This response paper addresses Dr. Fischel\u27s critique of four points about the American Planning Association\u27s (APA) amicus curiae brief: (1) The APA is not concerned about the overall impact of growth management systems that restrict the pace of development and therefore boost the cost of housing on a metropolitan basis; (2) a monetary damages remedy for an interim taking from excessive land use controls is a better solution than the  builder\u27s remedy,  which is court permission to allow the plaintiff/ developer to construct a housing project in which housing units are set aside for low- and moderate-income persons; (3) mandatory inclusionary zoning allows communities, once they have fulfilled their fairshare objective, to act in an exclusionary manner toward market rate development; and (4) exclusionary zoning is somehow justifiable because everyone does it

Meck, Stuart

Tucker, Charles F.

English

Washington University St. Louis: Open Scholarship

Urban Law Annual ; Journal of Urban and Contemporary LawVolume 40 Symposium on Growth Management and Exclusionary ZoningJanuary 1991A Response to William A. FischelStuart MeckCharles F. TuckerFollow this and additional works at: https://openscholarship.wustl.edu/law_urbanlawPart of the Law CommonsThis Symposium is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted forinclusion in Urban Law Annual ; Journal of Urban and Contemporary Law by an authorized administrator of Washington University Open Scholarship.For more information, please contact digital@wumail.wustl.edu.Recommended CitationStuart Meck and Charles F. Tucker, A Response to William A. Fischel, 40 Wash. U. J. Urb. & Contemp. L. 75 (1991)Available at: https://openscholarship.wustl.edu/law_urbanlaw/vol40/iss1/6A RESPONSE TO WILLIAM A. FISCHELSTUART MECK*CHARLES F. TUCKER **Dr. Fischel critiques four points about the American Planning Asso-ciation's (APA) amicus curiae brief: (1) The APA is not concernedabout the overall impact of growth management systems that restrictthe pace of development and therefore boost the cost of housing on ametropolitan basis; (2) a monetary damages remedy for an interim tak-ing from excessive land use controls is a better solution than the"builder's remedy," which is court permission to allow the plain-tiff/developer to construct a housing project in which housing units areset aside for low- and moderate-income persons; (3) mandatory inclu-sionary zoning allows communities, once they have fulfilled their fair-share objective, to act in an exclusionary manner toward market ratedevelopment; and (4) exclusionary zoning is somehow justifiable be-cause everyone does it.First, Dr. Fischel and the APA could certainly agree that land usecontrols, by restricting supply of appropriately zoned land in the faceof increasing demand, raise housing prices. No citation to authorita-tive studies is necessary to persuade us. Unfortunately, Dr. Fischelseems to equate the Town of Chester's badly-drafted zoning code with"growth management." But Wayne Britton v. Town of Chester, as thetrial court opinion indicates, is not about a town that was trying toimplement a growth management system under New Hampshire law,that is, an integrated system of planning, land use controls and infra-* American Institute of Certified Planners. Stuart Meck is a city planner inOxford, Ohio, President of the American Planning Association and alicensed/registered professional planner in New Jersey and Michigan.** Charles F. Tucker is a partner with the law firm of Donahue, McCaffney &Tucker in Exeter, New Hampshire.Washington University Open Scholarship76 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 40:75structure expenditures in which development was to be phased over aforeseeable future in accordance with a capital improvement program.Chester was doing no such thing. Chester had no water or sewer linesof its own, and the major road systems were state routes maintained bythe State of New Hampshire. Chester's master plan did not call for oranticipate any major new infrastructure. Municipal service levels weremodest.Instead of sophisticated growth management, Wayne Britton v. Townof Chester is about none-too-subtle exclusionary zoning, as the trialcourt found. The APA's brief points out that the town was using allthe classic land use devices to specifically keep out low- and moderate-income housing. Despite a regional housing plan for southern NewHampshire and a local master plan that both identified a need for af-fordable housing and set short-term fair-share goals, and a zoning codethat offered illusory inclusionary "incentives," Chester really was notinterested in providing housing for low- and moderate-income persons,whether indigenous to the town or expected to reside there.Moreover, it appears Chester was pretty successful at excluding. Dr.Fischel suggests that the "growth pressures" on Chester, whose 1988population was estimated at 2550, may have been the result of monop-olistic spillover effects from other, more conveniently located towns insouthern New Hampshire and northeastern Massachusetts which em-ployed even more restrictive zoning. Our data, detailed in Appendix Bof the brief, suggest quite the opposite growth pattern was occurring.United States Census Bureau counts for 1980 and estimates for 1988showed that five of the six towns contiguous to Chester-Auburn, Can-dia, Derry, Fremont, and Raymond - increased by 40 to 47% duringthe 1980-88 period, while Sandown, the sixth, grew by 77.4%. In con-trast, Chester increased by only 27.1% between 1980 and 1988, sharplydeclining from its 45.2% rate during the 1970s. Chester was the pro-verbial "hole in the doughnut" due to a growth rate markedly lowerthan surrounding towns.Second, Dr. Fischel questions why the APA did not endorse Profes-sor Ellickson's theory of monetary damages for an interim taking fromexcessive regulation.' Dr. Fischel's economic theories about the poten-1. See Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86YALE L.J. 385, 467-75 (1977) (discussion of proposed compensation scheme for reim-bursing landowners and consumers damaged by growth control); see also id. at 493-500(application of approach to exclusionary zoning).Professor Ellickson's approach would be to use the takings clauses in state constitu-tions to require suburbs which enact growth control measures to reimburse a landownerhttps://openscholarship.wustl.edu/law_urbanlaw/vol40/iss1/6RESPONSE TO WILLIAM A. FISCHELtial beneficial impact of Professor Ellickson's remedy notwithstanding,the plaintiffs do not pursue damages for an interim taking for goodpractical reasons: seeking a damages remedy considerably ups the antefor plaintiffs because it brings into the case defense attorneys whosefees and related costs are paid for by insurance companies indemnify-ing the municipality. Plaintiffs in zoning cases like this one do nothave the same luxury of protracted or expensive litigation. They areinterested in getting affordable housing built quickly (and presumably,being reimbursed for attorneys fees and costs). As a matter of strategyand tactics, the plaintiffs simply ask for the builder's remedy. Gettingit is a better result than seeking a damages remedy, which often onlyserves to enrich insurance defense attorneys with the opportunity topursue endless procedural impediments and appeals.Third, Dr. Fischel contends that mandatory inclusionary zoning al-lows communities, once they have fulfilled their fair-share objective, toengage in exclusionary zoning rather than deregulate and increase theoverall supply of housing. To some degree, state planning legislationwill influence the behavior of towns. As we point out in our brief,2there is no current requirement in the New Hampshire planning stat-utes for towns to address any housing needs for low- and moderate-income or market rate housing. The town master plan authorizes anoptional housing element, but the statutes do not require any commit-ment to its implementation, and there is no state monitoring of localregulatory efforts. In any case, absent a state statutory or Mount Lau-rel style constitutional obligation, communities need not address low-for damages based upon how much a land use restriction reduces the market value ofhis land and to reimburse housing consumers (generally, as a class) for any damagesthey have suffered as a result of housing price increases attributable to a suburb's landuse policies. As a defense, a suburb would have to affirmatively prove that its land usesrestrictions were fair to the respective parties and efficient. Id. at 469.Because the plaintiff would bear the initial burden of proof, this complex, RubeGoldberg compensation scheme would demand that the builder or low-income plaintiffproduce elaborate, costly economic evidence at trial, resulting in sort of a full employ-ment act for economists and appraisers, which, no doubt, explains Dr. Fischel's enthusi-asm for it (Ellickson, for example, expressly endorses the use of econometricians). A lotof money would go toward attorneys and assorted expert witnesses, but no housingwould get built.Ellickson does add that "[i]njunctive relief is appropriate, however, against a munici-pal program motivated by discrimination against ethnic or ideological minorities." Id.at 468.2 See supra note 34 of APA Brief at 17 describing the planning requirements inNew Hampshire.1991]Washington University Open Scholarship78 JOURNAL OF URBAN AND CONTEMPORARY LAW [Vol. 40:75and moderate-income housing needs at all. Consequently, Dr. Fis-chel's critique on this point seems a little lame.We agree that the salvation favored by economists - deregulation- is a partial answer and one advocated in Mount Laurel!: get rid ofthe devices that add unnecessarily to housing cost (like required mini-mum floor areas and excessive subdivision improvement requirements),speed up the approval process for developments, increase the supply ofresidentially zoned land at higher densities, and you will lower the costof all housing. If it were only that simple. A single decision-makingbody, presumably at the state level, would hand down the ultimatum,delivered in stentorian tones: "YOU SHALL DEREGULATE ANDTHE RISING TIDE OF DEREGULATION WILL LIFT ALLBOATS."Justice Pashman's concurring opinion in Mount Laurel I noted thedefect in relying soley upon the type of deregulation championed byDr. Fischel:In theory, low and moderate income families should benefiteven from construction of new housing which they themselvescannot afford because such housing creates vacancies which "filterdown." In reality, however, most of these vacancies are absorbedby the enormous lag between population growth and new housingconstruction. The housing which does "filter down" to personswith low- or moderate-incomes is often badly dilapidated and indeteriorating neighborhoods. 3We think the primary mechanism to address these housing needs isthrough the type of state legislative action contemplated in the MountLaurel decisions. No one forces towns to enact land use controls;rather, state law "enables" them to do it. And where state law confersa right, it also imposes a substantive constitutional obligation to lookout for a broader welfare than just that of the community enacting theregulations.Despite Dr. Fischel's assertions, the legislation resulting from MountLaurel, the New Jersey Fair Housing Act, seems to be working, 4although perhaps too slowly, in producing housing units in suburbanareas that will directly benefit low- and moderate-income persons.Over time, it may even lead to broad-scale regulatory reevaluation bylocal governments as they try to determine how to lower housing costs3. Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J.151, 205, 336 A.2d 713, 741 (1975) (Mount Laurel 1) (citations omitted).4. See supra Appendix D of APA Brief at 47-48,https://openscholarship.wustl.edu/law_urbanlaw/vol40/iss1/6RESPONSE TO WILLIAM A. FISCHELto meet affordable housing goals or consideration of other non-zoningalternatives such as rehabilitation to preserve or enhance the housingstock.5Dr. Fischel's final critique, drawn from his experience in serving as aNew Hampshire town zoning board alternate, is that exclusionary zon-ing is okay because everybody does it. That reminds us of the classicWoody Allen line "I'm guilty, your honor, but with an excuse." Dr.Fischel has lots of excuses. We can expend our time in developingelegant graphs of supply and demand curves and general propositions,as he does in his 1985 book, The Economics of Zoning Laws, explainingwhy things won't work in theory, or rationalizing why, when they dohappen to work in practice, that's bad too. Or we can take action inthe real world and try to get affordable housing built now in areaswhere people need it.The APA prefers the latter.5. See supra Point IV of APA Brief at 32.1991]Washington University Open Scholarshiphttps://openscholarship.wustl.edu/law_urbanlaw/vol40/iss1/6NOTESWashington University Open Scholarshiphttps://openscholarship.wustl.edu/law_urbanlaw/vol40/iss1/6

A Response to William A. Fischel

https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1214&amp;context=law_urbanlaw

A Response to William A. Fischel

Abstract

Similar works

Full text

Available Versions

Washington University St. Louis: Open Scholarship