Sprawl vs density

It used to be a standing joke in the land use community that the only thing that land use planners hated more than sprawl was density. Or did they hate density more than sprawl? No matter; you get the picture. There was a severe split of opinion. In any event, battles raged for years over the benefits and detriments of the sprawled out development pattern in the Los Angeles metropolitan area vs. the more densely packed (and extremely high rise) New York City model. Recently, it appeared that the density fans were winning, with both state and local legislators favoring increased mass transit and increasingly dense development along those routes -- particularly near transit stops, adopting much of the New York City mode. We have seen a resurgence of the idea of the "granny flat," that outlying residence in the back yard that would be a convenient flat for grandparents, or housekeepers, or kids, or even tenants. Beyond that, Los Angeles County created a program to pay homeowners to build housing for the homeless. (Vanessa Romo, "LA County to Pay Homeowners To Create Housing For The Homeless," National Public Radio, April 13, 2018.) That ought to help break up those selfish people who still swore by the "American dream" of a house in the suburbs with a white picket fence surrounding a large yard and the other accoutrements.

Then came COVID-19. And social distancing. Now what? Recent news coverage has exposed the rough edges brought about by this cultural/medical clash. (See, e.g., Liam Dillon, "Building dense cities was California's cure for the housing crisis. Then came coronavirus," Los Angeles Times, April 26, 2020; Joel Kotkin, "Angelenos like their single-family sprawl. The coronavirus proves them right," Los Angeles Times, April 26, 2020.)

New York Gov, Andrew Cuomo, presiding over the greatest American concentration of COVID-19 deaths, had a simple explanation for the magnitude of the New York problem at one of his recent news conferences. Did it contain a message for Los Angeles? Perhaps. The key, he said, is "DENSITY." (The emphasis was his, by placing that conclusion in all caps on his screen.) In his words, the current plague "is very contagious. The dense environments are its feeding grounds." Of course, people will argue over the statistics. What else are statistics for? For example, although it has been said that metro Los Angeles has 2 million more people than New York City, we have suffered only 913 deaths, compared with New York City's 17,303. (By the time this is published, the numbers will have changed, but the general relationship should be similar.) Contrarians will say that other large cities (like Seoul, Tokyo and Hong Kong) have managed to endure fewer casualties than New York. They credit the difference to the type and alacrity of the response by the respective governments.

The other side of the coin portrays another driving force at this point in the 21st century: climate change. Even with some increased risks caused by denser concentrations of living quarters, some have urged that the risks are necessary in order to deal with climate change and motor vehicle pollution. (See Liam Dillon, "What does California need to meet its climate change goals? For starters, more housing and less driving, report says," Los Angeles Times, March 27, 2020.)

So, what is going to happen and what legal issues are likely to arise? As to the first, California's governor and Los Angeles' mayor still seem hyped on increasing density, supported by some influential state legislators. Although stringent legislation has recently been rejected, more is planned.

Much of the opposition to increased density comes from people already living in the areas that are targeted for increased density. They like their neighborhoods as they are and oppose increasing their density. These parties have used environmental legislation to oppose such new developments, demanding (sometime successfully) that extensive impact reports be prepared to evaluate the changes that will be wrought by increasing density. At a minimum, this consumes time and money and is sometimes enough to kill a project.

Some targets seem too easy. For example, some density advocates plan new developments on the assumption that the new occupants will use mass transit rather than personal transport. As a consequence, they insist that they need not provide the amount of garage space that has typically been required for new multi-family housing. From my viewpoint, they are living in a dream world. There is no way that people can be precluded from buying cars and parking them wherever they can. We will start to feel the effects of this as soon as drivers begin to buy or rent units in buildings that were designed for others. Density fans denigrate such people and assault them with acronyms like NIMBY (not-in-my-back-yard, if you have somehow not seen this before) and call them selfish. Perhaps. But we have never been a people who demanded uniformity and I doubt that it can be legislated now. Whether you are a fan of increased density or feel that we have enough of it now, California's vaguely interpreted environmental laws will provide fodder for litigation about any new density laws.

Others who will surely seek judicial support are property owners who feel that property is being taken from them and given to the public. Bear in mind that, from a constitutional perspective, property has long left the realm of being considered as a thing, but rather as a group of rights. Each of the rights that an owner of land possesses is, of itself, a property interest and is protected by both state and federal constitutions. Thus, the rights to use, possess, develop, and exclude others have long been recognized as property. Suits are already either being planned or filed that challenge COVID-related regulations as unconstitutional takings. Some will succeed; others not. For example, if a city rezones a long-established single-family area to allow apartment buildings to share their space, what is the impact on the rights of those already in possession? Some will certainly urge that this invasion of their previously quiet and somewhat isolated neighborhoods has taken an interest in their property, resulting in a severe diminution in its value.

We do not attempt to prognosticate in this column. Here, we are simply raising some possibly unanticipated issues. In government's rush to find solutions to a serious medical problem, it may be opening the door to serious legal issues. Stay tuned. 