A Short History of Land Use and Why It Matters, Pt 2

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(Robert J. Flavell is vice chairman of The Saint Consulting Group and co-author of NIMBY Wars: The Politics of Land Use)

By Robert J. Flavell, Vice Chairman, The Saint Consulting Group

Citizens didn’t always feel so empowered. In mid-century America, it was widely quoted and believed that you can’t fight city hall—that government officials made decisions according to their superior judgment, and the average citizen had nothing to say about it. But something happened to the American citizenry when the Baby Boomers began coming of age: they wanted to be consulted, expected to be heard, and felt entitled to get their way.

For most of the 20th Century, real estate development of any kind—commercial, industrial, residential—was seen as positive. It represented progress, investment in the community, a stronger economy, improvement in the quality of life, and enhanced opportunities for present and future generations. It provided jobs for those who needed them, careers for those who wanted them, and expanded choices for consumers. It attracted new people to town, enhanced civic pride, broadened the tax base, and generated additional tax revenues to support local government and keep the cost down for everyone. Local chambers of commerce were key players in the community, working with local officials to make the town more welcoming, more receptive, and more desirable to developers.

Elected public officials sought out development and, when it was built, took center stage at the ribbon cutting to take public credit for this latest enrichment of municipal assets.

To get building approval, the applicant went to city hall, conferred with the building inspector, and emerged with his permit. Even if he needed a zoning change or special use permit, he could be pretty confident that he’d have a friendly no-audience hearing before a panel of supportive local officials who might make a few suggestions, but would certainly grant him the zoning relief he wanted.

The tendency then was to approve development proposals. Politicians knew that the majority of their constituents wanted progress: they knew that the press would reliably write glowing stories about any new development and credit the public officials involved; and they knew that a public official could display leadership by grabbing the microphone at the grand opening of any project and reminding everyone that jobs and tax revenues helped build and support the local economy. Confronted with a ragtag group of opposing citizens, a politician might politely ask the developer to consider the neighbors’ concerns. But there was no question of stopping or delaying the project, unless the neighbors were prepared to bring an expensive lawsuit, and defend against the developer’s multi-million dollar counterclaim for tortious interference and defamation of character. Neighbors who were wealthy and determined enough to endure that ordeal were rare.

But by 1970, the work of environmental activists and environmentalist writers such as Rachael Carson bore fruit when Congress passed the first version of the National Environmental Policy Act (NEPA), enshrining in law for the first time a national policy on the environment, originally limited to those respecting “major federal actions significantly affecting the human environment.” (PL-91-190, 42 U.S.C. sections 4321-4347.) Carson’s 1962 book, Silent Spring, had brought about a national ban on DDT and other pesticides, and came amid a flurry of medical research linking pesticides to cancer and mounting criticism of the federal government’s environmental carelessness in developing both its domestic and military construction projects,[1] especially the destruction of neighborhoods and environmental damage during construction of the interstate highway system.

The NEPA has since been broadly expanded beyond government projects to include large development of all kinds, whether they directly receive federal money or require direct federal action or not, and often includes projects that only require some federal review, such as historical, archeological and cultural impacts, as well as strictly environmental ones.

The most important effect of NEPA, however, and what really opened the floodgates to contentious opposition to development projects in every village and town across the country, was the states’ adoption of mini-NEPA acts, echoing the requirement for an Environmental Impact Statement, but requiring that it be prepared by the project proponent, subject to public hearings, and evaluated subjectively by a board of local officials whose members would be subject both to the political pressure of voters and the threat of appeal if the board failed to render the decision those citizens wanted. This was the broad invitation for citizen participation, objection, and comment that made it possible not only to fight city hall and the political establishment, but also to intimidate it with the threat of political backlash.

Suddenly, development wasn’t automatically good; it didn’t represent progress if it polluted the river or fouled the air. It wasn’t acceptable to disregard neighborhood wishes, nor benefit developers at the expense of community character. Property owners did not have a right to develop their land as they wanted, but instead were expected to be attentive to local sensibilities.

Thus was achieved the critical mass in land use decision-making, rendering it wholly political. On the one hand, the law invited citizen activist participation; and on the other stood an entire generation of self-aware, empowered, and entitled Baby Boomers demanding to be heard. Their focus on their own “quality of life” and “community character” left them unconcerned with old-fashioned notions of progress and property owners’ rights and suspicious of developers’ promises. It didn’t take them long to discover that once decision-making became discretionary and subjective, it also became political.

Once they understood how the political system works when you command the power of the ballot box, development opponents began to read the works and adopt the theories of social engineers, who urged expansive reworking of traditional zoning and planning regimes and approaches to zoning that afforded broad discretion to more tightly control the design, size, density, and location of projects, and inserted whole new levels of uncertainty, delay, compliance ambiguity, and angst for property owners and developers embroiled in the permitting process.

They tinkered with local ordinances, expanding the variety of zoning districts and mincing the permitted uses in each. Some adopted sweeping rewrites, establishing urban growth boundaries, requiring infill development, and imposing new density requirements. Some merely tightened control and expanded discretion of public officials to rule whether a proposed project seemed appropriate. The result was that no major project could be built as a matter of right, but would instead require some species of special permitting or zoning exception in addition to environmental and conservation approvals, all granted by local boards after public hearings and ample citizen input.

Citizens began forming neighborhood groups to control change in their communities and oppose projects they found intrusive. Their ability to effectively oppose development grew and expanded as technology gave them the tools to quickly communicate with one another, share information and tactics, and pummel politicians with broadsides. National environmental organizations that had previously communicated by mail now set up extensive Websites with advice on how to stop unwanted development. Political activists who had fought in the counterculture trenches now saw themselves as pro-culture, pro-environment, pro-nature, pro-preservation, and used the skills they had learned in the trenches to help their novice apprentices along.

As their successes mounted, citizens grew increasingly insistent on getting their own way, fiercely intractable toward projects they disapproved, more adept at organizing their membership, more expert at devising strategy, and more forceful in confronting public officials. Local officials who opposed organized citizens could expect to be turned out of office in the next election, if not booted sooner through a recall petition. Those who insisted that unpopular projects were good for the community risked being labeled as shills for the developers, or worse. Candidates for public office learned to pay homage to local biases, often making development opposition a major plank in their campaign platform.

It’s important for real estate development executives to know a little history to understand how and why their opponents can be so virulent and uncompromising, and why obsolete strategies will not succeed in getting projects approved. The modern citizen’s sense of empowerment and entitlement, encouraged by environmental and ecological laws, enhanced by ordinances and regulations requiring public hearings and participation in the planning and permitting process, and enforced by their right to vote uncooperative public officials out of office, provide project opponents with a broad array of lethal weapons they can use to kill any development they don’t like.

A developer who walks into this maelstrom unprepared risks disaster.

[1] Rutherford H. Platt, Land Use and Society, (Washington, D.C.: Island press, 2004) 376.

Robert J Flavell is vice chairman of The Saint Consulting Group, email flavell@tscg.biz

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