Aug 232003

David Sucher, who runs the very interesting urban planning blog City Comforts, is asking again for “a principled, thoughtful conservative/libertarian critique of how to create the built environment,” and I figure as a sort of villain in the piece.

What makes me uneasy is that in actuality there really isn’t any principled, thoughtful Conservative/Libertarian (C/L) critique of how to create the built environment. In fact it was this discussion on God of the Machine which helped me give focus to City Comforts Blog. The discussion there ended on this note, with the comment directed to me:

“If the ‘problem’ is that you don’t care for the way cities and towns look now (under rigid zoning, I hasten to add), couldn’t it be easily rectified by simply appointing you land czar? Would that be any more unjust than allowing zoning boards to impose costs on people who get no say in the matter?”

I thought further conversation unproductive.

But that, unfortunately, is the typical C/L response: either denial or sneering and ending in “It’s my party…” There simply does not exist any intelligent or useful C/L commentary on land use governance. (Please, someone, prove me wrong!)

David’s acknowledgement that I helped give his blog focus (negatively perhaps, but I take it where I find it) is certainly more gracious than my remark. Actually we agree on most of the aesthetic questions — the bankruptcy of most modern architecture, the importance of promoting street life, parking as the tail that wags the dog. His constant criticism of “starchitecture” is well-taken. As Michael Blowhard reminds us in his discussion of Frank Lloyd Wright, nobody wants to live or work in Art. Art’s roof leaks. Art’s chairs tip. Art doesn’t have enough parking.

The dispute is over means, not ends. Private developers often erect hideous buildings, but for disaster on a grand scale nobody can touch the government. Think Pruitt-Igoe, or the housing project of your choice. Think the late World Trade Towers, unlamented by anyone who ever had to work there. David professes to admire Jane Jacobs; the great lesson of The Death and Life of Great American Cities is the vast superiority of bottom-up to top-down architecture. Cities, like markets, are more than the sum of their parts, and seem to show these ancillary benefits only when individual property owners are given latitude to operate. David is a real estate developer by trade, and his experience with architecture is far wider than mine, but I know New York City pretty well, and most of the development in its most livable and attractive sections, like the West Village, antedates central planning. New York tourists, once they’re done with the landmarks, head straight for the Village, or Chinatown, another planner’s nightmare. Attractive city neighborhoods can apparently spring up without any “planning” or “policy” whatsoever.

Is the culprit bad planning rather than planning itself? Certainly 20th-century urban planning, with its emphasis on segregating uses and choking off street life, has been very bad. Yet it is difficult to see how any planner, no matter how wise, could produce the endearingly crooked streets and chaotic mix of businesses and residences that characterize the West Village, or the North End of Boston, to take Jane Jacobs’ example.

David’s demand for a libertarian theory of “land use governance,” a polite term for zoning, is not entirely reasonable. It’s like asking a libertarian how he would run the Department of Agriculture or Education, to which the obvious reply is, he wouldn’t. He’d disband it. “Land-use governance” means the nosy neighbors convene and decide what I can build on my own property and to whom I can sell it. They impose costs on me at no cost to themselves. Zoning advocates like David ought to acknowledge the manifest injustice of such a policy.

A libertarian land use “policy,” if that is the term, might develop along coop/condo lines. Coop owners, like me, own shares in a building or group of building rather than individual units within it. I forfeit a certain amount of control over my premises in return for a lower price for the same amount of real estate. I do so voluntarily, and the rules are clear and laid out in advance. A coop agreement, unlike the zoning laws, is a deal. My coop consists of three buildings, and there’s no reason there couldn’t be larger coops of entire streets, or neighborhoods. Condominium agreements could burgeon in the same way.

This leaves the problem of burden-shifting. What happens if the guy next door decides to sell out to hog-processing plant? The short answer is, too bad. You’ve chosen to live somewhere he’s allowed to do that, and it’s his decision, not yours. The slightly longer answer is, if the hog-processing plant is damaging your property, by, say, belching toxic smoke into it, you do the American thing and sue. To the extent that the plant owner damages you — by tortiously interfering with your property, not by lowering the tone of the neighborhood — he pays. For this to work properly would require a major revision of liability law, which is a post for another day.

  12 Responses to “Law and Architecture Revisited”

  1. I agree with your basic claim that central planning is the wrong approach, although I lean more toward the conservative than the libertarian side on these matters. I once worked to persuade a P&Z committee not to allow a drug rehab center to open up next to my daughter’s school and right in the middle of our residential neighborhoods. I’m not sure a libertarian would be ok with that kind of restriction, and saying "too bad" is avoiding the question, to my mind. If one person’s land use greatly affects the quality of life of others, limitations on freedom may be warranted. Libertarians are comfortable with the "messiness" of individuals persuing their own designs, but they are not very comfortable with the messiness of competing values. Conservatives, I think, are comfortable with both.

    Also, is Paris a counter-example to the claim that planned cities are aesthetically inferior?

  2. I don’t think I claimed that planned cities are always or inherently aesthetically inferior, only that it’s possible for unplanned cities to be pleasing. I agree that Paris is lovely. Yet clearly there is an alternative to planning: no planning.

    When it comes to things like housing projects and drug rehab centers, we are all more NIMBYists than we care to admit. I suspect that in your example the drug rehab center was a government project anyway, and its location involved a political power struggle rather than any conflict of principles. "Greatly affecting the quality of life of others" is far too vague a standard to my mind. I greatly affect your quality of life if I get hired for a job that you want. My best local grocer "greatly affects" my quality of life if he decides to relocate uptown. My boss greatly affects my quality of life if he fires me. Shall we interfere with the freedom to hire and fire and the freedom to move one’s business on this account?

  3. Aaron:

    You discuss two fundamental types of zoning: aesthetic and use-based zoning (the hog processing plant example). I agree with your analysis on both. There is at least one other sort of zoning however that is more problematic for the libertarian. It is problematic in the same way that all questions regarding previously enacted government programs are vexing. What do you do about zoning that takes into account public infrastructure?

    Subways can only accommodate so many people, water and waste pipes can only flow at a fixed rate and electrical power — well, we have heard enough about that recently.

    I live in Hoboken and the commodity in shortest supply is the parking space. I live in one of two renovated buildings where Lipton Tea used to be processed. There is a third building on the property which the developers have not yet renovated because the town Mafi.., urr, fathers require the developer to develop a parking deck to make sure that at least the residents of the new building will have spaces.

    Is that wrong?

    What of zoning to cause people to move AWAY from a particularly dense area with overburdened infrastructure to a less dense one? This is what happened in the late 1980s when the Koch administration gave mid-town west side developers 20% FAR bonuses in order to move tenants from the east side. Or should there not have been FAR limits in the first place? And if there were no FAR limits, how do you plan infrastructure, like roads and pipes?

  4. The justice of such measures is a hopeless problem. I can suggest only a heuristic, that the cost imposed must be reasonably related to the burden on infrastructure the construction is expected to cause. Essentially the agents of the State ought to be able to retrieve for damages to infrastructure in the same way private parties can retrieve for damages to property. The damages, however, must be real and demonstrable. On this basis it was clearly wrong for New York City to make Bill Zeckendorf pay for rehabbing the park in return for permission to build at Union Square, but the Hoboken planning mob may have a point.

  5. Perhaps one way to look at is to consider that indeed we followed this path for a while:

    "The slightly longer answer is, if the hog-processing plant is damaging your property, by, say, belching toxic smoke into it, you do the American thing and sue."

    And we decided as a society that it was economically inefficient to insist that every land use gripe become a court case, and that in fact there are some generalized rules which would be fair to apply to all properties in a given locale. That is the historical origin of zoning and Grant Gilmore wrote about it in a more general sense (i.e. about the birth of the regulatory society) in "The Death of Contract." (Great book.)

    In a complex urbanizing society, we decided that it made no sense to insist on making every land use conflict a lawsuit i.e. that we could forestall lawsuits and the economic ineffeciency they bring if we could create general principles in the form of ‘zones.’

    I’ll expand a bit at CCBlog.

  6. I admire Gilmore’s book too, which carries its title for a reason. The judiciary’s unwillingness to enforce contracts promotes lawsuits more than anything else.

    Under the current "reasonable man" liability standard, which essentially disposes of contract, what I propose is impossible. Under a standard of strict liability such as Richard Epstein proposes, it would be quite feasible. My little joke aside, I’m arguing for fewer lawsuits, not more. Lawsuits for torts and only for torts.

  7. "Greatly affecting the quality of life of others" is far too vague a standard to my mind."

    Well, as I said, I’m comfortable with loose standards. Your counter-examples, however, don’t quite fit, because none of them are cases where the presence of one makes life significantly worse for many. Destruction is easier than creation, in physics and culture and everywhere else. Prudence seems to require that we don’t lock ourselves into principles that enable a small group to do disproportionate damage.

  8. Then I misunderstood you. But if this must be a one-to-many affair, then wouldn’t the example of the local grocer meet the standard? And what principle am I proposing that enables "a small group to do disproportionate damage"? Doesn’t that apply better to a planning board than to anything I’m suggesting?

    Loose standards are all well and good, but we are discussing coercion here. If I’m to be coerced the very least I should expect is to be told exactly why.

  9. This is a really interesting discussion, even by GoTM’s high standards. Aaron, would it be accurate to say that, in your view, environmental regulations are analogous to zoning laws — i.e., in a perfect world, tort law should be able to cover any cases of specific ‘environmental’ damage, as in your case of the toxic smoke from the next-door factory?

    The problem, of course, is that in passing enough tort law to let courts differentiate between toxic smoke that is an annoyance and toxic smoke that gives children chronic lung disease, don’t you wind up writing precisely the kind of environmental regulations you were trying to avoid? I realize I’m sort of just recapitulating David Sucher’s argument — that society chooses to pass sweeping general laws in order to forestall endless specific disputes — but it strikes me that environmental regulations are a particularly piquant example of the problem.

  10. Yes, that’s accurate. Environmental regulations, like zoning regulations, are a form of prior restraint. I must stress again that the principal reason these disputes are endless is that liability law is in disarray. There is no special body of law that need be passed to handle these matters. You cause me harm, I demonstrate the harm and the fact that you caused it, and you compensate me for it. This basic principle applies to all torts; there is nothing special about environmental hazards or land-use disputes. Of course sometimes it is difficult to demonstrate causality, but we have that problem already, besides a host of others that what I propose would eliminate.

  11. It’s can be pretty dumb and inefficient and sometimes an inequitable system — no I don’t mean democracy, just a subset of it — our system of zoning/environmental regulation.

    We developed it because the previous way of doing things — contract and tort — didn’t work for a mass society.

    Maybe there’s a better way out there and I suggest (not demand) that if libertarians don’t like this one then they had better conceptualize another one which gives people the same sense of protection which they get from the current system.

    Putting aside right or wrong, and focussing on pragmatism, it’s not going to change without an alternative. In general, people LIKE zoning. That’s why we still have it.

  12. "…if this must be a one-to-many affair, then wouldn’t the example of the local grocer meet the standard?"

    I can see where the civil authorities might decide to offer extra encouragement to get a replacement grocer, but to compel the grocer to stay would be slavery, which is a greater harm. Keeping someone from doing something is limiting their freedom in one way, but keeping someone from doing anything else is taking it all.

    "And what principle am I proposing that enables ‘a small group to do disproportionate damage’? Doesn’t that apply better to a planning board than to anything I’m suggesting?"

    Your example of the hog-processor suggests as much. And, yes, planning boards can wield disproportionate power, but theoretically they have some political accountability. (Ok, stop laughing, its not a perfect solution.)

    "Loose standards are all well and good, but we are discussing coercion here. If I’m to be coerced the very least I should expect is to be told exactly why."

    I agree, but I don’t know how effectively that case can be made in the abstract. It would depend on particularities and precedent.

    I should say again that I am largely in agreement with your original post. Planning is problematic at best, and restrictions on property use should meet with a great deal of circumspection.

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