrasted to the civil law tradition on the European continent, where property in the private sphere is regarded as absolute but property in the public sphere is treated as subject to regulatory adjustment (Mattei 2000). Although lacking a written constitution, Britain has had a complex tradition of fundamental law since feudal times. In medieval Britain, the landholdings of nobles were subject to feudal obligations to higher lords and ultimately to the king, who had the power to levy charges to support the monarchy and defend the kingdom. This is the origin of the power of eminent domain—the power of the sovereign to condemn land for public use. Nobles objected to arbitrary and expensive demands on the part of the monarch, and the result was Chapter 29 of the Magna Carta: “No freeman shall be arrested, or detained in prison, or deprived of his freehold, or in any way molested; and we will not set forth against him, nor send against him, unless by the lawful judgment of his peers and by the law of the land.”48 This clause in the Magna Carta resembled a due process clause rather than a clause requiring compensation or legally limiting control of land use. In the centuries following the proclamation of the Magna Carta, what might be viewed in contemporary terms as regulation was common in Britain. Mandated crop production and flood control were standards of rural life; lot-size restrictions in cities were designed to prevent the spread of disease and fire and possibly also served to restrict migration to and settlement in urban areas. The use of fundamental law against arbitrary power remains a prominent theme in British history. Opponents of the Stuart kings

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during the Lockean era invoked the Magna Carta as fundamental law. Lord Coke wrote: “No man shall be disseised, that is, put out of seisen, or dispossessed of his freehold (that is) lands, or livelihood, or of his liberties or free-domes, and free-customes, as belong to him by his free birthright, unlesse it be by the lawful judgment, that is, verdict of his equals (that is, men of his own condition) or by the law of the land (that is, so to speak, once and for all) by the due course and process of law.” For Coke, as for the Magna Carta, regulation and disseisen were different; Coke wrote that regulation was permissible if it “extends to the public benefit . . . for this is for the public, and every one hath benefit by it.” British land law to the present day remains a combination of fundamental due process and adjustment through judicial, legislative, and administrative means.49 Land use is subject to common law doctrines, such as nuisance and easement, enforced through the courts. The use of the power of eminent domain—referred to as compulsory purchase—and compensation are matters for statutory authorization with administrative delegation (see Harris 1996, 95–99). In general, compensation is paid for compulsory purchase, but as a standard text on British constitutional law opines: “the rights of landowners . . . depend, not on constitutional guarantees, but on the latest legislative policies of Government and Parliament” (Bradley 1977, 463). How these adjustments occur is one of the topics for Chapter 3. British law is now also embedded within European Community law. In Europe, protection of ownership is manifest in the Convention on Human Rights, Article 1 of Protocol 1: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The Convention has been adopted by the European Union and thus sets ground rules for action by member states. “Secure enjoyment” protects owners against arbitrary seizure, in the context of protection of the “public interest” and under “conditions provided for by law.”50 The Convention was adopted as British law by statute in 1998.51

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What these requirements mean is part of the ongoing debate in British law about the role of constitutional protections in an administrative state (Schonberg 2000). This British heritage was, of course, also the background to law in the American colonies and eventually to the U.S. Constitution. The Fifth Amendment to the Constitution prohibits the government from taking property for public purposes without just compensation. Historically the Fifth Amendment was applied as a limit against the federal government only. The Fourteenth Amendment prohibits states from depriving citizens of life, liberty, or property without due process of law; the Fifth Amendment takings clause has been applied to the states through incorporation in the Fourteenth Amendment. Additionally, many state constitutions have takings clauses of their own. Some of these mirror the federal Fifth Amendment, while others extend the prohibition to state actions that either take or damage property. On all sides of the U.S. debate, there is agreement that when the federal or state government assumes ownership, the Constitution requires just compensation, but there is not always agreement about what this requirement means.52 And there are major disputes about whether constitutional protection should extend beyond this point. Does the obligation to compensate extend to governmental actions that do not result in assumption of ownership but that destroy, consume, or regulate property? As long ago as 1872, in Pumpelly v. Green Bay Company, the U.S. Supreme Court analogized submerging land for a reservoir to taking ownership of it.53 A critical aspect of this problem of extension is whether there should be a constitutional doctrine of taking by regulation. In 1922, in Pennsylvania Coal Company v. Mahon, Justice Oliver Wendell Holmes famously wrote that when regulation goes “too far,” it must command compensation.54 In Pennsylvania Coal, the offending regulation prohibited owners of subsurface rights from extracting coal when surface rights would be compromised by subsidence. What is meant by “too far,” as well as whether Pennsylvania Coal was really a case establishing the doctrine of regulatory takings at all, remains deeply controversial (Brauneis 1996). Advocates of a strong property rights perspective contend that any regulatory intervention beyond the traditional use of the police power to prevent harm constitutes a taking for which the Constitution requires compensation. Critics contend that constitutional protection of property through the takings clause should be

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limited to outright seizures or seizurelike activities on the part of the government. And there are of course many positions in between that are criticized by purists on both sides as conceptually muddled.55 Another central area of dispute is whether the government’s power to abate a nuisance is constitutionally circumscribed. Writers who favor strong property rights concede the power of the state to act to prevent a nuisance—that is, activity on land that puts others at risk of harm. A landowner may be required, for example, to clear away a derelict structure that is a breeding ground for rats. In the Lucas decision recounted at the beginning of this chapter, the U.S. Supreme Court delineated an exception to the requirement that total diminution of value constitutionally mandates compensation: when regulation abates a nuisance, compensation is not required.56 The reasoning behind the exception is simple: if the South Carolina Coastal Council were merely prohibiting a nuisance, it took nothing; property rights do not include the right to create a nuisance. This does not, however, mean that a nuisance is to be identified with any legislative judgment about the harmfulness or beneficial nature of activities. Under the terms of the remand, it was the province of the courts, not the legislature, to determine whether Lucas’s use fit within the established law of nuisance. Lucas thus both constitutionalizes the nuisance exception to the doctrine of regulatory takings, and judicializes the understanding of nuisance. Each of these moves takes decisionmaking away from the give-and-take of the legislative process. By contrast, earlier cases in the United States accepted legislative judgments about what constituted a nuisance.57 In Britain, judgments about what constitutes a nuisance are regarded as matters for legislative adjustment (see Harris 1996, 95–99). Many arguments have been offered for resorting to the Constitution to protect a right such as property. One is the authority of history: a doctrine has been enshrined in the Constitution or other law over an extended period of time. Another is procedural: constitutional protection preserves the integrity of the political process. Yet another is substantive: a right is so important that only constitutional protection reflects its appropriate status. A final reason is egalitarian: constitutional recognition is central to protecting the fundamental equality of persons. In the brief account that follows, we cannot hope to resolve all the controversies raised by these arguments; it is our purpose here to focus on their relevance to the strong property rights paradigm.

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Constitutionalizing and history. One reason for constitutionalizing a right such as property is historical recognition of the right. History provides authority for the move to the Constitution: prior law. It also provides a moral justification for resort to the Constitution. If rights have been entrenched in prior law and people are likely to count on them as a result, they are candidates for the special force of constitutional protection. This argument is especially telling for property, with its central role in protecting security of expectations. There is a noteworthy ambiguity, however. Do these arguments trade on the prior constitutional recognition of a right, or on historical recognition that is long-standing but has not reached constitutional status? If the former, there is constitutional precedent for continued recognition. If the latter, further argument is required to support the constitutionalization of a right that happens to be thoroughly entrenched in law. The doctrine of nuisance, for example, has a long-standing legal history, one that the Supreme Court referred to in Lucas, but no explicit constitutional status. Interpretations of history, moreover, are remarkably contested. A creative rereading of history lacks the imprimatur of accepted authority or settled expectations. Thus if defenders of an absolutist paradigm are engaged in contested historical reconstruction, their efforts lack these foundations, although they might, of course, find other grounding. Several recent, careful studies of the colonial period argue against the claim that the Constitution originally incorporated the doctrine of regulatory takings. Other studies (Treanor 1995, Hart 1996, Siegan 1997) consider recognition of the doctrine of regulatory takings to have occurred over wider spans of U.S. history. William Treanor (1985, 1995) argues that the original understanding of the takings clause was limited to a requirement of compensation when the government seized property outright. Treanor’s account begins with the historical observation that colonial charters, with the exception of a Lockean proposal for Carolina, lacked any provision for compensation when the government seized property. Instead, judgments about expropriation and compensation were left up to colonial legislatures. Against this backdrop, the Fifth Amendment takings clause, and the state constitutional clauses on which it is based, protected owners by requiring the government to pay when it seized property, to supply the army, for example. The clauses did not protect owners against governmental activities that

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affected the property’s value, such as a construction ban or roadbuilding that caused subsidence. Treanor then argues that the drafters of the takings clause focused on seizure because they feared failures of governmental process. Colonial experience had drawn attention to problems of governmental refusal to honor land grants. Vermont, the first state to incorporate a takings clause in its own constitution, had complaints about New York’s failures in this respect. Uncompensated military seizures during the Revolution were part of the background for the takings clause in the Northwest Ordinance. Indeed, military seizures are a paramount case of failure of the political process, since they occur outside legislative action altogether. Moreover, Treanor contends, Madison, who played a prominent role in drafting the Fifth Amendment, understood property in the same limited way. Treanor reads Madison to hold that the value of property may be adjusted through political processes, provided sufficient checks and balances are built into the processes. He represents Madison as particularly concerned about the vulnerability of property in land and slaves to the tyranny of the majority. As the population grew, landowners would be in the minority; slave owners already were in the minority at the time the Constitution was adopted. In Treanor’s view, Madison insisted on compensation when such property was seized, although he thought that changes in value brought by regulation were part of the give-and-take of the political process. Treanor does not point out, however, that process failures can occur with land regulation just as with land seizures. A more general question about his account, which we cannot adjudicate here, is the possibility that it is driven more by the view that process failures justify constitutionalization than by history itself. If Treanor is right and the historical takings clause was drafted with outright seizures of property by the government in mind, that by itself would not show that the Constitution was meant to reject all doctrines of regulatory takings. If at the time of constitutional formation governmental intervention in land use was limited to the prevention of nuisances, extranuisance regulation might be an area of law not imagined at all when the Constitution was drafted. If regulatory takings were such uncharted territory, then the Constitution should not be interpreted to reject them; instead, the door would be open to arguments that, given constitutional silence, they represent a defensible extrapolation from actual constitutional provisions.58 In another

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recent study, however, John Hart (1996; see also Bosselman, Callies, and Banta 1973, Chapter 6) has argued that even in colonial times the activities of government in regulating property were not limited to preventing nuisances. Instead, Hart contends, colonial governments went far beyond interventions that were aimed at keeping citizens from engaging in noxious forms of land use. Governments required property owners to put their land to productive uses, such as building or planting, and they did so after and beyond the original terms of land grants. Requirements that land be fenced were adopted to further cultivation as well as to protect cultivators against the nuisance of wandering animals. Mineral rights could be lost through failure to develop them, whether the explanation was low demand, limited capital, or mere reluctance.59 Such requirements of productive use track a strong understanding of the Lockean proviso against waste. An analogy might also be drawn between these regulations and Suitum’s or Palazzolo’s failure to develop property before regulatory change intervened. Other regulations during the colonial period aimed to put land to uses that might benefit the public. Private individuals were given the power to condemn land to build mills and forges, critical community resources. Compulsory drainage projects were mandated, over the objections of owners who might have preferred natural meadow or marsh for hay production or aesthetic purposes. Ironically, such development was the opposite of today’s efforts to protect wetlands for the public good. Statutes allowed people to hunt or fish on each other’s land, subject only to the rule that they must compensate for actual damage. Dwelling locations were mandated for social purposes as well as for the public safety, so that no one lived too far from a church. Aesthetic regulations were extensive, including a requirement in colonial Philadelphia for owners to plant shade trees (Bosselman, Callies, and Banta 1973, 84). In a foreshadowing of today’s efforts to fill in brownfields (urban waste areas), efforts were made to encourage urban density. Hart sums up the pattern: “The first century and a half of private land ownership in America reveals no sign of the later-imagined right of landowners to be let alone as long as they do not harm others. In the minds of colonial legislators, the bundle of property rights received by patentees and passed on to their successors did not include a right to use the land for everything short of nuisance” (1996, 1281). Moreover, Hart contends, setting the bounds of nui-

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sance doctrine was a task left for colonial legislatures, not courts. Thus legislative judgment was involved in deciding when a use of land was harmful to the extent that it should be prohibited outright. This allocation of institutional power would appear to controvert Justice Scalia’s allocation of authority in the Lucas decision: that legislatures were limited to preexisting nuisance law in constructing land use restrictions that deprived owners of beneficial use of property without compensation.60 Thus if Hart is correct and colonial law left judgments about what behavior constituted a nuisance up to colonial legislatures, Lucas represents a departure from early historical practice. These accounts focus on the colonial period, however, and do not examine whether the doctrine of regulatory takings has acquired force gradually over the course of U.S. legal history. Supporters of the property rights paradigm have taken this approach to defend their position as well. Bernard Siegan (1997, esp. Chapters 2 and 3), for example, argues that the doctrine has been present all along in U.S. constitutionalism. Siegan’s support for this claim, however, is largely based in the importance of property to liberty, rather than in extensive empirical work. Jennifer Nedelsky (1990), a legal historian on the left, argues that the market conception of property held sway during the constitutional period and has shaped U.S. history to the present day. Her argument is that Madisonian concerns for the security of property against the risk of majority tyranny distorted the democratic potential of U.S. politics. In designing the Constitution to protect the security of property, she says, Madison in the end insulated government from popular participation. Nedelsky’s diagnosis of the contemporary legal picture is complex. On the one hand, she sees absolutism as gaining ascendancy in the legal cases and in commentaries, such as the work of Epstein (1985); Paul (1987); Paul, Miller, and Paul (1994); and Siegan (1997). On the other hand, she thinks the emergence of the idea that when regulation goes too far it will be recognized as a taking signals the disintegration of property. Her conclusion is that the vision of property as firmly delineating the individual from the state has always been a powerfully distorting myth, one that absolutists are trying to resurrect today. Perhaps the most nuanced recent history of property in U.S. jurisprudence is Gregory Alexander’s. Alexander traces two conceptions of property in dialogue through U.S. legal history. The first, property as commodity, represents the absolutist paradigm. Accord-

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ing to the commodity view, “property satisfies individual preferences most effectively through the process of market exchange.” The role of law is to protect individuals’ decisions about their property and to clear the channels of exchange. But according to the second conception, property as “propriety” is “the material foundation for creating and maintaining the proper social order, the private basis for the public good” (Alexander 1997, 1).61 This second vision is derived from the tradition of civic republicanism. As a late-nineteenth-century example of property as propriety, Alexander cites the public trust doctrine, under which property is seen as subject to the public good. This doctrine was applied to reach the conclusion that the state of Illinois held the lands submerged along the lakefront of Chicago subject to the public trust and could not simply transfer them for commercial exploitation (Alexander 1997, 273).62 Unfortunately, this is not the best example for Alexander’s argument. The public trust doctrine here applied to the state as owner, not to private ownership generally. Moreover, it is a doctrine with particular applicability to waterways such as the Chicago harbor, a channel of commerce of paramount community importance; it is unclear whether the doctrine would be applied to lands of lesser importance (see Sax 1970).63 According to Alexander, the property as commodity view has been on the ascendancy since the early 1970s, especially with the development of the law and economics movement. In Alexander’s view, it is a historical mistake to see this development as more than a temporary shift in the dialogue. According to several of the more prominent recent accounts, then, a strong property rights paradigm was not prevalent in early U.S. legal history. Invocation of history in support of the strong paradigm is at best a contested proposition. At worst, the story of historically unfettered property rights may be as mythical as the ideal of the state of nature. Process failure and constitutionalizing property rights. A number of recent commentators have argued that constitutionalization is appropriate when there are predictable failures of the democratic political process. The most obvious example of this would be unfair procedures such as the military seizures pointed out by Treanor as background to the original takings clause. Suitum contended that if her case were not ripe for adjudication, she would remain effectively in limbo, unable to come to closure about whether

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the government had violated her property rights, and the Supreme Court agreed.64 Local residents of the Escalante region, discussed in Chapter l, contend that they have not been appropriately consulted in the decisionmaking about the monument. In Britain, processes for compulsory purchase are set out by statute, implemented by administrative agencies, and subject to judicial review. The insistence on fair procedures in land use decisionmaking is a powerful argument for constitutionalizing. In British law, however, this insistence is typically carried out under due process rather than takings clauses in fundamental law. An inventive group of U.S. writers, most in the public choice tradition, have developed a different account of process failure in the property rights debate. These commentators follow John Hart Ely’s argument (1980) for resort to the Constitution when discrete and insular minorities are at risk in the political process. Drawn from Justice Harlan Fiske Stone’s famous footnote in the Carolene Products case, this doctrine regards racial minorities as the paradigmatic case of groups at risk of being walled off from the political process and thus unable to protect their interests in the give-and-take of the legislative arena.65 Process theory, as Ely formulated it, has the appeal of appearing to provide textual grounding for limited judicial activism. Property rights advocates who hold more generally conservative positions—opposing abortion rights, for example—may be drawn to process theory on this basis. This may, however, be a difficult and unstable basis for these theorists to use to support the constitutionalization of the doctrine of regulatory takings. The difficulty is to find a justification for identifying owners as a “discrete and insular minority” subject to marginalization in the political process; property owners, after all, are not the group that comes first to mind as suffering from disempowerment.66 Strategies for characterizing owners as peculiarly subject to process failure have been drawn from the paradigm of public choice analysis, which assumes that government actors pursue their own self-interest, not the public interest. William Fischel (1995) has presented the most fully developed version of this approach. He begins by advocating judicial restraint; judges, he says, do not have a “comparative advantage” over legislatures in determining what is good public policy. Instead, courts will do better to “clear the channels” of democracy by ensuring that a democracy honors its commitments and by preventing exclusions from the democratic process. It is effi-

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cient for governments to precommit themselves against uncompensated expropriations as a means to encourage optimal levels of investment. The difficulty is ensuring that these commitments will be kept, and the sturdiest of these commitments are constitutional. If democracies alter their precommitments without allowing all those affected adequate voice in the political process, Fischel contends, courts should step in. The difficulty for Fischel is to defend a theoretical line between commitment defaults that call for compensation and ordinary changes in public policy that affect land values. Fischel contends that owners of land, in comparison to owners of other kinds of property, are particularly vulnerable to takings by government because they cannot exit. Land is fixed; it cannot be quarried up, packed in a suitcase, and carried away. Thus landowners are in practice more restricted than owners of other kinds of property in the means available to make their wishes known.67 In addition, Fischel believes, landowners are more vulnerable to the actions of local governments and special assessment districts because the role played by special interests and factions is more direct at that level. Local governments, in the sway of those who have invested and want to keep property values high, have incentives to invest in improvements that may disadvantage absentee, unrepresented owners. Each of Fischel’s contentions is problematic, however. Landowners can exit economically by selling or by investing elsewhere, leaving their land behind. Also, developers are often quite powerful in local politics, and, as Treanor points out, when they are disadvantaged at the level of local government they can always pursue their interests by moving up a level of government (Treanor 1995, 869).68 Several alternative efforts to argue that landowners are particularly vulnerable to process failures are also problematic. Saul Levmore (1991, 1997), for example, argues that when individual owners (or small groups of owners) are singled out, their limited numbers alone will make it unlikely that they can compete effectively in the political process, and so they should be protected through the takings clause. Numbers alone, however, do not track what the takings clause protects; seizures always call for compensation, even if quite large numbers of landowners are involved, as they sometimes have been when land is condemned for freeway construction. Moreover, the point from Treanor mentioned above is also relevant here: owners who are isolated at one level of government may find

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unity and solace at another. Daniel Farber (1992) argues that the problem with seizures and seizurelike activity is “horizontal equity”: some landowners are expected to bear significant costs that others avoid. Farber may be right that owners of land subjected to seizure are treated inequitably; we discuss below the significance of these inequities for constitutionalization. But inequitable treatment is a different argument for constitutionalization than process failure. Several commentators have pointed out one situation in which land use decisions do affect traditionally vulnerable populations: the levels of toxic waste production and storage in and near minority communities (Treanor 1995; Been 1993, 1997). In the toxic waste cases, however, the vulnerable populations may be renters rather than owners; ownership interests may lie on the side of waste producers, who indeed have challenged regulations that protect local inhabitants against takings. These theories of process failure drawn from public choice, therefore, do not provide plausible arguments for constitutionalizing doctrines of regulatory taking. Owners are not “discrete and insular minorities” in need of special protection. The equity concerns raised by process theorists are genuine, however, and are discussed below. The more general question raised by process theorists, about whether land use regulation that significantly diminishes property rights is efficient or otherwise good public policy, is also important. But these issues are appropriate subjects for legislative adjustment, not reasons for constitutionalization. Constitutionalization and substantive rights. Another central role—indeed, some would say the most important role—for constitutionalization is the protection of basic rights. The difficulty in the property rights area, as elsewhere, is the identification of what rights are to be given constitutional protection. In the history of U.S. law, different rights have come into and faded out of view as appropriate targets for constitutionalization. Controversies over “substantive due process” are legion. When the due process clause of the Fourteenth Amendment was interpreted to protect substantive economic rights such as the liberty of contract against legislation of the New Deal, many commentators strenuously objected. More recently, critics of the Supreme Court’s decisions protecting reproductive liberty have argued that these cases rely on a parallel logic of identifying substantive liberties in the due process clause (Ely 1980). Similar controver-

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sy attends the interpretation of the takings clause to encompass constitutional protection not only against property seizures but also against regulatory activities that impinge on property values. A number of arguments have been given for constitutionalizing such strong property rights paradigms. History is one, but, as discussed above, it is not at all clear that U.S. constitutional history recognizes a strong property paradigm. The fact that a right to property is actually mentioned—that is, enumerated—in the Constitution is another argument, but the takings clause says nothing about compensation when regulation affects the use of property in a way that diminishes property values. (State constitutional provisions that protect owners against “taking or damaging” may be a different matter.) The fundamental nature of the right to property is another. Here, the question is whether strong ownership protections are fundamental in the U.S. tradition of “ordered liberty” or on some other basis. Richard Epstein (1985), as we described earlier, has been perhaps the most vehement defender of the view that strong property rights are fundamental. If the strong property rights paradigm does not have an entrenched historical basis, then it does not have the basis in U.S. tradition that has been important to the Supreme Court in recent decisions. For example, in ruling on newer candidates for fundamental liberties such as the right to control how one dies, the Court has refused to recognize supposed rights that lack long-standing historical entrenchment in U.S. law. 69 Finally, philosophical arguments have been advanced for the recognition that fundamental rights have constitutional status. If our arguments in the first part of this chapter are successful, that the traditional justifications for property rights do not support the strong property rights paradigm, these arguments fail as well. Constitutionalization and equality. A final argument for constitutionalizing is protecting equality. We have already seen that process theorists invoke equity concerns about how owners are treated when their property is seized. Other equity considerations may be raised when conditions are imposed on some owners but not on others, or when regulation imposes especially severe burdens on owners of identified parcels. Suitum’s case raises equity concerns of the latter kind, since she was unable to build on her land for reasons that benefited all of us, while neighboring owners enjoyed both their homes and the water quality of Lake Tahoe, hopefully improved by

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the vacancy of Suitum’s lot. Lucas’s case raised similar equity concerns: he could only camp on his piece of the barrier beach and observe the million-dollar homes next-door. Perhaps the most persuasive development of the view that constitutionalization is called for when people are treated unequally is Kathleen Sullivan’s (1989) discussion of unconstitutional conditions. According to Sullivan, an unconstitutional condition occurs when the government attaches to an otherwise permissible action a condition that makes the action constitutionally problematic. The government may, for example, extend welfare benefits in limited fashion. It may not, however, require people to attend a prayer meeting—that would be an establishment of religion. So it may not extend welfare benefits only on condition that recipients attend a prayer meeting—that would be an unconstitutional condition. Several recent decisions of the U.S. Supreme Court have invoked the doctrine of unconstitutional conditions in the property rights area. In Nollan v. California Coastal Commission, the commission linked approval of a permit to rebuild a beach cottage to a requirement that the Nollans dedicate an easement allowing public access to the beach.70 The Court held that although the commission could have denied the permit altogether, it could not condition the permit on a limitation of property rights that lacked the requisite nexus to the commission’s legitimate purpose. The commission’s purpose in regulating rebuilding permits was to preserve the view of the beach; in the Court’s opinion, it had imposed the condition on the permit to solve the different problem of optimizing beach access. In the subsequent Dolan decision, the Court imposed the further requirement that the burden of a condition must be proportional to the benefit achieved by its imposition. 71 The owner in Dolan v. City of Tigard was subjected to the condition that she dedicate a bike path across her property in exchange for permission to expand her hardware store. Again, it was granted that the city had the power to deny the building permit altogether in order to limit urban congestion. The benefits of the bike path for alleviating congestion, however, paled in comparison to the burden of the imposition on the owner. Sullivan explains that when such conditions are unconstitutional, it is not because of the germaneness problem relied on by the Court.72 It is instead that they treat unequally people who are similarly situated for constitutional purposes. With respect to property, Sullivan says, there are several ways this could occur. One is that the

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balance between private rights and governmental power might be altered, as when the government seizes property outright. Another is that people might be inequitably placed with respect to constitutional burdens. The Nollans were required to bear the burden of an easement in order to build, when other owners were not. Dolan suffered a similar imposition, although here the problem was the extent rather than the mere fact of the burden. Sullivan’s point is that we should apply constitutional scrutiny to such conditions when they impose such inequitable constitutional burdens on people. Conditions that constitute seizure or are seizurelike, in Sullivan’s view, fit this model most closely. In the following chapter, we will undertake a fuller discussion of these issues of inequitable impositions on owners.

Conclusion The strong property rights paradigm couples an absolutist view of property rights with resort to the Constitution to protect them. It is problematic on both of these counts. Property rights have drawn powerful defenses in the history of political theory, and we do not challenge those defenses, but they do not support a fully absolutist position. Instead, they build a variety of limits into the very right that is justified. Absolutist arguments for extensive constitutionalization are likewise flawed. The four major arguments for constitutionalization of a claimed right are text and history, process, foundational status, and equality. The core historical meaning of the takings clause is protection of property against seizures and seizurelike activities on the part of the government. Neither history nor the other arguments for constitutionalization provide clear support for the full doctrine of regulatory takings defended by absolutists.

Notes 1. Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997). 2. Figure provided by real estate agents in the Tahoe/Incline area and John A. Francis. It is noteworthy that the reported legal materials in the Suitum case, including briefs, make no mention of the original purchase price. 3. Information provided by the Suitum family to John A. Francis. 4. Brief of the National League of Cities et al. as Amicus Curiae in

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Support of Respondent, Suitum v. Tahoe Regional Planning Agency, No. 96243 (January 9, 1997). 5. Brief Amicus Curiae of Tahoe Lakefront Owners’ Association in Support of Petitioner, Suitum v. Tahoe Regional Planning Agency, No. 96243 (November 27, 1996). 6. Bettina Boxall, “California and the West: Tahoe Land Owner’s Suit Settles Little,” Los Angeles Times, June 7, 1999. 7. Information provided by Suitum family to John A. Francis. 8. Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 732 (1997). 9. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 216 F.2d 764 (9th Cir. 2000), decided April 23, 2002 (2002 U.S. LEXIS 3028). 10. This statement of the facts is drawn from the decision of the Rhode Island Supreme Court in Palazzolo v. Rhode Island, 746 A.2d 707 (R.I. 2000). 11. Natale and Elizabeth Urso originally were co-owners with Palazzolo. They transferred their interests to Palazzolo in 1960, however, and for our purposes their involvement is irrelevant. 12. Palazzolo v. Rhode Island, 533 U.S. 606 (2001). 13. Petitioner’s Reply Brief, Palazzolo v. Rhode Island, no. 99-2047, 1999 LEXIS U.S. Briefs 2047 *18 (January 18, 2001). 14. Palazzolo v. Coastal Resources Management Council, 1995 WL 941370 (R.I. Super., January 5, 1995). 15. In the words of the Court, “Future generations, too, have a right to challenge unreasonable limitations on the use and value of land,” 533 U.S. at 627. 16. 533 U.S. at 633 (O’Connor, J., concurring). 17. The facts are recounted in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). 18. 505 U.S. at 1017. 19. On this basis, the Court distinguished the legislature’s judgment of whether Lucas’s activities might be harmful from the judgment that his activities were a nuisance as traditionally understood (505 U.S. at 1029). 20. Petitioner’s Reply Brief, Palazzolo v. Rhode Island, no. 99-2047, 1999 LEXIS U.S. Briefs 2047 at *15 (January 18, 2001). 21. In a brief in the Palazzolo case, amicus curiae marine scientists wrote: “This is a remarkable landscape: dynamic, diverse, productive, beautiful, dangerous. Here the work of nature is spectacularly displayed, bestowing rich gifts upon the human inhabitants. One of the keystones of this coastal environment, and the focus of the controversy here, is the salt marsh ecosystem. Salt marshes are among the most biologically productive ecosystems on earth, rivaling the richest agricultural land in terms of organic output.” Brief of Dr. John M. Teal et al., Palazzolo v. Rhode Island, no. 992047, 1999 U.S. Briefs 2047 at *3 (January 3, 2001).

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22. In terminology introduced by Jeremy Waldron (1988, esp. Chapter 2), this framework marks out the concept of property; each set of choices determines a particular conception of property. In his discussion of the right to private property, Waldron limits the choices of conceptions of property in several noteworthy ways. He focuses on conceptions of private property that recognize individual rather than collective or common ownership. And he regards material things as the primary objects of ownership, treating noncorporeal objects (e.g., intellectual property rights) by analogy. 23. The bundle-of-sticks analogy has been recently criticized by J. E. Penner, who claims that the bundle metaphor does not provide a coherent rationale for property doctrines. Instead, he would define property as “the right to determine the use or disposition of an alienable thing in so far as that can be achieved or aided by others excluding themselves from it, and includes the right to abandon it, to share it, to license it to others (either exclusively or not), and to give it to others in its entirety” (1996, 742). We agree with Penner that the bundle picture is not explanatory, but this is only a concern if the metaphor is meant to be explanatory. Instead, the metaphor is a helpful way of outlining how to think about property, which leaves room for different descriptions of the actual sticks in the bundle, including Penner’s. The point of the bundle metaphor is precisely that there are different ways of organizing human relations with respect to the things of the world, and a focus on protection of property as a thing captures only one of them. There is deep controversy here, however. Viewing property as a set of relations rather than as a thing opens up the possibility of according different treatment to different relationships (see Treanor 1995, 802). This may be taken to require assigning protected status to each relation, or it may result in a more limited view of the set of relations that must be included in the bundle for it to be recognized as a property right. 24. See Singer 2000 for a criticism of absolutist property rights (he terms absolutism the ownership model) along lines similar in some respects to the ones investigated here. 25. Joseph Singer takes the bundle model to task for failing to direct attention to what he regards as the central problem in constructing a property regime, “choosing rules that respond to and promote human relationships that comprise a defensible form of social life” (2000, 11). Singer is correct to call attention to the fact that the bundle is generally taken to comprise rights rather than obligations. Still, we regard it as a virtue that the metaphor points neither to nor away from any particular vision of social life. Instead, it allows for different directions of normative analysis. 26. Although Hohfeld describes his schema neutrally, it has been characterized as part of the legal realist effort to understand the social function of property (see Alexander 1997, 313). Gregory Alexander sees Hohfeld as disaggregating different property relations and rejecting efforts to designate a single set of relational elements as central to property. The realist argu-

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ment then is that it is a political choice which relations should be protected from taking without compensation (1997, 323). 27. Chapter 3 compares this British Act to U.S. law. 28. The most extensive list of significant property relations is given by A. M. Honoré (1987), who identifies liberal ownership with the greatest possible set of interests in a thing. 29. Becker (1980), for example, suggests that any first-order Hohfeldian right, coupled with an immunity from expropriation without compensation, constitutes a property right. Andrew Reeve (1986, 14) suggests that property relations can be so divided that the idea of an “owner” is otiose. 30. This last example was the issue in a recent U.S. takings-clause case. The city of Tigard, Oregon, conditioned approval of the plaintiffs’ plan to expand their hardware store on the dedication of a pedestrian bicycle path across the land. The city’s justification was that the path would help offset increased traffic to the store. The U.S. Supreme Court held that this was a taking requiring compensation because the burden imposed on the landowner by the dedication was not proportional to the benefits of traffic reduction. Dolan v. City of Tigard, 512 U.S. 374 (1994). This case is discussed in detail in Chapter 3. 31. See the discussion in Chapter 4. 32. In contrast to the approximate one-third of U.S. land that is publicly owned, very little of the British landscape is in public hands. This paucity contributed to interest in establishing a more general right of access over privately held land. See “The Countryside and Rights of Way Bill: Access and Rights of Way” (2000). 33. In Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). 34. According to Blackstone, in an age of simplicity privatization was unnecessary; people could simply take what they needed from the common stock. As “mankind increased in number, craft and ambition” (2:120), it became necessary to protect individual ownership in a stable fashion across time. Blackstone’s historical story is that property in movable, improved things antedated property in land, which emerged only when agriculture was needed to ensure subsistence. Blackstone delineates the natural and conventional elements clearly in the following passage: The right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive at first view that it has nature on its side; yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil right. (2:126, italics in original)

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Blackstone concludes that the English legislature promoted peace and security by striving to assign an identified owner to every ownable thing. The relation between natural and conventional aspects of property remains an ongoing issue for contemporary naturalists such as Epstein, who argues that the legitimate purpose of government is to protect property. At the same time, he contends that the “added value” from government should be distributed proportionately to the value of original property rights (Epstein 1985). He gives no argument for this unnoted further step, and as long as government is an improvement for everyone, it requires a further distributional argument to show that the added social value should be divided proportionally to the division of original property rights. 35. Jeremy Waldron (1988) distinguishes justifications that support rights to property in general from those that support special rights. The idea that property is needed for identity, for example, might support efforts to be sure everyone has at least some property (see also Pennock and Chapman 1980). 36. See Becker 1977 for an overview of justifications. 37. This brief summary glosses over impressive disputes among Locke scholars. One argument is that Locke’s underlying justification for property was not labor, but utility. Another is that labor on an unappropriated thing cannot support the acquisition of a right but merely represents the loss of the labor (Nozick 1974). Yet another is that Locke’s argument does not justify private property at all, but a kind of communal property (Tully 1980). Still another is whether both spoilage and sufficiency are properly described as limits on Lockean property rights, or whether sufficiency in particular merely describes conditions Locke believed to obtain in the state of nature (Waldron 1988). 38. As Locke wrote, “God has given us all things richly, 1 Tim. vi. 17. is the Voice of Reason confirmed by Inspiration. But how far has he given it us? To enjoy. As much as any one can make use of to any advantage in life before it spoils; so much may he by his labour fix a Property in. Whatever is beyond this is more than his share, and belongs to others” (Locke 1988, II ¶31). The need and ability to cultivate land and use its fruits, in Locke’s view, is what generates the right to property in land: “If either the Grass of his Inclosure rotted on the Ground, or the Fruit of his planting perished without gathering, and laying up, this part of the Earth, notwithstanding his Inclosure, was still to be looked on as Waste and might be the Possession of any other” (II ¶38). One commentator, James Tully (1993, 137ff.), has read Locke’s description of use in this passage as a failure to recognize the legitimacy of aboriginal practices of land tenure and land use, which Locke regarded as wasteful and thus as not supporting ownership claims. 39. Critics who see Locke as the defender of nascent capitalism argue that this move undercuts any effect of the spoilage restriction. This argument was developed by C. B. MacPherson (1962).

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40. Cf. Alan Ryan (1984, 32), drawing the analogy to Locke’s argument against suicide. 41. Jeremy Waldron (1988, 208) uses an example from John Steinbeck’s novel The Grapes of Wrath, in which owners let produce rot on the ground to spite farm workers. Because the produce does not provide any benefit in itself, Waldron contends, the owners violate the Lockean spoilage restriction. 42. This suggestion is from Jeremy Waldron (1988, 207), who reads the proviso as “very broad” since it refers to “any advantage.” 43. Sreenivasan (1995), for example, contends that sufficiency builds an egalitarian limit into Lockean property rights at their very foundation. His idea, in brief, is that any justification for removing land from the common store must allow for the needs of others to provide for themselves. 44. See, for example, Southern Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713 (N.J. 1975). 45. An analogous legal doctrine is the idea of a public trust in navigable waters. See Sax 1970. 46. Guido Calabresi (1982) offers a classic argument against being too quick to resort to the Constitution. 47. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 48. See the account in Bosselman, Callies, and Banta 1973, on which the summary that follows is based. 49. This account is based on Bradley 1977. 50. For a discussion of European Community law as it applies to the problem of regulatory takings, see Curtis (1989). Leading cases in the European Court of Human Rights include Silva v. Portugal (1997), 24 E.H.R.R. 573; Katte Klitsche de la Grange v. Italy (1995), 19 E.H.R.R. 368; Pine Valley Developments Limited v. Ireland (1992), 14 E.H.R.R. 319; Sporrong and Lonnroth v. Sweden (1983), 5 E.H.R.R. 35; and Trustees of the Late Duke of Westminster’s Estate v. United Kingdom (1983), 5 E.H.R.R. 440. 51. For a discussion of the significance of the Human Rights Act (1998) in Britain, see de Mello 2000. 52. There is even debate about issues such as what is meant by assuming ownership and whether the government power of condemnation extends only to limited public purposes. 53. Pumpelly v. Green Bay Company, 80 U.S. (13 Wall.) 166 (1872). 54. Pennsylvania Coal Company v. Mahon, 260 U.S. 393 (1922). 55. Fischel (1995) characterizes the extreme positions as “corner solutions” and argues that an intermediate approach can be given a consistent theoretical basis. His position is discussed below as an argument for constitutionalizing when there are deep flaws in the political process. 56. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). 57. See, for example, Hadacheck v. Sebastian, 239 U.S. 394 (1915), in

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which the City of Los Angeles had determined that continued operation of a brick kiln constituted a nuisance in light of the surrounding growth of the city. The Court held that although operation of the kiln was not a nuisance per se, it was within the city’s power to regulate it. 58. John Hart puts the point this way: “The Takings Clause refers only to taking property; as to regulating property, it is silent. That silence does not present a fatal objection to substantive review of land use regulations, however, if the regulations under review are of a sort not found in America when the Bill of Rights was adopted. On this point, the imagined tradition of minimal land use regulation lends essential support to recent takings doctrine” (1996, 1290). 59. The Mining Law of 1872, designed to encourage development, gave property rights in claims on the public lands, but only if they could be reasonably developed (Kalen 2000). 60. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Hadacheck v. Sebastian, 239 U.S. 394 (1915), and other earlier takings cases likewise lend support to legislative determination of when land use amounts to a nuisance. 61. The term propriety is Carol Rose’s (1994). 62. Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). 63. The public trust argument might be broadened as Alexander suggests. Joseph Sax (1970) makes a creative and deservedly well-known case for its expansion. But it is admittedly an expansion, not a description, of settled law. 64. The Suitum case also illustrates the irony that overconstitutionalizing might result in process failures, as citizens’ insistence on the vindication of constitutional rights through the judicial process results in protracted litigation. 65. United States v. Carolene Products Company, 304 U.S. 144 (1938). 66. In the course of discussing whether wetland preservation ordinances effect a taking when they prevent real estate development, for example, Gregory Alexander characterizes as “ludicrous” the claim that farmers are not adequately represented in the political process (1997, 271). 67. The “exit” reference here is to Hirschman (1970), who explores the circumstances under which dissatisfied constituents exercise exit, voice, or loyalty. We discuss Hirschman’s model and its application to land use decisions more fully in Chapter 5. 68. Treanor’s example is rent control in several cities in Massachusetts, including Boston. When landlords failed to gain repeal at the local level, they succeeded in a statewide referendum. 69. Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997). 70. Nollan v. California Coastal Commission, 483 U.S. 825 (1987). 71. Dolan v. City of Tigard, 512 U.S. 374 (1994).

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72. Sullivan argues that germaneness is not a plausible constitutional dividing line because the concept itself is so malleable. In Nollan, for example, the condition imposed on the permit was judged not to have been germane to the purpose of improving the public view, but it could easily have been judged germane to the redefined purpose of improving public enjoyment of the beach (Sullivan 1989, 1474).

3 Legal Accommodation of Private and Public Values

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t first glance, Britain and the United States present quite different political and legal approaches to value conflicts over land use. Although it protects property through a commitment to due process in fundamental law, Britain is far more accommodationist than the United States. In the United States, some recent trends point toward increasingly rigid protectionism, although other trends are more encouraging. The United States has much to learn from British flexibility, but U.S. constitutional doctrine does contain important suggestions about the values of ownership, efficiency, and fairness that should inform both constitutional and legislative decisions to compensate when property owners suffer losses resulting from land use regulation.

Two Examples of Access The delights of a walk in the British countryside have long been the stuff of romance. But walkers must go somewhere, and public holdings in Britain are insufficient to create a network of footpaths over charming hill and dale. In 2000, Britain adopted the Countryside and Rights of Way Act, establishing by statute the right of walkers to cross privately held land. In the words of Minister for the Environment Michael Meacher:

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It fulfils the yearnings of the British people, expressed often dramatically over the past century, for full rights of access to the beauties of our countryside to which we are all heir. It fulfils the Government’s manifesto commitments not only to offer all people greater freedom to explore the open countryside, but—and just as importantly—to strengthen protection of our national heritage. It finally brings to reality the dream of Lloyd George that nobody should be a trespasser in the land of their birth.1

When the act was debated in Parliament, critics declaimed it for violating property rights. It does indeed compromise what many regard as one of the most central sticks in the property bundle: the right of owners to exclude others from their land. Yet calls for incorporating a statutory mandate for compensation into the act failed. Instead, the act contains mild safeguards for owners to ensure that ramblers do not stray too far from their gentle purposes. Ramblers are forbidden to engage in a variety of pursuits that might damage property or vex owners, and owners may remove them if they transgress these limits. The Countryside and Rights of Way Act surely will be the subject of ongoing legal attention. Such attention, however, most likely will not take the form of owners seeking compensation for the government having taken their land. It will take the form of efforts to seek compensation for actual damages, further statutory remedies, and common-law adjustment under such doctrines as trespass and nuisance.2 Efforts will be made to require ramblers who stray from the path to compensate for any real damages they cause by trespassing. Owners who set traps or barriers will be fined or enjoined from the creation of nuisances on their land. Case by case, the adjustment will go on. Compare with the British Countryside and Rights of Way Act two Supreme Court cases in the United States also involving open access. In Nollan v. California Coastal Commission, the owners of a beachfront lot sought a permit to rebuild a ramshackle cottage.3 The coastal commission conditioned the permit on the owners’ granting of passage analogous to the British right to ramble. The permit required the Nollans to record a deed restriction granting the public an easement to the beach across their land. Two aspects of the Nollans’ situation were taken as settled law in the ensuing litigation. First, the coastal commission had the power to limit construction in the interest of preserving the public’s ability to enjoy coastal vistas;

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the denial of a permit to this end would have been legally permissible. Second, had the commission sought to condemn an easement access over the Nollans’ land, it would have had to pay compensation. The problem in the case as the Supreme Court framed it, then, was whether the coastal commission could do by condition what it could not do outright: require the Nollans to provide access without compensating them. As we indicated in Chapter 2, the Court concluded that this was an unconstitutional condition, because there was no direct connection between the condition imposed on the permit and the public purpose of the permitting scheme. Had the condition been related to preserving the view—as a condition limiting the building’s height clearly would have been—it would have been constitutionally acceptable. Around the time the Nollans went to court, other landowners acquiesced in exchanges with the coastal commission to promote beach access as a condition of development. Many of these offers to dedicate access easements have not been fully utilized and may expire, although advocates are trying to exercise them. These efforts to require access to the publicly owned beach areas below the mean high tide mark remain controversial, particularly in affluent areas such as Malibu.4 In Dolan, decided a few years after Nollan, the government also attempted to use the permitting process to extract an easement. 5 Florence Dolan wanted to expand her hardware store, and the city of Tigard, Oregon, wanted to ease traffic congestion and prevent flooding, so the city granted Dolan’s permit on the condition that she dedicate part of the land for drainage and a bicycle path. Acknowledging the connection between the bicycle path and the city’s legitimate purpose of preventing traffic congestion, the Supreme Court held that the condition was nonetheless impermissible because the costs it imposed on Dolan were grossly disproportionate to the benefits it would achieve. Once again, the problem was that the city had tried to achieve indirectly, through the permit, what it could not achieve directly. If the city had pursued its environmentalist goals directly by condemning the easement, it would have had to pay Dolan the fair market value of the acquired property right. In some respects, the governmental actions in Nollan and Dolan parallel Parliament’s actions in the Countryside and Rights of Way Act. Both opened up land to public traffic. But there are also critical differences. The U.S. governmental entities in each case tried to create an easement indirectly by means of a permitting system and met

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with a constitutional barrier. In contrast, Parliament imposed the right of the public to access, directly and without paying compensation, across significant expanses of the English landscape; the Countryside and Rights of Way Act was imposed on all owners of open country land.6 In the United States, only those owners who sought permits would bear the costs of the government’s imposition; the costs are not spread generally across the land. One of our concerns in this chapter is whether the accommodationism of the British approach is preferable to U.S. constitutionalization on legal or public policy grounds. Another concern is whether U.S. constitutionalization ironically creates problems of fairness that British practice does not.

Takings Jurisprudence in the United States: Striving to Maintain a Balance The U.S. Supreme Court’s 1978 decision in the Penn Central case continues to serve as the basic framework for U.S. takings jurisprudence. The framework balances three factors: whether the government in effect assumes ownership, whether the owner is treated fairly, and whether the intervention is reasonable in light of the burden it imposes. The trend in more recent Supreme Court decisions—as well as in the decisions of some lower courts, especially the U.S. Court of Appeals for the Federal Circuit—has been toward interpreting these and other factors involved in takings cases in ways that are protective of property. These trends are unwarranted as a matter of constitutional law and unwise as a matter of policy. Penn Central involved a challenge to New York City’s landmarks preservation law. 7 The case was brought by Penn Central Railroad after its Grand Central Station was designated as a landmark. Penn Central had applied for a permit to build a modern fiftyone-story office tower, designed by the well-known modernist architect Marcel Breuer, on top of Grand Central Station. Instead, the railroad was allocated transfer development rights, which it could use to build new structures on contiguous parcels on the same block. Penn Central went to court, claiming that this application of the preservation law had taken its property without adequate compensation. The trial court granted an injunction against use of the landmarks law to bar Penn Central’s construction plans.8 The appellate

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division reversed the decision, holding that the regulations served a legitimate public purpose and that there was no taking because Penn Central had not been deprived of all reasonable beneficial use of its terminal.9 It was, after all, continuing to use the terminal for its historic purpose as a railroad station. The New York Court of Appeals, the state’s highest court, agreed that there had been no taking because the railroad was not deprived of a reasonable return on its investment in Grand Central Station.10 Penn Central then took its case to the U.S. Supreme Court. At that point, in 1977, the Court had not decided a major takings clause case involving property rights in land for a half-century, since Justice Oliver Wendell Holmes had opined in the Pennsylvania Coal case that when a regulation goes “too far” it necessitates compensation as a taking.11 In deciding Penn Central, the Supreme Court began with what has been called the denominator: which property rights are the basis for determining whether a taking has occurred. Penn Central claimed that because it had been denied permission to build on top of its existing structure, it had been deprived of a distinct property interest, air rights. It thus attempted to separate out air rights as one stick in the property bundle and allege a taking of that stick. The landmarks commission responded that the Court should consider the preservation law’s impact on the property as a whole. The Court agreed that property should not be disaggregated as Penn Central sought: “‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated.”12 Such efforts to disaggregate property rights, claiming a taking when even one stick in the bundle is restricted or reduced in value, have been central strategies of advocates of the strong property rights paradigm, although these strategies suffered a notable setback in the Supreme Court in 2002, as discussed later in this chapter. In determining that Penn Central had not suffered a taking, the Supreme Court weighed three key factors. The first factor was the character of the government action. If the government becomes an owner, acts effectively so as to appropriate property, or physically invades property, compensation is required. A second factor was the degree of interference with “distinct investment-backed expectations.”13 Government regulation inevitably affects property values and causes economic harm, but when it interferes with investments that are so bound up with reasonable expectations that they should be

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regarded as property, compensation is warranted. Had the landmark designation prevented Penn Central from earning a reasonable return on its investment or interfered with its long-standing use of the building as a railway terminal, this standard would have been violated, but the preservation law did neither. The burden on the owner was the third factor, and this was described in different ways by the Court. Adjusting the economic harm to the owner against the public welfare is an ongoing task of government, reflected, for example, in zoning laws. One way in which the Court decides whether this harm has become severe enough to constitute a taking is the effect on the owner: the Court decides whether the governmental action “has an unduly harsh impact upon the owner’s use of the property.” The Court also evaluates the balance between the effect on the owner and the importance of the public purpose; it decides whether the governmental action is “reasonably necessary to the effectuation of a substantial public purpose.”14 Subsequent decisions that are more sympathetic to the property rights paradigm have been quick to characterize any loss of value through regulatory limits on use as sufficiently onerous to be considered a taking. Later in this chapter, we argue that such balancing judgments are better left to the legislature than constitutionalized by courts. In explaining the importance of these three factors, the Court in Penn Central considered the fairness of the owner’s situation in comparison to that of others. Justice William Brennan, writing for the Court, framed the question presented by the case as whether the city might impose preservationist restrictions on individual landmarks “as part of a comprehensive program to preserve historic landmarks and historic districts.”15 Both the expectations and the extent of the burden matter in part because of the risk of unfairness to the landowner; the Court observed that if the government singles out particular parcels for different treatment, it fails to produce “fair and equitable distribution of benefits and burdens of governmental action.”16 Zoning laws and laws creating historic preservation districts are fair laws of general application, producing reciprocal benefits for all those affected by them. Penn Central, however, had objected that landmark preservation is inherently unfair because it singles out particular structures to bear the burden of maintaining historic traditions for the public benefit. The Court disagreed, reasoning that although Penn Central bore burdens greater than owners of property lacking historical interest, they were treated no different-

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ly than the many other owners of landmark property in New York. In dissent, Justice William Rehnquist contended that Penn Central had been asked unfairly to bear a cost that should have been borne by the public as a whole.17 In introducing its analysis in Penn Central, the Court observed that takings inquiries are “essentially ad hoc, factual inquiries.” It admitted that it had “been unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” 18 This acknowledgment has been much excoriated as an admission that takings cases are manipulable and unprincipled. A more sympathetic reading is that it recognizes that takings issues are contextualized and complex. Recognition of these complexities, we contend, should bring reluctance to constitutionalize too quickly. Frank Michelman’s “Property, Utility, and Fairness”: The Theoretical Background to Penn Central The Supreme Court’s Penn Central decision followed nearly half a century of judicial silence on the takings question. During this halfcentury, “takings” was generally assumed to be an unproductive area of the law, characterized by expediency rather than by principle. In the academic world, however, the silence had been broken ten years earlier by Frank Michelman’s highly influential article “Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law,” which the Court used approvingly in Penn Central.19 In the article, Michelman developed a unified moral theory of when compensation is required for government regulation affecting property. He argued that the takings clause reflects both the utilitarian impetus to protect security in expectations about property and the fairness concern to select practices that are acceptable to everyone, regardless of their respective positions of advantage. Compensating for regulatory takings requires determining when “the government may execute public programs while leaving associated costs disproportionately concentrated upon one or a few persons” (Michelman 1967, 1165).20 Drawing on utilitarianism, Michelman characterized efficiency in terms of the overall welfare gains and losses from regulation and compensation. The regulation must itself be efficient, or it is not justified from a utilitarian perspective. The

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utility of paying compensation is determined by comparing “demoralization costs”—the disappointment of those whose property is taken, plus the ill effects on productivity if others worry that their property will be taken, too—with the costs of paying compensation itself. Compensation should be paid if the demoralization costs are higher than the costs of compensation; in that case, payment of compensation will minimize costs. To help in explaining fairness, Michelman turned to John Rawls’s (1971) nonutilitarian theory of justice with its Kantian roots, to require that owners be compensated if they bear a disproportionate share of the burden of achieving an important social good (Michelman 1967, 1214–1224). The idea of fairness here is that individuals should not bear alone costs that should be assumed generally. Demoralization costs are, for Michelman, the critical link between utility and fairness. Both the extent of the burden and the level of interference with expectations contribute to demoralization. Demoralization costs are likely to be especially high when losses are “occasioned by deliberate social action” rather than natural accidents such as floods. They are likely to be higher still when the social action might be viewed as exploitation of a few owners by a majority seeking social benefits. People are used to buying insurance against natural disasters or accidents, but they “remain on edge,” Michelman says, when they are faced with the purposeful imposition of harm, especially by their government, from which they reasonably expect protection (Michelman 1967, 1216–1217).21 Such “unease” about being “strategically exploited” will be heightened when the burden seems to have been capriciously imposed, when it causes an injury that is not generally shared, or when it does not afford reciprocal benefits.22 Thus demoralization costs will be especially high where there is also evident unfairness.23 There is a very real possibility that Michelman is too optimistic about the likely convergence of utility and fairness, however. Michelman explicitly rejects any efforts to elevate these concerns for utility and fairness to constitutional dogma. He cautions: “what is counseled here is, more than anything else, a de-emphasis of reliance on judicial action as a method of dealing with the problem of compensation” (1967, 1167). As we shall see, both utility and fairness are complex and may be competing values in hard cases. For these and other reasons, they are difficult to weave into a rigid constitutional test. In general, they do not fit the grounds for constitu-

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tionalization set out in Chapter 2: history and text, process, foundational status, and equality. Michelman is sensitive to these problems, but U.S. courts, unfortunately, often are not. The Character of the Government Action The first of the Penn Central factors is the character of the government’s action—whether the regulation can be characterized as a physical invasion by the government rather than as an adjustment of the benefits and burdens of economic life.24 As authority for this factor, the Court cited United States v. Causby, a case in which owners of homes near an airport sought compensation, and the Court held that their claim rested on whether there was an actual physical invasion of air space, rather than on whether overflights caused damage.25 In a line of cases continuing since Penn Central, the Court has concluded that any physical invasion is a taking. In 1982, in Loretto v. Teleprompter Manhattan CATV Corporation, the Court held that any permanent physical invasion, no matter how slight, was a taking even though its economic impact on the property was negligible.26 The invasion in Loretto was the laying of wires for cable television service; the challenged statute was a New York state law setting cable television rates and requiring landlords to permit installation of the cable. In Loretto, the Court contended that physical invasions are intrusions of “an unusually serious character” and “the most serious form of invasion of an owner’s property interests.” Far from taking a single stick in the property bundle, a physical invasion “chops through the bundle, taking a slice of every strand.”27 In Nollan and Dolan, the Court presumed that the government could not have condemned the easements without compensation because of the physical invasion the condemnations represented. 28 In Lucas in 1992, the Court, following Loretto, announced that physical invasions were per se takings.29 In Lucas the Court also took a further step: it established regulation that deprives property of all reasonable beneficial use as a second category of per se takings. The Court thereby placed deprivation of all economic value on the same footing as physical invasion. To date, however, the Court has rejected other efforts to transform significant reductions of economic value—in contrast to the deprivation of all value—into per se takings.30 The line drawn at physical invasion has been characterized as a distinction without a difference. The Causby court found it critical

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that the airplane flights were directly overhead even though they were no doubt equally disturbing when just a foot to the side of overhead air space. The invasion in Loretto was only an extra wire running alongside other wires in a crawl space. The mere fact of invasion bears little relationship to its economic effect or lack thereof. Yet the claim that a permanent physical invasion should be constitutionalized as a taking can be justified in several ways. For one thing, some invasions do resemble the actual acquisition of ownership, for which compensation is guaranteed explicitly in the Constitution. For another, an extensive history of constitutional adjudication recognizing permanent invasions as takings stretches back at least to the latenineteenth century, when water projects flooding land were held to be takings.31 Unlike many other extensions of takings doctrine, this view does have constitutional text and history to recommend it. On the other hand, even here there are cautions to be sounded about the wisdom of constitutionalization. These cautions may be emphasized when deprivation of economic value is given the same status as physical invasion, as it is in Lucas.32 The Court’s contention that an invasion—even one so small as the installation of a wire— “cuts through the bundle” is hyperbolic. The extent to which an invasion affects the owner’s ability to use, enjoy, sell, or do any one of the myriad other things owners do is a function of the nature of the invasion. When the character of the government’s action as an invasion approximates a land takeover, it does approximate the assumption of ownership; when the character of the invasion is minimal, it does not. Jed Rubenfeld (1993) contends that in understanding the character of the government’s action, the focus should be on whether the government is in effect using the owner’s land. But “usings” may or may not be correlated with effective extinction of what the owner can do to exercise his or her powers over the property. Flooding the land for a reservoir is an invasion of such substance that it does extinguish what the owner might want to do with the property. Threading a wire through a crawl space or across a roof is not. To be sure, threading the wire may be of economic moment: it affects the property owner’s ability to extract economic value for the cable company’s privilege of laying a wire. But this and other invasions— including access as part of a general scheme of opening up the countryside or allowing access to the beach—may be regarded as part of the adjustment of relatively minimal economic burdens. Michelman’s article explained the physical invasion criterion in

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terms of the likelihood that the owner “is sustaining a distinctly disproportionate share of the cost of some social undertaking” (Michelman 1967, 1227). This correlation, as Michelman recognized, is weak; disproportionate losses may or may not be associated with physical invasion. Indeed, regulatory action may be more economically devastating than invasion, as the Court recognized in Lucas. Penn Central Railroad may have suffered far greater economic losses because it was unable to build above Grand Central Station than did the Nollans, for example, who were asked only to allow beach access in exchange for their building permit. At the same time, fairness may need to be balanced against the special insecurity owners feel when invasions are permissible, a clearly utilitarian consideration. It is preferable, however, for these balancing judgments to be made by legislatures rather than constitutionalized by courts. This is especially true when property rights advocates contend that owners have suffered a per se taking because one stick in the property bundle has been deprived of economically beneficial use, as they have claimed in some important cases. Interference with Investment-Backed Expectations The second factor singled out by Penn Central was the degree of interference with investment-backed expectations. Michelman defended this factor on the basis of both efficiency, the likelihood that demoralization will be particularly high when owners’ expectations are dashed by their government, and fairness, the likelihood that such disappointment in expectations coincides with disproportionate burdens. But the case for protecting expectations is controversial. Writers in the utilitarian tradition have argued that relatively generous compensation regimes will encourage owners to form unrealistic expectations. Perhaps instead compensation schemes should create incentives for owners to take existing and likely regulatory changes into account before they invest. When they do invest, owners should be encouraged to buy insurance against regulatory change—if insurance is worth it to them—or bear the costs of changes in generally applied regulatory regimes, just as they bear the costs of changes in the economy or the weather. The tendency of owners to overinvest is noted by several commentators (Blume and Rubinfeld 1984; Kaplow 1986). To guard against overinvestment while allowing some compensation, certain

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strategies may be employed, such as measuring compensation by the market value of the land as it would have been developed without the expectation of governmental compensation, and financing compensation by spreading the risks among those who benefit from the change, as special assessment districts do (Blume and Rubinfeld 1984). A more pessimistic view is presented by Louis Kaplow in his more general analysis of transition practices—that is, legal practices about changes in governmental policy with consequences for economic value, like the alteration of a zoning regime. Kaplow begins with the hypothesis that just as investors in the market do not benefit from a safety net when their products go out of fashion, investors in land should not get relief for changes in governmental regimes. Michelman’s idea that demoralization costs are high in cases of distinct, investment-backed expectations is the target of Kaplow’s analysis.33 Kaplow objects that protecting expectations is circular, because expectations are generated on the assumption that it is reasonable to expect that legal regimes will remain unchanged (1986, 522). But in many contexts, investors do not expect regimes to continue unchanged. Nor should they. Kaplow uses the example of a product that has been newly discovered to be dangerous. When the regulatory regime is changed to ban the product, investors are not compensated for the loss, even though they might have expected to make money from it. The expectation that one will be able to make money from a product that happens to be dangerous is not reasonable—unless, that is, the investor does not know or does not have reason to know about the possibility that the product will be discovered to be dangerous. Such cases of genuine ignorance may be infrequent, and we may want to make them even less frequent by creating incentives to develop knowledge, incentives that might be undermined by the availability of compensation. Arguing against compensation, Kaplow contends that it is efficient for investors to bear the full costs of the risks of their investments, taking into account both the possibility that the investment will bear fruit and the possibility of disappointment, as they would in market transactions. Investment decisions then will be more likely to reflect actual costs. If investors are seriously risk averse, moreover, insurance will develop as an efficient solution. Relying on the insurance market as a solution, on the other hand, raises the problem of market failure and whether it can be resolved.

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Critics of compensating disappointment in expectations also note a critical asymmetry in the arguments of property rights advocates. Quick to defend compensation, such advocates are equally quick to ignore the fairness questions raised by speculative gains resulting from government activities. When one landowner’s property is taken for a freeway interchange, for example, an adjoining owner’s property may become the locus of a lucrative business alongside the freeway off-ramp. The owner who loses is compensated, but the owner who gains does not need to return the gains to the government (except in the form of whatever taxes are normally collected). Kaplow comments: “Thus, the argument for providing transitional relief to losers, who do not ‘deserve’ their losses, which are caused by ‘bad luck,’ also suggests that the government should ‘tax’ gainers, who do not ‘deserve’ their gains, which are ‘fortuitous.’ This article challenges the former argument and therefore the latter as well” (1986, 553). Fairness concerns are also relevant to determining when disappointment of expectations warrants compensation, such as when interference with raised expectations breaks implicit promises or fails to respect individuals as planners of their lives. Such fairness concerns do not apply, however, when the owner had clear knowledge of the existence—or perhaps even the likely adoption—of the regulatory regime at the time investment decisions were made. Moreover, it may be unfair to compensate those who have had the resources to acquire expectations in the first place, when others have not.34 In short, the case for protecting expectations must tread a fine line between protecting those who have been unfairly led on and disappointed, and overcompensating those who have speculated or acted unreasonably and may now gain at the public expense. Different understandings of when expectations should be protected are more or less successful in treading this line. In Penn Central, the Court’s phrase “investment-backed expectations” seems to refer to owners’ ability to continue to use property in the manner they had counted on when they acquired it. Penn Central could continue to use Grand Central Station profitably as the railroad terminal it was, but it could not realize the impressive profits that might have resulted if they had built a skyscraper atop the terminal. Thus the decision in Penn Central at least protected expectations that were settled and nonspeculative, but did not protect more extensive efforts of the owner to profit from his property. Stephen Munzer offers an

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analogous reading of Nollan and contends that the case was wrongly decided because California law had a long-standing commitment to beach access, and thus the Nollans did not have reasonable expectations that they would not be expected to give such access in exchange for a building permit (Munzer 1982, 467). In contrast, Suitum would seem to present a far more favorable case for compensation on the basis of disappointment of investment-backed expectations, since she had acquired the property to build a home before the Tahoe regulatory regime was designed—although we might ask whether she could have reasonably expected that the regulatory regime would remain unchanged for many years. Palazzolo, however, would not have had a favorable case, for as an owner he made investment decisions with knowledge of the Rhode Island wetlands regulations. Lucas might be viewed in both ways: either as a landowner who bought before implementation of the beachfront regulations or as a land speculator who gambled on protection once the regulatory regime was put into place. In the first years after Penn Central, the Supreme Court and lower courts continued to understand expectations in the relatively limited way of that case. For example, owners of land stretching across a ridge in Tiburon, California, claimed that their property had been taken by open-space regulations that required minimum oneacre lot sizes for development along the ridge line. This requirement for large lots limited the amount of building that could take place, to the owners’ detriment, or so they contended. The Supreme Court held that the regulation was not a taking: because the owners could build five residences on the five acres and the best use of the land was residential, they remained “free to pursue their reasonable investment expectations.”35 In another case, the Court held that a Pennsylvania statute aimed at preventing subsidence by limiting the amount of coal that could be extracted from under homes and public buildings served a legitimate state purpose and did not interfere with the owner’s “reasonable investment backed expectations” unless it could be proven that mining had become “commercially impracticable.”36 Another decision characteristic of the period, from a liberal court shortly after Penn Central, was the Ninth Circuit’s conclusion that an owner’s property had not been taken by regulations to reduce the scale of building on Russian Hill in San Francisco. The builder had originally purchased an unimproved lot for $1,650,000, contingent on the city’s approval of plans for a high-rise development. The

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neighbors went to court to block the development, the city revoked the permit, and the builder was ultimately faced with a 30-foot height limit. Although the builder claimed that the property’s value had been reduced from approximately $2 million to $100,000, the court refused to find sufficient interference with investment-backed expectations to declare a taking: That the zoning restrictions prevent [the owner] from recovering its investment does not mean that they are constitutionally defective. Of course, [the owner] would not have paid as much for the property as it did if it had known that it would not be able to build high-rises on it. But its disappointed expectations in that regard cannot be turned into a taking, nor can [the owner] transform a regulation into a taking by recharacterizing the diminution of the value of its property as an inability to obtain a favorable return on its investment.37

Nonetheless, even fairly soon after Penn Central, there were suggestions that expectations might be understood in a way more protective of the owner’s economic ambitions. One developer had secured preliminary approval for a cluster housing plan, but the approval lapsed because he failed to complete the required final approval process. When, seven years later, he was required to use a new plan that conformed to a changed regulatory regime, he claimed that the property had been taken. Although the Supreme Court did not rule on the takings issue because it concluded that the dispute was not ripe, it underlined that it was expressing no view on whether the proper understanding of expectations involved “the land itself or [the owner’s] expectation interest in developing the land as it wished.”38 The suggestion that expectations should receive more extensive protection was earnestly pursued by property rights advocates in litigation. More recently, the trend in some courts has been toward decisions that would protect whatever plans the owner had for the property at the time of acquisition, even relatively speculative plans. Perhaps the leading lower court in this respect has been the U.S. Court of Appeals for the Federal Circuit, which hears appeals from the federal Court of Claims, which has original jurisdiction of all cases involving monetary claims against the federal government. Section 404 of the Clean Water Act, which requires permits for dredging or filling wetlands, has been a particular target of litigation by disappointed owners seeking compensation from the federal gov-

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ernment when their plans for development have been curtailed. The Federal Circuit’s recent decision in Palm Beach Isles is a good example of its owner-protectiveness on expectations and related issues.39 In Palm Beach Isles, the owners were denied a permit to dredge and fill 50.7 acres located on a land spit north of North Palm Beach, Florida. Bordered by a state park and the urban area of North Palm Beach, the property consisted of 49.3 acres submerged under Lake Worth (part of the inland coastal waterway) and 1.4 acres of upland highway frontage. The owners claimed the land was a prime site for development and sought $10 million (approximately $200,000 per acre) in compensation for the permit denial. But the property had a significant history. The owners, developers who had owned other property in the area, had made a business decision not to pursue development of the parcel in the early 1960s, long before the Clean Water Act brought regulatory changes. Instead, they had sold off the more marketable portion of their original 311 acres at a considerable profit, nearly doubling their investment in twelve years.40 The 50.7 acres at issue in the litigation was the parcel that remained after these profitable sales. Other landowners in the area had made different business decisions, and by the 1980s much of the rest of the shoreline of Lake Worth had been developed by dredging and filling. When the owners in the Palm Beach Isles case finally began the process of applying for permits to develop their remaining 50.7 acres in 1988, they were rudely awakened to the Clean Water Act’s changed regulatory regime. In the litigation that resulted, the trial judge in the Court of Claims concluded that the owners had never had the right to dredge and fill the submerged 49.3 acres because it was subject to a navigational servitude as part of the inland waterway. With respect to the 1.4 upland acres, the trial judge applied the Penn Central balancing factors and concluded that the plaintiffs had made a reasonable profit on the original parcel and could not demonstrate that their investment was made in reliance upon the nonexistence of the challenged regulatory regime.41 The Federal Circuit, however, rejected the trial judge’s rulings on this and related crucial points. In general, the court was willing to take the developers’ plans as they were asserted: “The regulatory imposition that infected the development plans for the 50.7 acres was unrelated to [the owners’] plans for and disposition of the 261 acres of beachfront upland on the east side of the road.”42 The related issue that has received perhaps the most attention is the so-called denomi-

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nator problem: identifying the property interest against which a judgment about whether a taking has occurred should be made. Relying on factors such as the owners’ plans, the timing of the property’s acquisition and division, the property’s configuration, and the timing of the regulatory scheme, the court concluded that the relevant denominator was the 50.7 acres, not the entire original parcel. The Federal Circuit thus rejected any consideration of the overall profit made on the property in determining whether the owners’ expectations had been disappointed.43 This denominator problem has surfaced in several recent Supreme Court cases; the Court’s guidance for resolving it rejects categorical rules in favor of a Penn Central– type analysis. In 2001, the U.S. Supreme Court also weighed in to give apparent protection to the owner’s expectations in the Palazzolo case. Palazzolo, it will be recalled, involved a complicated fact pattern in which the owner had transferred the property to a corporation and then received it back when the corporation was dissolved by state law for nonpayment of fees. Early on, the owner had sold off portions of the property; what remained was largely salt marsh, with a small upland portion lying along a roadway. Rhode Island had adopted wetlands protection regulations before the land’s final transfer back to Palazzolo, and the state claimed his expectation interests were limited by the regulatory regime in place at the time of the transfer.44 The Rhode Island Supreme Court had held that the fact that Palazzolo had acquired the property subsequent to the establishment of the challenged regulation barred a takings claim. The state’s argument on this point was that investment decisions should take into account the regulatory climate at the time of investment and thus owners should not be able to challenge regulations adopted before they acquired property. The U.S. Supreme Court, rejecting the Rhode Island court’s argument, ruled that Palazzolo’s acquisition after the date the regulations went into effect did not bar an inverse condemnation claim. Justice Kennedy’s opinion for the Court contains rhetoric that suggests use of an absolutist theory of property to reject the state’s argument: “The theory underlying the argument that post-enactment purchasers cannot challenge a regulation under the Takings Clause seems to run on these lines: Property rights are created by the State. . . . [But the] State may not put so potent a Hobbesian stick into the Lockean bundle.” Nonabsolutist themes also appear in Justice

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Kennedy’s reasoning, however, such as the observations that the state is not absolved by the passage of time from the obligation to defend “any action restricting land use, no matter how extreme or unreasonable” and that future generations have the right to challenge “unreasonable” limitations on the use of land.45 Justice O’Connor’s concurrence, which was essential to the 5-4 majority in the case, moreover, brought important flexibility to the analysis by insisting that the regulatory climate at the time of investment should be considered in understanding the Penn Central factor of interference with investment-backed expectations.46 The Court remanded Palazzolo to the Rhode Island courts for application of the Penn Central analysis to the facts. The Rhode Island Supreme Court, in sending the case back to the Superior Court, directed a flexible analysis, including consideration of the amount of the land submerged, the original purchase price of the property, and the amount of profit earned on the portions sold off, among other factors.47 The Supreme Court’s decision in Palazzolo has been both hailed and criticized as a victory for property rights advocates. Owners’ advocates contend that the decision appropriately reflects the possibility for owners to challenge regulations in effect at the time they acquired property. Critics contend that the decision will encourage owners to buy property on the speculation that they will be able to profit by challenging the existing regulatory regime. This concern was deepened by the Palazzolo Court’s apparent willingness to allow the owner to control the denominator issue by partitioning the property, an approach that may have been limited at least to some extent by the Court’s subsequent Tahoe-Sierra decision.48 Whether the critics’ concerns are borne out will depend on the extent to which the flexibility urged in Justice O’Connor’s opinion continues to influence the Court. The narrowest reading of Palazzolo is that it makes the entirely sensible point that the mere presence of a regulatory regime at the time the owner acquired the property does not foreclose constitutional challenge—if the regime is constitutionally defective on other grounds. The broadest reading would be that the presence of the regulatory regime at the time of property acquisition is irrelevant to determining whether the Penn Central test has been met. The risk that concerns critics is that Palazzolo will be read very broadly to foreclose any judgments that the owners’ expectations were unreasonable because their investment decisions should have taken existing regulations into account. This broad reading would place envi-

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ronmental regulatory regimes, for example, under constant challenge from landowners who were clearly aware of the regulations’ effects but gambled nevertheless on their ability to challenge the regulations in court. Justice O’Connor is surely right that the regulatory regime in place at the time ownership was acquired at least “helps shape the reasonableness” of the owner’s investment decisions.49 But there is still more to be said about how courts might apply Justice O’Connor’s observation. One possibility is that courts might become involved in inquiries about the substantive reasonableness of investment decisions as a matter of constitutional law. This substantive approach would seem to push courts beyond the traditional bases for constitutionalization discussed in Chapter 2—at least, unless a regulatory regime is constitutionally flawed on other grounds, such as that it treats some owners unequally. The other possibility, however, is that the inquiry suggested by Justice O’Connor should be into whether owners had sufficient notice of the regulatory regime for it to be reasonable for their investment decisions to take the regime into account. Such inquiries about notice lie within the traditional competence of courts. Failures of notice, moreover, are process failures of the kind that do provide reasons for constitutionalization. Judgments about the substantive reasonableness of expectations are policy questions better left to legislative determination. Judgments that a regulatory regime is constitutionally problematic because the owner did not have adequate notice of it before investment decisions were made, on the other hand, are more appropriately entered into the balance of factors weighed by courts in deciding whether compensation is constitutionally required. If this is all Palazzolo adds to the Penn Central analysis, it is less problematic than critics contend. But if, as critics fear, Palazzolo portends a general invitation to U.S. courts to assess whether regulatory regimes disappoint owners’ investment-backed expectations and require compensation on constitutional grounds as a result, it will have expanded Penn Central far into a domain that should be left to legislative adjustment. The Extent of the Burden on the Owner The third Penn Central factor is the extent of the burden on the owner. This factor, too, has been defended on the basis of both utili-

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tarian and fairness considerations. Utility and fairness, however, might lead to different interpretations of what it means to say the burden on the owner is too severe. Utilitarian analysis looks to whether the burdens imposed by the regulations outweigh their benefits, or at least whether burdens and benefits are reasonably in balance. Fairness considers whether the owner is being imposed on in a way others are not. In Penn Central, the Court argued that the landmarks scheme was fair because it conferred the advantages of preservation on all owners in the area and because the transfer development rights mitigated its economic impact on the individual owners.50 Many judgments of degree are possible here, however, and it is questionable whether they should be elevated to constitutional status if the burden on particular owners is not so severe and disproportionate that they are effectively deprived of their property or singled out for unequal treatment. If the burden is not severe and disproportionate and if there were not process failures or interference with other constitutional rights, the burden’s mere imposition as part of a regulatory scheme does not fit within the grounds for constitutionalization we set out in Chapter 2. In making the argument in Penn Central that the landmarks preservation scheme was minimally fair, the Court acknowledged both the difficulty of the judgment and its own reliance on the institutional competence of the legislative body to make the judgment: “Unless we are to reject the judgment of the New York City Council that the preservation of landmarks benefits all New York citizens and all structures, both economically and by improving the quality of life in the city as a whole—which we are unwilling to do—we cannot conclude that the owners of the Terminal have in no sense been benefitted by the Landmarks Law.”51 In the utilitarian literature, there has been extensive discussion of when compensation is efficient—that is, of when the costs of compensation are less than the benefits of the regulation. Elegant and complex theories have been developed in support of a variety of claims about what efficiency implies for understanding the takings clause. This literature is far too vast to summarize adequately here, and there is a real risk of oversimplification. The question of interest to us is whether any of this literature supports constitutionalizing one or another of these efficiency analyses. A brief indication of the nature of the discussions is important to understanding why these are questions of balance and policy better left to the legislature. Efficiency analyses aim to determine which takings policies will

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produce the most economic benefit on the whole. The central factor here is whether the property is more valuable in the hands of the owner and used as the owner wishes, or in the hands of the government or under its regulatory power. Behind this factor is the question of who can best determine that value, since owners are likely to overestimate the property’s value to them and the government is likely to overestimate the property’s value to the public. The ideal would be to put the property to maximum valued use, yet the owner and the government may be unable to negotiate to achieve that result. (Economists call such difficulties in reaching efficient results transaction costs.52) Beyond the individual case, efficiency analyses also add into the mix the incentives that compensation requirements create for investors and for government. Michelman’s concern that widespread demoralization costs undermine investment is an example. Also supporting a compensation requirement is the prediction that the government will overinvest in acquiring property if it is not discouraged by the requirement that it pay fair market value in compensation. Commentators working within a political theory that involves mistrust of government have developed compensation models to guard against the government’s tendency to undervalue property and acquire too much as a result; they support approaches that leave gains in the hands of individual owners if at all possible.53 The possibility of divergence between utility and fairness in characterizing the nature of the burden on the owner is a further complication. Fairness emphasizes the proportionality of the burden on one owner compared to that on others, whereas utility emphasizes the extent of the burden in comparison to gains achieved. Suitum’s plight provides a good example of the divergence. While the burden she bore was surely significant, it may well have been outweighed by the benefits for Lake Tahoe of preserving stream environment zones to reduce runoff into the lake. Given that others had built all around her, however, the burden she bore was surely disproportionate; her land was, in effect, serving to trap runoff for everyone else. Michelman’s hypothesis is that utility and fairness roughly converge because demoralization costs are likely to exceed settlement costs in cases in which there is a disproportionate impact on a particular individual and thus a violation of fairness.54 Certainly many cases illustrate this concordance, but others, possibly including Suitum’s, do not.55 To explain why he believes convergence is likely, Michelman

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gives the example of someone who owns land surrounded by designated wilderness, who because of the wilderness designation becomes unable to use former methods of access to the land—helicopter, snowmobile, maintenance of minimally apparent roads, and so on (1967, 1223). The owner experiences burdens that are concentrated and unique, so fairness would counsel compensation. But utility cuts in the other direction: if word gets out that compensation is likely in cases of this sort, settlement costs may be quite high, but demoralization costs may be minimized if the case is kept quiet. Michelman contends that this example of divergence between fairness and utility is an unusual situation, but there is reason for doubt. Whenever demoralization costs can be cordoned off by distinguishing those whose property is taken from others who might be demoralized in a way that is likely to prove stable in practice, fairness and utility may diverge. Location of the property; nonconforming, unique, or outmoded uses; and characteristics of the owner, such as ethnicity, are all ways of distinguishing owners at risk of demoralization from those who are not—and these considerations provide some of the most troubling takings clause examples. Suitum was the only owner in her subdivision who had not built; her demoralization was unlikely to spill over to others since they were already enjoying their homes. Or consider Hadacheck, the brickyard owner. As the city of Los Angeles grew up around his business, the kiln and quarry became increasingly troublesome to surrounding home owners; in the end, the brickyard was characterized as a nuisance properly banned under the police power of the state, and he received no compensation whatsoever when it was shut down. There were no other brickyards about, and so his demoralization was unlikely to spread; not compensating him was the right result from the perspective of utility. On the other hand, from the perspective of fairness he bore catastrophic costs, and his brickyard with its quarry and kiln had been there long before the homes. Characteristics of the owners are another, surely even more troubling, basis on which to cabin demoralization. Nazi confiscation of the property of Jews is one example; settlers’ confiscation of Native American lands is another. It seems unlikely that Nazis or settlers were demoralized by concerns that their confiscatory activities created risk for their own land, although no doubt we wish they had been. Although fairness and utility have both been used to justify considering the extent of the burden on the owner as part of a takings

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analysis, they may recommend different approaches to that burden. Fairness recommends considering whether the owner has experienced a disproportionately severe burden in relation to neighbors, an analysis that is at least somewhat in keeping with the traditional constitutional concern of equality. Utilitarian efficiency analyses, however, bring courts into policy judgments about overall benefit that have little constitutional support. Advocates of strong property rights have urged that governmental regulatory actions are constitutionally infirm if they so much as diminish the value of a single stick in the property rights bundle (Paul, Miller, and Paul 1994). The U.S. Supreme Court undermined these advocates’ efforts to achieve legal recognition for their views in its 2002 Tahoe-Sierra decision on the related denominator problem. In its 1992 Lucas decision, the Supreme Court held that when property has been deprived of all reasonable beneficial use, a per se taking has occurred. That is, when actions of the state effectively extinguish all value, it is as though the state has assumed ownership. Property rights advocates have attempted to expand this category of per se takings to include burdens that are disproportionate to benefits. The Ninth Circuit applied this analysis in the Del Monte Dunes case, but was criticized by the Supreme Court on this point. 56 “Rough proportionality” analysis, the Court said, is appropriate in considering the problem in Dolan, of whether there is a sufficient nexus between a restriction imposed on a single owner as a condition of a building permit and the purpose of the permit, but should not be applied to the question of whether there has been a per se taking.57 Instead, the Court reaffirmed the viability of precedents distinguishing per se takings and the balance of factors used to determine whether regulations are sufficiently onerous to be takings.58 Judgments about the extent to which property has lost value are factual and contextual. Just as it has been willing to entertain ownerfriendly contentions on other grounds, the U.S. Court of Appeals for the Federal Circuit has been among the more expansive federal courts in its understanding of when property has lost all value. The Palm Beach Isles decision is illustrative. In that case the court opined that because the owner had been denied permits to fill the wetlands despite the possibility of building on the upland portion, it was “clear” that the entire acreage had “no or minimal value.”59 This conclusion brought the case within the categorical takings classification. Pleas for a rehearing and for a rehearing en banc (before all the

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judges of the Federal Circuit, rather than just a panel) were rejected over a dissent that argued that the Federal Circuit had effectively transformed the third Penn Central factor, the balance between government benefit and owner detriment, into a single-factor test for a taking.60 A central feature of the Federal Circuit’s analysis here was the so-called denominator problem, the basis on which to determine whether property has lost value. If the denominator is the submerged acreage on which permits were denied, the Federal Circuit’s conclusion that the property had lost all value is plausible. But if the denominator is the entire parcel, including the small upland portion on which building was possible, the court’s conclusion is not plausible. Owners and strong property rights advocates want to divide up parcels, of course, because they are more likely to succeed in claiming that a smaller parcel has lost all value. But to allow owners to set the takings agenda in this way is to open the constitutional door to significant land speculation. The Denominator Problem and the Tahoe-Sierra Decision The denominator problem, which had surfaced unresolved in Palazzolo, was addressed directly by the U.S. Supreme Court in its Tahoe-Sierra decision in 2002. A group of Lake Tahoe landowners, in circumstances analogous to Suitum’s, contended that the Lake Tahoe preservation scheme had taken their property. For a variety of reasons, including the statute of limitations, the only portion of their claim at issue before the Supreme Court was that moratoriums imposed on development for thirty-two months to allow for the planning process had effectively taken their property for that time.61 They argued that the moratoriums constituted a complete deprivation of value for the time they were in effect and that hence they fell within the Lucas category of per se takings,62 and they suggested compensation equal to the rental value of the property for the duration of the moratoriums. Their analysis raised constitutional questions about any land use program that halted development to allow for planning, and it threatened massive increases in the cost of land use planning nationally. The Supreme Court rejected the owners’ contention that the regulation was, on its face, a per se taking of their property, depriving them of all beneficial use for the duration of the moratoriums. Lucas,

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it will be recalled, had created the possibility that government activities short of assumption of ownership could suffice for a taking if the owner was left with no use for the property. After Lucas, owners such as those in the Tahoe-Sierra group urged the application of the Lucas per se category to takings of separate sticks in the property bundle—here a time slice of property use. But the Court rejected expansion of the Lucas category in this way. In the words of the Court: “The categorical rule that we applied in Lucas states that compensation is required when a regulation deprives an owner of all economically beneficial uses of his land.” Defining the interest allegedly taken by the regulation in terms of the regulation, the Court noted, would be circular, and Penn Central itself had cautioned against conceptual severance of sticks in the property bundle.63 Both advocates of strong property rights and their critics have found reason to applaud the Tahoe-Sierra decision. Advocates of the strong property rights paradigm have emphasized the narrow limits of the Court’s holding. The Court was clear that the posture of the case mattered a great deal: it rejected only the contention that the moratoriums were, on their face, a per se taking of the property interest at issue. Defining the parcel at issue was central to the Court’s analysis. In deciding whether there has been a regulatory taking, the Court said, the focus is the effect of the regulation on the “parcel as a whole.” The parcel is defined as in traditional property law, by its “metes and bounds.”64 Plaintiffs cannot carve up property into separate interests for the purpose of bringing one of these interests within the Lucas category. However, this approach leaves open the possibility that owners might cut up the parcel itself, leaving portions with no reasonable beneficial use, as the owners attempted in Palazzolo and Palm Beach Isles. Justice O’Connor urged flexibility in determining the role of such histories in takings analyses, and our analysis supports her approach. The Tahoe-Sierra Court, moreover, discusses land use planning and the role of moratoriums in a manner that lends significant support to flexibility.65 It frames the problem with a reference beyond Penn Central, to the observation in Armstrong that takings questions involve situations when burdens should “in all fairness and justice” be borne by the public as a whole. 66 Moratoriums are temporary delays like many other temporary delays in the planning process: permit delays, delays in granting variances, or temporary prohibitions on access for public health or safety under the standard use of

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the police power. These are routine public activities. Normal delays are the province of legislative adjustment, not judicial intervention. There is a significant public interest in “facilitating informed decisionmaking by regulatory agencies” that counsels against a costly per se rule to the effect that moratoriums over a given time limit are takings. The absence of moratoriums may encourage landowners to invest quickly and speculatively, a clearly perverse incentive. Overall, the Court’s theme was the importance of protecting the planning process and the legislative adjustments it demands. In dissent, Justice Rehnquist contended that limited delays such as those involved in the permitting process were implied in ownership, but moratoriums of any duration were not.67 The Court’s rejection of this per se approach reaffirmed Penn Central and signaled, for the moment at least, that it favors balance over absolutism.

The British Example: Accommodating Private and Public Values The Countryside and Rights of Way Act of 2000 is an illustration of legislative efforts to balance a range of values: public access, private property, protection of areas of special value, and wildlife protection, among others. In the main this balance was a reasonable one; the United States, with its readiness to constitutionalize, has much to learn from the British example. The act is not perfect, however, especially as regards the treatment of ramblers who cause actual damage to property. In this respect, the British might learn from the U.S. constitutional tradition. The Countryside and Rights of Way Act was the culmination of multiple efforts to achieve access across the British landscape for ramblers (Shoard 1999). It was supported by the Labour government and by walkers’ organizations such as the Ramblers’ Association, but opposed by the Conservative Party, by the National Farmers Union, and by owners’ groups such as the Country Landowners Association (now the Country Land and Business Association), which preferred a voluntary approach toward opening up the British landscape. These opposing groups argued that the act violated private property rights. They also expressed the concern that it failed to deal with the real problems affecting the British countryside: the decline in the profitability of agriculture, the pressures of development, and the need to

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protect wildlife and sites of historic and scientific interest. At the time of the act’s passage, an estimated 200,000-kilometer network of public rights of way was in place in England and Wales. In addition, about 4 percent of the landscape was accessible as common land, publicly owned or managed land, or private land opened by formal agreement with the government (with tax advantages as the incentive in some cases). The act would approximately triple the area of the English and Welsh landscape open to public access and could set the stage for extensions of the policy.68 The act makes “new provision” for public access across “open country” and registered common land. “Open country” is defined as “mountain, moor, heath or down.”69 Access will be opened up as areas are mapped; the anticipation is that mountain areas will be most easily identified and that access to other areas will come into effect more gradually. There is a provision to extend the act to some coastal areas, and the Ramblers’ Association would like to see access extended further.70 Land areas excluded from access include cultivated land and gardens.71 Owners are allowed to restrict access for up to twenty-eight days a year, but not on weekends or major holidays, and additional exclusions are allowed for land-management reasons by application to specified authorities. Exclusions are also permitted for nature conservation and heritage preservation.72 Rights of access are for foot traffic only. Walkers are specifically prohibited from engaging in a long list of activities, including playing sports, feeding livestock, taking birds or other wildlife, or causing damage or disturbance. They are not allowed to interfere with any appropriate barriers, and they are required to close gates. 73 Anyone in violation forfeits rights of access and is declared a trespasser for the next seventy-two hours.74 Owners’ groups object that this requirement is toothless and unfair, without enforceable penalties. Walkers are allowed to bring dogs, but not other animals. Dogs must be kept away from livestock, and between March and June, the lambing season, they are allowed on leads only.75 Owners of grouse land and lambing areas may exclude dogs.76 The act specifically provides that it does not increase the liability of owners in relation to those accessing the land. It clarifies that anyone exercising the right of access will be owed the duties of care an owner would owe to a trespasser: the owner is liable for a trespasser’s injuries if the owner should be aware of the danger, should know that people may in practice be exposed to the danger, and can reason-

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ably be expected under the circumstances to offer protection.77 This duty may be discharged by the owner’s giving suitable warnings. In one respect, owners’ duties are more limited under the act: owners are not liable for risks related to natural features or from injuries due to improper use of a gate or stile.78 What counts as a natural feature, and in particular the application of this provision to old stone walls, was highly contested in the parliamentary debates. Critics also argued that ramblers should proceed entirely at their own risk.79 The act also establishes new powers for the removal of barricades: any person may apply to a local authority to require an owner to remove an obstruction, and failure to remove an obstruction results in a fine.80 In the parliamentary debates, landowners strenuously objected to this provision because they found it asymmetrical to the provisions for punishing rambunctious ramblers. “Conservation is about providing incentives for all who are involved and not only regulations for a few. Unrestricted and open access will send a signal to conservationists and landowners alike not to bother. . . . [The act] works by regulation and punishment that are entirely disproportionate in a system that is skewed against the landowner in favour of the trespasser and the hooligan.”81 The first court action testing this provision occurred in March 2001, when magistrates in Lewes, East Sussex, fined estate owner Rarebargain Ltd. and ordered the removal of barbed wire and other obstructions.82 Because many public rights of way had fallen into disuse (Blackford 1999), in the act there are provisions for clarifying the location and classification of rights of way on such questions as whether they are limited to nonmotorized means of transport. (These provisions could be a helpful model for people in the United States who are struggling with disputes about the identification of roadless areas in expanses of the West such as the Escalante.) The act also allows land managers to apply to local councils to extinguish footpaths; under prior law, only local authorities had that right.83 Part III of the act provides for nature conservation and the protection of wildlife by establishing stronger penalties for destruction, including prison sentences. Opponents of the act expressed concern about whether it adequately safeguarded wild birds in particular. Part III also protects sites of “special scientific interest.” It allows for compulsory purchase where agreement on protection cannot be reached with the owner.84 An ongoing concern with respect to this and other sections of the act is whether they will receive adequate funding

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from the government.85 This question of funding, as well as the interests of local groups, was voiced especially strongly by Members of Parliament from Wales who opposed the act.86 Especially noteworthy to owners’ groups was that the act granted access to private property but lacked significant provision for compensation. 87 In opposing the act, Conservatives opined that it “impose[s] heavy-handed and unjustifiable infringements on the rights of private property owners, and provisions for compensation are negligible.”88 They characterized the right to roam as “really the delivery of a promise to the old-style socialists, those who envy the fact that someone might have some property that he wishes to protect.” 89 In reply, Parliamentary Under-Secretary of State for the Environment, Transport, and the Regions Chris Mullin summed up the Labour Party’s position: “The right of access is a modest one. The Bill has been carefully constructed to minimise any adverse impact on landowners. It strikes a fair balance between the public interest and the needs of landowners, and landowners will be able to continue to use their land as they think best. . . . No rights are absolute: they must be balanced with the public interest.”90 Mullin’s reply, however, is not fully responsive to the critic’s point. One concern of the act’s opponents is that any new rights of access violate the right to property and therefore call for compensation. Opponents of the act argued at the time that it violated the European Convention on Human Rights, incorporated into British law by statute as of 1998. 91 The London Times reported that the Country Landowners Association planned a legal challenge on this basis.92 The idea was that if the landowner could prove that the application of the Countryside and Rights of Way Act by itself caused damage, compensation should be paid; it rested on an absolutist view of property rights that has little purchase in British constitutional tradition. Here Mullin’s reply is on point. The Country Landowners Association pointed to the National Parks and Access to the Countryside Act 1949, which provides for compensation in cases of actual damage to the landowner, as an analogy of compensation by statute for provable losses in value.93 Defenders of the Countryside and Rights of Way Act replied that the 1949 act extended compensation only to a unique group of lands included within national parks when damage as a result of the inclusion could be proved.94 The other concern about loss of value raised in the debates is far more plausible: that the act opens up private land to behavior that

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might case actual damage, but provides no remedies in such cases. Debates in committee over the act raised the possibility of fines for damage such as the breaking of a wall or a gate.95 Critics contended that it was unfair to subject landowners to fines, but not wayward ramblers. They also argued that the law of trespass was convoluted and inadequate to deal with the possibility of damage. As the act goes into effect, there will surely be cases of damage and of owners’ efforts to seek redress under the law of criminal and civil trespass. The Country Land and Business Association (formerly the Country Landowners Association) plans to monitor this situation and bring suit if compensation is inadequate.96 Here the British might learn from the U.S. example and incorporate fairness values into the act.

Conclusion The British example illustrates the importance of adjustment where land use is concerned, and the U.S. experience illustrates the importance of protecting owners who have been disproportionately burdened by actions that benefit us all. What we have been defending in these chapters about property and the law is an approach of moderation: ownership matters, but so do the benefits of regulation when they are shared. Suitum, our argument would suggest, did bear the kind of unique burden that warrants compensation. Palazzolo controlled his own circumstances to the extent that his situation did not. Whether Lucas deserved compensation depends on the facts: if he was a speculative investor, he did not deserve compensation, but if he bore burdens that were not generally shared and that interfered with reasonably made investment decisions, he should have received relief. The Nollans would have had a claim to compensation under historical traditions of U.S. law—at least if they were correct that access to the beach was not generally recognized under California law. Dolan would have as well, since her desire to expand her hardware store was held hostage to the city’s desire to construct a bike path. British law, however, illustrates both the advantages and the disadvantages of the U.S. doctrine that physical invasions are takings. On the one hand, physical invasions may not be very burdensome to the owner. On the other hand, they may be associated with very real damage for which it will be difficult to obtain compensation under the current British scheme.

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Private property, in short, is an important value in understanding land use. But it is not an absolute value to be carved up and claimed as a bargaining chip by an owner who is dissatisfied with a regulatory regime. Like other values in the land use equation, property must be understood in context.

Notes 1. Hansard, vol. 346, col. 720 (March 20, 2000). 2. Ben Thomas, Access Adviser, Country Land and Business Association, personal communication, June 1, 2001. 3. Nollan v. California Coastal Commission, 483 U.S. 825 (1987). 4. California Coastal Commission, Regional Cumulative Assessment Project (San Francisco, Calif.: California Coastal Commission, June 1999), 50. 5. Dolan v. City of Tigard, 512 U.S. 374 (1994). 6. Another important difference—that the British act applied to all England and Wales (Scotland has a separate parliament with authority for such decisions) and that the U.S. actions were taken at the local and state levels—is the subject of Chapters 4 and 5. 7. Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). 8. The Supreme Court said it was unclear whether the trial court ruled in favor of the railroad because the court rejected any uncompensated regulation of private property for landmark preservation, or because Penn Central was unable to earn sufficient revenue to offset the costs of running the terminal and the transfer development rights did not provide adequate compensation. Ibid. at 119 n. 20. 9. Penn Central Transportation Co. v. City of New York, 377 N.Y.S.2d 20 (App. Div. 1975). 10. Penn Central Transportation Co. v. City of New York, 366 N.E.2d 1271 (N.Y. 1977). 11. Pennsylvania Coal Company v. Mahon, 260 U.S. 393 (1922). 12. Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), at 130. 13. Ibid. at 124. 14. Ibid. at 127. 15. Ibid. at 107. 16. Ibid. at 133. 17. “It is exactly this imposition of general costs on a few individuals at which the ‘taking’ protection is directed.” Ibid. at 148 (Rehnquist, J., dissenting). 18. Penn Central Transportation Co. v. City of New York, 438 U.S. at 124.

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19. Ibid. at 128. 20. This idea that one or a few property owners should not bear burdens that are properly attributed to society as a whole has been central to the understanding of regulatory takings. See, for example, Fischel 1995. These fairness considerations have played a long-standing role in U.S. takings discussions. Apart from Justice Holmes’s intonation in Pennsylvania Coal that when regulation goes too far it will be regarded as a taking, perhaps the most quoted statement in all of U.S. takings law is this recognition of fairness in Armstrong v. United States: “the Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40 (1960). The Armstrong statement is a particularly quotable version of a theme has been sounded in many earlier cases. See, for example, Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893): the Fifth Amendment “prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.” 21. In later work, economic theorists have argued that compensation in such cases may be inefficient because it creates incentives for overinvestment. Insurance may be a more efficient solution if it forces people to take account of the risks of government regulation when making investment decisions. Of course, there may be failure in the insurance market or other reasons supporting compensation. See, for example, Kaplow (1986). 22. Examples of such isolated regulatory impact might be the restriction of a long-standing activity, such as the operation of a brick kiln (Hadacheck v. Sebastian, 239 U.S. 394 (1915)) or a cattle feedlot (Spur Industries, Inc. v. Del E. Webb Development Co., 494 P.2d 700 (Ariz. 1972)). Ironically, in each of these cases the long-standing activity lost out to the changing nature of land use. Hadacheck lost his brickyard to the growing city of Los Angeles. The Arizona Supreme Court in Spur Industries enjoined the operation of the cattle feedlot as a nuisance to the retired residents of Sun City, although it did require the developer, who had purchased cheap land, to indemnify the feedlot for the costs of shutting down or moving. In another famous case of this type, Miller v. Schoene, 276 U.S. 272 (1928), Miller was denied compensation when he was required to cut down his cedar trees because they harbored a rust that, although harmless to the cedars, was devastating to local apple orchards. The standard account of these decisions is that they are justified because the forbidden use of land is a nuisance. Michelman quite rightly dismisses this distinction as an “illusion” (1967, 1199). 23. An additional complication, which we do not pursue separately, is that utility analyses may be structurally quite different if they focus on the

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utility of compensation in particular cases or on the utility of compensation rules. See, for example, Munzer 1982, 427. 24. Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), at 124. 25. United States v. Causby, 328 U.S. 256 (1946). 26. Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419 (1982). 27. Ibid. at 433, 435. 28. In the words of the Court in Nollan, quoting Loretto: “We have repeatedly held that, as to property reserved by its owner for private use, ‘the right to exclude [others is] ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’ . . . We think a ‘permanent physical occupation’ has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.” Nollan v. California Coastal Commission, 483 U.S. 825 (1987), at 831. In dissent, Justice Brennan argued that the access requirement was “a mere restriction on [the property’s] use” (at 848–849). 29. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1017 (1992). 30. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999). We defend the flexibility of this stance in our discussion below of the third Penn Central factor, the extent of the burden on the landowner. 31. Pumpelly v. Green Bay Company, 80 U.S. (13 Wall.) 166 (1872). 32. Robert Brauneis (2000) reaches a similar conclusion. 33. Kaplow’s concern has also been voiced by Stephen Munzer (1990) and Joseph Singer (2000). 34. Joseph Singer (2000) discusses “what kind of society we want to live in” under the rubric of expectations. His concerns center on the provision of a social safety net, and his example is a factory owner keeping the business open to protect employees from income loss after a fire. This approach to expectations would raise takings questions with respect to retirement benefits or a homestead, but not with respect to high-end investments in land. A view that the poor but not the rich should be compensated, however, surely cannot be sustained as constitutional doctrine. Ironically, that takings question has been raised successfully by employers against efforts to enforce pension contributions. See Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). 35. Agins v. City of Tiburon, 447 U.S. 255, 262 (1980). 36. Keystone Bituminous Coal Ass’n. v. DeBenedictis, 480 U.S. 470, 495 (1987). Keystone seems to parallel Pennsylvania Coal in many respects, but not in the result. Commentators, finding it hard to distinguish between the two, have contended that the former in effect overrules the latter. In Keystone, however, the Court claimed that the purpose in Pennsylvania

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Coal—protecting a private home from subsidence—was not sufficiently public. 37. William C. Haas and Co. v. San Francisco, 605 F.2d 1117, 1121 (9th Cir. 1979). Other cases of the period that conclude that no taking occurred despite substantial investment losses include Rogin v. Bensalem Township, 616 F.2d 680 (3d Cir. 1980), and Ocean Acres Ltd. Partnership v. Dare County Board of Health, 707 F.2d 103 (4th Cir. 1983). 38. Williamson County Regional Planning Comm. v. Hamilton Bank of Johnson City, 473 U.S. 172, 191 (1985). 39. Palm Beach Isles Associates v. United States, 208 F.3d 1374 (Fed. Cir. 2000). 40. The original acquisition, of 311.7 acres for a purchase price of $380,190 (just over $1,000 per acre), occurred in 1956. The owners, local developers, also owned an unrelated parcel, which they developed gradually into 191 lots during the late 1950s and early 1960s. Although they applied for a dredge-and-fill permit for the 50.7 acres in 1957 and extended it through the end of 1963, they did not begin development because they concluded from their experience with their other parcel that the market in the area was saturated. In 1968, they sold all but 50.7 of the 311.7 acres to Shell Oil for $1 million (just over $3,800 per acre); the sold acreage consisted of the entire area east of the road through the land spit—nearly all the uplands and ocean front in the original parcel—and netted a profit of approximately $2,800 per acre (about $725,000 total). The retained acreage was the area west of the road, consisting of 1.4 acres of upland along the road and 49.3 acres of land submerged beneath Lake Worth. Here is the trial judge’s characterization: “The original purchasers bought the property at issue in 1956. Although the Corps granted a permit to fill the land in 1957, and subsequently extended it through December 31, 1963, the plaintiffs elected not to utilize the time-limited permit at that time and, thus, allowed their rights, to dredge and fill the property, to expire, just as the Corps and the federal government started to change the scope of dredge and fill permitting requirements. Moreover, in 1968, the plaintiffs sold off that portion of the property not subject to increased regulatory activity, including most of the lands that were above the mean high water mark other than a 2000 foot strip of 1.4 acres along the highway” (ibid. at 1377). 41. Ibid. at 1379. 42. Ibid. at 1381. 43. In thus parceling out the property, the Federal Circuit followed its earlier decision in Loveladies Harbor, in which a taking was found on 12.5 undeveloped acres remaining from an original parcel of 250 acres. Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994). This approach to the denominator has gained some apparent support in the U.S. Supreme Court too. 44. The case raised other issues as well. One was ripeness: the state contended that Palazzolo had not taken the steps necessary to assure a final

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decision on the applicability of the regulations to the parcel. Applying the standards developed in Williamson County and Suitum, the Court determined that the permissible uses of the property were “known to a reasonable degree of certainty” and that thus the claim was ripe. Palazzolo v. Rhode Island, 533 U.S. 606 (2001). Another was whether the case came within the Lucas categorization of a per se taking because the owner had been deprived of all reasonable beneficial use of the property. The Court concluded that sufficient evidence had been presented in the lower courts that the property retained economic use value. All parties agreed that the upland portion of the property was at least usable for a single house, at a value of around $200,000. Such a use, the Court concluded, did not leave the property “economically idle.” 45. Palazzolo v. Rhode Island, 533 U.S., at 627–628. 46. Ibid. at 633 (O’Connor, J., concurring): “Indeed, it would be just as much error to expunge this consideration from the takings inquiry as it would be to accord it exclusive significance.” 47. Palazzolo v. Rhode Island, 785 A.2d 561 (2001). 48. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002). 49. Palazzolo v. Rhode Island, 533 U.S., at 633 (O’Connor, J., concurring). 50. Penn Central Transportation Co. v. City of New York, 438 U.S., at 137. 51. Ibid. at 135. 52. Some analysts have proposed protecting owners’ property by the rule that the government must negotiate with them to purchase it. This is called the property rule in the literature. Other analysts have argued that it is more efficient to protect the owner by applying a liability rule—that is, by requiring the government to pay compensation when it takes property— which is the rule of takings clause compensation. The debate here was initiated by Guido Calabresi and A. Douglas Melamed’s classic article “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972), published after Frank Michelman’s 1967 article on takings and the Court’s Penn Central decision. In the cathedral article, Calabresi and Melamed argue that when transaction costs are low, efficiency will result if the owner is protected by a property rule. But when transaction costs are high, the efficient result is more likely if the owner is protected only by an objectively set liability rule. The latter situation is likely to obtain when the owner has property uniquely sought by the government for a particular purpose because the owner will be able to hold out for the highest price. Subsequent commentators have questioned whether it is possible to set a liability rule objectively; they argue that the owner will be undercompensated when the amount is judicially determined. If objective assessments of value are problematic, the supposed advantage of a liability rule when transaction costs are high evaporates, because the government will be encouraged to

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overreach when compensation judgments are set too low (Krier and Schwab 1995). Other commentators argue that the efficiency advantage of a liability rule depends on the type of government regulation at issue. If the government is regulating activities of the owner that result in negative externalities, then liability rules may be more efficient. If the government is taking over property for its own use, however, then property rules may be more efficient because they protect against government overreaching (Kaplow and Shavell 1996). 53. For example, Krier and Schwab (1995). In general, efficiency analyses are indifferent to fairness and other distributional concerns, except insofar as they affect efficiency. Any efficiency approach also will ignore values that cannot be easily quantified, such as aesthetic values. Some writers on efficiency—Michelman is an example—believe that efficiency and fairness are reasonably congruent. We criticize this belief below. 54. Another line of objection to Michelman’s approach is that it is entirely anthropocentric: it fails to take into account either costs or fairness to nonhuman creatures or the ecosystem. We owe this observation to an anonymous reviewer. 55. Munzer (1982, 478) alleges that Michelman is too ready to conclude that there will be concordance because his conception of fairness is not as far-reaching as it should be. Unlike John Rawls (1971), Michelman starts with existing distributions in analyzing fairness, and there will of course be demoralization when those change. 56. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422 (9th Cir. 1996). 57. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999). The issue decided by the Court in this case was whether the takings analysis had been appropriately submitted to the jury, and the Court held that it had been. This was a case in which the owners reasonably contended that they had been deprived of all reasonable beneficial use of the land. The land in question was a stretch of ocean-front dunes at the north end of the City of Monterey. It was zoned multifamily and had for years been affected by surrounding high-intensity uses. The landowners had submitted five different proposals for development, each apparently responsive to requests from the city to preserve open space, view corridors, endangered species, and natural habitat. Although the city’s architectural review committee approved a final set of plans and the planning commission’s professional staff recommended approval, the planning commission and city council refused to allow building to proceed. The property was eventually sold to the State of California for an $800,000 profit. The owners contended that the city’s actions were aimed to preserve the dunes in their natural state and that they had been deprived of all reasonable beneficial use of the property, a contention that seems plausible under the circumstances. 58. Ibid. at 704.

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59. Palm Beach Isles Associates v. United States, 208 F.3d 1374, 1381 (Fed. Cir. 2000). 60. Palm Beach Isles Associates v. United States, 231 F.3d 1354 (Fed. Cir. 2000) (on denial of rehearing). 61. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 34 F. Supp. 1226 (D. Nev. 1999). 62. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 228 F.3d 993 (9th Cir. 2000). The owners contended that their case was analogous to the situation of the church in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). In First English, the county had prohibited the church from rebuilding a camp along a flood plain. When the regulation was found to be a taking, the county sought to avoid paying compensation by simply repealing the ordinance. The Court held that this was a temporary taking, for which compensation was owed. The issue in First English was not whether there had been a taking—there had been—but whether there should be a remedy for a temporary taking. On the other hand, the issue in Tahoe-Sierra was whether a reasonable temporary moratorium is a taking at all. 63. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 2002 LEXIS 3028 *40, 51. 64. Ibid., *53. 65. Ibid. *58–59. 66. Armstrong v. United States, 364 U.S. 40, 49 (1960). 67. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 2002 U.S. LEXIS 3028, *66, 88. 68. “The Countryside and Rights of Way Bill—Access and Rights of Way,” House of Commons Research Paper 00/31 (March 17, 2000), 9– 10. 69. Laws 2000, Ch. 37, preamble (November 30, 2000) and Part I, Ch. I sect. 1 (1–2). 70. . 71. In the words of Minister for the Environment Michael Meacher, “Let me explode a few myths. Rights of access will not apply to developed land, cultivated land or gardens: there is no question of people being allowed to trample over fields of flax, or beds of begonias. Landowners will continue to be able to use and develop their land as they wish—the land remains theirs.” Hansard, vol. 346, col.723 (March 20, 2000). 72. Laws 2000, Ch. 37, Part I, Ch. II, sect. 22, 24 (1), and 26 (3)(a, b). 73. Laws 2000, Ch. 37, Part I, Ch. I, sect. 2 (1)(a); Laws 2000 Ch. 37, Schedule 2. 74. Laws 2000, Ch. 37, Part I, Ch. I, sect. 2 (4). 75. The adequacy of this restriction was the subject of sharp controversy. See Hansard, vol. 346, col. 723, for the comments of Mr. Fabricant: “Does [the minister] accept that people unwillingly damage sheep by allow-

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ing their dogs to roam free? What steps is he taking to ensure that there will not be increased savaging of sheep by dogs? Has he considered raising the penalties for that terrible crime?” 76. Laws 2000, Ch. 37, Part I, Ch. II, sect. 23 (1, 2). 77. Laws 2000, Ch. 37, Part I, Ch. I, sect. 12 (1, 4). The owner’s duties to a trespasser are described in “Countryside and Rights of Way Bill— Access and Rights of Way,” 25. 78. Laws 2000, Ch. 37, Part I, Ch. I, sect. 12 (2) (amending the Occupiers’ Liability Act 1984, section 1 [6]). 79. Remarks of Mr. Elfyn Llwyd, Hansard, vol. 346, col. 774 (20 March 2000). 80. Laws 2000, Ch. 37, Part I, Ch. III, sect. 39. 81. Comments of Mr. Archie Norman (M.P. Tunbridge Wells), Hansard, vol. 346, col. 735 (March 20, 2000). Mr. Norman continued: “If a walker gets it wrong, he is trespassing, and leaves for the day; but if a landowner gets it wrong, he is a criminal” (col. 736). Mr. Elfyn Llwyd (M.P. Meirionnydd Nant Conwy) dismissed trespass law as “in complete disarray . . . for centuries” (col. 773). Others criticized the Conservatives’ fear of walkers as pure snobbery. Comments of Mr. Colin Pickthall (M.P. West Lancashire), Hansard, vol. 346, col. 745 (March 20, 2000). 82. “Victory for ‘Scum’ over van Loogstraten Path Is Warning to All Councils” (November 20, 2002), available at . 83. “Countryside and Rights of Way Bill—Access and Rights of Way,” 40. 84. Laws 2000, Ch. 37, Part III, sect. 75. 85. “The Countryside and Rights of Way Bill—Wildlife and Conservation,” House of Commons Research Paper 00/30 (March 16, 2000), 3. See also Hansard, vol. 346, col. 739 (March 20, 2000). 86. “There is a cultural difference in people’s attitude to access to land in Wales. It is replicated to some extent in Scotland.” The cultural difference is a more relaxed attitude toward access and a greater willingness to allow it voluntarily. Hansard, vol. 346, col. 782 (March 20, 2000) (remarks of Mr. Richard Livsey [M.P. Brecon and Radnorshire]). 87. See, for example, comments of Christopher Gill (M.P. Ludlow), in Hansard, vol. 346, col. 720 (March 20, 2000). 88. Comments of Mr. Archie Norman (M.P. Tunbridge Wells), Hansard, vol. 346, col. 731 (March 20, 2000). “A fundamental point of principle is raised by the Bill: it will take away the central right of property owners to say who may or may not come on to their land. It is a matter of profound principle,” commented Mr. Peter Atkinson (M.P. Hexham), col. 754. Mr. Gordon Prendice (M.P. Pendle) replied: “My principle is that there are good reasons for keeping people off open land, but ownership is not one of them” (col. 757). In support of Mr. Norman, Mr. Christopher Gill (M.P. Ludlow) commented, “The point of principle is an important one. It has to do with the fact that we are increasingly a property-owning democracy. . . .

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Millions of homeowners will appreciate and understand that an important principle is at stake. They want someone to defend the principle that if one owns a property, one has full rights over that property, which should not be encumbered by the public or anybody else. The Bill, of course, seeks to change that principle in a fundamental way” (col. 763). 89. Comments of Mr. Andrew Robathan (M.P. Blaby), Hansard, vol. 346, col. 535 (March 20, 2000). 90. Hansard, vol. 346, col. 814. 91. Human Rights Act 1998. Mr. Damian Green (M.P. Ashford) commented: “I know that many Labour Members do not believe that human rights apply to landowners, but I should be interested to hear the advice that the Minister received on whether refusing compensation is legal under the Human Rights Act 1998.” Hansard, vol. 346, col. 810 (March 20, 2000). 92. “Meacher’s Muddle: The Statutory Right to Roam Is Ill-Conceived and Unfair,” editorial in The London Times, March 4, 2000. 93. “The Countryside and Rights of Way Bill—Access and Rights of Way,” 29. 94. See Hansard, House of Lords, vol. 619, col. 1008–1010 (November 23, 2000). 95. House of Commons Standing Committee B (April 11, 2000). 96. Ben Thomas, Access Adviser, Country Land and Business Association, personal communication, June 1, 2001.

4 Concepts of Community and Land Use

C

ommunity matters in land use decisionmaking. This statement is equally true on both sides of the North Atlantic. Sometimes community matters as a full or partial justification for specific land use decisions, and sometimes it matters as a means to reach decisions about land use, but the enormous appeal of community is apparent in some way in most substantive discussions of land use. The limitations of community in actually contributing to the success of land use decisionmaking are discussed less frequently and understood less clearly, however. The romantic appeal of community as evoking the values of an earlier, golden age of human settlement often seems to get in the way of sustained examination of the comparative merits of placing land use decisions locally or at regional, national, or even transnational levels of decisionmaking. Community evokes enormously rich and varied imagery of how people should relate to one another and to land. Its very richness has generated a growing number of distinct understandings of its meaning and of its implications for land use decisionmaking. Consider these examples. A particularly alluring image of community is the ideal of a rural, self-sufficient village whose residents are warmly responsive to one another. In sharp contrast is a minimalist notion of community as a collection of individuals living in close proximity to a site involved in a specific land use controversy, such as the location of a new power plant. The rise of the environmental movement has led to an understanding of community that does not describe the rela101

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tionships among the members of a local population but unearths their shared commitment to the place or the bioregion that houses them.1 Yet another understanding of the role of community in land use decisionmaking severs the idea of community from that of a population living within a locally bounded space. A community in diaspora may be created when members share an attachment to a specific site, such as a religious shrine, an ancestral village, or a summer-vacation destination, but there is no need for all or even any of the community’s members to live near one another, except possibly intermittently. This chapter examines the multiple understandings of community employed in contemporary discussions of land use. It explores how these understandings frame who is included or not included in land use decisionmaking, as well as the values that prevail in a number of substantive land use decisions. Reliance on traditional understandings of community may be exactly what is of critical value in some local land use decisions, but these traditional understandings characterize only a small number of the places where the population lives on both sides of the North Atlantic. The risk of placing so much emphasis on a traditional understanding of community as a rural village is that it is a model that does not serve a world characterized by considerable movement of people within and between nations. It is a model that fails to capture the proliferating forms of metropolitan living that encompass how most people on both sides of the ocean actually spend their lives. Like the strong property rights paradigm, traditional models of community are a problematic localism for land use planning. This is not to say that rural communities should not be supported. Rather, it is important to draw connections in land use decisionmaking that celebrate a greater range of values associated with a wider variety of communities than the supposed ideal of the autonomous rural community, physically intact and spatially separated from the outside world. In an account of land use decisionmaking, by contrast, community should not be understood as necessarily place-bound. Community may be a sufficiently robust concept to embrace people who live far apart or who belong to more than one group. Certainly, it is important to recognize that commitments of people to one another in a specific location may have profound implications for the use of the land they share. However, it may be equally important to recognize commitments that transcend space, and even to cultivate commitments among a set of people who live

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far from each other to address how land should be used. Commitments that are relevant to land use decisions can be found in a rich variety of interactive formations. Two illustrations will be useful. One is of the U.S. suburb portrayed as a rural community. The other is of the commitment of successive Scottish governments over the past 125 years to save the small crofting communities of the Scottish Highlands and Islands. These examples convey the powerful allure of rural community, as well as some of the frustrations and hazards of making an emphasis on the local community a major principle in land use decisionmaking.

The Suburb as Rural Community: Bedford, New York In the United States a number of apparently rural communities are located within or at the margins of large metropolitan regions. The areas around New York and San Francisco are paramount examples, where particular localities are portrayed or described by their local leaders as though they were rural villages, despite the fact that they are best understood as part of contemporary metropolitan life. These localities may be characterized by the presence of large amounts of undeveloped land, unimproved roads, spacious residential lots, small commercial centers, and a disinclination to welcome tourists. Combinations of strict zoning policies, stiff enforcement of environmental regulations, and concerted efforts of local residents to discourage new housing and commercial development have worked for the most part to maintain the bucolic images of these localities. Bedford, New York, located some 44 miles from New York City, is very much in this tradition. It boasts a population of about sixteen thousand people living in a space of 39 square miles. Before 1900, Bedford was noted for its dairies and large estates. Over the course of the last century, more people moved to Bedford despite local efforts to restrict the flow of in-migration by restricting zoning to single-family housing on a minimum of 4 acres. Today, housing prices in Bedford range from $350,000 upward into the millions, with a median price of $450,000.2 Bedford is a grand example of a residential area that is highly focused on the preservation of its lovely landscape. Bedford’s residents for the most part enjoy high

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incomes, savor the openness of the land, like to keep their village center restricted to a few shops, and work together to stave off new housing developments.3 Bedford’s residents also savor the village’s image as an island of calm, rural life. James Duncan and Nancy Duncan (2001) have examined how residents of Bedford regard themselves as members of a community in the tradition of a New England village in the Jeffersonian image of a rural classless society where all inhabitants are equal. This intertwined rural life is praised by the residents in contrast to the urban life of New York and its surrounding cities and towns. Yet the local residents of Bedford who celebrate their version of rural life at the same time enjoy their proximity to Manhattan. Bedford works as an idyllic village by using regulations to exclude development that would make it look like much of the rest of the surrounding metropolitan region. It rejects the metropolitan region on aesthetic and other social grounds, yet it is economically dependent on the very city it seeks so assiduously to avoid. Bedford provides a good illustration of the symbolic value of community in U.S. land use politics. It represents the persistent allure of living in what appears to be a rural, self-contained village or town of an earlier American life. A powerful recurring perception in discussions of land use in the United States is that a community will fare best if it can realize the Jeffersonian ideal of a stable, small, agrarian community. If communities are not agricultural in nature, then they should appear as though they are agrarian in spirit. This expectation for communities obtains in localities ranging from Bedford, New York, to the small, marginal farming towns in the area of the Grand Staircase–Escalante National Monument in the southwestern United States, described in Chapter 1. This Jeffersonian understanding of community has been celebrated for its commitment not only to farming, but also to the values that are sustained by life in an agricultural village that is characterized by its members’ care for the land and for one another. But there is an important disanalogy between the traditional Jeffersonian image and contemporary Bedfords. Continuity in population characterized the former but does not characterize the latter. Places such as Bedford instead reflect a continuity in preferences among the many people in the United States who yearn to find such towns and to afford to reside in them. The evocation of this image of community is a powerful force in shaping land use decisions in the United States. The power of the

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rural image is reinforced by the long-standing U.S. land use regime that places a good deal of regulatory decisionmaking at the local governmental level. In conjunction with the impressive governmental powers available to towns and counties, the image combines to shape land use in ways that both supplement and challenge the absolutist model of property ownership.

Local Regulation of Land Use In both Britain and the United States, there appears to be a significant level of popular support for local control in many policy areas. The determination of land use is a particularly important context of this support for local decisionmaking. A recent public-opinion poll conducted for The Ecologist asked Britons if they thought nearby communities should have more say in how their local environmental issues are decided. Some 80 percent responded that they should.4 A survey sponsored by the National Association of Realtors in the United States found that 70 percent of people in the United States favor an increased role for local government in land use decisionmaking.5 What is interesting in comparing these two findings is that it is generally recognized that in the United States local governments exercise a great deal of land use authority. It is thus surprising that many people in the United States wish their local governments to expand their regulatory roles. In the United Kingdom, local governments administer a number of land use policies, but the initiatives and often the resources that drive those policies are generated by the central government. Later in this chapter we explore this apparent paradox of land use policymaking in the United Kingdom, where local community is acclaimed but the policies that preserve and strengthen it are national in origin. Governmental regulation of property is long-standing, and controversies have concerned both ownership and land use. The major issue for European settlers moving to the United States was how to gain ownership of lands formerly held by dispossessed indigenous peoples or foreign powers and now held by state and federal authorities for settlement. In Britain, the subject was how tenants might gain security of tenure or purchase the lands they worked. Historic land use controversies involved preservation of land for hunting in the traditions of English nobility and Native American uses of land for

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hunting in competition with the desires of farmers. Governmental authorities traditionally adjudicated disputes between property owners in conflict with one another. Such conflicts have long been at the local level for the most part. But the battles between farmers and railroads that characterized a number of nineteenth-century U.S. frontier regions pitted local residents against railroad owners who often lived far away. The British parallel was, and to some extent still is, between absentee owners of estates in Scotland and local villages on and near the estate lands. In the United States, for most of the nation’s history, local governmental authorities have been the principal makers of land use decisions. Where to construct roads, set aside parks, and build schools and other public buildings have been local questions. The power to condemn privately held land for these and other public purposes was largely exercised by local governments. But over the course of the nineteenth century, local land use issues came to be limited primarily to conflicts over settlement of the land. Issues grew more varied and often more complex as modern agriculture, modern industrialization, and urbanization developed. A particularly compelling example of newer controversies in land use is the mid-to-late-nineteenth-century debate in California over hydraulic mining. In the last stages of the California Gold Rush—in the 1860s, when gold near the surface and in stream beds had largely been mined—hydraulic blasting of the hillsides took place on a vast scale as mining companies searched for veins of gold deep within the Sierra Nevada mountains. Powerful jets of water displaced 1.5 billion cubic yards of soil and rock, and the displaced earth washed into the streams and rivers. The resulting adverse consequences for farmers and others living downstream—often very far downstream—from the hydraulic mining site included occasional flooding of agricultural lands in the valleys. The last thirty-five years of the nineteenth century saw sharp conflicts between farming and mining interests in the California state legislature and the courts over whether to ban or to regulate hydraulic mining. In 1884, the U.S. Circuit Court for Northern California ruled that hydraulic mining was “a public and private nuisance.”6 The state legislature followed in the 1890s with legislation that banned hydraulic mining unless tailings could be contained (Kelley 1959). Land use regulation assumed much greater prominence in the early part of the twentieth century as zoning laws developed in urban

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areas. In 1916, the New York legislature allowed New York City to zone land to be used for specific purposes. New York’s action is but one example of how zoning became a powerful new tool of local governmental land use policy throughout the United States. Zoning can be used to say that specific areas are reserved for single-family dwellings or commercial use, or to restrict the number of taverns to two per block, for example. The early controversies over zoning were often set up as classic struggles between the rights of property and the rights of community. Take, for example, the case of Hadacheck v. Sebastian. Los Angeles residential areas grew up all around Hadacheck’s brick kiln, which was located on an area of unusually fine clay. The city passed an ordinance forbidding the manufacture of bricks within the city limits. Hadacheck claimed that the ordinance was invalid because the city had the legislative power only to abate an activity that was in itself harmful (what the law calls a “nuisance per se”), not to declare that otherwise lawful activity had the character of a nuisance. Thus, he contended, the ordinance effected a taking of his property. When the case reached the U.S. Supreme Court, the Court held that it was a lawful exercise of the power to regulate a nuisance—that is, behavior that was harmful to the character of the current community.7 Zoning thus became an accepted part of U.S. land use planning at the local governmental level. This U.S. tradition of local planning through zoning was challenged during the 1960s and 1970s by the intersection of two emerging concerns. The first was the steady expansion of suburban life that was increasingly judged by critics as both damaging to cities and consuming of the countryside surrounding the cities. The second was growing concern over what observers judged to be deterioration in environmental quality, specifically air, water, and soil conditions. Adam Rome (2001) argues persuasively that concern over the expanding circles of suburban development and the emerging environmental movement became closely linked in the late 1960s and in the 1970s. This linkage led to the policy conclusion, politically popular at the time, that one quite useful way to deal with major environmental quality concerns was to address the question of land use, specifically land use planning, beyond the local level. Much consideration was given both to strengthening land use planning on the local level and to assigning important roles to the states, to newly established interjurisdictional and interstate entities, and even to the federal government.

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The working assumption was that suburban growth seemed unconstrained by existing local governmental zoning regimes. Indeed, zoning regimes had appeared for decades to promote the growth of suburbia. The proliferation of suburbs resulted in increasing reliance on automobiles that put noxious emissions into the air, greater waste runoff from septic tanks, and augmented use of lawn fertilizers that compromise the quality of both soil and water. The solution to this apparent degradation of the environment appeared to be comprehensive land use planning through state and national planning regimes that could constrain suburban growth and restore environmental quality. This shift away from the local in land use planning, described by Fred Bosselman and David Callies (1972) as the “quiet revolution,” brought about changes in a number of states, which undertook statewide land use planning initiatives from the mid-1960s to the early 1970s. Massachusetts approved a series of land use acts. Wisconsin initiated land use planning at the state level. California established the Coastal Commission. Minnesota created the Twin Cities Metro Council. Vermont and Maine established statewide procedures for building permits. In 1981, Hawaii became the first state to adopt a comprehensive land use act. After Hawaii, Oregon in 1973 was the state with the most comprehensive land use plan. Nonetheless, even during the heyday of comprehensive planning, few statutes challenged the commitment to local land use autonomy (Briffault 1990a). These state planning initiatives, which seemed to challenge both private property and community control, came under heavy criticism by the mid-1970s. But when such initiatives crossed state lines, they continued to have an important presence in land use decisionmaking, as can be seen in the establishment of a number of multistate agreements, particularly involving bodies of water that transcend state boundaries. For example, the Columbia River Gorge Commission was authorized by the 1986 Columbia River Gorge National Scenic Area Act and was created through a bi-state compact between Oregon and Washington in 1987. The Tahoe Regional Planning Compact between California and Nevada was created by the legislatures of those two states and authorized by Congress in 1969. The criticism of planning on a national scale was symbolized by the defeat of Senator Henry Jackson’s proposed National Land Use Policy Act. It proved politically difficult to challenge both private

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property advocates on the one hand and supporters of community decisionmaking on the other. The exception to the end of national planning for the nation’s lands as a whole was the acceptance of a planning mechanism for public lands—which, it should be noted, comprise about one-third of the U.S. landscape. The Federal Land Policy Management Act (FLPMA) of 1976 provided that “the national interest will be best realized if the public lands and their resources are periodically and systematically inventoried and their present and future use is projected through a land use planning process coordinated with other Federal and State planning efforts.” 8 And the National Environmental Policy Act of 1964 required environmental impact statements for major federal actions significantly affecting the environment. In the aftermath of the defeat of the National Land Use Policy bill there was a decline in proposals for land use planning beyond the local level. Perhaps land use planning ceased to be seen as the leading solution to major environmental problems. Indeed, by the 1980s and 1990s, environmental regulation was judged by its critics as a threat to property; much environmental regulation, as we discussed in Chapter 3, was characterized by its critics as taking property without compensation. Land use regimes were, during this period, increasingly described as little more than new bureaucratic challenges to sensible ways that people use their property and therefore unreasonable challenges to the rights of property ownership. During the late 1970s, the 1980s, and early 1990s, public skepticism grew over the value of regulation in many policy areas. Critics argued that zoning, particularly when linked to environmental issues, was little more than a hurdle that provided benefits to the privileged. The consequence was that ambitious state and national land use agendas did not materialize. But the appeal of social regulation, particularly when linked to the notion of local community and involving an issue that generates sharp debate over public values, should never be underestimated. Regulation of obscenity and pornography is a telling example of this. The U.S. Supreme Court, in Paris Adult Theatre v. Slaton, used environmental regulation as an analogy supportive of social regulation: “Likewise, when legislatures and administrators act to protect the physical environment from pollution and to preserve our resources of forests, streams, and parks, they must act on such imponderables as the impact of a new highway near or through an existing park or wilderness area.” In Paris Adult Theatre,

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the Court upheld a Georgia statute allowing for a civil injunction against the exhibition of obscene materials.9 In other zoning cases, regulations limiting adult theaters, bookstores, and other similar activities have been upheld against constitutional challenges. The assumption of these decisions is that community matters and that it is as natural for a community to regulate sexually explicit materials as it is for it to regulate land use. It would seem that Rutherford Platt’s judgment, discussed in Chapter 1, stands: what matters in U.S. land use decisionmaking is what local governments decide (Platt 1996). But it is also important to recognize that there are difficulties in identifying community with the local area. Communities may not be spatially compact, with clear-cut boundaries. Moreover, whether the issue is land use or the regulation of sexually explicit materials, community may embrace a greater diversity of people than has been legislatively and judicially assumed in the past. The reality of U.S. land use decisionmaking, though local, has for many decades been complex. Many competing jurisdictions at the local level have claims to be considered in land use decisionmaking. And it is, of course, important to recognize that state and federal legislation may directly or indirectly influence key land use issues, from endangered species to clean air. There is considerably less ambiguity about decisionmaking structures for land use in Britain. Studies of land use issues draw attention to two significant differences between the United States and United Kingdom concerning their respective approaches to land use decisionmaking. In contrast to the United States, Britain has an established tradition of comprehensive land use planning and an established expectation that the values and direction of land use planning are set by the national government. The Town and Country Planning Act of 1947 seemingly assumed national authority to grant planning permission to owners to develop their land. Over the succeeding decades, approaches to planning in Britain have changed more than once. The system moved from obliging local authorities to produce plans for central government approval, to a two-tiered system in the Town and Country Planning Act of 1968, to a requirement for public participation in the Town and Country Act of 1971. Over the course of the 1980s, the planning system appeared to become more centralized in that more decisions were taken at the central level, and by the 1990s, plans were required to include environmental considerations. Under the Conservative governments of the peri-

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od, however, a larger role for market forces also came to be accepted (Ball and Bell 1994). By the late 1990s, partnerships in planning became the rule, with various national regeneration initiatives and funds from the European Union to foster redevelopment (Leach and Percy-Smith 2001). The most recent development is that significant authority for land use planning has been devolved to Scotland through its recently established Parliament. In their assessment of British land use planning, J. Barry Cullingworth and Vincent Nadin conclude that in the United Kingdom “there is a conscious effort to bend them [land use decisions] in publicly desirable directions” (1997, 10). By contrast, planning in the United States is largely a matter of anticipating trends. Cullingworth and Nadin consider the United States to be a country that sees in land a source of profit, whereas in Britain the prevailing value is the proper management of land. Generalizations such as these have clear limits. There is little doubt that land development and real estate speculation are long-standing forces in the history of westward expansion in the United States. At the same time, remarkable quantities of land have been reserved from the marketplace, ranging from the public lands to national monuments. For a number of British cities, land development has matched the speculative intensity found in New York and Los Angeles. The Docklands redevelopment on the east side of London is a spectacular recent example. Although national land use planning is widely accepted in Britain, the direction planning should take and the manner of making planning decisions are often the subjects of sharp disagreement. Over the past four decades or so, debates have been intense over the weight to be given to property ownership, public participation in land use decisions, and the status of agriculture in rural land planning. The latitude given to local governments in Britain seems less a matter of setting choices for land use to be considered by a community that has authority to select the use that is locally preferred, than a method for a local government to devise its own strategy for realizing a nationally determined land use goal. In contrast, there is a good deal of variation in how U.S. local governments respond to the question of land use planning, whether at the municipal or the county level. Many localities have experienced long-standing acceptance of zoning ordinances and town planning. Supplemented by the strategic use of local environmental regulation,

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these ordinances can provide local governments with the power to intervene in a wide range of land use decisions. A good deal of advice is available to local governments about how to navigate between the risk that zoning could overreach and be considered a taking and the concern that zoning might be so weakly deployed that it is ineffective (Stokes, Watson, and Mastram 1997, 159–213). But other local governments have experienced deep resistance to a strong interventionist stance on land use questions. Observers in a number of areas criticize local governments for simply ratifying the actions of developers. This considerable variability presents something of a paradox in drawing comparisons between the United States and the United Kingdom. Local governments in the United Kingdom possess considerable power to determine local use, but they do so under national mandate. In the United States a federal or state environmental regulation can and sometimes does serve to constrain local land use decisionmaking, but local governments possess much greater latitude than their British counterparts in setting the objectives for land use policy—or electing not to set any objectives at all. A brief survey reveals an impressive range of ways that a local government in the United States may determine land use. Local governments may restrict lot size for building, thereby influencing the income level of potential residents.10 Bedford is an apt example of how lot size affects not only who lives in a city but who lives near it. A city may determine the location and number of multifamily housing structures such as condominiums and apartment complexes. Some districts of the city may be set aside for retail and other services while others are designated for heavy industry. Streets may be widened or narrowed. Mass transit systems can be established, abolished, and re-created. For example, in Los Angeles in the early years of the twentieth century, a mass transit streetcar system was consolidated. At its peak in 1944, the system had 1,150 miles of track and provided over 100 million rides. But after World War II, mass ownership of automobiles and the rise of suburban housing developments promoted the expansion of freeways and the steady elimination of streetcar lines. Only a bus system remained in the conurbation of Los Angeles. Starting in the 1980s, a rail system reappeared in Los Angeles in the form of a limited subway system. In making planning decisions about land use, much specificity is open to local governments, such as establishing a mandated distance between new buildings and the roadside, requiring grass for front lawns, or prescribing

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the form of lawn maintenance. The decision to place utilities above or below ground is locally made. How much land is to be set aside for parks, nature preserves, or stadiums is a standard local decision. Streams may be preserved or buried underground in pipes. And the list goes on. Historic district and landmark preservation efforts, such as the New York City ordinance involved in the Penn Central case, are frequently a local matter. Buildings of historical or cultural interest may be designated landmarks, which may significantly restrict changes to their appearance and their use. Churches from New York to San Antonio have been unable to modernize because of historic preservation regulations.11 The power of a local government to determine the look, height, density, and use of buildings may substantially shape the uses to which property within the locality’s borders may be put and, as a consequence, may also help shape land use outside its borders. If, for example, a local government bans bars or dry cleaners, then the likelihood is that such services will locate just outside of the community. Minimum-lot-size requirements may make it difficult for those who provide services for residents in expensive communities to afford housing near where they work. As a consequence, such service workers are likely to live in adjacent areas. An illustration is Jackson, Wyoming: service workers now commute to Jackson through the Grand Canyon of the Snake River, a commute that has necessitated road expansion in a highly scenic area. Following the image of property as a bundle of sticks, local land use regulation might be described as a set of quivers that constrain the sticks, or arrows, making up the nature of local land use. Depending on the design of the quiver, a local government has many ways to approach land use decisionmaking. It may have the authority to advise concerning, to shape, to delay, and to require mitigation for a specific shift in land use—and ultimately to deny a proposed land use or land use plan. But, of course, in many countries, and certainly in the United States, authority over land use decisionmaking is rarely clear-cut. An illustration of the distinctive way in which local governmental autonomy shapes the use of land is the behavior of some local governments in attempting to attract commercial development that will meet local residents’ demand for services and will be a significant source of property tax revenue. Other local governments shun such development in order to create a retreat from the commercial

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world. The result is an intricate pattern of land use regulation that governs where most people live in the United States: a metropolitan patchwork quilt of land uses. The rural charm of many villages like Bedford is dependent on the existence of the more crowded and busier patchwork squares. A land use regime characterized by a great deal of local discretion reflects a long-standing willingness in the United States to accept a much greater level of governmental intervention from local governments than from the federal government or even from state governments. But the celebration of decentralization and attitudes toward the risks of centralization of power are only part of the story. The interest in the development of local community as a desirable goal for land use is in many respects as important a factor as the myth of absolute property ownership in understanding how the U.S. landscape has developed. In the United Kingdom both community and property are often evoked with a good deal of ardor, but both appear to be far more conditional than in U.S. practice. Community preservation has been advanced as an important national goal by successive British governments for at least a century and a half, and resources have been devoted to that goal as recently as the earlytwenty-first-century Labour government’s plans to sustain rural life. But it appears that much less latitude is provided to local communities in Britain to shape their localities for better or for worse, than is accorded their U.S. counterparts.

Community and Land Use: Enduring Appeal and Changing Understandings The appeal of community, even in its myriad meanings, is undeniable, particularly in discussions of local land use decisions. Community is often judged to be particularly compelling in framing land use decisionmaking if it is understood as bringing to the fore the concerns of a group of people morally bound to one another and emotionally attached to the land where they live. This understanding of community carries much greater weight for policymakers than the discussion of local land use framed as an exercise in the calculation of local interests. Community remains a persistently compelling and a persistently contested notion in thinking about what matters in land

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use decisionmaking. In understanding these discussions, however, it is critical to distinguish different meanings of community. The literature on community embraces a rich and varied tradition. When the word community is employed in discussions of land use decisionmaking, it sometimes functions descriptively: “Council members from the local community were consulted.” But it is also used prescriptively: “the cohesive community that is this small town is threatened by the proposed building of a new mall on the outskirts of the town.” As Anthony Giddens observes, “‘community’ does too much work” (2000, 63). These phrases reflect two broad traditions in the understanding of community. The descriptive tradition, which defines community as a legal entity or as a community of interests, dates at least from imperial Rome. A very different tradition, associated with the writings of St. Augustine at the end of the imperial Roman period, argues for understanding community as a set of people bound together by communal concord. What Carl Friedrich (1959) observed nearly a half-century ago still obtains: both traditions are very much with us. The Augustinian tradition continues to capture the imagination of many social and political theorists who judge the state of community within a nation to be an important measure of the health of the political order (Frazer 1999, 67). This tension between what community was or might have been and contemporary understandings of community in highly mobile societies is reflected in political debates about the nature and meaning of community. Indeed, a number of contemporary theorists who lament the loss of community are sometimes engaged in projects to restore our past traditions of community. Other theorists favor radical social reformation to build or rebuild community. Robert Putnam’s portrait of the decline of community in the United States has attracted considerable attention. In Bowling Alone (2000), Putnam contends that in the current era, as in some past eras in U.S. history, people are much less well connected to one another. As a result, the cooperative spirit that Putnam judges important to hold society together is much weakened. Putnam believes that community is a crucial source of the social capital that sustains democracy. But he offers an important qualification: a society works best, in his judgment, if two forms of community exist at the same time. One form of community occurs when people with the same outlook or identity work closely together; he calls this bonding “social capital.”

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The second form of community occurs when people reach out to people different from themselves, as in amateur athletic teams; these are “bridging communities.” Bridging communities may foster the ties among quite different people that enable the larger society to function—and possibly to function well. Putnam identifies something of a paradox in the literature of community as it is understood in local land use decisionmaking. A community that exhibits strong bonding and a sustained sense of connection may develop shared understandings as to land use patterns. But the obverse of bonding is the risk of external neglect of nearby localities, let alone more distant districts. Such neglect may contribute to difficulties in cooperative efforts to devise regional transportation systems, to aid the least well-off, and to develop more inclusive environmental policies. Putnam’s solution is the development of bridging communities that bring together people from different backgrounds. From a land use perspective, the creation of bridging communities could presumably unite people from a large area in seeking regional land use policies that accommodate a diversity of perspectives. Putnam’s approach to making a social order work by embracing two quite different conceptions of community both demonstrates the plasticity of the idea of community in political discourse and suggests the political limitations of relying too heavily on a traditional understanding of community as a series of tight-knit small groups that are the building blocks of a society. The public debate over the political meaning of community is confusing, and it is further confused by the assumption that a local governmental unit is a community. In the Roman sense of the term, it is. But since community in contemporary discourse suggests more than a set of political boundaries—a community is defined also by common bonds—problems may arise in sorting out our expectations for community in making land use decisions. Another abiding problem is one of scale. Can a metropolitan region be a community? Can a bioregion? A nation? Or does community require that its members know one another? Indeed, do communities need to be spatially bound at all? A useful way to begin this discussion is to draw attention to the contrast between the Roman tradition of community as a jurisdictional description and the Augustinian tradition of community as an account of how people connect, not just how they may be legally identified. Having said this, there are significant advantages to judg-

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ing when the word community is being employed descriptively, particularly to describe people living in close proximity to one another who may have claims regarding a set of land use issues that are independent of the question of community in the prescriptive sense.

Proximity and Land Use There are persuasive grounds to privilege some understandings of community in making decisions about major land use changes, even when those changes may have broader implications for people who are not members of the community. Local populations may also have powerful claims to exercise a major role in addressing land use issues that are largely independent of more conventional understandings of community. And there are persuasive arguments for consulting local populations about land use regimes for their area. Two arguments for assigning a role to those living in close proximity to the site of a proposed land use seem particularly noteworthy. First, a proposed land use may have disproportionately greater impact on those living nearby than on those residing at greater distance from the site. With such disproportionality, the risk of failing to seek the support of the local population is the risk of imposing a harmful project on local residents, who most likely will suffer the results far more directly than those who live farther away. Second, even if decisions are authored by those far from the local district, policymakers should make use of local knowledge in determining the value and adaptability of the project for the local area. There is need to recognize the value of local knowledge of what seems to work in the locality and what does not. Another argument for accepting local knowledge is the risk of misguided paternalism. Imposition of a vast manufacturing plant, ostensibly to create wealth, may not be an economically viable strategy unless locally mediated. What kinds of proposed land use shifts may be judged to have disproportionate impacts on local populations? Certainly a controversial example is the very long-delayed proposed storage at Yucca Mountain in Nye County, Nevada, of highly hazardous nuclear waste that will remain a hazard for thousands of years.12 This proposed waste storage may be regarded by nearly all as detrimental to the local population but possibly quite useful to the vastly larger populations who live thousands of miles away from the site and who rely on

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nuclear power. The great complication of finding a high-level hazardous waste site is that it is likely to be resisted by all local area governments. This is the phenomenon known as NIMBY, or not-inmy-backyard, politics (Been 1993). The vexing question that inevitably arises in a discussion of NIMBY politics is how a regulatory regime that recognizes a substantial measure of local autonomy in land use decisionmaking can ever allow decisions to be made that impose unwanted land uses on a resistant district. There is a parallel between the individual property owner being legally compelled to give his property for a public use and a locality forced to accept a use that will transform it. It seems that in each case, a fundamental and dramatic change in land use that falls disproportionately on a specific locality requires not only a careful and public justification but also compensation. The plan to place high-level nuclear waste at the Yucca Mountain site has been complicated by the protracted nature of the decisionmaking process. Over the decades intervening between the initial proposal of the site and its final adoption, the nation’s fastestgrowing city, Las Vegas, grew into a major metropolitan area. The hazards of high-level nuclear-waste storage are now to be concentrated only 90 miles from a major population center. Surely this action has consequences for the residents of Las Vegas, yet they could contend quite vociferously that it has been taken without adequately consulting them. There are, to be sure, many less dramatic land use changes where the benefits are local and the costs are distributed more widely, such as the introduction of housing estates into a largely agricultural county. The construction of large tracts of residential housing on the borders of farmland may lead over time to shifts in the area’s economy from primarily farming to primarily residential activities. Farming communities may wish to resist such incursions, but that may not be a decision in which the adverse consequences are all local. When a rural county adjacent to a burgeoning urban county is able to stop housing construction, this barrier may reduce the quality of life within the urban area. On the issue of local knowledge, James Scott (1998) has drawn attention to spectacular failures of grand state projects designed for areas distant from the locus of policymaking. Failure to appreciate the merits of a local population’s knowledge can be deeply problematic when judgments are made about the desirability of land use

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changes. Many countries have located vast development projects in marginal areas with the hope of promoting growth, but often the results of the projects are failure to compete abroad, local economic dislocation, and environmental degradation. The value of local knowledge can be realized not only by asking people what can be made to work locally but also by comprehending what it is that they want. Some countries in the European Union have designed policies to encourage local rural populations to continue to live in their respective localities by promoting traditional farming methods and crafts. The apparent assumption in such programs is that local communities will continue to be viable if resources are made available to sustain their traditional economies. Such strategies certainly seem less intrusive than building giant steel plants in Sicily. But the discussion of whether to forge steel or to crochet Belgian lace still begs the questions of what local populations know and want, and the extent to which a larger order needs to understand local knowledge and preferences before designing and implementing public policy. Obviously these questions do not have clear-cut answers. But many commentators think the answers we choose have significant implications for how we think about land use decisionmaking. A good way to demonstrate this point is to look at the work of those who advocate conceiving community as a relatively small group of people living together in a well-defined space. Andrew Mason (2000) argues, for example, that “ordinary communities” should be understood to encompass in various degrees shared values, a way of life, group identification, and mutual recognition. Mason envisions a second, even stronger understanding of a community as a group of people who not only share an identity and similar values, but also give weight to the interests of others in noninstrumental and nonexploitative ways. Distinguishing between what might be called authentic communities and other forms of human organization is important to many communitarians of this school. Freie (1998, 28) regards developers who claim that their suburban housing tracts are communities as little more than counterfeiters. He argues that communities evolve as interlocking patterns of morally just human relationships. Communities are characterized by their members’ feelings for one another and by their interconnectedness—by relationships that can only take place face-to-face. This understanding limits community to welldefined localities with relatively small populations. Some U.S. con-

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servative theorists share Freie’s commitment to locally based associations as essential to the realization of the values that apparently both construct community and are constructed by small, spatially bounded groups. Indeed, some have argued that the good life—or perhaps more precisely the building of character—can only be achieved by growing up in a small community linked to the land. The argument for such a value-laden ideal of community holds that only in local communities can the importance of family, parish, or congregation be fundamental in the shaping of moral existence. In such contexts, leaders share a common religious and political vision that works to sustain the community’s values. It is often argued in the communitarian literature that the bounded nature of the community reduces conflict. The golden age for such communities, at least as a number of U.S. writers would have it, occurred in the decades that preceded and immediately followed the Revolutionary War. During the Jeffersonian era, most of the U.S. population lived outside of cities, typically in small villages. These villages in the early republic are recalled as having been made up of small numbers of families who shared membership in the same church and either farmed or worked in agriculturally related endeavors. George Kennan’s (2000) recent memoir of several generations of his forebears during the eighteenth and nineteenth centuries clearly regards life in New England villages during this era as a golden age in character formation. This position is consistent with the conservative claim that community leaders exercised a sort of moral intrusiveness that protected their fellow residents from forces that would undermine the good life. The understanding that moral communities could be best achieved among small populations living in relatively limited areas in the countryside resonates not only with an important strand of U.S. conservative thought, but also with a rich tradition in U.S. environmental thought. In environmentalist discussions, community takes on another dimension, involving linkages between self-sufficiency, community, and nature. The communitarian environmentalist tradition stresses community as defined by place. In this tradition, place embraces not only where one lives, but also where one works and how life and work can and should be integrated into an appreciation and understanding of the natural world. For many who write in the Jeffersonian tradition that resonates in Kennan and resounds in Wendell Berry (1977), locality remains a necessary but by no means

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a sufficient condition for the realization of community. Among people with a well-developed sense of place, community has the possibility of flourishing (Vitek and Jackson 1996). Berry is one of many articulate advocates of the idea that to be strong and healthy a community requires a strong measure of self-sufficiency that promotes the stewardship of nature. This idea was expressed early in U.S. literature by Thoreau in Walden (1992), and it resonates in Aldo Leopold’s observation in A Sand County Almanac that “there are two spiritual dangers in not owning a farm. One is the danger of supposing that breakfast comes from the grocery, and the other that heat comes from the furnace” (Leopold 1970, 6). Berry’s understanding of community harkens back to a traditional sense of place as a locality where people work the land and its attendant landscape. Perhaps the most compelling images are those of farming, grazing, and coastal communities where the endeavors of the residents are responsive to the conditions set by nature. Living close to nature has always had appeal, but perhaps today the charm is particularly apparent among people whose families have not worked the land for generations and therefore long for it. Berry’s celebration of rural life is powerfully qualified by the importance he assigns to self-sufficiency as a hallmark of community. Michael Shuman (2000) emphasizes self-sufficiency and autonomy by lauding Green Bay, Wisconsin, the only community to own a National Football League franchise. The Green Bay Packers compete with great success in the NFL, but the team’s resources are deployed locally. At the core of Shuman’s argument is the claim that community works if major business decisions are made by local leaders in the local economy. Some measure of economic autonomy is, in this view, a necessary condition for community to flourish. Of course, Green Bay’s apparent autonomy is surely helped by the fact that a large base of people who are prepared to drive to the Packers games lives not too far away. Green Bay may not be Bedford economically, geographically, or culturally, but it is like Bedford in the sense that its well-being cannot be understood without an understanding of the region in which it is situated. The extent to which local communities are or can be as selfsufficient as theorists such as Shuman and Berry believe is necessary for viability is not clear. But memory and hope burn brightly on both sides of the North Atlantic for the moral claims of rural village life. National governments in both Europe and North America have long

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records of designing policies of intervention to preserve or even restore countryside towns and villages. Examples in the United States range from interventions in logging communities in the Pacific Northwest to those in ranching and grazing communities in areas of the Southwest such as the Escalante. One remarkable example is the efforts of successive British governments to preserve the small grazing communities of the Scottish Highlands and Islands, the crofting communities. The crofting community is perhaps one of the most extreme models of a form of rural life in which self-sufficiency is elusive, but popular political pressure to achieve that self-sufficiency has not diminished.

An Identified Community at Perpetual Risk: The Scottish Crofters The example of the crofters illustrates both the importance and the limitations of state commitment to the preservation of a form of distinctive rural community and its relationship to the land. Since 1886, the British Parliament has sought to keep a set of small Scottish grazing communities from disappearing, even though they have been at the margins of a relatively poor economy for two centuries. Scotland, particularly the northern region described as the Highlands and Islands, is a study in contrasts. It is a traditional area of great estates and marginal tenants. Approximately a third of Scotland is owned by 120 individuals and families in estates of 20,000 acres or more. Today many of these estates continue to be owned by the same families who have possessed them for centuries. Others, however, are held by owners who live outside Scotland, in locations as distant as the United States and Malaysia. Although remarkable continuity appears to govern the ownership of the Scottish landscape, that continuity masks some fundamental changes that took place in the middle of the eighteenth century and continued on into the early nineteenth, specifically in the Scottish north. Up to the mid-eighteenth century, the prevailing pattern of land use had been cattle grazing and other forms of farming performed by extended kinship groups or clans on what were recognized as ancestral lands. These clan members worked the lands in a tenurial relationship to the head of the clan. Over the course of the eighteenth century, this pattern of land use changed abruptly for tenants. Clan

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chieftains asserted claims of land ownership as their participation in commercial agriculture grew dramatically. Feudal chiefs became great landowners who cleared their estates of their former tenants as they turned the use of their lands to wool and kelp production. The expelled tenants faced economic hardship. Many left the Highlands and Islands for southern Scotland, England, or the New World. The steady loss of population from the Scottish north stimulated concerns over labor shortages, which, among other factors, led to the formation of the crofting system. The elements of the crofting system were fairly simple. Relatively small plots of land averaging 5 hectares (crofts) were leased to the tenants (crofters). Villages of crofters were given access to common grazing land. Crofters were expected to build their own homes and outbuildings. The expectation at the time the crofting system was being developed apparently was that the crofts would be economically self-sufficient. However, the crofters and their families needed additional employment to make ends meet and thus supplied a ready workforce for the rural economy of northern Scotland. Retaining people in the Highlands and Islands has continued to be a central but elusive goal over the past two centuries and has shaped national legislative intervention to preserve the crofting communities. By the middle of the nineteenth century, it had become evident to the crofters and many observers that the system was an economic failure. Crofters often lacked sufficient income to meet their lease payments and therefore were in danger of losing their crofts. Protest, migration, and emigration again seemed the only alternatives. In 1883, Parliament responded to the crofting crisis by establishing a royal commission, and in 1886, the commission’s recommendations became the Crofters Act, through which Parliament gave crofters security of tenure (Lynd 1945). In the years since, successive Parliaments have regularly intervened to support the crofters, still driven by the goal of preserving the crofting communities and their place in the north of Scotland. Today a frequently employed description of a croft is that of a small farm surrounded by regulation (Agnew 2000). There are some 17,700 registered crofts that make up 20 percent of the Highlands and Islands area. Crofters compose about 20 percent of the population in the crofting counties, and there are 11,550 crofting households altogether. Although there are fewer crofting families than crofts, and about 40 percent of crofts are not worked, demand for

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desirable crofts remains high. The average croft size is about 5 hectares, and each crofting village has continued to provide access to common grazing land. These small farms, at least for the past century, have been at best economically marginal. The result is that many crofting families work elsewhere to supplement their income (McCarthy 1994). After World War II, there seemed to be modest hopes that crofting incomes might improve with the introduction of new fertilizers, improvements in the world market, and the energetic commitment of the British state to achieve agricultural self-sufficiency for the nation (Collier 1953). This goal of abundance, however, was achieved independently of the crofters. The population of the Highlands is aging. Although crofts are popular, the rules governing crofts have steadily eased. Since 1976, crofters have been permitted to acquire title to their crofts, but they are still required to live on the croft, even though working elsewhere is fully recognized. Many crofters are engaged in tourism or other endeavors very different from farming. Crofters are often said to form a community. Nonetheless, it may be argued that although the crofters share a common tradition, it is less apparent that the crofting villages could exist without the sea of regulations that sustain an endeavor that seems to be largely focused on keeping people living in the north of Scotland rather than on developing robust, lively villages. Crofting may be regarded as a successful exercise in identity politics (Hunter 2000). The crofting “community” that engages the sustained sympathy of many others in the UK is not so much a self-sufficient village as it is a rural home for those whose principal employment is elsewhere. A crofting tenant is permitted to purchase the croft from the owner, even if the owner is unwilling to sell, under conditions specified by the Crofting Commission. A land reform bill passed the Scottish Parliament in 2003 that permits a crofting community to purchase eligible croft land if it could be demonstrated that the purchase would contribute to the sustainable development of that community. The crofting model has been extended to other areas of Scottish rural community policy. Currently there are proposals to facilitate local villages’ purchase of adjacent estates when they come up for sale. A critique of the Scottish government’s land reform proposal provided by the Caledonia Centre for Social Development argues that the government appeared to favor two goals in creating the right

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for community purchase: to empower communities and to change the pattern of land ownership (Wightman 1999). The Land Reform (Scotland) Bill proposes to restrict the right of purchase to tenants and employees of the estate offered for sale.13 Such individuals are protected under existing legislation if they own homes on the estate. This restriction may leave out others living nearby but not directly on the estate who, nonetheless, have strong interests in what becomes of the estate. Scottish land use politics harken back to an age when local farmers had few if any rights to the land they worked. The reforms look back to finding a way to preserve the claims of small, aging local communities to gain or regain lands for themselves. The commitment to preserve the crofts not only suggests the power of a romanticized conception of autonomous rural community to capture the attention of policymakers, but also demonstrates that communities, and particularly crofting communities, cannot be assessed without exploring their relationship to the larger region. We describe in the following chapter another dimension to understanding the fascination with the crofters: the importance of Scots and descendants of Scots who are sympathetic to the crofting communities but now live at some distance away from them. Such sympathetic emigrants have served and continue to serve as an extended community seeking to maintain or extend support for the crofters who remained “at home.”

Between Countryside and City: The Critique of Suburbia as a Form of Community The fascination with understanding community as an exercise in rural self-sufficiency is not, as we have just seen in the crofting example, confined to people in the United States alone. It has clearly been shared by many Britons. But the reality of how people live their lives on both sides of the Atlantic is that where they work is not always where they live. The Scottish crofting communities have many residents who derive only a portion of their income from the land and earn the rest of their income from second jobs in nearby villages and towns. The recognition of this growing disjunction between place of residence and place of work came to characterize suburbs as they rapidly expanded after World War II. The rise of suburbs and the ways in which they address—or fail to address—the

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question of community have raised a number of challenges not only to how land is used at the ever-expanding perimeters of urban areas but also to how the decisions that shape such land uses are and should be made. The postwar expansion of suburbia attracted the attention of critics, who questioned what suburbs would do to communities. Paul and Percival Goodman, in Communitas (1960), offered an early critique of the movement from the cities to the suburbs, arguing that it would lead to the destruction of community, and the outpouring of criticism of suburbia has rarely slowed over the past four decades. A central and recurring theme in this critique is dismay over the separation between where people live, where they work, and where they recreate. These separations consume time and transportation resources and seriously corrode community cohesion. The inability to meet with people without driving a car challenges the concept of a public space that facilitates the regarding of others, collaborative endeavors, and other expressions associated with various expectations for community. Herbert Gans (1991) has pointed out that people in the United States, whether they live in cities or in suburbs, frequently choose to separate where they live from where they work. In short, if choice matters in land use decisionmaking, we are unlikely to experience a series of autonomous communities in which people not only live, but also work and play. By the late 1990s, about two-thirds of the residents of the two hundred largest U.S. metropolitan areas lived outside those areas’ urban centers. Pietro Nivola (1999) reports that expanding suburbs continued to disperse jobs and people at a rate of 50 acres an hour. Explanations for such sustained decentering range from the appeals of rural life to various tax incentives to the availability of cheap gas (at least in most decades, principally in the United States). The urban center has become a receiving point for waves of new immigrants, who in time move to the suburbs. People living in the inner suburbs seek to move to the outer suburbs or to towns such as Bedford, in many cases in order to be closer to rural life. The search for reduced congestion, the pleasures of open space, and the supposed quietude of nature often induce people to move to the periphery of metropolitan regions. Once there, they not uncommonly seek to restrict others from moving to join them, for the perfectly understandable reason that the positional good associated with getting there first and having few others living in immediate proxim-

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ity is lost if many others move in. In recent years in the United States, there has been a rise in the regulation of homebuilding and subdivision development that may be driven in part by the growing concern over the loss of open space at the peripheries of metropolitan regions. Both real estate professionals and home builders recognize the critical interest on the part of many home owners to find and define their restrictive senses of place, but these two professions are ambivalent about the imposition of conditions that so constrain growth that new building is hard to undertake. In its analysis of the regulatory costs associated with new housing, the National Association of Home Builders appears to recognize that pressure for constraints on new building takes place at the local governmental level. They attribute a good deal of these costs to local regulatory regimes that govern land use and construction. People in the United States have come to accept that they live and work in sprawling housing and commercial developments. Many neither live nor work in city centers. They may live in one suburb and work in another. People living and working on the perimeters of metropolitan areas only infrequently make use of the arts and entertainment found downtown, even when new, publicly financed venues are erected. In many metropolitan areas, the people living and working in lively, sprawling exurbia have produced diverse sets of residential areas, commercial zones, ethnic neighborhoods, and distribution centers that stretch throughout the metropolitan region. These diverse units are typically interdependent, frequently spill over into one another, and for the most part are here to stay. The dynamics of metropolitan areas have produced the frustration of critics, such as Berry (1993, 1977), who have long maintained that community can no longer thrive when the places where people work are no longer where they live and play. At the same time, this apparent confusion of metropolitan life—where the landscape is a recurring series of housing tracts, malls, commercial centers, and occasional islands of high-density dwellings—has produced unease in resolving tensions between individual property owners and local land use management regimes. The challenge of sorting out what is meant by local government compounds the confusion in placing so much weight on local land use decisionmaking. The problem is made yet more complex if community is identified with local governmental authority. Local govern-

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mental boundaries are often overlapping, governing bodies vary in the authority they can exercise, and some local governmental districts are set up for quite limited functions. In the United States, there are over eighty-two thousand local governments of some form. Special purpose districts are a particularly interesting example of both the powers and limits of local government. These districts are usually associated with a specific infrastructural task that benefits local property owners and may be quite independent of decisions over the provision of services to local residents (Briffault 1993). As a result, local government decisions represent not only a vertical, but also a horizontal patchwork of authority. Property ownership as an expression of individual autonomy is an important value in U.S. political life. But the value of individual residential property can rarely be separated from the actions of adjacent home owners. The profit or loss that may come from the decision to buy or sell a lot, a house, or a condominium is shaped by appraisals of the neighborhood, the appearance of nearby houses, amenities such as recreational facilities and schools, and, of course, public safety. If the accepted judgment is that neighborhood conditions are good or improving, then the value of homes in the neighborhood will increase. The real estate professional’s motto that location is everything in the sale of a house raises the question of the relationship between individual property owners and the larger locality—specifically the other residents nearby. In many cases, it is difficult to assess individual land use and individual property values without paying attention to the larger context in which the property is located. The recognition that neighbors matter suggests two quite distinct strategic reactions. One is a strategy of separation, of drawing a clear line of demarcation between the holdings of a specific property owner and those of adjacent residents or, more commonly today, creating barriers to delineate a residential locality from all adjacent residential areas. The second is a strategy of creating areas of transition between one locality and the adjacent localities that can serve as bridges to connect adjoining or even more distant populations, and perhaps to invite movement and interaction as well. The Disney Corporation has undertaken both strategies for different reasons and 3,000 miles apart. Near Disney World in Florida, the corporation has pursued the strategy of separation by creating a

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town named Celebration on 10,000 acres. The town’s layout and architecture are reminiscent of what people believe small towns were like in the late-nineteenth-century United States, albeit with the anachronistic addition of several golf courses. The town is largely self-sufficient in terms of the many services and activities it provides for its residents, and it also claims to be economically self-sufficient along the lines Berry advocates for communities. The paradox confronting Disney is that while it wanted Celebration to evoke the cohesive values said to have characterized nineteenth-century communities, it also wanted the town to mirror the ethnic and racial diversity of the late twentieth century. It has apparently not succeeded in this second goal of attracting people of color to the town. With a population of just under 2,400, Celebration is 1 percent black and 7 percent Hispanic. In contrast, the county that surrounds Celebration is 6 percent black and 29 percent Hispanic. In this sense, Celebration, like many locales scattered throughout the metropolitan United States, is increasingly racially and ethnically uniform. Celebration is a controlled development whose defined boundaries apparently do not lend themselves to the recruitment of diverse populations.14 But 3,000 miles away, in the city of Anaheim, California, adjacent to Disneyland, the Disney Corporation has skillfully worked with the city government to create an approach to the theme park that extends into Anaheim. The firm that designed the Disney public street is the same firm that designed Disney’s Celebration in Florida. This new shopping and entertainment street, Downtown Disney, is several blocks long. It is a landscaped pedestrian mall filled with restaurants and nightclubs, with utilities placed underground. It serves as an approach to the theme parks and hotels, while still serving as a public street. It is, in the view of a New York Times reporter, a “connective tissue” for the Disney resorts, as well as an exercise in public-private cooperation between Disney and the city. Anaheim itself has prospered over the past forty-some years of Disney’s presence, but often strikes the visitor as little more than a collection of garish strip malls. Critics of the Anaheim-Disney partnership have expressed concern that public funds partially underwrote the construction of Downtown Disney. But supporters of the partnership stress the tax revenues provided by the resort and the power of its example, as other neighborhoods now wish to adopt the landscaped

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look of Downtown Disney. They also stress the possibility of integrating the resort and adjacent neighborhoods into the larger locality.15 These contrasting approaches to the recognition that neighbors matter—drawing connections or promoting separation—are a major concern in contemporary land use debates. In recent decades, the more popular strategy appears to have been that of delineating boundaries. Protecting or isolating residential locales from the larger area is attracting greater interest. These efforts at delineation often go beyond Disney’s Celebration or New York’s Bedford in seeking isolation from the broader region. Separation, or at least delineation, is often associated with the rise of private residential governments such as homeowners associations and community associations. Estimates vary but it seems that by the early 1990s over 30 million people in the United States lived in housing governed by common interest developments (CIDs) (Stable 2000). CIDs include a range of homeowners associations such as those in condominium complexes and gated communities. These homeowners associations are bound by covenants, conditions, and restrictions that apply to a quite remarkable number of uses of private property, from hours of quiet to the color of house paint. These restrictive arrangements, initially associated with retirement locations, have extended in the past two decades to a growing number of communities of currently wellemployed people. The restrictions may represent a search for community; they certainly represent a strong desire for security (Blakely and Snyder 1997). Another appeal of homeowners associations—or, as they are sometimes described, community associations—is that they allow resources to be pooled by a group of property owners to provide recreational facilities or open space around where they live. Depending on how community association governance is structured, residents may exercise more control over their immediate surroundings than they would if the community association did not exist (Stable 2000). The rise of homeowners associations with their own form of “local tyranny” over property owners suggests an enduring paradox of property ownership in the United States, at least at the level of residential ownership. On the one hand, property is celebrated as an expression of U.S. individualism and a venue in which to exercise personal autonomy. But the risk that arises with homeowners associations is that the focus on what takes places within the boundaries of the association’s writ and the fees charged by the asso-

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ciation for the services provided may produce skepticism about the residents’ connections to larger local governmental jurisdictions in which the homeowners association is located. Such skepticism may lead to reluctance to pay taxes for services provided to the larger community or disinterest in becoming involved in issues that transcend the borders delineated by the association (McKenzie 1994). The form of community association that has provoked the most divisiveness in discussions of local government and land use has been the gated community. Residents who opt for a gated community would appear to agree to a sort of social contract whereby they surrender some measure of freedom for a perceived increase in physical security. Gated communities are, of course, characterized by gates at the entrance and sometimes by guards in a gatehouse, key cards to gain entry, surrounding walls or fences, or private police forces and alarm systems. The formation of gated communities may be prompted by fear of crime, but it is not clear that it reduces crime, even within the communities’ precincts. Security is often not that tight, residents within the boundaries may themselves commit crimes, and crime may be displaced to other, less well guarded neighborhoods (Helsley and Strange 1999). Other concerns are at work besides the fear of crime that lead to the creation of gated communities and their promotion by developers. One consequence of the specter of unconstrained sprawl is the desire to retreat and to close the gates, or at least to regulate what occurs within them. But the creation of gated communities has produced negative reactions from the larger areas in which they are located. There was sharp resistance to a proposed gated community in Flagstaff, Arizona. The opposition seemed rooted in local resistance to increased development in the Flagstaff area, as well as concern over the idea of gated communities themselves.16 Gated communities may be viewed as a product of the frustration of metropolitan life: the tradition of local community is no longer possible, so exit is the best strategy. Gated communities may also be understood as an exercise in Hobbesian politics. Property owners who join gated communities surrender their freedom to use property as they see fit and receive in exchange physical isolation and presumed insulation from adverse property market shifts caused by changes in land use in adjacent neighborhoods. But there is a steep price for this self-selected insulation. It generates complexities in coordinating common services, from transportation to utilities. One serious challenge is that the separated community may come to

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devalue the connections and bridging required to make land use policy work, not only for where people live but also for where they work, shop, recreate, and receive other useful services. Steven Lagerfeld, in his skeptical review of Edward Blakely and Mary Gail Snyder’s trenchant critique of gated communities, Fortress America (1997), expresses concern about the fact that gated communities and other homeowners associations are seeking favorable tax write-offs for the many fees paid by their members. Such tax loss could presumably constrain local governments from supplying needed services.17 If the number of gated communities and other forms of common interest housing projects continues to expand, we may create a land use regime that is neither in the public sector nor a traditional form of private property. Homeowners associations in general and especially gated communities tend to look inward. Although owners are assured of a locally stabilized land use regime in exchange for often significant constraints on individual property, future property owners may find those constraints too restricting as they face not only local governmental land use regimes and the constraints that the decisions of public governments impose, but also the legacy of the land use regimes of private governments (Singer 2000). The interplay of individual homeowners association governments and local elected governments suggests the limits to autonomy in land use decisionmaking both at the individual level and at the local community level, particularly in metropolitan areas. The steady growth of metropolitan areas and their continued expansion into the countryside have produced an impressive range of reactions in the United States, from the creation of gated communities to initiatives to stop sprawl. Crossing the Atlantic takes us to a different perspective on what should be encompassed by land use decisionmaking. Many of the concerns are the same as those found in the United States: for example, the conflict between urban expansion and the preservation of rural communities. Other concerns have a particularly British emphasis: preservation of the cultivated landscape, food production (at least historically), and migration to the south of England from other parts of Britain. Increasingly, as crime has risen in British urban areas, concern for security in residential areas has grown as well. Land use has been the focus of major parliamentary debates and interventions in Britain for well over 120 years. One of the most popular parliamentary actions concerning land use

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has been the establishment of greenbelts around a number of major urban areas beginning in the 1950s. Are there parallels between the creation of the British greenbelts and the establishment by small communities in the United States of clear lines of demarcation to distinguish themselves from larger localities? There is the shared assumption that distinguishing between environments matters. But the scale of boundary demarcation between countryside and urban center in Britain is of a magnitude quite different from neighborhood demarcation in the United States.

Beyond Farming: Constraining Metropolitan Expansion or Preserving Rural Retreats in Debating the Greenbelts Over the past fifty years, several factors have been influential in preserving greenbelts in Britain. A concern that emerged with some force after World War II was that Britain must do more to feed itself. A threat to farmland was, therefore, a threat to food production. Perhaps the most enduring concern has been that greenbelts help to protect the English countryside as a gently cultivated landscape with small villages, often constructed from distinctive local materials such as Cotswold stone. Indeed, rural village life seems to have become an important value, independent of its relationship to farming. A third justification for the creation of the greenbelts has been the need to prevent certain areas of Britain, notably the southeast, from being overbuilt to the economic detriment of other parts of the island. Rachel Alterman (1997), in a six-country study of farmland preservation, concluded that preservation has been a success in Britain and in the Netherlands for a shared reason: such policies are no longer justified as farmland preservation per se, but as countryside preservation. Martin Whitby (1994) takes the shift to countryside preservation in a different direction; for him, the British countryside is gradually being restructured and redefined as a sphere of leisure consumption. The shifting justifications for preserving rural land use have been very much a matter of ongoing and substantive public debate, in large measure because the greenbelts were created by national legislation. Greenbelts are designed to set aside from development stretches of land that separate urban areas from one another and preserve the countryside that adjoins the urban areas. Specifically, they are

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intended to achieve several policy objectives: to check the sprawl of large urban areas, to safeguard the surrounding countryside, to prevent neighboring towns from merging into one another, to preserve the special character of historic towns, and to assist in urban regeneration. Greenbelts were strongly advocated by British land planners in the middle years of the twentieth century and were proposed by the Conservative government of the 1950s. In 1955, the Conservative government issued a circular asking local governments to designate land as greenbelts when appropriate. Successive British governments have attached great importance to the greenbelt policy, and local governments are expected to share this commitment. By the mid1990s, some 15,557 square kilometers of the English countryside had been designated formally as greenbelts (Hughes 1996). Cullingworth and Nadin (1997) quote Desmond Heap, president of the Town Planning Institute, as declaring that the preservation of greenbelts is the very raison d’être of town and country planning. Areas receiving greenbelt designation are not, of course, entirely empty at the time of the designation, and greenbelt planning places great emphasis on leaving things as they are in the belt areas. Historically there has been a bias in favor of permitting modification to buildings and facilities in rural areas, presumably connected to farming. But nearly all other requests for developmental changes in greenbelts have traditionally been resisted by local authorities. The political popularity of the greenbelt designation was immediately apparent, and the program has remained popular since its inception, although now it is undergoing challenge. Both the popularity and the significance of the greenbelt program are reflected in its steady expansion. Between 1979 and 1993, the size of greenbelt areas in England doubled, to about 3.8 million acres. One of the regions of greatest expansion is the southeast of England, which has more acreage under greenbelt protection than any other region within the United Kingdom; not coincidentally, it is also the area of the country with the greatest pressure for new housing. Since the creation of the greenbelt policy, considerable strides have been made in modernizing British agriculture, but criticism of modern farming methods is growing, and the result has been declining interest in preserving the greenbelt lands for farming alone. During this same period, the countryside has grown in attractiveness, particularly to the better-off sectors of the population. The diminishing appeal of urban life has propelled people to move to the country-

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side, and over time the countryside around major southern English cities—rural villages that were once agricultural communities—has become filled with commuters, owners of second homes, and retirees. Often such villages are strictly regulated so as to maintain the appearance they may have had on a particularly good day in the preindustrial past. New residents seeking the serenity of the English countryside are often distressed to learn that mechanized agriculture is not quiet and does not follow conventional work hours. A useful conclusion about the changes in agricultural practices and the implications of these changes for greenbelt planning is John Holliday’s observation: “Agriculture does not escape industrialization, and so between the cities the view may become monotonous and devoid of wildlife. On the other hand, it may develop as a haven of gentrified landscape from which to commute to the city” (1986, 37). The general pattern of economic growth and demographic change in Britain over the last several decades has included much higher growth rates in southern England than in the rest of Britain; that growth has been augmented by migration from other parts of Britain. Furthermore, growth in the number of households has outstripped population growth. This combination of economic growth and expanding population has increased pressure for new and better housing. Better housing in this context is defined by greater square footage and access to a sophisticated range of amenities. But the commitment to greenbelt designation has restricted the availability of housing and, according to Paul Cheshire and Stephen Sheppard’s (1997) estimate, may have raised the cost of housing by 15 percent. Cheshire and Sheppard argue that a cost of land use planning is higher prices for residential land and therefore housing. They studied two cities in England, one in the north and one in the south. Both cities were prosperous, but they had adopted contrasting land use regimes, with that of the southern city far more restrictive than that of the northern city. The researchers contend that housing proved far more expensive in the southern city, by as much as 13 percent of household income, and they attribute the difference to the cost of restrictive land use planning, which, they conclude, favors upper-income groups, at least in the south of England. Values about what is desirable in land use planning are shifting. The present Labour government has responded to the increased demand for housing in southern England by supporting a loosening of the restrictions imposed by greenbelt designation. The proposal

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argues for permitting housing and light commercial uses of some greenbelt lands if approved by local governmental entities. Such modification of existing greenbelt policy would expand housing development and possibly lead to reduced housing costs. The secretary of state for the environment has proposed a housing expansion policy that requires the reclamation of urban brownfields as well as the opening of greenbelt lands. These changes in greenbelt policy indicate that property and community per se have come to matter less as driving values and central institutions in much of the English land use debate over the course of the past century. At present what is at issue is a reconsideration of the initial goals of greenbelts—preservation of agriculture and the landscape—in favor of supplementing these values with the use of the countryside for recreation and increased housing. The debate over greenbelt use is ongoing. In a process governed by national legislation and local governmental administration, change in land use can result from a deliberative process. In contrast, the U.S. reality is one of delay and confusion in the face of various local land use regimes, state and federal environmental regulations, and a ready tradition of seeking judicial intervention in many areas of land use. Although radical change is often proposed for land use in various local governmental settings in the United States, actual change is rarely achieved, particularly on a regional level. In large measure, the explanation is that U.S. land use decisionmaking, particularly with respect to zoning, is resolutely local. And, as we discussed in Chapter 3, it is litigational, motivated by the strong property rights paradigm. Even local decisions often end up contested in the courts and in the legislatures. What to do about this fragmentation in land use decisionmaking has engendered significant debate. There are renewed calls in the United States for conceiving of land use and local governance on a regional level, either within bioregions or within metropolitan regions. The hope of these calls is that the land use planning that would result would be both fairer and more environmentally responsive.

Rethinking Community and Metropolitan Life: Implications for Land Use Regional approaches to land use decisionmaking seek to use the region as the context for land use decisions, rather than either small

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communities or the nation as a whole. These regional approaches range from bioregionalism to metropolitan government and represent a lively tradition that has sought to address the problems of local community autonomy by developing more inclusive land use policy regimes. Daniel Mazmanian and Michael Kraft (1999) argue that over the past thirty years the approach to thinking about environment and land use has shifted three times. In the late 1960s, the rise of the environmental movement drew attention to risks to the environment. Long-standing critiques of the steady growth of suburbs inhabited by the middle class were soon associated with consumption of land once prized as farmland, growing dependence on private cars and expanding highway systems, the contraction of public transportation, the introduction of shopping malls, and the decay of conviviality in urban life. Planning grew in importance as the hoped-for solution to perceived problems of suburban growth. This analysis of and proposed solution to the problem of suburbs, as well as the emergence of state-level planning in the 1970s and federal requirements for environmental impact statements, raised for many the prospect of national planning. By the 1990s, however, national and statewide planning no longer captured political interest. What did was the joining of bioregionalism and metropolitan solutions, sometimes in the guise of environmental self-sufficiency and sometimes as a reconsideration of community on a larger scale. We focus on two such approaches. One is the regional movement, which argues that a metropolitan area itself should be understood as a community. The second is the bioregionalist movement, which sees an understanding and appreciation of a region’s natural systems as a means by which the people who live within its loosely demarcated boundaries can develop a sense of place. We will discuss in the next chapter land use regimes that extend beyond—in some cases, far beyond—a regional focus. Metropolitan Regions as Communities Over the past century there have been from time to time movements to reform local government, particularly as it pertains to urban regions. Justifications for metropolitan government have varied from the argument that the larger the city the better it is able to compete for resources against other large cities, to the more recent contention that administratively linking impoverished urban populations with

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affluent suburban populations allows better services to be provided to the less well-off. Perhaps most recently, the argument has been advanced that the best way to preserve open space within and along the borders of a metropolitan area is by placing zoning and land use authority in a metropolitan government. Problems of inequities, economies of scale, and the need to find solutions to shared challenges characterize many contemporary metropolitan areas. These problems often seem chronically ill-addressed, in large part due to the fragmentation and often inward-looking nature of local governments in metropolitan areas. One proposed answer to these problems is the formation of regional governments. The current urban regionalist movement, which builds on past campaigns to unite local governments throughout a metropolitan area, is active in many parts of the country, and especially in Maryland, Minnesota, and parts of Texas. Where regionalism is practiced, urban areas are linked economically. They often participate in common transportation systems, share an identity as members of a region, and support regional cultural and athletic institutions. Gerald Frug (1993, 1999) argues that legal separation of residential areas from centers of employment is artificial, and the result is distortion in resource allocation. This argument for linking the suburbs to the city administratively takes as its working assumption that community should embrace a set of responsibilities for others who may live in adjoining neighborhoods and towns, but nonetheless belong to the same region. Political leaders and writers such as Myron Orfield (1997) and David Rusk (1999) contend that through the establishment of regional decisionmaking structures a number of land use problems that bedevil many localities can be solved. Orfield argues that what governmental entities cannot do by acting independently of one another may be achieved if the metropolitan region is understood to be a community. Rusk posits that it is difficult to address the issues of low-income urban areas without placing those issues in a regional context. One challenge for supporters of a regional approach is that of building community among diverse populations of people who have sought to flee the difficulties of life in the urban center. On a grander scale, these arguments evoke parallels with Wendell Berry’s (1977) argument that viable community requires connecting work and residence. Frug (1999) employs a logic of self-sufficiency like Berry’s to build the case for larger, areal decisionmaking bodies. The need for governmental structure that embraces both where peo-

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ple live and where they work may mean that the metropolitan area is the most reasonable unit for land use decisionmaking. Nonetheless, there are difficulties in understanding a region as a community or even as a relatively discrete economic area. It is not clear where boundaries are to be drawn, for census designation may not capture the extent of a region’s economy or may overreach any sense of shared identity. Although residents of small villages where people live and work may share a common identity, inhabitants of a large, diverse, and sprawling urban area may share a measure of proximity but little in the way of emotional attachment to where they live beyond shorthand symbolizations designating the location, such as “the Bay Area.” People may move around within a metropolitan area in search of a district or neighborhood of like-minded individuals that displaces any broader attachment to the metropolitan area as a whole. They may see any form of regional governance as remote. As we mentioned in the discussion of gated communities, Gans (1991) believes that people in the United States have long liked to live apart from one another and to select areas in which to live that are separate from where they work and pursue other activities. A unified regional government that seemed to threaten the capacity to choose distinct residential neighborhoods would be viewed with considerable alarm. Once many local governments are in place, each exercising some measure of land use authority, it may prove difficult for them to surrender their respective autonomy for a regional government whose preferences may not be known until after local autonomy has been submerged. Richard Briffault (1993, 1990a, 1990b), an advocate of regional decisionmaking regimes, recognizes that such a metropolitan government would need to take into account the competing roles of population, preexisting communities, and economic and social interests, as well as state policy preferences. For Briffault, thinking through very different sorts of weighted voting regimes may be the best way to build representative local or regional government (1993, 423). Institutional change is hard to achieve without further mechanisms to incentivize sustained cooperation. Bioregional Communities A different approach to more coherent land use planning begins with the effort to develop a sense of place grounded in the workings of nature. When multiple communities in a region are working at cross-

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purposes, land use can be characterized more by contention than by resolution. Bioregionalism shifts the focus from seeking to unite diverse populations in and of themselves to uniting them through place. Advocates of such local environmental governance have sought to challenge existing political structures on bioregionalist grounds. Ronnie Lipschutz (1999) argues that a bioregional perspective focuses on the relationship between the material base of a place and its meanings to those who live there. Jim Dodge (1998) emphasizes the importance of the natural system as providing both physical sustenance and the basis for spiritual sustenance. Frequently bioregionalists argue for a watershed as the basis for delineating a bioregion: the bioregion is defined by the range of life it can support with the water that is available (Adler and Straube 2000). Developing a sense of place by understanding the workings of nature may make less sense in an age when farming engages relatively few people. It is not apparent how clearly one bioregion can be distinguished from another bioregion. Perhaps the delineation can be made on the basis of a shift in the land form, the range and number of species, or, of course, the watershed. But it might be argued that deep love of turf transcends conventional bioregions. These various elements may be weighed in different ways, all leading to support for decentralized, self-determined modes of social organization built in large measure on an understanding of “biological integrities” (Dodge 1998, 370). The great appeal of bioregionalism is that it seeks to connect the places where people live to the very ecology that sustains their life. Bioregionalists believe that drawing attention to a river system that provides water for the population, for farms, and for transport may enable residents to recognize the resources on which they depend and the need to treat them wisely. Presumably a bioregion is more apparent to the rural observer than to the urban dweller, and with bioregionalism, as with metropolitan regionalism, where to draw boundaries is a challenge. The reality for both of these approaches is that for many people where they live and the resources they depend on to live there may not be connected. The questions of watershed, air quality, and open space may apply to both urban and rural spaces in some policy areas. However, understanding the workings of the national and international trade and migration that drive urban economies but go far beyond the region presents a challenge to those who would draw political boundaries around a watershed or other

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bioregion. Such geographical entities may not coincide with the sets of connections that contribute to forming the socioeconomic contours of an urban region.

Conclusion Community clearly matters, and it appears to matter a great deal in land use decisionmaking. What often confounds land use issues is that while community matters, it is not clear what we mean by community. Much is done in the name of community—from building gated residential areas to creating regional governments—but little is done to define the term or to clarify our expectations about what community should achieve in major local land use decisions. In practice, a default notion of community has come to prevail as a guiding value in many such decisions. This default view seems to be shaped by criteria inspired by the idyllic Jeffersonian self-sufficient agrarian community of the early republic. Some of these communities do exist, but not many. It is virtually certain that only rarely will more such communities be created in any sort of authentic way. Few gated residential areas and even fewer regional urban areas reflect the scale, the economy, or the values of rural village life. Nor is it at all clear that they should. Both metropolitan regionalists and bioregionalists have sought to enlarge our understanding of community by embracing localities that should be linked together in an urban area that is inclusive of a range of places: workplaces, residential areas, gathering places for entertainment, educational institutions, and many other facets of contemporary life that are connected ecologically. Both have much to offer in drawing our attention to the value of placing a local area in a broader political context to identify connections that underpin its identity. A regional perspective on land use matters, and it allows us to escape our striving for what now seem to be artifacts of the past, those only apparently self-sufficient rural villages such as Bedford. Yet in recognizing the value of regions, we should not neglect either the rich variation among neighborhoods within regions or the broader connections that go beyond regions. There are limits to traditional conceptions of spatially bound communities, but it does not follow that there should be elimination of a strong local voice. The challenge for local land use decisionmaking is surely to find

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some balance between local autonomy and the development of sustained and substantial connections both to nearby localities and to higher levels of government that shape the range if not the quality of the choices local areas may make. It is also apparent that local decisions regarding land use are frequently consequential for nearby localities. The architecture of land use decisions should avoid hardand-fast conceptions of bounded communities. The more community can be understood as a fluid conception that recognizes when local land use decisions require not only the engagement of a local residential population but also institutionalization of a role in decisionmaking for the wider area, the more community can be seen as rising out of a set of connections rather than as set apart from its broader context.

Notes 1. See, for example, Berry 1993 and Kemmis 1990. 2. Figures obtained at . 3. Ironically, Bedford does have a women’s correctional facility within its boundaries. 4. “The Ecologist/ICM Poll,” The Ecologist Online, . 5. Figures obtained at the National Association of Home Builders Web site, . 6. Woodruff v. North Bloomfield, Civil Case 2900 (N.D. Cal 1884); Barry P. Goode (1999), “On Environmental Law: The Hydraulic Mining Cases,” ABTL Report 9, no. 1. 7. Hadacheck v. Sebastian, 239 U.S. 394 (1915). The Court’s reasoning in Hadacheck is especially interesting in light of Lucas, which is described in Chapter 2. Lucas held that the enforcement of traditional nuisance law is an exception to the idea that the deprivation of all reasonable beneficial use is a per se taking requiring compensation. But the Lucas Court limited this holding to nuisances already recognized in law; it did not include the possibility that the legislature could newly declare something to be a nuisance, as in Hadacheck. The case holding zoning constitutional is Euclid v. Ambler Realty, 272 U.S. 365 (1926). The description of the history of zoning given in Euclid indicates that zoning was first used some twentyfive years earlier, around 1900. A number of zoning-law cases followed Euclid, including most famously Nectow v. City of Cambridge, 277 U.S. 183 (1928), which invalidated a zoning ordinance because it made the owner’s property nearly worthless and did not further the overall goal of the zoning scheme to promote the public’s health and welfare. Nectow now stands for

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the idea that zoning regulations must be rationally related to a reasonable state purpose. 8. 43 U.S.C. § 1701(a)(2) 1976. 9. Paris Adult Theatre v. Slaton, 413 U.S. 49, 62 (1973). 10. For a Kantian critique of such exclusionary zoning, see Holtman 1999 and our discussion in Chapter 2. 11. City of Boerne v. Flores, 519 U.S. 1088 (1997). 12. Erin Neff, “Guinn Seeks Alternative to Session; Guinn Searching for Other Sources to Fund Yucca Campaign” Las Vegas Sun, March 28, 2002. Available at . 13. SP Bill 44, introduced in the Scottish Parliament, November 27, 2001. 14. Jayson Blair, “Failed Disney Vision: Integrated City,” New York Times (September 23, 2001). 15. Morris Newman, “Linking Disney to Other Anaheim Sites,” New York Times (September 23, 2001). 16. Michael Wolcott, “A Mountain Town Locks Out Gated Communities,” High Country News (July 6, 1998), 1. 17. Steven Lagerfeld, “On Gated Communities and Democracy,” Civreviews (January–February 1998). Available at .

5 Beyond Locality in Land Use Decisions

I

n the preceding chapter, we argued that the long-standing reliance on exclusionary models of territorial representation leads to distortion in land use decisionmaking for it fails to draw connections to wider spatial concerns. Land use decisions must recognize that contemporary life takes place over a broader spatial range than it did a number of decades ago, and questions of land use should engage not only where people live, but also where they work and play. In the present chapter, we extend our analysis beyond the regional focus examined in Chapter 4 to explore the interrelationship between land use decisions and people who live at considerable distances from one another. Contemporary life features far more interconnectedness than was apparent in the past. A community may be scattered around the planet, but tethered to a particular locality through a shared sense of place. Those who live far away may have claims to engagement in local land use decisions. Conversely, local residents may also have claims on those who live at a distance, claims that we explore in Chapter 6. It is widely recognized that impressive numbers of people in many parts of the globe move from one place to another during their lifetimes. Indeed, many people move more than once. Still, relatively little recognition is given to such transient populations’ concern for and interest in the places they have left or in which they now sojourn. What roles might this increasingly large number of people play in local land use decisions where they once lived, where they 145

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regularly visit, or where they live for a portion of the year? How should such ongoing movement be integrated into the structure of local land use decisions? To ignore this question is to ignore a central reality of contemporary life. Policymakers often approach local land use decisions with the view that a local area is the equivalent of a stable residential community. This picture further assumes that the community may remain stable in the same locale for generations and that such stability is a good thing. Decisionmaking structured according to this restricted vision is not likely to address the concerns of people who do not live locally and those who live locally only part-time. Falling outside of this picture are individuals who have attachments to more than one locality, people whose local attachments grow out of recurring visits to the same locality, and people who own or rent homes in more than one area. Large numbers of seasonal workers labor in an area for only part of each year, perhaps harvesting crops or playing professional sports. In these and in many other circumstances, it seems reasonable to expect that distance does not necessarily erode local interest. Perhaps the experience of separation only intensifies concern for place. Our analysis in this chapter focuses on people who have attachments to localities at a distance from where they live and on the consequences of such attachments for land use decisions. Two patterns of attachment stand out as having been strengthened by the growth in global communication and travel over the past several decades. One is that of extended communities of people who, although they live elsewhere, share identities with local community residents and with each other. Such extended communities are composed of people who live away, sometimes far away, from the local area but have had and continue to have some direct experience with the local community. The second pattern we see in what we term magnetic localities, identified areas that for a variety of reasons capture the support and commitment of individuals who may have little to no direct experience with the specific area in question. We contend that extended communities, more so than people attracted to magnetic localities, have claims to participate in local land use decisions. To develop this contention, we suggest that with some modification Albert Hirschman’s work in Exit, Voice, and Loyalty (1970) may be used to understand how people living at a distance have come to have a voice in local land use decisions.

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The Model of Exit, Voice, and Loyalty When faced with an organizational or community decision that he or she strongly opposes, what can a member or citizen do? Hirschman argues that an individual in such strong opposition to a decision is likely to have two options: loyalty to the community or organization to exercise voice in such a way that the policy is changed, or exit—that is, departure from the community or organization altogether for another group that holds a position closer to the disgruntled individual’s own. The individual’s action is shaped by the nature and depth of loyalty to the community or organization and the feasibility of exiting to an organization or community with a more attractive position on the issue. According to Hirschman, the depth of loyalty usually holds “exit at bay” and “activates voice” (1970, 78). In some cases, however, loyalty may produce in members a commitment to suffer in silence, at least for some period of time. A classic illustration of Hirschman’s model is offered by the case of parents who must decide whether to keep their children in a particular school. A major change in the school’s curriculum that the parents oppose leads to a quandary. Do the parents keep the child in the school and fight against the curricular change, or do they move their student to another school? The likelihood of transferring children to another school increases if an alternative school is nearby, if there are few or no additional costs involved, and if the alternative possesses the desired curriculum. If no viable educational alternatives exist and the parents’ opposition is too great for them to remain silent, then the parents may have little choice but to commit the time and resources needed to persuade their children’s school to adopt the curriculum they favor. Local communities may be analogized to school districts, for local governments often have considerable latitude in determining land use within their borders. If a local resident opposes a specific land use policy, the choice is apparent. The loyalty the resident feels for the community may be deeply abiding, so much a part of the resident’s identity that she or he does not see exit—that is, moving to another community—as a viable option. In that case, if opposition is significant the resident may voice objections and work to change the policy. But if there are other similar communities nearby, and if it is relatively easy to sell the resident’s existing home and with accept-

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able transactional costs purchase a comparable house in a similar community, the exit option may seem quite attractive. The implications of the Hirschman model for local land use decisionmaking are significant. In a residential community where loyalty to the local area is deeply rooted, residents are likely to be prepared to do battle to secure the services and land use policies that sustain the existing residential nature of the community. Where loyalty is weak and exit options are readily available, people who could provide strong voices to sustain the identity of the community may leave, leading to a decline in the quality of services and an erosion of land uses compatible with a residential community. The parallel with education is instructive. The quality of the curriculum in public schools is often linked to the level of interest and support exhibited by parents. If there is a perceived decline in curricular quality and there is no easy exit, parents are likely to voice objections and fight to restore quality. But if resources such as scholarships or tax credits are provided for parents to send their children to nearby private schools, then exit rather than voice may be the consequence. The result may be diminished attention to the curriculum and curricular quality. Hirschman’s model is insightful for explaining some aspects of local land use decisionmaking. But there is also value in revising the model by challenging the assumption that only residents living within the borders of a local community can exercise voice. Those who have exited may also continue to exercise voice. Communities are not what they used to be. This is an era of extensive travel, and people frequently take job-related or pleasure-seeking trips. (To take one example, some 40 million trips per year are made by residents of the United Kingdom to the other countries of the European Union.)1 It is an age of considerable personal communication and ubiquity of public images. It is a time when people living far away from each other can share deep attachments to specific, distant localities. The frequent movement of people and the ease of global communication seem at first glance to challenge the notion that people can develop, let alone sustain, a sense of place. On the contrary, recurring visitation and ease of communication may strengthen attachments. The desire to keep connected may reinforce a sense of location and commitment to a place among people living far away. The opportunity to take an active role, to give voice in the shaping of land use decisions for a specific locality, may draw the attention of

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people who are locally attached but not locally resident, or who are locally resident only for part of the year. Loyalty may transcend residential boundaries and open up very different ways to approach the question of who is and who should be engaged in land use decisionmaking. Moreover, it is not infrequent for local residential populations to encourage their distant members to sustain active interest in local affairs. The choices for participation appear to be different in an age characterized by ease of communication and increased movement. Loyalty may not entail staying within the borders of the local community. Physical departure does not necessarily mean exit or rejection of efforts to exercise voice. Consider as an example a common pattern in migration for employment. If a steady stream of individuals leaves a local community because of inequities and stagnation in the job market, they may in time combine in a group that is loyal to the home community and favors fresh initiatives in that community to facilitate economic change. The act of departure may over time provide the means and the tools to reshape decisions made back home. In the same way, people who are new to an area or who live or work part-time in a new locality may seek voice but may not be exclusively loyal to the communities where they sojourn. The politics of movement suggest adapting Hirschman’s useful framework in order to explain why increased frequency of movement does not necessarily attenuate the exercise of voice in local land use decisionmaking. Globalization, which on one level seems to be all about tearing down walls that have preserved distinctive localities, may also work in powerful ways to sustain attachments to such communities among people who no longer live there. Globalization, that is, may foster both extended communities and magnetic localities in a rich variety of ways. The identities of extended communities may be forged by experiences of part-time residents, shaped by recurring visitation, or formed by memories of family origin and by cultural ties to the community. These ties may embrace both those who live locally and those who live elsewhere. Extended communities may exist within national borders, but given patterns of migration, they often transcend them. For example, many who grew up on Indian reservations now live elsewhere; approximately half of all Navajo live away from the reservation. Nonetheless, these physically distant Navajo often keep in close touch with their Navajo homeland. In this sense, there

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may be parallels between the Navajo who live away from the homeland and people in many parts of the planet who leave their respective locales to work abroad for years at a time. These guest workers often remit funds to their home communities even decades after they have left to work elsewhere. These remittances often serve as a central source of support for the families who remain at home, and they may also provide investment capital for the home community. In contrast to extended communities that are characterized by direct ties, magnetic localities capture interest among people who simply are attracted to an area. Many local areas have engaged the attention and concern of people living elsewhere. Popular U.S. examples are the Pennsylvania Amish country, New England villages, Wyoming ranching communities, and pueblos in the Southwest. Distant observers may develop attachments to a local area because its beautiful landscape serves as an aesthetically pleasing backdrop for adjacent localities, or because the area’s population exhibits exemplary values and conduct. Attachments may also stem from the converse: external observers may believe that local residents are harming the environment or each other with their actions. People may become attracted to an area by viewing pictures or films rather than by direct engagement or even observation. The attachment to what we are calling a magnetic locality is to the place or to the life people are said to lead in the place, rather than arising from strong ties to the actual people living in the local area.

Global Change and Local Identity Globalization comprises the fundamental economic, social, and cultural changes brought to nearly all parts of the planet by the rise of free-market capitalism. The global free-market system emphasizes the central importance of international trade, deregulation, and private enterprise at the expense of the state sector. Critics of globalization see the emphasis on export-led economic growth as undermining the economic, social, and environmental protections afforded by traditional nation-states. They further charge that the attenuation of state borders has promoted global mass culture and weakened local self-sufficiency. This stress on understanding globalization as participation in the world market generates significant concern over how secure the

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future is even for those apparently doing well. In his popular book on globalization, The Lexus and the Olive Tree (2000), Thomas Friedman contrasts the fear of annihilation generated by the Cold War with the anxiety associated with globalization. Such anxiety is generated by the fear that a job or community could be changed at any moment by anonymous economic and technological forces. Globalization is very much about contingency, about what may happen if the local economy does not become more competitive or if a new technology comes online. Even those who see in globalization the possibility of a better standard of living for the planet or of a reduction of barriers among peoples do not see in globalization the unfolding of a grand design. Rather, they see the indeterminacy of global events and the need to make the most of them. Where globalization produces anxiety about future prospects, it generates considerable fear of a planetary monoculture in which people eat the same food, watch the same films, and inhabit the same formless metropolitan areas, regardless of where they live (NorbergHodge 2001, 245). Other critics, such as the International Forum on Globalization, see local and indigenous communities losing power over their future as global and international institutions assume a greater role in shaping the direction of local communities and local cultures.2 A number of communities and groups express growing concern for their individual identities as people and products increasingly cross borders. Loss of cultural distinctiveness is the feared end result. The premise of this fear, according to Birgit Meyer and Peter Geschiere, is the assumption of classical anthropology that the world is a mix of separate and distinct cultures “each with its own essence, so that intercultural contacts are understood in terms of loss of authenticity” (1999, 9). On this basis, the moral claim of authenticity may also have a darker side, as when it is used to keep immigrants out or to resist participation in global markets. Local cultures have played the local autonomy card as a justification to preserve odious local practices, from slavery during the U.S. Civil War to the maintenance of serious economic inequities in the allocation of land holdings in the years since. Globalization is characterized by expanding connections, broadening flows of products, and ideas and images that transcend borders and produce greater ranges of choice for some; its indeterminacy suggests for some observers a renewed emphasis on the local. These observers hypothesize that instead of producing global homogeneity,

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globalization is more likely to lead to the flowering of the local at the expense of the traditional nation-state. Easy movement of funds, adaptability of telecommunications, and facility of transport all allow local communities to capture attention for their concerns to a degree that was unprecedented at the end of the twentieth century. Local communities may establish links with international movements that promote growth, cultural preservation, and ecological integrity and that thus enable them to defend their interests. In his discussion of the human implications of globalization, Zygmunt Bauman argues that globalization produces not cultural unification but just the opposite. He argues that the global scene produces a “matrix of possibilities”: “Indeed, the local industry of selfdetermination turns into a globally determined characteristic of the late 20th century, post modern or late modern world” (1998, 304). This understanding stresses the choices now existing for many more people around the globe than in the past. Anthony Giddens’s (1999) work is in the same tradition. Giddens attributes to globalization the revival of local cultural identities in different parts of the world. In his judgment, local nationalism sprang up as a response to globalizing tendencies and the weakening hold of the nation-state. The everexpanding technologies of communication and the ubiquity of air travel have not only facilitated choices for many people about where and how to live, but have also facilitated connections for following the affairs of communities quite distant from a place of residence. Many nongovernmental organizations and many other groups and individuals are able to communicate with each other successfully, independently of the state. Even powerful states such as China seem much less able to regulate what their citizens learn. States also seem much less homogenous within. For example, French foreign minister Hubert Vedrine argues that there is a role for the French state in limiting the adverse impacts of globalization, given that France is a compact and very homogeneous state.3 But is it homogeneous to the extent Vedrine claims? In recent years, the unity of the French state has been challenged by demands arising within and outside France that the state support many more non-French linguistic groupings in France, ranging from Breton to Basque. It seems that global changes, in conjunction with the strengthening of the European Union (EU), have invigorated demands for local provincial autonomy even within what was once described as indivisible France. Many other contemporary states are, like France, challenged

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by subnational movements seeking greater measures of autonomy for regions and communities in relation to the nation-state. Perhaps in no part of the globe is the challenge to the conventional understanding of the nation-state more apparent than in Europe. The rise of the European Union has challenged sovereign member states and presented new prospects for their respective subnational divisions. A recent illustration of both sorts of pressure is the EU’s adoption of the Euro as currency. The United Kingdom has so far declined to give up the pound for the Euro, but it has promised to hold a public referendum on the question. A complication of the referendum is that some evidence exists that the Euro vote would be affirmative in both Scotland and Wales, but negative in England. This outcome could lead the Scottish and Welsh national parties to renew their challenges to the unity of the United Kingdom. Territorially based regions located within nation-states, such as Quebec, Scotland, and Wales, face challenges from groups and subdivisions within their own boundaries, moreover. The First Nations in Quebec and the residents of the Highlands and Islands in the north of Scotland draw attention to the limits of cultural and demographic homogeneity in a period when rethinking the nation-state on a subnational level has gathered interest. Members of the First Nations in Quebec—that is, descendants of the original inhabitants of Quebec who were there before the arrival of the French settlers—may not find arguments advanced by the French-only movement persuasive in the least. In most nation-states, homogeneity is hard to find, even at the subnational or provincial level. The efforts of local communities to cultivate local identities are often strengthened or even created by those who have left or who only visit. Perhaps absence and technologically enhanced images of the home community make the heart grow fonder and thus build identity. Equally persuasive is the argument that the locality itself reaches out to sustain the attachments of those who are now at a distance. The old dichotomy of town and country makes less sense today in a new era of mobility, communication, and relationships to localities that no longer fit in the traditional understanding of spatially fixed communities, whether located in the countryside, the suburbs, or urban areas. Nadia Lovell understands a sense of place as internalized; it is a landscape where we are no longer strangers (1998, 206). This sense of place matters, and it can matter both to those who live in the actual place and to those who live elsewhere

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but share the sense of place through belonging to an extended community. It is a paradox that as the world becomes increasingly interconnected there is at the same time a celebration of the national, the subnational, and even the immediately local community. This transnational interest in the local is expressed in magnetic localities that attract the interest of outsiders and extended communities of emigrants who remain connected to areas where they used to reside. Transnational interest may be reinforced by the global movement of people, by popular and less popular cultural products, and, of course, by international trade—at minimum globalization is the emergence of a world economy driven by international trade. People have long possessed strong interest in what might be available to them in other parts of the planet. Peppercorns and silk are two products that for hundreds of years have been desired in the West. Oil and the bark of the yew tree have captured more recent interest. The desirability of such products has little or nothing to do with where they are found or who gathers or produces them; only their availability, preferably at the price and in the quantity desired, is relevant. In the area of land use, then, is the emergence of a world market really new? It is safe to say that the search for natural resources and new markets has driven many land use decisions around the globe for centuries. It was a common understanding in the nineteenth century that decisions made in London led to excavation of mines in South Africa. Numerous other decisions made in a halfdozen European capitals resulted in dramatic changes in land use from China to Chile. So what, if anything, has changed? In some ways, very little has. Now more than ever, the land people use and the ways they use it in many parts of the globe are shaped by decisions made in centers of global finance nearly always distant from the land at issue. But it is the “more than ever” that matters, for what is now termed globalization describes both a rise in international trade and a great expansion of interactions through communication and travel among peoples living at great distances from each other. Jan Scholte (2000) has identified a number of areas where global connections have greatly expanded, including telecommunications, banking, production chains, marketing, climate change, deforestation, marine pollution, consciousness of global events, and global solidarities. Tourism is an impressive aspect of global interaction that contributes to links between localities, even ones at some distance from

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each other. Consider Spain and the annual migration of visitors to that sunny country. In 1955, Spain welcomed 2.5 million foreign visitors. Forty years later, in 1995, over 63 million foreign visitors vacationed in Spain, an impressive number of people for a country of 39 million inhabitants. One estimate is that about 16 percent of Spain’s GDP is generated by tourism. 4 If the analysis is confined to the Spanish Mediterranean coast, the proportion of income generated by tourism is surely much higher. It is reasonable to assume that millions of these visitors will return year after year to the same locality. Some of these, perhaps numbering in the tens of thousands, may plan to retire to Spain. Thousands of others, after having visited the country, may wish to attend school in Spain. Many others may become deeply interested in the Spanish environment or form a deep appreciation of one of Spain’s intricate regional cultures. The likely result of this annual visitation is that over time many of Spain’s local communities will develop rich and varied sets of connections with people who live at considerable distances for most of the year but come to play substantive roles in shaping the future of these local Spanish communities. Taken together, this diverse range and high absolute number of interactions has brought about qualitative shifts in the connections that many people have with one another. These connections have generated new choices for some portions of the world’s population and new challenges for others. In some ways, the rise of global connections has provided leverage for local areas in dealing with subnational and national governments. In other ways, local areas are challenged to justify patterns of behavior ranging from farming practices to gender relations in the light of global models that they may not share. The desirability of globalization and its possible benefits and harms are, of course, the subject of intense debate that we do not intend to foreclose here. Our present interest is in the implications of expanded global connections for local land use decisions. Such connections not only have placed local land use decisions in the context of international markets, but have also linked such decisions to environmental and cultural considerations. Economic, social, and political activities increasingly transcend regional boundaries and national frontiers. If such activities do not always challenge existing territorial states, they certainly can complicate policymaking on issues as diverse as interest rates, global warming, and the death penalty.

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Magnetic Localities, Extended Communities In the space between the local and the global, increasingly effective linkages between localities and global movements are emerging. Extended communities and magnetic localities are two of these linkages. In our judgment, extended communities are more likely than magnetic localities to forge enduring ties between local areas and distant populations and should be accorded voice in local land use decisionmaking. Given the long-standing commitment to linking culture to exclusive physical space, identifying communities that transcend borders may seem an elusive goal, but in fact communities are ever expanding. Magnetic Localities The ease with which messages and images are transmitted around the globe means that local communities are now often in a better position to capture the attention of groups and individuals living at a distance from the local area. The same technological tools are available to enable groups and individuals to become interested in areas quite distant from and unconnected to themselves. The capacity to express interest and sympathy, and indeed the commitment to helping people who live in areas distant from where the caregiver grew up, are hardly new. The Peace Corps, Doctors Without Borders, and Oxfam are several of many organizations in which people exhibit a caring interest in a distant population that is at risk. A challenge for some environmental organizations that have a national membership made up of people who are not necessarily connected by local ties to an issue of intense local concern is the fear that a local residential population will be excluded from the decisionmaking process or overwhelmed by distant organizations that are passionate but remote from the local area. The Sierra Club, for example, responded to the challenge by developing chapters throughout the United States and Canada, in part to substantiate the justification that its grassroots organization is not solely rooted in California when it engages with environmental issues in other parts of the country. In contrast, the Wilderness Society is a national membership organization that has restricted its capacity to mobilize locally because it has not established local chapters. The Southern Utah Wilderness Alliance (SUWA) recruits members both in Utah and nationally, but local residents perceive its

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advocacy of preservationist goals in areas such as the Grand Staircase of the Escalante as outside intervention. Attention that is focused on a magnetic locality may not endure for a long period of time unless factors come into play to help sustain the interest of people at a distance. Nonetheless, an identified issue may prompt intervention and lead to consequential regulatory change. A collection of communities may seek to cultivate what they judge to be sympathetic constituencies who live elsewhere. The crofting communities of Scotland, for example, have recognized the value in finding supporters in other places. The Crofter’s Union Web site invited people from anywhere on the planet to consider becoming friends of the crofters.5 The risk of such sympathetic attention for communities that wish to be left alone is that it may actually change the distinctive cultures they wish to preserve. A number of Amish communities have left Pennsylvania to start again elsewhere, partly because their numbers are growing and partly because they desire greater isolation from external attention they did not seek. The level of popular attention focused on an Amish farming community or an Indian pueblo or a New England village may be so sustained that the community’s very identity is changed by the intensity of the publicity. External fascination with a specific community may result in popular initiatives to maintain the community as though it were a living museum. Preservation may be a goal that is shared by the residents, but the people drawn to magnetic localities do not have direct local ties that lead them to support preservationist goals. In contrast, the people who make up an extended community are drawn to a specific locality because they have direct ties—of work, seasonal residence, recurring visitation, family cultural affinity, and so on. Extended Communities The recognition that contemporary life involves—and is likely to continue to involve—a good deal of movement strengthens the argument that community is not necessarily place-bound. Robert Booth Fowler warns that “community is not a place or a thing; it is a calling, a struggle, a journey. It is worth engaging, but its form is not obvious now nor will it be tomorrow” (1991, 161). Barry Wellman argues that while contemporary communities may sometimes be place-bound, for the most part they are not as local as they used to be

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(1999, 1–48). Local populations may never have been particularly cohesive, but individuals do belong to networks that exist over time and space. These networks can and frequently do serve as supportive communities that generate and sustain ties of affection defined by boundaries that exist in nonspatial form. Thus communities are sometimes not defined by place. Moreover, both Fowler and Wellman argue, even when communities are characterized by place, their members need not spend a lifetime together in a single locality to develop shared attachments and commitment to the community’s local space. If communities are shaped by attachments to a specific landscape, then it seems reasonable to suggest that an ancestral village, a shared vacation area, or a shrine that evokes powerful memories of loss and sacrifice are places that sustain a sense of community even for those living a great distance from the actual site. Consider how movement can play a role in this understanding of community. Over time many towns and districts come to serve as welcoming centers for the newly retired or for people attracted to university towns. Though people come and go, frequently what is expected from these towns remains constant—for example, an environment in which to be a student. Other communities depend on visitors who tour nearby antiquities or enjoy recreational opportunities. Contemporary life may be viewed as a sojourn in various places at different times in the course of a life span. In many ways, the local community welcomes or seeks out the sojourner as much as the sojourner seeks out the locality. Local communities may court the support of distant people who have ties with the community as a way of sustaining a sense of place that is mediated through land use policy. People living even at a great distance from a local area may nonetheless possess a sense of place that is shaped in many ways: by recurring holiday visits, the ownership of a second home, seasonal local employment, or intense attachment that was formed at a specific phase of life, such as the college years. Lasting attachments to local communities may be forged through cultural, religious, or familial ties. Such enduring ties may result in former residents’ providing help to the area even decades after their departure. All of these forms of local attachment to areas where people do not have their sole residence are likely to be strengthened by the ease of transport and the accessibility of communication. Members of such extended communities may from time to time

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express strong interest in and deep concern about local land use decisions. Proposed changes in the character of a rural village, shifts in zoning in a summer home community, provision of services for seasonal workers, or the elimination of religious structures all are issues that may engage specific extended communities. The assumption that localities are like small islands that can be overwhelmed by a tidal wave of preferences from those who live far away should be tempered by the recognition that some local communities seek outside investment, try to lure new residents, and hope to form coalitions with sympathetic external constituencies to secure local interests. Managing these ties is an ongoing challenge for communities that enjoy being apart from a larger population base but nonetheless need the resources and support that other communities can provide. The goal of such communities is to recognize the need for part-time residents and outside resources and visitors, while at the same time maintaining the distinctiveness of local identity. Three sorts of extended communities build a case for the validity of extended constituencies having a voice in local land use decisionmaking. In seasonal communities, people own or lease second homes, usually weekend or vacation homes. In migratory labor communities, people work part of the year in endeavors ranging from harvesting crops to staffing seasonal recreational attractions such as winter sports facilities and summer camps. Finally, identity communities sustain familial or cultural connections with the local area. In each of these situations, nearby residents may implicitly recognize that their local area is defined in large measure by those who live elsewhere. Seasonal communities. In Granada, Spain, the second home of the Moorish rulers is separated by a modest ravine from the winter palace, whose turmoil the rulers sometimes sought to escape. Apparently in earlier ages it was a sign of some prestige to have a second residence relatively nearby, and, of course, it still is for many. But by the mid- to late nineteenth century, important figures such as Queen Victoria began to take their holidays outside of Britain. Queen Victoria captured a good deal of interest among other well-known Europeans by traveling to the south of France during the winter to escape the English winter. Today it is common for Europeans to own or lease second homes in France, Spain, or Italy that serve as seasonal retreats. Other Europeans keep weekend homes in the Alps or the

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Cotswolds, and many people in the United States have weekend homes in places such as Lake Tahoe, the site of the Suitum controversy, and the Hamptons on New York’s Long Island. Seasonal homes are also found in impressive numbers in Hilton Head, Santa Fe, Jackson Hole, Telluride, Palm Springs, and Palm Beach, and beside hundreds of lakes in Minnesota. It is now well-established that Europeans move often in search of the sun and the sea. First they travel on vacation, then they return regularly on visits or purchase second homes. Finally, many retire in countries away from where they grew up and worked. Significant numbers of older Britons have moved to Tuscany in Italy, Costa del Sol in Spain, and the Algarve in Portugal. This influx has affected local communities in these regions and has implications for local planning, social welfare programs, and the provision of health care (King, Warnes, and Williams 1998). The importance of tourism as a force in building extended communities within the European Union is apparent in the number of people who travel away from home annually. Tourism is a mass activity and an important component of the economy of the EU, generating about 20 million jobs, 30 million of the EU’s external trade in services, and 12 percent of the EU’s gross domestic product.6 In 1997, more than 50 percent of Europeans left their home countries on a vacation. In the Netherlands, Sweden, and Denmark that proportion averages around 70 percent. The major reason for not taking such a vacation is financial. People living in the south of Europe, in countries such as Greece, Spain, Italy, and France, are much more likely to take their vacations within their respective countries. But among Belgians and Germans, 73 percent choose another EU country for vacation. On average, of Europeans traveling to another country just under 20 percent choose France, and the same percentage chooses Spain. Only 9 percent travel to a country outside the European Union. A coalition of citizens groups led by the Austrianbased Friends of Nature International recently issued a report recognizing that half of all European air transport is leisure related. 7 Concerned about the environmental effects of such extensive tourism, these groups recommend other forms of transportation, longer stays for tourists, and tax levies on large tourism facilities outside of urban areas. They project that tourist visits along the Mediterranean will climb from 135 million visits in 1990 to between

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235 and 353 million visits by 2055. They want to increase and harmonize taxes on second homes as well. The second-home issue is a source of growing interest in Europe, and it is often cast in the negative. It has been estimated that the number of second homes within England rose from 215,000 in the mid-1990s to 248,000 in the late 1990s.8 No reliable data apparently exist for Wales. Estimates are that Germans own 600,000 homes outside of Germany. A key theme in the negotiations between the European Union and the eastern European states seeking admission to the EU is the protection of rural lands. Some eastern European countries, such as Poland and Hungary, express the fear that because farmland in the east is inexpensive, once the eastern European countries are admitted to the EU, western European speculators will buy up the countryside and develop some of the land for second homes.9 In the United States today, as for at least half a century, it is common for retired people to move to warmer locations and establish new residences far from where they spent their working years. Some retired people have sufficient income to afford more than one home. They may opt to declare residence in the state that provides both a more pleasant living climate and a more friendly tax climate. States such as Nevada and Florida encourage older people to retire within their borders and recognize that for part of the year they will live elsewhere. About 9 million households in the United States own more than one residence at the same time, and over 3.2 million single-family homes are currently used seasonally in the United States.10 The growth in the number of seasonal homes and rentals, along with the rise in recreational spending, has contributed to shifts in the economic fortunes of a number of counties in the United States. Counties that traditionally relied on fishing or farming have now moved into recreation and tourism. Calvin Beale and Kenneth Johnson (1998) examined “recreational counties” using census data. They used several criteria to determine whether a county should be considered recreational. The first factor was the proportion of the population that worked in the entertainment and recreation industries at the county level (those working at hotels and resorts made up the largest component). The second factor was the percentage of housing units that were vacant and being held for seasonal or occasional use.

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The third factor was the percentage of income derived from amusement, recreation, and lodging. Using these criteria, they identified 285 counties, some 12 percent of all counties in the United States, as recreational. Such counties have experienced sustained population growth from net in-migration, often exceeding the growth experienced by nonrecreational counties. Recreational counties often face significant challenges. They are sensitive to shifts in tastes and to economic downturns that can cause a decrease in visits. Sometimes they attract owners of high-end seasonal homes while people who clean the homes and work in the hotels and eateries are unable to afford housing in the locality. Owners of second homes are acutely conscious that since they live in a local area seasonally they may have only limited influence on local governmental decisionmaking. Decisions to promote the expansion of the village’s population, to raise property taxes, or to introduce light industry all may benefit or harm distant residents. Second-home owners may be concerned that because they cannot vote in local elections where they own a second home, they will be subjected to higher taxes. In some states, second-home owners have organized to lobby policymakers about local taxation policy and other regulatory issues. An example is the Wisconsin Out-of-State Land Owners Association (OSLO), a coalition of Wisconsin property owners who do not declare Wisconsin as their state of primary residence. OSLO claims that twenty-five thousand residential land titles in Wisconsin are held by people who live elsewhere.11 Migratory labor communities. Farm laborers, musicians, federal politicians with local home constituencies, consultants, and professional athletes are people whose jobs take them on the road, often to the same places for a period of months each calendar year. Professional athletes are a particularly apt example, for a professional sports team is closely identified with a specific locality. If players do well, they are the toast of the town, capturing the enthusiasm and affection of the local population even though they only seasonally connect to the hometown fans. Once the sporting season is over, players may return to their initial hometowns, frequently not the urban centers for which they play. Some players even spend the offseason in a different country. Local residents are often willing to consider athletes who are seasonal residents full-time members of

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the community even though they may not live there nine months of the year. What matters is what the player has done for the locality. In places such as Disney World, resort workers are employed throughout the year. But many other workers at local theme parks are employed only for specific seasons. Such workers may move to Vail, Park City, or Jackson Hole during the ski and snowboarding season and go elsewhere for the summer. To take another example, the northern tier of U.S. states, from Minnesota to Maine, is filled with summer camps catering to a range of young people. These camps are staffed by seasonal workers who, in combination with the campers, expand the populations of rural villages during the summer months. The workers who ebb and flow in the recreation and tourist industries are obviously an important component of the U.S. workforce. Migrant workers are perhaps the set of workers that has longest been regarded as performing an important service, but they face the most significant challenges to being perceived as locally connected residents. In the nineteenth century, when urbanization drew many people from the farms, it became standard practice for Londoners to leave the city during the harvest and work on the farms until the crops had been picked. Today it would be highly unusual to see people streaming out of Los Angeles to pick strawberries in the Imperial Valley or from London to pick raspberries, but the need remains. In general, the tenor of the European debate over immigration and asylum has been how to prevent people from outside Europe from entering EU countries. But the need for farmworkers creates a countervailing current. The British National Farmers’ Union has urged the Labour government to expand programs that allow seasonal workers into Britain to harvest crops so they can extend their stay through the autumn.12 Farmworkers on both sides of the North Atlantic come from great distances and move around the countryside as crops come to maturation. Today farmworkers, particularly migrant workers, are more likely to come from less-well-off countries, such as Mexico for the United States or Morocco for Spain, than they are to come from within the borders of the host country itself. A March 2000 Department of Labor survey of U.S. farmworkers describes a population in poverty. Just under three-quarters of all farmworkers earn less than $10,000 a year. Only 14 percent of farmworkers work for their employer year-round. Approximately 42 per-

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cent of farmworkers, who are overwhelmingly from Mexico, have their home bases abroad. It is thought that 77 percent of farmworkers were born in Mexico. Some 39 percent of migrants are shuttle migrants, which means that they live 75 miles or more away from the farms they work. Another 17 percent follow the crops. About 700,000 workers go back and forth between Mexico and the United States and another 280,000 follow the crops from farm to farm.13 Given that few farmworkers have year-round jobs with the same farm operator and that half of the itinerant farmworkers have children, many children move often and are likely to change schools throughout the course of a year. During the 1990s, as the economy improved, greater numbers of farmworkers came from abroad, and housing costs climbed for migrant workers. Nearly all the programs designed to help farmworkers originate with and are funded by the U.S. federal government with apparently little engagement by localities. The emphasis on federally funded programs may further disengage the local community from seeing migrant farmworkers as even part-time residents. The value of these farmworkers may become even more apparent as the number of workers from Mexico permitted in the United States is scaled back because of national security concerns. When harvest time comes at the end of the growing season, many workers are needed immediately for short periods of time. They may move from local farm to local farm depending on the type of crop they harvest and when that crop is ripe. Comparable experiences can be found among Moroccan agricultural workers who come to Spain during the harvest season. Because shifts in land use that change the character of the local economy can either increase or reduce the number of farmworkers, it may be a reasonable inference that seasonal workers have a claim to be consulted about such dramatic shifts. While farmers often have been strong supporters of allowing migrants into a country to harvest their crops, for the most part it has become harder on both sides of the Atlantic to gain entry into a country even for seasonal employment. Barriers have been strengthened against asylum seekers, and fresh efforts have been made in Europe in particular to restrict illegal immigration. Justifications for the tougher restrictions on immigration into EU member countries vary, but often they center on problems with domestic unemployment, the risk that few jobs will be available for immigrants, and the financial

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burdens that will have to be borne by the social welfare systems of EU member states. Sometimes the concern is also voiced that people from quite different cultures will face challenges in adjusting to European society. But there is an irony to the European resistance to immigration, given the declining birthrate, which in some parts of Europe is below the rate necessary for replacement of the population, and the corresponding need to fund health care and pension programs for older generations of Europeans as younger generations continue to shrink in numbers. The aging of the European population has caused concern not only about older Europeans moving to the southern coasts of Europe to retire, but also about the capacity of the European economy to support an ever-expanding nonworking population. There have been calls to increase the flow of immigrants into Europe as a way of increasing contributions from the workforce. Joseph Chamie, director of the Population Division of the United Nations, has suggested that because other countries have much higher birthrates than do European nations, the Europeans should give thought to facilitating immigration to make up the shortfall in their working populations.14 Identity communities. Perhaps one of the most striking examples of extended community is the relationships among people who have left Mexico in search of better employment opportunities in the United States. They live away from their towns and villages of origin in Mexico, but their concern for and commitment to their original homes remains high by most measures. It is estimated that Mexican communities receive 8 billion dollars annually from former residents. These remittances now are the third-ranking external source of income for Mexico, following oil and tourism.15 The central contribution of workers from Mexico to the harvesting of U.S. crops is but one illustration of the links connecting localities on both sides of the border. A powerful factor that often drives migration is people’s sense that they have little choice but to leave where they have lived historically, rather than attraction to a specific destination. A locality that suffers under depressed economic circumstances or repressive leaders may provide good reason for people to exit but not to forget their locations of origin. Departure from a locality characterized by misery or repression may produce a sense of relief, but over time for many of the emigrants the hard times do not erase memories of family and

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friends and a sense of remembered place. Emigrants often wish to keep memories alive, and so, frequently, do their descendants. Consider the Armenians, the Ukrainians, and the Irish, to name but a few of the peoples who have moved, in many cases from rural villages, to other nations, such as the United States. Such emigrants may have fled from difficult conditions at home, from adverse economic circumstances, military occupation, or serious discrimination. Even generations later, descendants of emigrants retain vivid attachments to the towns and villages of their foreparents, kept alive through visits, various communications, and transmitted memories. In some important respects, the situation of the Navajo is similar to the situation of the emigrant groups identified above, but there are obvious differences as well. The Navajo lands were conquered by the United States. The reservation enjoys significant local autonomy; it is regarded as a dependent sovereign nation (Resnik 1989). The similarity lies in some of the adverse conditions that drive people to leave their respective homelands. High unemployment on the reservation has been chronic, ranging between 20 percent and 30 percent of the workforce for generations.16 These unemployment figures are similar to those found in many Mexican rural villages, where substantial emigration has occurred for decades. Approximately half of the Navajo live away from the reservation, and membership in the Navajo tribe is not restricted to residents of the reservation. Anyone who can establish that he or she is at least one-quarter Navajo and has a parent who is at least one-half Navajo can be an enrolled member of the tribe, regardless of place of residence. Enrolled members of the tribe, whether they live on or off the reservation, may vote in the quadrennial elections for the Navajo Nation Council.17 Other Indian tribes follow different regimes governing what constitutes sufficient descent to qualify for tribal membership. There is a certain irony in the emergence of Navajo self-government. During the 1920s and 1930s, the Department of the Interior, which up to that point had given little attention to the formation of Navajo self-government, took the lead in forming the Navajo Tribal Council. The government’s goal was not to construct institutions of self-governance per se, but to create a political mechanism for negotiating awards of oil and gas leases. There was, of course, a risk that once it was established self-government would lead to outcomes not necessarily favored by the external founders of the self-governing institutions.

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The recognition that nonresidential populations have a claim on the local community is not confined to the indigenous population of North America. The Swiss regard any descendent of a Swiss citizen who returns to Switzerland to be subject to military service, no matter how many generations of distance from the Swiss ancestor or what the country of current citizenship. Any descendent of a citizen of the Republic of San Marino, regardless of current residence or duration of stay in the republic, is entitled to vote in the republic’s elections. Not all extended communities formally engage nonresidential members in their governance as do the Navajo. But quite a few seek to acknowledge and engage former residents, even generations later, in the affairs of the local communities. The Navajo are one example of extended community, but there are many others rooted in particular landscapes, sometimes made up of a number of villages and towns whose residents depart through emigration. They may now be dispersed over a continent or several continents but nonetheless remain substantively attached to their area of origin. Facilitated by global movement, they are electively grounded in a distant locality.

Assessing Movement and Attachment in Local Land Use Decisionmaking There is a good deal of skepticism that the notion of extended community weakens the historic link between residency and representation. Some would say that only full-time residents of a community are in it for the long haul: full-time residents are better placed to serve and understand their communities, it might be claimed, and therefore should have the main, if not the exclusive, voice in local land use decisionmaking. Others would argue that individuals who have sufficient income to own two residences are doing well enough in society as it is, and that to accord them additional roles in decisionmaking on the basis of membership in an extended community weakens efforts to achieve equality in local decisionmaking. Still others might object to farmworkers who come from another country having a presence in local governmental decisionmaking in an area where they may live only for part of the year, especially if they are not citizens of the host country. Conversely, critics may object to immigrants who are year-round residents of the United States retain-

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ing a decisionmaking voice in their communities of origin. Remittance workers may have grown up in a village in Mexico, but they no longer live there. To allow people to exercise their voice transnationally threatens borders. Boundaries matter, so this position holds, and allowing people to play roles in more than one nation weakens the borders that underpin the very nation-states they inhabit. Whether the links from the distant to the local are through extended communities or through attraction to a magnetic locality, the results are similar in one respect: they bring external groups into play in local land use decisionmaking. These links are sometimes greatly appreciated and sometimes deeply resented by the local residential populations. Land use decisionmaking is the heart of the matter of these differing responses, for on both sides of the Atlantic much is made both legally and morally of the importance of local government in determining land uses. When people live in a community for part of a year as retirees, second-home owners, or seasonal workers, it seems reasonable to suggest they have a claim in local land use decisionmaking. The ubiquity of part-time residents and seasonal workers on both sides of the Atlantic recommends the establishment of some variable architecture of civic engagement to provide local governments with a fuller portrait of the communities they serve. Models for the architecture of representation might stop short of granting the franchise to members of the extended community. For example, Temple Beth Shalom in Santa Fe, New Mexico, allows part-time membership for those who live in northern New Mexico for six months or less and identify someplace else as their primary residence.18 These part-timers are given all the benefits of membership except the right to vote at congregational meetings. There are no easy answers to the question of people who live in more than one place, but there are many possible ways to extend community without submerging the permanent local population in an ocean of seasonal residents. When boundaries become permeable, there are risks and rewards. If, for example, owners of second homes who are older or retired are given full voting rights where they own property but do not have official residence, they may vote against increased support for local public schools, since they no longer have children at home. On the other hand, if seasonal workers, who are often younger than second-home owners, are allowed to vote, they may support giving

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additional resources to public schools in order to provide more opportunities for their children. But what about people who do not reside locally for even a part of the year, but are attached to a locality by ties of family and longcultivated affection? The vision of an extended community called into being by the deliberate choice of the locally resident community is quite different from that of a set of former members of community or their descendants unilaterally inserting themselves in local land use decisionmaking with no local support for their intervention. When a local community chooses to engage the support of people whom it regards as nonresidential members of the community for a local land use project, the local community needs to recognize that it is likely to be sharing its voice with others. The members of the nonresidential, extended community may be glad to contribute, but over time they may come to exercise their distinctive voice in ways that are not always in accord with the positions of locally resident decisionmakers. The question is not the one so famously posed by Hotspur in Shakespeare’s Henry IV in response to Glendower’s claim that he can summon spirits from the vasty deep: “But will they come when you do call for them?” The reality is that spirits of past conflicts are often all too willing to come—but just as unwilling to leave. People who live at a distance and are attracted to magnetic localities but lack direct ties such as part-time residence, employment, or shared familial or cultural identity do not, in our judgment, have the same claim to participation as members of extended communities. Some magnetic localities bask in the attention they receive from afar and choose as a result to encourage more inclusive participation. But others regard such attention as placing unreasonable constraints on how a community shapes its future. In such cases, the claim that distant interest or fascination with a particular locality is a compelling reason for voice in local affairs lacks justification. Extended communities, however, are a different matter. People who once lived in a community or whose family once did may remember past complaints and conflicts and be disinclined to give up their voice until those past concerns are addressed. One challenge for the local community is getting them to leave. For example, members of a Northern Irish Catholic community who seek the help of descendants of Irish Catholic immigrants to the United States in

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dealing with the British government must confront the risk that the overseas members of this extended community will give voice to shaping the final accord governing Northern Ireland. They may be more accommodating than the current residents, or they may be harsher. Navajos living off the reservation may have strong views on land use that differ from the policies favored by the Navajos in residence. The strategic value in creating an extended community is that it may supply the strength in numbers or resources needed for the locally resident community to realize or sustain a measure of local autonomy. But the risk to the local community is that inclusion of others in building an extended community may dilute or even shift the preferences supported by local residents. The growth in various levels of subnational connection has brought into question the role of national governments in local land use decisionmaking. In some respects, the role of the national government has expanded beyond what it was in the past, but in other respects it is more circumscribed. In an age of connections and improved choices, the state can assume a critical role in resolving disputes over local use that can be and increasingly are driven by groups and interests external to the local area. On the other hand, the state itself frequently faces pressures not only from within its borders, but also from outside its borders as it addresses local concerns. In contemporary political life, localities often have fairly thick sets of connections to former residents, to people moving in, and to sympathetic political institutions located outside their respective borders. The best-known example of local communities achieving newfound connections to distant peoples is the European Union. This fifteen-member union of states, with perhaps another half-dozen states likely to join within the next several years, has regulatory responsibility in an ever-expanding number of areas, including trade, manufacturing, transportation, monetary policy, telecommunications, and environmental quality. In short, the European Union exercises many of the responsibilities associated with the nation-state in general and local government in particular. The impact of the EU on local communities can be profound, given that funds are made available for regional development, agriculture, and education. The consequence has been steady growth in subnational representation in Brussels, where the EU is headquartered. Such local representation is often at the provincial level but is increasingly also at the very local level. These governmental units may work in conjunction with

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transnational advocacy groups and with nation-states and EU institutions in many areas of policymaking. The success of the EU has engendered debate over what should be the relationships among the states, subnational units, and the EU’s supranational institutions. This discussion has anticipated to some extent the debate over the future of the role of localities and states in international decisionmaking in light of global changes. In February 2002, the Council of the European Union created a forum to consider how the EU might become more democratic and efficient before the next set of states is admitted to membership. This forum could turn out to serve as a constitutional convention. A theme in its discussion is multilevel governance: how the EU should connect to regional and local levels of government. There is a good deal of variability in these connections at the present time. In some member states, regional governments may directly advise EU policymakers on their preferences. In other states, the process of communication is indirect, from the local government to the region to the member state to the EU. Very much on the agenda is just how direct communication from subnational governments should be, with the nature and substance of the subnational in EU policymaking in the background. These are important considerations, but they may not identify the connections among local and other subnational governments that exist independently of the nation-state. Nor do they fully explore the implications for policy of a European population that is increasingly mobile both occupationally and seasonally. In the Maastricht Treaty, the European Union addresses the issue of union membership in a context of fixed boundaries and mobile citizens. Citizens of EU member states are automatically citizens of the EU, and the treaty guarantees to all EU citizens the rights of freedom of movement and residence in the lands of all member states. Citizens who have moved from one member state to another may vote for members of the European Parliament in their new localities. They may also vote in local elections. But there are qualifications; citizens of one member state are not permitted to live in a community of another member state without securing a residency permit that requires proof of either employment or an independent income. European citizens of other European countries may not vote in the national elections of the member state to which they have relocated. They are beneficiaries of the social welfare system of the state they left, not of the one they have moved to. Even with those limitations,

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the creation of an enriched European citizenship that transcends traditional spatial categories is a major political achievement. This right to cast votes in local elections seems a sensible recognition of giving voice to someone from one member state who has just taken up a new job in another. It is sensitive to the principle that borders still matter in Europe—for the right to vote is only local or transnational—but that citizens move, and when they move, they come with expectations about the services they should receive in their new places of residence. What seems confused about a stronger principle that borders matter to the extent that participation should not be extended at all is that it undervalues regular movement for employment. The EU policy is thus a partial accommodation of both the relevance of borders and the importance of transborder connections. Indeed, life for many Europeans today seems less grounded in specific locales, even when they have just established roots in new locations. In the Middle Ages, it may have been that many rural people in Europe did not move more than seven miles from their places of birth. Later, during the industrial age, people may have moved only from the countryside to the city. But today movement all over the landscape seems to characterize the behavior of large numbers of Europeans. Reasons for movement from one location to another may include seeking seasonal employment, finding a place for the standard five-week holiday, or looking for seasonal retirement villages at age sixty, a not-uncommon European retirement age. In a significant sense, the European Union has demolished, at least formally, the boundaries that might otherwise serve to exclude people within this fifteen-state region of the world. The recognition that movement not only exists but may be encouraged among people of quite different cultural, religious, and ethnic backgrounds transforms the traditional power of the nation-state in the region. It raises the prospect of a shared environmental regulatory regime and elements of a common land use policy. What it leaves less clearly developed is how local land use regimes may reflect the policy interests of the rich array of Europeans who, as members of an extended community, may come to share a concern for a specific locality. Such goals may be accomplished indirectly through their respective national governments’ representatives to the EU administrative policy councils, or directly through the conventionally organized European Parliament, which may fortuitously capture extended com-

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munity interests by means of trade-offs with existing areal representatives. Thus perhaps the European Union underestimates the mobility of its peripatetic citizens who occupy different spaces on a cyclical basis throughout the year. What the EU has recognized, on the other hand, is that movement of European citizens to other countries can help address both unemployment and job shortages in particular fields. The challenge in the creation of a unionwide job market is citizens’ acquisition of a working knowledge of European languages other than their own. Current EU educational policies positively encourage university-level students to undertake course work in three different languages that are spoken in more than one member country. The commitment to developing occupational mobility and multiple language acquisition, however, suggests the value of reconsidering the present mix of voting rights that European citizens of one member state can exercise when living in another member state. If the goal is ease of movement without necessarily an attenuation of a citizen’s ties to the locality of origin, then it might be useful to allow European citizens to cast votes in more than one local governmental jurisdiction. This claim may be strengthened if seasonal employment can be understood as a form of extended commuting. Contrast with the European picture the fate of efforts of a New York investment banker, Harold M. Wit, to challenge state election laws on the basis that owners of residences should be able to vote locally. Wit has long had a second home in East Hampton on Long Island. Wit’s argument is that voting should flow from residency, which, in this highly mobile age, is often multiple. A central objection to Wit’s contention is that the vote should not be explicitly associated with property ownership. In about a dozen states, home owners are allowed to vote in some special district elections even if they are only part-time residents. Whatever the questionable political baggage that may be carried by second-home ownership—that it implies wealth and overconsumption of resources—should not obfuscate the reality that the owner of a second home is a part of a community that allows the owner and part-time occupant to be present for some portion of the year. To appeal his suit, which was dismissed in the United States District Court, Wit has employed Richard Briffault, who is a sharp critic of the one person–one vote model of local governmental elections. Briffault, who will argue Wit’s case before the

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United States Court of Appeals for the Second Circuit, states “this suit is about what should happen when constitutional law meets evolving demographic reality.”19 Surely there is value in exploring the range of representation needed to make local governmental decisions both effective and fair. There may also be value in finding useful strategies to recognize the mobility in contemporary U.S. society by not penalizing migrant workers and second-home owners by denying them roles in the local area or overstating the seasonal nature of their presence. What we would question about Wit’s argument, however, is whether the right to local participation should be enforced constitutionally or through the more nuanced judgments made by state legislatures or local governmental bodies. Unless one of the bases for constitutionalization outlined in Chapter 2 clearly supports the contentions of part-time residents, it would seem preferable to permit legislatures to determine which issues could be illuminated by the voices of part-time residents. Several of the bases for constitutionalization are at least implicated here, however. The vote is a fundamental right. Part-time residents may contend that their lack of voice is an indication of a kind of process failure. And if some part-timers—owners such as Wit—are extended the franchise while others—migrant workers, perhaps—are not, problems of equal protection may surface. Nonetheless, to encourage local governments to explore an expanded scope for the franchise for particular kinds of decisions—for example, in the case of local improvement districts—may be both wise and fair in a highly mobile society.

Conclusion: Giving Voice to the Extended Community We have observed the rich variety of ways in which people move and yet retain or acquire concerns and interests in other places. The steady streams of individuals who leave their home communities to avoid inequities and economic limitations understandably retain a commitment to helping their communities of origin and to facilitating economic change. Over time, a number of emigrants may secure resources or tools that will help the people remaining in the home locality. In much the same way, people new to an area may undertake projects that benefit individuals and families who have lived in the

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area for generations. Others, who divide their time by necessity (such as job requirements) or by choice (for example, to enjoy a winter home in a temperate climate), may be committed to expressing their voice in more than one locality. Community is important in land use; however, when community is defined narrowly by locally limiting borders, there is a disturbing risk of excluding certain groups. Hirschman’s model of exit and voice and of the importance of loyalty is a useful framework for understanding local land use issues when exit need not mean physical departure from a specific area and when it is recognized that effective voice can occur at a distance. In short, the more people move, the more the opportunities to exercise voice may be increasingly independent of where people reside or work. What might serve as recognition of an extended community’s voice in the affairs of a local area? We have identified three sorts of extended communities and the challenges that each presents in extending participation to nonresidential populations in the land use decisions of a local community. Vacation communities involve people who are well-off or at least have sufficient resources to maintain two homes. Migratory labor communities include people whose line of work, often identified with seasonal economic activity, takes them to a specific community for a part of the year. Identity communities encompass people with enduring familial or cultural ties—often those who originally left to participate in labor communities elsewhere. Each of these communities could be recognized by the fuller exercise of voice. Land use decisionmaking should capture the interests of more than just the long-term residential population. It should give voice to members of a locality’s extended community who can with relative ease demonstrate that they have interests resting in the jobs they hold, the domiciles they own or rent, or the invitations they receive from local authorities to join that extended community.

Notes 1. European Commission Directorate General XXIII Enterprise Policy, Distributive Trades, Tourism and Co-operatives (1998). Facts and Figures on the Europeans on Holidays, 1997–1998: Executive Summary, A Eurobarometer Survey (Brussels: European Commission), hereafter cited as Facts and Figures. 2. “History of the IFG.” Available at .

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3. Interview conducted by Dominique Moisi with Hubert Vedrine (February 9, 2002). Available at . 4. Facts and Figures. 5. The Scottish Crofters Union archives can be accessed through . 6. Facts and Figures. 7. European Community Biodiversity Clearing-House Mechanism, “European Union Urged to Deal with Unsustainable Tourism” (October 16, 2000). Available at . 8. An answer to a question in the House of Commons, March 23, 2000, based on data from the Department of Environment, Transport and the Regions. Available at . 9. John Marks and Ian Lewis, “Second Thoughts,” Worldlink: The Magazine of the World Economic Forum (June 21, 2001). 10. Mindy Charski, “Second Homes for Sale: Low Interest Rates Strengthen the Appeal of Vacation Properties.” U.S. News & World Report (September 28, 1998). 11. “What’s OSLO?” Available at . 12. NFU press releases and “White Paper Recognizes Need for Farm Labour” (February 11, 2002). Available at . 13. U.S. Department of Labor, Office of the Assistant Secretary for Policy, Office of Program Economics, “A Demographic and Employment Profile of the United States Farmworkers: Findings from the National Agricultural Workers Survey (NAWS), 1997–1998,” Research Report No. 8 (March 2000). 14. Joseph Chamie, “Replacement Migration: Is It a Solution to Declining and Aging Populations?” Population Division, Department of Economic and Social Affairs, United Nations Secretariat (March 2000). Available at . 15. Manuel Orozco, “Remittances and Markets: New Players and Practices,” a working paper of the Tomás Rivera Policy Institute and InterAmerican Dialogue (2000). Available at . 16. Utah Division of Indian Affairs, “The Navajo Nation.” Available at . 17. Harrison Laphie, Jr., “Tribal Membership,” Navajo Nation Times (July 2001). Available at . 18 “TBS Membership.” Available at . 19. Rick Brand, “Rich Get Richer—And Another Vote?” Newsday (August 16, 2001).

6 Guardianship of Global and Systemic Problems

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o this point, our focus has been on regulatory efforts that impose duties on those who live close to a resource. We have argued that the twin localisms of property and community are problematic. Property is not absolute, and claims to participation should not be entirely limited to spatially defined communities. In this chapter, we take up the criticism of localism from the other side—that of the obligations of those who live far away. Regulations of property in the interests of preservation and resource-preserving regulations more generally typically bear most heavily on those who live near the resource. Yet many environmental problems are both global and systemic.1 In the case of such systemic problems, those who live far away may have obligations that are interconnected with the obligations of the locals. Global warming is but one example of problems that raise systemic issues. Residents of south and central Florida are exhorted to forgo development to save the Everglades; those who live in the Grand Staircase region of the southwestern United States believe that national monument designation has foreclosed lucrative forms of economic activity; and farmers in the Pacific Northwest are concerned that they may lose water and energy as a result of the effort to save endangered salmon. Residents along a river cannot escape their interconnectedness. The imposition of such burdens on “the locals”—who may or may not be a group in any further sense— implies that others, who may live far away, have obligations too.2 We 177

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also examine the extent to which people who live far away have claims on the locals not to damage resources in their own backyards.

The Everglades and Global Warming: A Paradigmatic Systemic Problem One particularly acute example of global systemic problems is the restoration of the Everglades, an ecosystem of remarkable fragility and beauty (Douglas 1947). Claims of several local groups are affected by preservation efforts. Lands of the Miccosukee and Seminole tribes would be flooded if current restoration plans are pursued, as would a residential Cuban-American community. Many other economic interests would also be curtailed by restoration efforts, from Disney World and the tourist industry, to the growth of the city of Miami, to industrialized agriculture in the form of sugar production. Some of these interests are primarily local; others involve economic networks of impressive breadth. The preservation of the Everglades is a global systemic issue. Recent predictions are that if global warming continues, restoration efforts made today will be moot: within the next half-century or less, rising ocean levels will have radically transformed or fully submerged the Everglades ecosystem. There is very real reason to believe that actions of nonlocals are affecting and will continue to affect preservationist efforts in the Everglades. Because the Everglades ecosystem is delicately balanced, a minimal increase in water levels will radically change its character, flooding out many areas. Local dredging, creation of landfills, canal building, and other development efforts over the years have resulted in changes in vegetation, loss of habitat, and the endangerment of many species; restoration plans include efforts to undo these effects. More systemic actions have taken their toll as well, however. Current predictions are that in as few as twenty-five to fifty years, increases in ocean levels may be sufficient to flood crucial areas of the Everglades. These increases are attributed by many scientists and policymakers to greenhouse gas emissions and resulting global warming.3 Global warming is likely to continue unless effective international policies are put into place to limit growth in the emission of green-

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house gases. Such efforts have been proposed repeatedly over the last fifteen years. The Brundtland Commission argued in 1987 for sustainable development, which it took to include reduction of the greenhouse gas emissions that contribute to rising ocean levels.4 At the Rio Earth Summit in 1992, and again at the meetings in Kyoto in 1997, efforts were made to achieve agreement on timetables for significant reductions in greenhouse gas emissions. 5 The Kyoto Protocol to the United Nations Framework Convention on Climate Change, adopted in 1997, sets emission limits and reduction commitments for all signatories.6 The goal is for signatories to reduce overall emissions of greenhouse gases to levels at least 5 percent below 1990 levels by the time period 2008–2012. The protocol requires verifiable reporting to ensure that these commitments are met. It is the first enforceable effort to achieve emissions reductions, yet concerns remain. Industrialized nations fear protocol requirements will prove economically damaging (Victor 2001). G-77 nations (the G-77 group, led by India and supported by China, represents nations whose industrial bases are developing) charge that the burden of reduction is distributed unfairly and will harm efforts to industrialize.7 And many critics remain concerned that the protocol accomplishes too little too late, that it will not result in effective reductions, and that it affords too many opportunities to trade emissions quotas or to offset emissions by creating unreliable forest sinks (that is, forest areas that are thought to aid in reducing pollution). Attempts to ameliorate global warming have been seriously undermined by recent actions of the Bush administration with respect to the Kyoto Protocol and the problem of global warming more generally. As of 2002, the Bush administration remained opposed to the protocol, and the United States had officially withdrawn from it. The Bush administration’s position has been met by vehement criticisms from European Community nations and others.8 At the meetings in Bonn in July 2001, 178 other signatories to the protocol reached agreement to continue without support from the United States.9 The United States is the world’s largest per capita emitter of greenhouse gases, and without its support it may be difficult to make sufficient progress worldwide on reducing emissions. If emissions are not reduced, global warming will continue and ocean levels will rise. It thus appears pragmatically inconsistent for the Bush administration to impose restrictions on development in the Everglades region on

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the one hand while undermining efforts to bring greenhouse gas emissions under control on the other, if indeed that proves to be the upshot of the repudiation of Kyoto. The potential flooding of the Everglades is an extreme example, but there are many structurally similar situations. The proclamation of new national monuments in the southwestern United States imposes burdens on locals, particularly limits on economic activity in an already impoverished area; yet continued economic development in Los Angeles will predictably affect air quality and water availability in the monument areas. Forest preservation efforts in Europe and elsewhere may fall victim to continued assaults by acid rain. Cleanup in one area of a river may be undone by the release of pollutants elsewhere. Although residents downstream are more likely to make demands on their upstream neighbors than vice versa, there are cases such as the effort to maintain salmon-spawning areas in which downstream residents expect restraint from their upstream fellows. Efforts to restore fisheries may collapse if those who are not part of the efforts continue to overfish or if pollution taints habitat. And so on. These are genuinely systemic problems: efforts by one group can be undone, partially or wholly, by activities elsewhere. If global warming continues, any efforts to save the Everglades will go for naught. We are not focusing on situations that afford two—or even many—alternative paths to the same goal. An example of the latter kind of situation would be one in which the goal of reducing emissions could be achieved by one of two strategies, closing an industry in the Grand Staircase region or reducing the amount of driving in Los Angeles, or by some combination of the two.10 Nor is our focus on situations in which the locals argue that the burden of the imposition on them should be shared, through taxation, for example. Such situations raise problems about the distribution of burdens, but they do not raise the problem of interconnected obligations that we discuss here. When land use decisionmaking raises systemic problems, the consequentialist argument makes the case that if locals have duties, so do at least some others who live far away.11 If imposing obligations on the locals will fail to achieve the goal of eventual restoration of the Everglades for reasons that have to do with predictable failures of conduct elsewhere, the reason for imposing the local obligations is undermined. Moreover, if the locals need help from others in order to achieve their goals, a consequentialist argument can be made that

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such help elsewhere is obligatory. There are also two nonconsequentialist arguments for interconnectedness. First, if the locals make significant sacrifices (in the form of loss of a community location or of ongoing economic enterprise) to produce a benefit for all of us (preservation of the Everglades), the rest of us have reciprocal obligations not to damage what the locals have preserved. Second, because preserving the Everglades is a burdensome enterprise, it would be unfair to allow its costs to rest solely on those who live nearby or to let them bear the costs when others’ failure to cooperate will doom the enterprise.12

Consequentialism and Interconnected Obligations The consequentialist analysis of interconnected duties seems simple at first glance. Consider the example of the Everglades. The benefits of Everglades preservation are impressive: species preservation, biodiversity, watershed protection, and the long-term advantages of continuing to have the Everglades as a source of human enjoyment and a habitat for nonhuman animals. The Everglades is ecologically critical to watershed and ocean health in the region, as well as to air quality. Disadvantages of preservation are also apparent: economic cutbacks, reduced growth, and even community dislocation in the surrounding area. If, on balance, the long-run benefits of preservation outweigh the costs—and we assume for the argument that follows that they do—locals have, on consequentialist grounds, an obligation to pursue preservationist strategies. The same holds for nonlocals, who are obligated to pursue whatever optimizing preservationist strategies are available to them. The initial apparent difference between the locals and those who live far away lies in the strategies available: there is likely to be a great deal the locals can do (or refrain from doing) that will directly affect the Everglades for good or for ill, but much less that those who live far away will be able to do, at least directly, to ameliorate local environmental damage. But the situation is more complicated. If the locals pursue optimizing strategies and those far away behave in ways that undermine those strategies, the locals’ efforts will go for naught, and the effect of global warming will be the inundation of the Everglades. At present, it might seem to the locals that those who live farther away, at least in the United States, are indeed likely to undermine local

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efforts. What is more, the very federal government that is imposing preservationist obligations with one agency, the Army Corps of Engineers, is undermining them with another, the Department of State. What conclusion should the locals draw from the observation that preservationist efforts in the Everglades will go for naught if global warming continues? One tempting conclusion might be that if it is indeed predictable that global warming will continue, the consequentialist case for local preservation itself collapses. There is no consequentialist obligation to act to bring about results that will not occur. If hoped-for climate-change treaties are but a dream, the locals might say, why shouldn’t we go ahead with development efforts, taking into account the likelihood that a great deal of the land will be flooded? This argument in some respects parallels the arguments about crossing verdant stretches of grass that were examined in the heyday of utilitarian generalization thirty or forty years ago.13 Utilitarian generalizers asked the question “But what if everyone did that?” in order to contend that utilitarianism could defend apparently fair behavior such as going out to vote or refraining from crossing the grass, despite the fact that such behavior would impose costs for no clear benefit. The arguments went like this: Suppose a thoroughgoing consequentialist is deciding whether or not to cross a patch of lush grass to get somewhere important very quickly. If the grass is healthy and her crossing will leave no mark, but it is really important for her to get where she needs to go quickly, she should cross the grass. (To be sure, it is a different case if her crossing will destroy the grass because she is the one whose footprints will turn it to mud or because she has poison on her shoes. Lest these possibilities seem far fetched, imagine the grass is cryptobiotic soil that can be damaged by a single crossing.) “But what if everyone did that?” the critic might ask, noting that if everyone did cross the grass, the consequences would be very bad indeed, for the grassy stretch would turn into a sea of mud. The contention that she shouldn’t cross if the consequences of everyone’s crossing would be undesirable became the position known as utilitarian generalization.14 This argument is unstable, however, because it is vulnerable to the observation that it ignores actual behavior. “Everyone’s not crossing,” the hypothetical crosser replies to the generalist, so she should cross. At this point, it was thought, the utilitarian generalizer

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either had to give in and agree that it was permissible to cross the grass or admit that his real concern was the unfairness of one person’s walking across the grass when others refrained. The parallel for the Everglades is that even if it is possible to save the Everglades if everyone acts responsibly, it is unfair to expect the locals to hold off on damaging activities when others are not so refraining. The conclusion to be drawn, it then might be argued, is that the locals should go ahead with behavior that risks the Everglades, given what others are most likely to do. This argument might be described as playing along with the music made by others fiddling while Rome (or, in this case, Florida quite literally) burns. But this argument is too easy. We can begin to see why by employing another critical feature of the grass-crossing discussions. One consideration the consequentialist needs to keep in mind when deciding whether to cross the grass is the effect of her behavior on others. Her grass crossing might encourage other grass crossings, with the eventual result of grass destruction. This is a bad consequence she must take into account when calculating the desirability of what she plans to do. To be sure, whether her behavior will influence others is an empirical matter. She might rightly believe that her crossing will not encourage others (they won’t see her or hear about what she has done). She might even believe correctly that her grass crossing will discourage others: they may be so disgusted by what she has done that they will make extra efforts to refrain from damaging this grass and, better still, grass elsewhere.15 The problems of making predictions are rife here, as nearly everywhere in environmental ethics. Perhaps preservationist behavior around the country will affect the stance of the Bush administration. Perhaps the United States government will change its position on Kyoto, although its recent actions make this possibility seem increasingly remote. Perhaps there is a technological fix in the offing. Perhaps global warming really is an illusion, although it seems ever more unlikely. Or perhaps—and unfortunately somewhat more likely—it is already too late: rising oceans will submerge the Everglades no matter what is done now. In the environmental context, such problems of speculation about behavior, new developments, and the future are frequent and controversial. Decisions must be made with at least some level of uncertainty. The risk-averse strategy is to argue that locals should not be able to avoid protectionist obligations on the bet that bad out-

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comes will not occur. At a minimum, risk aversion counsels, the burden of proof should be on those who engage in risky behavior even if the risk appears slim, because if once the risk is taken and the bad result eventuates, there is no turning back from truly disastrous consequences. The predicted consequences of global warming are real, irremediable, and significantly costly: rising oceans will flood the Everglades. This would, therefore, appear to be the kind of environmental situation in which risk-averse assumptions should be the default position for consequentialists. So according to a reasonable consequentialist understanding of how to deal with risk, the locals should not be morally permitted to take the easy way out by saying that they are off the hook if it seems likely that others will continue to act to undermine their efforts. Here, then, is a first conclusion about interconnectedness: if risk aversion is the appropriate consequentialist strategy, the locals should not make decisions on the assumption that they will be defeated no matter what they do. But suppose it is not just probable that people who are far away will continue to act in ways that put Everglades preservation at risk. Suppose instead that they have obligations to act in ways that are likely to have problematic results for the Everglades. Since we are working within consequentialism, let us assume that these are consequentialist obligations. Then it is not only probable that they will continue to act in ways that put Everglades preservation at risk; it is obligatory for them to do so, and on consequentialist grounds. On this basis, we might draw a second conclusion about interconnectedness: the risk-aversion argument that supports continued local efforts fails if others are obligated on consequentialist grounds to act in ways that are practically inconsistent with the locals’ efforts. Thus the locals’ obligation to act to protect the Everglades assumes at least that others do not have consequentialist obligations that are inconsistent with realizing protectionist goals. It may seem unrealistic even to raise the possibility that those who live far away could have obligations that would undermine locals’ efforts to protect local ecosystems. But efforts to alleviate impoverishment in one area, for example, can undermine environmental protection elsewhere. Although we do not know how many such cases there are, it would be unwise simply to assume them away. The possibility of such cases points out the importance to the environmentalist of assumptions about the practical consistency of preservationist obligations with other consequentialist obligations.

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But we can go farther than the conclusion that if the locals have obligations, then others far away do not have consequentialist obligations that are practically inconsistent with realization of the locals’ efforts. If people far away do not have obligations that are inconsistent with preservation, they either have no obligations one way or the other, or they have obligations to do what they can to further preservation. The consequentialist argument would support the latter, stronger conclusion. If the locals have preservationist obligations, and if those obligations would be furthered by others’ acting in supportive ways, then on consequentialist grounds others have obligations to act supportively as well. Thus, unless there is truly nothing those afar can do, they too have obligations, and when problems are systemic, it is unlikely there will be nothing those far away can do. Thus there is a consequentialist argument for interconnected obligations in situations of global systemic problems. To be sure, failures to act in accord with obligations might change the fact situation sufficiently that other obligations genuinely change. If global warming really continues to the point of submerging the Everglades, no one would have obligations to preserve, in a fruitless effort, what has been irretrievably lost. Loss of the Everglades would no longer be a matter of uncertainty. But the argument remains that if the locals have preservationist obligations in the case of systemic problems, then others do not have practically inconsistent obligations and do have supportive obligations. We are not arguing that everyone, local and afar, will actually meet their interconnected obligations. But it is a considerable step to conclude that these duties exist in the face of global systemic problems. One final observation about these consequentialist issues. Environmental preservation is not analogous to the rule-utilitarian case sometimes put forth in favor of the claim that parents have special obligations to care for their own children but no obligations to the children of others. Such special obligations, it might be said, follow from the fact that children will be better cared for on the whole if all parents look out for their own children. The rule-utilitarian’s claim, then, is that adopting the rule that all parents should care for their own children would have the best consequences, and that acts of individual parents should be judged in terms of such best rules. The parallel environmental conclusion, that everyone has the obligation to look out for the resources in their own backyard, might be thought to follow from the fact that local environments will be better

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protected on balance if everyone looks out for their own space. This rule-utilitarian argument is a response to the claim that utilitarianism cannot account for special obligations if it requires parents to perform a child-saving act that will have the best consequences overall without attention to whether the child being saved is their own. If locals, then, should save the ecosystem around them and leave other locals in other communities to mind their own backyards, there are no interconnected obligations. But there are critical assumptions in this argument that do not hold for global systemic problems. (Whether or not they hold for child-saving is not our topic here.) The child case only works if each parent can act to save his or her own child without undermining the efforts of other parents to save theirs. If, however, efforts by the locals to save their own ecosystems will undermine efforts by other locals to save theirs, good consequences will not result from everyone’s following the rule of acting to preserve their own ecosystems. There will instead be a need for coordination. The worst-case scenario would be one in which locals’ actions to preserve their nearby ecosystem will work only if distants engage in actions that militate against their ability to protect their distant ecosystems or to meet other important obligations. The problem for rule-utilitarianism is figuring out which set of rules, in which priority, will have the best preservationist consequences. (This statement glosses over differences among formulations of rule-utilitarianism, which are not relevant here.) A to-each-his-own strategy assumes away systemic problems, and to deal with such problems any rule-utilitarian view will need to account for coordination. Thus whatever form rule-utilitarianism takes, it will also recognize a kind of practical interconnectedness.

Nonconsequentialism Now, suppose the case for preservation is not consequentialist at all. A nonconsequentialist case for preservation might go as follows: The Everglades is a magnificent place that encompasses myriad unique and valuable species. It would be wrong to damage such treasures, not merely because of their use to people or to other species, but simply because of what they are. Suppose, by comparison, that someone

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owns a precious fresco that is virtually certain to crumble within a few minutes (perhaps we have improved our ability to predict earthquakes, but not our ability to mitigate their destructive effects). Or suppose someone is the curator of a zoo with custody of the last known surviving members of a species, but unfortunately the animals are not a breeding pair. Do they have obligations to protect the fresco or the species, on the basis not of the consequences of their so acting, but of the preciousness of the objects themselves? If it is simply wrong to damage a treasure, even one that will soon disintegrate before our very eyes, it would seem that they do have the obligation to protect treasures, and so does everyone else. If it really is true that we have an obligation to protect a precious resource, even up to the very last moment of its destruction, why should it matter to our obligation whether others are failing to act in ways that are needed to make our efforts a success? Consequentialist concerns about whether or not there will be good consequences from what we do are not relevant to the obligation as understood in this deontological way. There are, however, two nonconsequentialist arguments according to which locals’ obligation to protect the Everglades might be linked to the obligations of others.16 The first argument for interconnectedness might be viewed as a version of an argument from reciprocity. It goes as follows: Through protecting a precious resource that happens to be nearby, locals are preserving a treasure for all of us. They are conveying a benefit on the rest of us through their sacrifices. We, therefore, have obligations to do what we can to not undermine their sacrifices. This argument assumes a less-than-standard position on reciprocity. Becker, for example, argues that reciprocity requires that as a matter of moral virtue we should return good for good in proportion to what we receive (1986, 4). Becker also holds that we should make reparation for the harm we do, and that we should resist evil but not return harm for harm. In a discussion of obligations to future generations, Becker argues that the obligation of reciprocity does not depend on face-to-face interactions. The view put forth here is weaker than Becker’s because it does not assume any degree of proportionality. What it holds is only that if some make sacrifices that are beneficial to others, others in return should not act to undermine the efficacy of those sacrifices. That is, if the locals have obligations to nonlocals to protect local resources, these local obligations are con-

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tingent on nonlocals’ not doing things that will compromise the success of the local sacrifice. A special case of this argument occurs when locals insist that those who are far away meet their obligation not to undermine the locals’ efforts. In contract law, it is regarded as part of the obligation of fair dealing that one party to the contract not act to undermine the other’s obligations of performance; if one party does so act, the other’s failure to perform may be excused.17 This special case might be exemplified by the case of the United States government and the residents of Florida. If the government says to Floridians, in effect, “Make sacrifices to protect the resource near you, because it is valuable to all of us,” then the government has reciprocal obligations not to act in ways that will undermine the efficacy of Floridians’ sacrifices. But this is exactly what the government of the United States is doing if it requires reclamation efforts on the part of Floridians, but acts to undermine climate change treaties. A second way in which locals’ obligations might be linked to the obligations of others is on the basis of fairness. Floridians are being asked to bear considerable costs in order to save the Everglades. Others are avoiding much more limited costs—the costs of energy conservation that they must bear if the reclamation efforts of Floridians are to be successful. Only a very weak fairness principle is required to support interconnection in this situation. A general principle about fair sacrifice might go as follows: If each member of a group can make sacrifices to produce a good, it is unfair to expect one member to bear the whole cost of producing the good. An example is professionals’ fair shares in serving the poor. It is unfair to expect one physician to bear the burden of taking patients who have Medicaid if other physicians do not. This is a fairshares fairness principle. In the case of global warming, it would apply to the distribution of burdens in the Kyoto Protocol and yield the conclusion that it is unfair to expect poorer nations to bear all the burden of emissions reductions while more affluent nations bear no burden. But we do not need to rely on a principle as strong as the fairshares principle to reach a conclusion about interconnectedness here. The argument from fairness is even more compelling when the good in question will not be produced at all unless the burden is shared at least to some extent. In such cases, all that is required to defend interconnectedness is the weaker principle that it is unfair to expect

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some to bear burdens of producing a good when others are not taking on burdens without which production of the good will fail. To return to the analogy from the professions, one physician can treat at least some Medicaid patients even if other doctors are not treating other Medicaid patients. Ending an epidemic, however, is not like treating individual patients. Solving global systemic problems is more like ending an epidemic, which may require interconnected efforts, than like treating individual patients, which may not. Local reclamation efforts will go for naught if global climate change continues. It is, therefore, unfair to expect some to expend effort if others do not have obligations to cooperate. The difference between reciprocity and fairness is that reciprocity involves responsive behavior. In the discussion of reciprocity above, all that is assumed is very limited responsiveness: that if one party meets obligations in a way that is beneficial to another party, the other party is obligated not to act to undermine the first party’s efforts. Fairness involves an appropriate level of sharing of burdens. A more minimal fairness principle, that it is unfair to expect some to be obligated to bear burdens when others are not obligated to provide needed cooperation, also supports interconnectedness. So a reciprocity argument on the part of people outside of Florida runs as follows: We are expecting you to confer a benefit on us by acting to save the Everglades, so the least we owe you in return is not to undermine what you are doing. A fairness argument would run, instead: You are incurring a cost by restoring the Everglades; it is wrong for us to expect you to incur that cost unless we are obligated to shoulder costs of our own, costs that must be borne if the benefit is to be produced.

Conclusion Thus there are at least three ways of interconnecting the obligations of locals with the obligations of others: consequentialist connections, reciprocity, and fairness. When problems of preservation are systemic—as many are—several important but different basic approaches to normative ethics support interconnectedness. As problems in applied ethics go, the case of interconnected obligations in the face of global systemic problems is a relatively easy one. In the words of E. M. Forster in the preface of Howard’s End: “Only connect.”18

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Notes 1. An earlier version of this argument appears in Leslie P. Francis, “Global Systemic Problems and Interconnected Duties,” Environmental Ethics, forthcoming in 2003. Robin Attfield (1999) calls such problems of causal interrelatedness “global systemic problems.” See also Buck 1998, Camacho 1998, Dobson, ed., 1998, and Shapiro and Brilmayer 1999. 2. Who counts as a local is a complex question. Some proximate entities—corporations, for example—may have multinational ties. Some locals will be individuals and others will be groups. These issues can be set aside for the purpose of this discussion about the import of the claim that locals have preservationist obligations. An inquiry related to this discussion, however, is whether South Floridians’ obligation to protect the Everglades is at all dependent on whether South Floridians, in whole or in part, are an identifiable group: whether they are Native Americans, Cuban-Americans, or South Floridians in general. The value of the Everglades might lie in part in its special significance to particular groups. If so, theories of group rights might support the claim that these groups have particular claims to preservation of the group treasure, as well as particular obligations to protect it. These rights might in turn generate a set of links to the preservationist obligations of the rest of us, in addition to the links under discussion here. 3. Although there is widespread agreement on the connection between greenhouse gas emissions and global climate change, some dissent remains. See, for example, “Science Tuesday,” New York Times, February 29, 2001. If the dissenters are correct, which seems increasingly unlikely, the Everglades do not provide an example of global systemic problems of the type under scrutiny here (see Intergovernmental Panel on Climate Change, “Climate Change 2001: Third Assessment Report,” available at ). But there surely are other examples. 4. World Commission on Environment and Development, Our Common Future (the Brundtland Report), 176. According to the Brundtland Commission’s definition, sustainable development “meets the needs of the present without compromising the ability of future generations to meet their own needs” (8). The report continues: “The concept of sustainable development does imply limits—not absolute limits but limitations imposed by the present state of technology and social organization on environmental resources and by the ability of the biosphere to absorb the effects of human activities. . . . Sustainable global development requires that those who are more affluent adopt life-styles within the planet’s ecological means” (8–9). 5. Ibid.; see also Panjabi 1997. 6. Complete text of the Kyoto Protocol is available at .

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7. Soma Basu, “India Sticks to Stand on Climate Change,” The Hindu (March 11, 1999). The agreement at Kyoto in 1997 was based on a reduction of 1990 emission rates and permitted exchanges to allow countries to trade unused portions of their allotted quotas. Commentators such as Attfield (1999) criticize the fairness of these historical benchmarks. They argue that even if the agreement is someday ratified, the allotment will be insufficient to allow for decent living standards for growing populations in developing areas of the world and will permit unfairly high living standards for people in areas that had high consumption levels in 1990. 8. Edmund L. Andrews. “Frustrated Europeans Set to Battle U.S. on Climate,” New York Times (July 16, 2001). 9. Andrew C. Revkin. “178 Nations Reach a Climate Accord; U.S. Only Looks On,” New York Times (July 24, 2001). 10. In such cases, the consequentialist problem is figuring out which combination of pollution reductions will achieve the goal with the least cost. The reciprocity issue is whether reductions by some should be returned by reductions by others. Fairness requires attention to the distribution of the burdens. 11. The discussion here is limited to implications of the claim that locals have duties. It does not extend either to defending the claim that there are such duties, or to investigating the implications of rights claims by locals. 12. None of these arguments are traditional takings claims, under which locals argue that they should be compensated for property losses due to rights transfers or regulations. See Chapter 3 for a discussion of these more traditional claims. 13. See, for example, Singer 1961 for a discussion along these lines. 14. See Lyons 1965 for a full and careful discussion of these issues. 15. In such a case, she would be obligated to cross the grass. But because it seems unlikely that environmental transgressions will encourage even more environmental protection elsewhere, we set aside this possibility. The darker side of this scenario is unfortunately more likely. One person’s not crossing the grass might increase the likelihood of others crossing. Others may believe, mistakenly, that because some did not cross, it is environmentally safer for them to cross. Or others may be motivated to cross because they are offended by what they regard as others’ sanctimoniousness in not crossing—much as people announce they will eat more meat because vegetarians are around. Or others might cross just to spite noncrossers, when they wouldn’t otherwise have done so. 16. The possibility of mixed consequentialist and deontological theories, such as the view that preservationist obligations hold unless they are extremely costly, should also be noted. Our goal here is to explore the rela-

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tionship between each theory and interconnectedness. It might be hypothesized that mixed theories would incorporate the conclusions reached by the pure theories, although supporting that hypothesis would be difficult given the remarkable range of possible mixed theories. 17. See, for example, Blum (2001), § 16.11.1b, p. 497. 18. E. M. Forster, Howard’s End (New York: Vintage, 1921).

7 Land Use in an Interconnected World

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and use is contextualized and complex. But this does not mean treatment of it need be unprincipled, as some critics contend. It simply means that multiple values and actors come into play in land use decisions. Absolutist solutions, whether regarding property rights or community, are too simplistic. They are indefensible and woefully incomplete. In this summary chapter, we bring together the values and principles that should apply to land use planning in the contemporary interconnected world. First, there is the question of property. Societies recognize a variety of structures of property rights, and as theorists in the utilitarian and Kantian traditions have recognized, property rights serve important human ends. Property enables the stability that can foster economic investment. It enables the investment of selves in land and things, and we do identify ourselves with the land we work, the clay we sculpt, and the books we write. But even at their most protective, the arguments of political theory that support property rights are not absolutist. Arguments for property rights come with limits—on how property can be used to harm others, on what the owner is expected to do with property, on the relationship between specific plots of land and other nearby tracts, and on the role of property in the community. Exactly what those limits should be varies with the argument for property; what matters in replying to the absolutist is that there are always limits. Different societies, moreover, have established different expecta193

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tions about these limits and have encouraged people to rely on their property in different ways as a result. There will, therefore, be important conventional variations in the expectations people have about their property—the ways they have counted on it, invested in it, made plans on the basis of it, and come to care about it. There will also be significant conventional variations in the expectations people have about public property, the property of others—property they do not have. That these conventional differences matter is one of the central insights of the Penn Central decision in U.S. constitutional law. Not all expectations matter, however. Expectations can be unreasonable or unfair. To encourage owners to demand compensation for any and every disappointment is to allow them to benefit at the public expense when regulatory regimes change. Still, protecting expectations is part of what is involved in respecting people as they make choices to plan their lives. Expectations matter more when they are long-standing, have been encouraged, and are core to identity; expectations about property often have these features. The legal protection of a homestead in U.S. bankruptcy law is a good example of how the law protects such expectations. Land speculation, on the other hand, may lack these features. Speculation on property in land is, of course, a long-standing practice in the United States, where historically land has been abundant and the population has been prone to move in search of better prospects. But it is fair to observe that the economic success of land speculation—perhaps more so than that of many other land uses—is dependent on conditions that go far beyond the confines of the parcel per se. Land values rise and fall on the prospects of the larger surrounding area, the state of the economy, the potential for recreational use, and many other factors. The interconnectedness of land use should invite legislative initiation to set the context for that use within which speculation can respond, rather than allowing speculators to set the agenda and foreclose land use choices through the use of constitutional takings doctrine. To be sure, the contentious issues lie in deciding what activities with land—Palazzolo’s? Suitum’s?—are speculative. In the main, these are questions of adjustment for the legislature because flexibility is important. In this regard, the United States has much to learn from the British example. In Britain, a good deal of latitude is assumed by Parliament in providing the forum for debating major land use issues as well as formulating land use legislation. At least in the 2002 Tahoe-Sierra deci-

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sion, it appears that the U.S. Supreme Court is recognizing this legislative role. At the same time, there are good reasons for a framework that accords certain protections for property owners. In Britain, rights are secured both in basic documents and in European treaties. In the United States, which is governed by a written constitution, the issue has been addressed through the Constitution’s due process and takings clauses. In U.S. law, there have been four primary reasons for constitutionalizing. One is the historical entrenchment of a right at the constitutional level. Because the Constitution is relatively immune from change in comparison to other parts of the legal regime, people come to count on constitutional basics. People expect, for example, that they will be paid compensation if the government takes over ownership of their land or submerges it under a reservoir. Another reason for constitutionalization is process failure; people expect to be treated according to the framework of procedures that make up the basic structure of adoption and implementation of laws and regulations. A third reason for constitutionalization is the presence of certain substantive rights that are set aside from majority infringement. It is part of U.S. constitutional theory that the democratic value of majority rule must be tempered by liberal respect for the rights of the individual—although of course it is also part of U.S. constitutional theory that the adjustment of this line will be difficult at times, and the right to property is no exception to this difficulty. Finally, U.S. constitutional law at least since the Fourteenth Amendment has recognized the importance of a basic framework of equality. The imposition of conditions on property that cause disadvantage on the basis of race, religion, alienage, or other problematic classifications, would be constitutionally impermissible. This constitutional framework allows a wide range of variation within particular communities. Unfortunately, however, U.S. takings law has at times proved too rigid, leading to confusion, delay, and distortion, rather than to clarity in the setting of our goals for the protection of property and its broadly interconnected uses. Our third set of values that should apply in land use planning are the values of community. The word community, however, has been much misunderstood. Community is not a matter of mere local residence. A community is not the glorified village of an idealized rural past; nor is it one of several modern romantic visions—an idyllic neighborhood such as Bedford, which supposes itself remote from

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the metropolitan New York area on which it depends, or one of the magnetic localities to which people are attracted even though they have no interconnection with it. Instead, community is all the ways people interact with each other throughout the spaces within which they live and work. Land is the substrate of this interaction. Land use decisions, therefore, may call for participation by those who do not live nearby, or who live nearby only part-time. Those who live or work seasonally in an area and those who maintain ties of family or culture with an area all may have an important stake in what happens to the land that is central to these aspects of their lives. Once again, however, these stakes should not be viewed in absolute fashion. Instead, they should be a matter for legislative accommodation. We have seen some emerging examples of such interconnected participation in the European Union, as well as in some communities in the United States. Finally, what happens in one part of today’s world may, of course, deeply affect what happens elsewhere. Pollution in Los Angeles will affect visibility in the Grand Staircase–Escalante. Global warming may lead to inundation of the Everglades. Use of Colorado River water for crop irrigation upstream will result in a “river no more” (Fradkin 1981) downstream. Increasingly locals are expected to make economic and other sacrifices as regulatory regimes come into play that affect what they can do on the land where they live. These regulatory regimes may be justified outcomes of a more widespread political process that incorporates the voices of at least some nonlocals. But they come with concomitant expectations about commitments of those who live far away. If locals are to bear sacrifices, others have duties to respect what they do; at a minimum they must not undermine the local achievement. Land use in an interconnected world thus calls on at least four sets of values. One is the value of property. The second is the value of constitutional protection. The third is the value of community voice, where community itself is understood in a complex way. And the fourth is the recognition of interconnected obligations when decisions about land in one area of the planet affect what happens in others. None of these values are absolute. None are simple. And none are irrelevant. As if this were not enough, conflicts among them raise some of the most difficult questions of land use we face. It is not unprincipled, however, to argue that we must respect and adjust all of these sets of values as best we can in the give-and-take of democratic

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processes locally, regionally, nationally, transnationally, and internationally. As inhabitants of land from the Escalante to the Everglades to the Scottish Highlands recognize, land is foundational to how we live, both literally and figuratively. It is important to identity, to economic well-being, to physical health, and more often than not to community meaning. Without it, we are cut loose; we are free-floating. But the we here is not simply the individuals who at a given time possess ownership rights, or even the community living in immediate proximity to a particular parcel of land. The we may also be spread out across the globe and across time. Land use is truly no local matter.

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Table of Cases

Agins v. City of Tiburon, 447 U.S. 255 (1980). Armstrong v. United States, 364 U.S. 40 (1960). City of Boerne v. Flores, 519 U.S. 1088 (1997). City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999). Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422 (9th Cir. 1996). Dolan v. City of Tigard, 512 U.S. 374 (1994). Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). Euclid v. Ambler Realty, 272 U.S. 365 (1926). First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). Hadacheck v. Sebastian, 239 U.S. 394 (1915). Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). Katte Klitsche de la Grange v. Italy (1995), 19 E.H.R.R. 368. Keystone Bituminous Coal Ass’n. v. DeBenedictis, 480 U.S. 470 (1987). Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419 (1982). Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994). Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Miller v. Schoene, 276 U.S. 272 (1928). Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893). Nectow v. City of Cambridge, 277 U.S. 183 (1928). Nollan v. California Coastal Commission, 483 U.S. 825 (1987). Ocean Acres Ltd. Partnership v. Dare County Board of Health, 707 F.2d 103 (4th Cir. 1983).

215

216

Cases

Palazzolo v. Coastal Resources Management Council, 1995 WL 941370 (R.I. Super., January 5, 1995). Palazzolo v. Rhode Island, 533 U.S. 606 (2001). Palazzolo v. Rhode Island, 785 A.2d 561 (2001). Palazzolo v. Rhode Island, 746 A.2d 707 (R.I. 2000). Palm Beach Isles Associates v. United States, 231 F.3d 1365 (Fed. Cir. 2000) (on rehearing). Palm Beach Isles Associates v. United States, 231 F.3d 1354 (Fed. Cir. 2000) (on denial of rehearing en banc). Palm Beach Isles Associates v. United States, 208 F.3d 1374, 1381 (Fed. Cir. 2000). Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973). Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). Penn Central Transportation Co. v. City of New York, 366 N.E.2d 1271 (N.Y. 1977). Penn Central Transportation Co. v. City of New York, 377 N.Y.S.2d 20 (App. Div. 1975). Pennsylvania Coal Company v. Mahon, 260 U.S. 393 (1922). Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998). Pine Valley Developments Limited v. Ireland (1992), 14 E.H.R.R. 319. Pumpelly v. Green Bay Company, 80 U.S. (13 Wall.) 166 (1872). Rogin v. Bensalem Township, 616 F.2d 680 (3d Cir. 1980). Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Silva v. Portugal (1997), 24 E.H.R.R. 573. Southern Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713 (N.J. 1975). Sporrong and Lonnroth v. Sweden (1983), 5 E.H.R.R. 35. Spur Industries, Inc. v. Del E. Webb Development Co., 494 P.2d 700 (Ariz. 1972). Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997). Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002). Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 228 F.3d (9th Cir. 2000) (on denial of rehearing and rehearing en banc). Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 216 F.2d 764 (9th Cir. 2000). Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 34 F. Supp. 1226 (D. Nev. 1999). Trustees of the Late Duke of Westminster’s Estate v. United Kingdom (1983), 5 E.H.R.R. 440. United States v. Carolene Products Company, 304 U.S. 144 (1938). United States v. Causby, 328 U.S. 256 (1946). Vacco v. Quill, 521 U.S. 793 (1997). Washington v. Glucksberg, 521 U.S. 702 (1997).

Cases

217

William C. Haas and Co. v. San Francisco, 605 F.2d 1117 (9th Cir. 1979). Williamson County Regional Planning Comm. v. Hamilton Bank of Johnson City, 473 U.S. 172, 191 (1985). Woodruff v. North Bloomfield, Civil Case 2900 (N.D. Cal 1884).

Index

Administrative determination: in UK, 38, 39, 40, 41, 48 Aesthetic regulation, 45 Agrarian community, 5, 6, 104, 118, 120, 121, 125 Agricultural land use: in UK, 5, 86, 97(n71), 134, 135, 163 Air quality, 4, 180 Air rights, 65 Alexander, Gregory, 46–47 Alterman, Rachel, 133 Anaheim, California, 129–130 Antiquities Act, 9, 10 Armstrong v. United States, 85 Augustine, Saint, 115 Autonomy, 7, 14, 35, 121 Bauman, Zygmunt, 152 Beach access, 30, 31, 52, 62–63, 70, 90 Beachfront, 26 Beale, Calvin, 161 Becker, Lawrence C., 187 Bedford, New York, 103–104, 112, 142(n3) Berry, Wendell, 6, 120–121, 127, 138 Bioregionalist communities, 6, 7, 137, 139–141 Blackstone, William, 27–28, 33, 56(n34)

Blakely, Edward, 132 BLM. See Bureau of Land Management Bosselman, Fred, 108 Bowling Alone (Putnam), 115 Brennan, William, 66 Bridging communities, 116 Briffault, Richard, 139, 173 British National Farmers’ Union, 163 Brownfields: in UK, 136 Brundtland Commission, 179 Building permits: conditions on, 52–53, 62–64 Bundle of sticks, 28–31, 55(nn 23, 25), 56(n29), 65, 69, 83, 85, 113 Burden: distribution of, 21, 67, 68, 71, 81, 83, 85, 90, 91(n17), 92(n20), 180, 181, 188–189, 191(n12); extent of, 64, 66, 79–84; and social benefits, 21, 56(n30), 68, 71, 92(n22); utilitarian analysis of, 80. See also Demoralization costs; Fairness Bureau of Land Management (BLM), 10, 11, 12 Bush, George W., 179 California Coastal Commission, Nollan v., 52, 53, 60(n72), 62–63, 69, 74, 90

219

220

Index

Callies, David, 108 Cape Cod National Seashore, 29 Carolene Products Company, United States v., 48 Causby, United States v., 69–70 Celebration, Florida, 128–129 Chamie, Joseph, 165 Cheshire, Paul, 135 Christman, John, 28 CIDs. See Common interest developments City of Monterey, Ltd., Del Monte Dunes at Monterey, Ltd. v., 83, 96(n57) City of New York, Penn Central Transportation Co. v., 64–67, 69, 71, 73, 91(n8) City of Tigard, Dolan v., 52, 53, 69, 83, 90 Civic republicanism, 47 Clean Water Act, 75, 76 Climate change, 178–179, 188, 189, 190(n3) Clinton, Bill, 9, 10 Coastal wetlands. See Wetlands Coke, Lord, 40 Common good. See Public benefit Common interest developments (CIDs), 130, 132 Common land, 37, 87. See also Public land; Public trust doctrine Communal property, 4, 34, 37, 57(n37), 125 Communitarian environmentalism, 120–121 Communitarianism, 3, 7 Communitas (Goodman and Goodman), 126 Community: associations, 130–131; defined, 6–7, 110, 114–117, 119–121, 124, 141–142, 195–196; loyalty to, 147–149; metropolitan, 138–139; networks as, 158; and preservation, 157; and property rights, 2–8; work and residence in, 6, 126, 127, 138. See also Bridging communities; Extended communities; Local communities; Magnetic localities; Village communities

Compensation, 40, 68; efficiency of, 80–81, 95(n52); and investment, 71–72; and overcompensation, 73; Penn Central as framework for, 25, 77, 78–79, 80, 84, 85; and regulation, 41, 65–66, 67, 71, 72, 118; for right of access, 62–63, 89–90, 99(n91); utility of, 68, 92(n23). See also Burden; Compulsory purchase; Economically beneficial use; Government seizure of property; Right of access Compulsory purchase, 40, 48, 88–89 Condemnation, 39, 45, 58(n52) Consequentialism, 180, 181–184, 191(nn 10, 15, 16) Constitutionalization. See Constitutional protection Constitutional protection, 2, 3, 16, 37–39, 53, 58(nn 46, 55), 80, 195; and equitable treatment, 50, 51–53, 195; in Fifth Amendment, 41, 43, 44; in Fourteenth Amendment, 41, 50, 195; history of, 42–47; and overconstitutionalization, 59(n64); and process failure, 47–50, 59(n64), 195; and substantive rights, 50–51, 195; and unconstitutional conditions, 52–53, 63–64. See also Administrative determination; Due process; Legislative determination; Takings Convention on Human Rights (EU), 40–41 Costs. See Burden: distribution of; Demoralization costs; Regulation, cost of; Transaction costs Country Land and Business Association, 86, 90 Country Landowners Association, 86, 89 Countryside preservation, 133 Countryside and Rights of Way Act (2000, UK), 30, 61, 64, 86–90, 91(n6) Crofters, 122–125, 157 Crofters Act (1886, UK), 123 Cullingworth, J. Barry, 111, 134 Cultural preservation, 3, 4, 7, 8, 9, 87,

Index

113, 122, 151; and globalization, 151, 152 Defenders of Property Rights, 19 Del Monte Dunes at Monterey, Ltd. v. City of Monterey, Ltd., 83, 96(n57) Democracy in America (Tocqueville), 5 Demoralization costs, 68, 71, 72, 81, 82, 96(n55); owners at risk for, 82 Denominator: in property takings claims, 65, 77, 78, 83, 84–86, 94(n43) Developing world, 179, 191(n7) Development. See Housing development; Property development Dewey, John, 6 Disney Corporation, 128–130 Dodge, Jim, 140 Dolan v. City of Tigard, 52, 53, 69, 83, 90 Drainage, 20, 21, 45 Dredging and filling, 75, 76 Due process, 38, 39, 40, 50, 195 Duncan, James, 104 Duncan, Nancy, 104 Easement, 31, 40, 62–63, 69; and permitting system, 52, 63–64 Economically beneficial use, 22, 26, 27, 69, 75, 83, 85, 94(n44), 96(n57). See also Investmentbacked expectation; Security of expectations Economic realization, 3, 9, 10, 12–13, 17(n3) Efficiency, 67, 68, 80–81, 92(n21), 95(n52); and fairness, 71, 83, 96(n53) Ely, John Hart, 48 Emigration, 9, 149, 165–166 Eminent domain, 39, 40 Emissions reductions. See Greenhouse gas emissions “Enough and as good for all,” 34, 35, 57(n37). See also Public benefit Environmental degradation, 34–35, 107, 108 Environmental ethics, 183

221

Environmental impact statements, 109, 137 Environmentalism: in community, 120–121 Environmental preservation, 8–9. See also Environmental restoration; National monument designation Environmental protection, 4, 21, 26, 27, 34, 37, 54(n21), 96(n54), 180. See also Waterways; Wetlands Environmental regulation, 31, 78–79, 109; in UK, 110. See also Investment-backed expectation Environmental restoration: local and nonlocal obligations in, 12, 177–178, 180–188, 191(nn 15, 16), 196 Epstein, Richard, 28, 30, 32, 33, 46, 51 European Community, 40, 179 European Convention on Human Rights, 89 European Union, 39, 40, 111, 119, 153, 161, 170–173 Everglades restoration, 178, 179–182, 183, 184, 185, 188 Exclusion rights, 19, 31, 62, 93(n28), 98(n88), 103, 104, 131. See also Zoning Exit, Voice, and Loyalty (Hirschman), 146, 147–150 Exit option, 49, 59(n67), 147 Extended communities, 153, 156, 157–159, 165–166; and representation in land use decisionmaking, 146, 148–149, 159, 167–170, 171–172, 173–175, 196. See also Identity communities; Migratory labor communities; Seasonal communities Extractive industries, 9, 10, 11, 12, 17(n3), 41, 45, 59(n59), 74, 106 Fairness, 64, 66, 67, 68–69, 71, 73, 92(nn 20, 22), 93(n34); defined, 68, 81, 83; and efficiency, 71, 83, 96(n53); and global systemic problems, 183, 188, 189, 191(n10); and

222

Index

utility, 68, 80, 81–83, 96(nn 54, 55). See also Burden Fair shares principle, 188 Farber, Daniel, 50 Farmer, Jared, 9 Farmland preservation, 133 Farmworkers, 163–164, 167 Federal Land Policy Management Act (FLMPA, 1976), 11, 109 Fischel, William, 48 Fishery restoration, 180 FLMPA. See Federal Land Policy Management Act Flood control, 39 Fortress America (Blakely and Snyder), 132 Fowler, Robert Booth, 157, 158 Franchise. See Representation Freie, John F., 119–120 Friedman, Thomas, 151 Friedrich, Carl, 115 Friends of Nature International, 160 Frug, Gerald, 138 Fundamental law (UK), 39–40 G–77 nations, 179 Gans, Herbert, 126, 139 Gated communities, 131–132 Geschiere, Peter, 151 Giddens, Anthony, 115, 152 Globalization, 149, 150–155 Global systemic problems, 177–180, 185, 190(n1) Global warming, 178–180, 181–182, 190(n3). See also Greenhouse gas emissions Goodman, Paul, 126 Goodman, Percival, 126 Government land. See National monument designation; Public land Government seizure of property: and compensation, 1, 2, 10–11, 41–42, 43, 44, 49, 58(n52), 65, 67, 95(n52), 195; and horizontal equity, 50; profit from, 73 Grand Staircase–Escalante National Monument, 8–13, 104 Grazing rights, 10, 11, 123 Green Bay, Wisconsin, 121

Greenbelts: in UK, 133–136 Greenhouse gas emissions, 178–179, 180, 188, 190(n3), 191(n10); and trade credits, 179, 191(n7) Group rights, 7–8, 177, 190(n2) Hadacheck v. Sebastian, 82, 92(n22), 107, 142(n7) Harbors, 47 Hart, John, 45–46 Hazardous waste storage, 50, 117–118 Heap, Desmond, 134 Heritage preservation. See Cultural preservation Hirschman, Albert, 146–147, 148, 149, 175 Historic preservation, 11, 113, 122 Hohfeld, Wesley Newcomb, 29–31, 55(n26), 56(n29) Holliday, John, 135 Holmes, Oliver Wendell, 41, 65 Holtman, Sarah, 35 Homeowners associations, 130–131 Housing development, 5, 118; delineating locality of, 128–129, 130–131; regulation of, 39, 45, 112, 127–128, 135, 136 Hume, David, 36 Hydraulic mining, 106 Identity communities, 165–167 Immigration, 164–165, 167–168 Individual rights, 4, 7, 8, 33 Inheritance, 8, 33, 36 Insurance, 71, 72, 92(n21) Interconnectedness, 180–181, 184, 185, 187, 188, 189, 196 International Forum on Globalization, 151 Invasion, physical, 69–71, 90, 93(n28) Invested labor: in property, 2, 33–34, 57(nn 37, 38) Investment-backed expectation, 65, 71–79, 84, 90, 92(n21), 93(nn 34, 36), 94(n37), 95(n46), 194. See also Economically beneficial use; Economic realization; Security of expectations

Index

Jackson, Henry, 108 Jeffersonian community, 5, 104, 120 Johnson, Kenneth, 161 Judicial protection, 38, 40, 48–49; levels of government for, 49–50. See also Constitutional protection Kant, Immanuel, 35–36 Kaplow, Louis, 72, 73 Kennan, George, 120 Kennedy, Anthony, 77, 78 Kraft, Michael, 137 Kymlicka, Will, 7 Kyoto Protocol (1997), 179–180 Labor: invested, 2, 33–34, 57(nn 37, 38) Labor communities: migrant, 162–165 Lagerfeld, Steven, 132 Land grants, 44, 45 Land management. See National monument designation Landmarks preservation, 64, 65, 66–67, 80, 113 Land ownership. See Communal property; Property rights; Public land Land reform: in Scotland, 124–125 Land transfer, 8, 11, 30, 31, 33, 36, 47 Land use decisionmaking, 2; and community loyalty, 147–149; and extended community representation, 146, 148–149, 159, 167–170, 171–172, 173–175, 196; and globalization, 154, 155; and global systemic problems, 177–178, 180–181; and local community, 2–8, 9, 101–103, 109–110, 114–115, 116, 132–133, 136, 141–142, 195–196; and local knowledge, 117–119; national, 12–13, 170; regional, 136–138; regulation in, 105–106, 110; state, 170; in UK, 16, 110–111, 112, 114. See also Environmental restoration, local and nonlocal obligations in Land use planning, 84, 86, 137; comprehensive, 107–109; local, 112–113; multistate, 108; national,

223

108–109, 137; for public land, 109; regional, 116, 137; regulation in, 105, 107–109, 111, 112, 196; state, 108, 109, 137; in UK, 135; urban, 39, 45, 112–113 Legal realism, 29, 55(n26) Legislative determination, 42, 45–46, 50, 59(n60), 71, 79, 174, 194, 196; in UK, 38, 39, 40, 42, 86 Leisure consumption. See Recreation Leopold, Aldo, 121 Levmore, Saul, 49 Lexus and the Olive Tree, The (Friedman), 151 Liability rule, 95(n52) Liberalism, 2, 7, 37, 56(n28). See also Utilitarian tradition Linguistic preservation, 7, 152 Lipschutz, Ronnie, 140 Livestock protection, 87, 97(n75) Local and nonlocal obligations: in environmental restoration, 12, 177–178, 180–188, 191(nn 15, 16), 196 Local autonomy, 152–153 Local communities: and globalization, 151–152, 153–154, 156; and land use decisionmaking, 2–8, 9–10, 12, 101–103, 109–110, 114–115, 116, 136, 141–142, 195–196; and nonresident representation in land use decisionmaking, 156–157, 162, 167–168, 169–170, 173–174; and regulation, 103–108, 109–110, 111–114; and transnational groups, 170–171; in UK, 111 Local government, 5–6, 49; in metropolitan areas, 127–128, 138 Localism, 1–2, 5, 19 Local knowledge, 3, 117–119 Locke, John, 3, 17(n1), 33–35, 57(nn 37, 38) Logging. See Extractive industries Loretto v. Teleprompter Manhattan CATV Corporation, 69, 70 Lovell, Nadia, 153 Lucas v. South Carolina Coastal Council, 26–27, 42, 46, 52, 69, 71, 74, 83, 84–85, 90

224

Index

Maastricht Treaty, 171 MacPherson, C. B., 37 Madison, James, 44, 46 Magna Carta, 39, 40 Magnetic localities, 146, 150, 154, 155, 156–157, 168, 169 Mahon, Pennsylvania Coal Company v., 41, 65 Marbury v. Madison, 38 Martinez, Julia, 8 Mason, Andrew, 119 Matheny, Albert, 6–7 Mazmanian, Daniel, 137 Meacher, Michael, 61–62 Metropolitan regions, 127–128, 131–132, 137–139 Meyer, Birgit, 151 Michelman, Frank, 67–69, 71, 72, 81–82, 96(nn 54, 55) Migratory labor communities, 162–165, 168 Military seizure of property, 44 Miller, F. D., 46 Mineral leases. See Extractive industries Mineral rights, 11, 12, 45 Mining. See Extractive industries Minorities, 48, 50, 59(n66), 82, 129 Money, 34 Monument designation. See National monument designation Moral community, 119–120 Moratoriums, 22, 27, 97(n62); temporary, 84–86 Mormons, 9, 13 Mountain States Legal Foundation, 19 Movement of people, 145–146, 148, 149, 157, 158 Mullin, Chris, 89 Multilevel governance, 171 Municipal government, 5–6 Munzer, Stephen, 73–74 Nadin, Vincent, 111, 134 National Association of Home Builders, 127 National Enviromental Policy Act (1964), 109 National Farmers Union, 86

National government, 108–109, 137, 170. See also National monument designation National Land Use Policy bill, 108–109 National monument designation, 8–13, 17(n5), 31, 48, 180 National Parks and Access to the Countryside Act (1949, UK), 89 Nation-state, 152, 153, 168 Native Americans, 8, 12, 13, 32, 149, 166, 167, 170, 178 Nature conservation, 87 Nedelsky, Jennifer, 37, 46 NIMBY (not-in-my-back-yard) politics, 118 Nivola, Pietro, 126 Nollan v. California Coastal Commission, 52, 53, 60(n72), 62–63, 69, 74, 90 Nonconsequentialism, 186–189, 191(n16) Nozick, Robert, 33 Nuclear waste storage, 118 Nuisance, 26, 42, 43, 44, 45–46, 54(n19), 58(n57), 59(n60); industrial, 106, 107; in UK, 40, 42, 62 Oceans, 37 O’Connor, Sandra Day, 25, 78, 85 Open space, 126–127, 130, 138. See also Greenbelts Orfield, Myron, 138 Pacific Legal Foundation, 19–20 Paiute Indians, 9 Palazzolo v. Rhode Island, 23–25, 27, 54(n21), 74, 77–79, 85, 90, 94(n44) Palm Beach Isles v. United States, 76–77, 83–84, 85, 94(n40) Paris Adult Theatre v. Slaton, 109–110 Paul, E. F., 46 Paul, Jeffrey, 46 Penn Central Transportation Co. v. City of New York, 64–67, 69, 71, 73, 91(n8); as test of takings compensation, 25, 77, 78–79, 80, 84, 85

Index

Pennsylvania Coal Company v. Mahon, 41, 65 Permissions, 30, 64. See also Building permits Physical invasion, 69–71, 90, 93(n28) Pipes, Richard, 28 Place, sense of, 153–154 Platt, Rutherford, 5–6, 110 Pollution, 107 Process failure, 47–50, 59(n64), 195 Process theory, 48, 50 Property: as commodity, 5, 46–47; and law of peoples, 4; as propriety, 5, 47; as set of relations, 28, 29–30, 31, 55(n26), 56(nn 28, 29). See also Bundle of sticks; Communal property; Public benefit; Stewardship Property development, 22, 31; and building permit conditions, 52–53, 62–64; moratoriums on, 22, 27, 84–86, 97(n62); public-private, 129–130. See also Housing development Property exchanges, 11, 147. See also Land transfer Property ownership. See Communal property; Property rights; Public land Property rights, 1, 2, 19–20, 32, 193–194; and community, 2–8; historical justification of, 32–37, 56(nn 34, 35); and invested labor, 2, 33–34, 45, 57(nn 37, 38); and representation, 162, 167, 173–174; structure of, 28–32, 55(nn 22, 23, 25); U.S. colonial, 45. See also Bundle of sticks; Exclusion rights; Fundamental law; Government seizure of property; Housing development; Land transfer; Public benefit; Regulation; Right of access; Security of expectations; Takings Property rule, 95(n52) Property seizure by government. See Government seizure of property “Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just

225

Compensation’ Law” (Michelman), 67 Property values, 44, 49, 51, 66, 128, 194 Public access. See Right of access Public benefit, 34, 35, 40, 45, 47, 48, 56(n34), 57(n37), 58(n43), 66, 68 Public choice tradition, 48–49, 50 Public land, 32, 39, 47, 109, 125, 194; in UK, 56(n32). See also Communal property Public-private development, 129–130 Public services, 131–132 Public trust doctrine, 47, 58(n45), 59(n63) Pumpelly v. Green Bay Company, 41 Putnam, Robert, 115–116 Quiet revolution, 108 Ramblers’ Association, 86, 87 Rambling, ramblers, 30, 31, 61–62, 86, 87; and property owners, 87–90, 98(n88) Ranching, 9, 11 Rational agency, 35–36 Rawls, John, 4, 68 Reciprocity, 187–188, 189 Recreation, 130, 161–162. See also Rambling Regional community, 139, 141–142 Regional government, 138–139 Regulation, 2; change in, 72, 74, 75; cost of, 71, 127; history of, 105–106; insurance for, 71, 72, 92(n21); social, 109–110; and timing of property ownership, 23, 24–25, 27, 77, 78–79, 82, 92(n22); in UK, 39, 112; U.S. colonial, 43, 45. See also Bundle of sticks; Burden; Compensation, regulation; Constitutional protection; Government seizure of property; Housing development; Land use decisionmaking; Land use planning; Local communities; Speculation; Takings Rehnquist, William, 67, 86, 91(n17) Rent control, 49, 59(n68)

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Index

Representation: for extended communities, 168–170, 171–172, 173–175; and property rights, 162, 167, 173–174 Residential associations, 130 Residential development. See Housing development Residential locality: delineating, 128–129, 130–131 Rhode Island, Palazzolo v., 23–25, 27, 54(n21), 74, 77–79, 85, 90, 94(n44) Right of access, 70, 93(n28); compensation for, 62–63, 89–90, 99(n91); in UK, 30, 31, 56(n32), 61–64, 86–87, 88, 89, 90, 97(n71), 98(nn 86, 88, 91). See also Beach access; Easement; Exclusion rights; Ramblers; Trespass Rights-of-way, 11, 12, 30, 87 Rio Earth Summit (1992), 179 Rivers, 13–15, 20–21, 37, 140, 180 Rome, Adam, 107 Rubenfeld, Jed, 70 Rule-utilitarianism, 185–186 Rural communities, 121–125, 133, 161; suburban, 103–105. See also Agrarian community Rusk, David, 138 Salt marshes, 24, 27, 54(n21), 77 Sand County Almanac, The (Leopold), 121 Scalia, Antonin, 26, 46 Scholte, Jan, 154 Scientific study, 11, 87, 88 Scotland, 98(n86), 111, 122–125 Scott, James, 118–119 Seasonal communities, 159–162, 167, 168, 173, 174 Sebastian, Hadacheck v., 82, 92(n22), 107, 142(n7) Second homes, 161, 162, 167, 173 Security of expectations, 36–37, 43, 67, 68, 71–72, 194. See also Economically beneficial use; Economic realization; Investmentbacked expectation Seisin, 29, 40

Self-interest, 6–7 Self-sufficiency, 121, 138 Sheppard, Stephen, 135 Shuman, Michael, 121 Sidgwick, Henry, 37 Siegan, Bernard, 28, 46 Sierra Club, 156 Slaton, Paris Adult Theatre v., 109–110 Snyder, Mary Gail, 132 Social benefit. See Public benefit Social capital, 115 Social contract, 2–3, 131 Social property, 32 Social regulation, 109–110 South Carolina Coastal Council, Lucas v., 26–27, 42, 46, 52, 69, 71, 74, 83, 84–85, 90 Southern Utah Wilderness Alliance (SUWA), 12, 156 Special assessment districts, 49 Special purpose districts, 128 Speculation, 73, 74, 75, 84, 90, 111, 194 Spoilage restriction, 34–35, 57(nn 37, 39), 58(nn 41, 42) State government, 10, 11, 108, 170 Stewardship, 3, 33, 34, 35, 121; government, 4 Stone, Harlan Fiske, 48 Stream environment zones, 20–21 Suburbs, 103, 107, 108, 125–130; and common interest developments, 130–133; in metropolitan regions, 104, 127, 132, 138 Sufficiency proviso, 35, 58(n43) Suitum v. Tahoe Regional Planning Agency, 20–23, 27, 29, 47–48, 51, 53(n2), 59(n64), 74, 82, 90 Sullivan, Kathleen, 52–53 Sustainable development, 179, 190(n4) SUWA. See Southern Utah Wilderness Alliance Tahoe Regional Planning Agency, Suitum v., 20–23, 27, 29, 47–48, 51, 53(n2), 59(n64), 74, 82, 90 Tahoe Regional Planning Agency,

Index

Tahoe-Sierra Preservation Council v., 78, 83, 97(n62), 195 Tahoe Regional Planning Compact, 20–21 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 78, 83, 97(n62), 195 Takings, 2, 3; framework for, 25, 64–67; per se, 69, 71, 83, 84, 85, 86, 94(n44); and regulation, 11, 41, 42, 43, 44, 46, 51, 56(n30), 59(n58), 66, 75, 77, 83; and state, 41, 42, 43. See also Bundle of sticks; Burden; Compensation; Denominator; Economically beneficial use; Fairness; Government seizure of property; Physical invasion Taxation, 132 Teleprompter Manhattan CATV Corporation, Loretto v., 69, 70 Thoreau, Henry, 121 Tocqueville, Alexis de, 5 Tourism, 4, 9, 10, 17(n3), 154–155, 160–161 Town and Country Act (1971, UK), 110 Town and Country Planning Act (1947, 1968, UK), 110 Toxic waste production and storage, 50, 117–118 Transaction costs, 21, 81, 95(n52) Transferable development rights, 21, 64 Transition practices, 72 Treanor, William, 43–44, 49 Trespass, 62, 87, 88, 90, 98(n81) Two Treatises on Government (Locke), 3 Unconstitutional conditions, 52–53, 63–64 United Nations Framework Convention on Climate Change, 179

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United States, Armstrong v., 85 United States, Palm Beach Isles v., 76–77, 83–84, 85, 94(n40) United States v. Carolene Products Company, 48 United States v. Causby, 69–70 Urban expansion. See Metropolitan regions; Suburbs Urban planning, 39, 45, 112–113 Usings, 70 Utilitarian generalization, 182– 183 Utilitarian tradition, 2, 36–37, 67–68, 71, 80–83, 92(n23). See also Ruleutilitarianism Utility: and fairness, 80, 81–83, 96(nn 54, 55) Valid existing rights, 10, 11 Vedrine, Hubert, 152 Village communities, 103–104, 120, 121–122, 123–124, 133, 135 Voting, 168, 171, 172, 173–174 Walden (Thoreau), 121 Walking. See Rambling, ramblers Waste, 34, 45 Water projects, 70, 180 Watershed, 140 Waterways, 4, 13–15, 37, 47, 58(n45), 76, 108, 140, 180. See also Rivers; Wetlands Wellman, Barry, 157–158 Wetlands, 4, 23–25, 27, 45, 54(n21), 59(n66), 75–76, 77 Whitby, Martin, 133 Wilderness Society, 156 Wildlife, 10, 87, 88 Williams, Bruce, 6–7 Wit, Harold M., 173 Yucca Mountain, 117–118 Zoning, 35–36, 66, 72, 75, 106–108, 109, 110, 111–112, 142(n7)

About the Book

“It’s my land; I can do whatever I want with it.” “This city is our community; if we want to put a bike path across your land, we can.” These are two strongly held—and diametrically opposed—views of appropriate land use. As John G. Francis and Leslie Pickering Francis demonstrate, the debate about who should decide what to do with land is messy, complex, and often based on dangerously misguided principles. Raising the question of what rights owners—community as well as individual—do, in fact, have, the Francises argue that land stewardship transcends narrow spatial definitions. Their analysis of the discourse about property ownership offers a sophisticated, muchneeded approach to land use policy. John G. Francis is professor of political science at the University of Utah. Leslie Pickering Francis is professor of philosophy and Alfred C. Emery Professor of Law at the University of Utah.

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