The intersection between geography and law is a critical yet often overlooked element of land-use decisions, with a widespread impact on how societies use the land, water, and biodiversity around them. Land Use and Society, Third Edition is a clear and compelling guide to the role of law in shaping patterns of land use and environmental management. Originally published in 1996 and revised in 2004, this third edition has been updated with data from the 2010 U.S. Census and revised with the input of academics and professors to address the changing issues in land use, policy, and law today.
Land Use and Society, Third Edition retains the historical approach of the original text while providing a more concise and topical survey of the evolution of urban land use regulation, from Europe in the Middle Ages through the present day United States. Rutherford Platt examines the “nuts and bolts” of land use decision-making in the present day and analyzes key players, including private landowners, local and national governments, and the courts. This third edition is enhanced by a discussion of the current trends and issues in land use, from urban renewal and demographic shifts in cities to the growing influence of local governance in land use management.
Land Use and Society, Third Edition is a vital resource for any student seeking to understand the intersection between law, politics, and the natural world. While Platt examines specific rules, doctrines, and practices from an American context, an understanding of the role of law in shaping land use decisions will prove vital for students, policymakers, and land use managers around the world.
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About the Author
Rutherford H. Platt is Professor Emeritus of Geography at the University of Massachusetts Amherst and a Lifetime National Associate of The National Academies. He is the author of Disasters and Democracy: The Politics of Extreme Natural Events and Reclaiming American Cities: The Struggle for People, Place, and Nature Since 1900, among many other publications. Platt has served on various panels of the National Academy of Sciences/National Research Council and has consulted with diverse federal agencies and nongovernmental organizations.
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Land Use and Society
Geography, Law, and Public Policy
By Rutherford H. Platt
ISLAND PRESSCopyright © 2014 Rutherford H. Platt
All rights reserved.
Land Use and Society: Fundamentals and Issues
For the Lord thy God bringeth thee into a good land. A land of wheat, and barley, and vines, and fig trees, and pomegranates; a land of oil olive, and honey; a land wherein thou shalt eat bread without scarceness, thou shalt not lack any thing in it; a land whose stones are iron, and out of whose hills thou mayest dig brass.
Book of Deuteronomy 8:7–9
The Earth is given as a common stock for man to labor and live on. It is not too soon to provide by every possible means that as few as possible shall be without a little portion of land.
Thomas Jefferson, Letter to Rev. James Madison, 1785
From the Old Testament to the present, the subject of land has many meanings and arouses conflicting emotions: visions of hope and faith; source of wealth and social status; a sense of place and rootedness; joy at the view of a treasured landscape in different seasons; friction among family members who jointly inherit a parental home, vacation cottage, or farm; anxiety at a proposed shopping mall in the neighborhood; shock upon receiving a property tax increase; anger at an unsympathetic zoning board; grieving at the sale of a longtime home or its loss by fire or flood. "Land" is central to much of the human experience in one way or another. It is therefore appropriate at the outset of a book titled Land Use and Society to ask, What really is land, and how do we use it? This chapter will preview some of the topics to be considered in more detail later and will introduce some useful terminology (identified in italics).
What Is Land?
Along with water, oxygen, carbon, nitrogen, sunlight, and other necessities, land is one of the key constituents of life on Planet Earth. Life is believed to have originated in aquatic environments and later gradually migrated ashore; an exhibit at Chicago's Field Museum of Natural History depicts ancient amphibians that flopped onto marine beaches propelled by fins that gradually evolved into legs, and much later, conveniently, into arms, hands, and fingers. Charles Darwin in On the Origin of Species postulated that life-forms evolve over time through what he called the "survival of the fittest." More recently, life scientists Lynn Margulis and James Lovelock, coformulators of the Gaia hypothesis, argue that early life evolved through endosymbiosis, or mutual interdependence of species, rather than through Darwin's perpetual struggle for supremacy. Whatever the origins of life, humans and their societies have certainly developed on dry land, not under water. Even though our planet is three-fourths covered by oceans and lakes, it is called Earth rather than Water because those who did the naming happened to stand on terra firma.
That is not to disregard the critical role of water, especially freshwater, in the productive use of land and the sustenance of terrestrial life in general. Ancient dryland societies in China and elsewhere were famously labeled "hydraulic civilizations" by German geographer Karl August Wittfogel due to the centrality of water management as the lynchpin of political authority. The history of the American West—from the Anasazi villages of northern New Mexico (Figure 1-1) to the great western dams inspired by John Wesley Powell's arid lands agenda (Figure 1-2)—has been a chronic struggle to capture water wherever it can be found and convey it to where it can be productively used to extract minerals, grow crops, support livestock, and sustain sprawling cities in the desert like Salt Lake City, Phoenix, and Las Vegas. Today, 80 percent of the water used in the United States is devoted to irrigated agriculture. As recent crippling western droughts and catastrophic tropical storms like Irene and Sandy demonstrate, global warming is already disrupting weather patterns, subjecting hundreds of millions worldwide to threats of water scarcity punctuated by devastating floods and coastal storm surges.
Land use is thus inseparable from water resource management, especially in dry localities, but land is a very different commodity from water in many respects. Legally, a "water right" is a common form of private property in western states and other arid regions, but that term means what it says: legally protected access to water of a certain quantity or quality. Where water is scarce, "water rights" may be limited to particular uses such as irrigation, livestock watering, mining, or industrial uses. In wetter regions, water rights may be limited by quantity but not limited in use.
Legal access to water, however, does not mean actual ownership of the water itself, which remains a very fluid (pun intentional) substance, not easily reduced to personal ownership. Tap water from public water utilities is increasingly metered and "sold" to system users, with rising costs serving to stimulate efforts to fix pipes and reduce wasteful uses of water. As with water rights in the American West, though, it is access to adequate clean water that is purchased, not ownership of the water itself.
In a physical sense, land cannot be summarized by a convenient chemical formula like H2O. In fact, it is not easily summarized at all; it has various meanings and identities for different purposes. Consider the many possibilities.
First, land consists of the physical material of Earth's crust: its surficial geomorphology of soils, rock outcrops, sand and gravel deposits, and drainage systems and its subsurface geology of granite, gneiss, limestone, basalt, sandstone, other components of Earth's crust. From the ancient Phoenicians and Greeks to the Keystone XL pipeline, human societies have been clever—if often short-sighted and rapacious—at extracting, transporting, processing, and marketing the material wealth of the planet, such as diamonds, gold, silver, copper, lead, iron, coal, uranium, oil and gas.
Second, the idea of "land" includes the flora and fauna that it nurtures. The "pomegranates; ... oil olive, and honey" mentioned in the chapter-opening epigraph were bounties of the biblical Promised Land. From earliest times, societies have exploited the living resources of accessible land masses, from Meso-America, to northern Africa, to the steppes of Asia, to the Mediterranean basin. Ancient civilizations like the Greek and Roman empires decimated available timber for shipbuilding, firewood, and building materials while overgrazing grasslands with livestock, leaving vast areas of depleted soils, eroded hillslopes, and silted harbors, a dreary process that continues in many parts of the world today.
The westward march of settlement across North America during the nineteenth century radically transformed natural landscapes from Maine to Oregon through deforestation, plowing of the prairies, drainage of swamps, mining, damming of rivers, and oil and gas extraction. The passenger pigeon was hunted to extinction and the buffalo nearly so. According to Stewart L. Udall: "The intoxicating profusion of the American continent ... induced a state of mind that made waste and plunder inevitable. A temperate continent, rich in soils and minerals and forests and wildlife, enticed men to think in terms of infinity rather than facts, and produced ... the Myth of Superabundance."
Ill-founded government policies have often compounded the depletion and waste of the land's physical and living resources. The American Dust Bowl of the 1930s was a direct result of federal policies that encouraged farmers to plow the prairie grasslands to plant wheat, leaving millions of acres of soils unprotected from hot dry winds during a period of intense drought (as poignantly related in John Steinbeck's Grapes of Wrath and Ken Burns's public television series The Dust Bowl). The degradation of the Aral Sea and loss of its valuable fisheries in central Asia was attributable to Soviet policies that diverted tributary rivers to irrigate deserts for cotton production, causing an irreversible environmental disaster. Similarly, vast swathes of tropical rain forests have been the victims of national programs to promote lumber exports and agriculture, as in Brazil and Indonesia. Countless river valleys with their rich alluvial floodplains, ecological habitats, and cultural heritages have been drowned by government-sponsored water development projects, most famously by Egypt's Aswan High Dam in the 1960s and by China's Three Gorges Dam completed in 2012, a project that displaced 1.3 million people and their farms and villages.
Third, besides its physical characteristics and resources, the value of land for human use is enormously influenced by its potential for site development as a platform for the construction of homes, villages, shopping malls, skyscrapers, stadiums, casinos, and other structures. Development-based land uses rely less on the physical characteristics of the site and much more on its location. (The mantra of real estate agents is that the three most important factors in land value are "location, location, location.") As land is developed with buildings, roadways, parking lots, and other "site improvements," these changes become legally attached to the land as part of a combined parcel of "real estate" (also known legally as real property).
Fourth, whether used for resource or development purposes, land is a capital asset and a fundamental source of wealth in a capitalist, ownership society. The value of land as an object of investment is the expectation of realizing a flow of economic or other benefits from owning it over the foreseeable future. Thus in the resource-based context, a farm is expected to produce agricultural products, a quarry to produce building materials, a woodlot to produce marketable timber, a mountain slope to draw skiers, each, it is hoped, generating income in excess of costs and taxes. Likewise, in the development-based context, property buyers seek short-term revenue from residential or commercial use of the site (in the form of rent payments avoided for personal use by homeowners or businesses) plus the expectation of increased ownership value (equity) in a rising market. Before the housing collapse of the mid-2000s, rising homeowner equity was widely cashed in through "equity loans," often to pay for home improvements, college expenses, vacations, and new cars.
These investment "bets," of course, are fraught with risk, from economic fluctuations, demographic change, variations in regional housing markets, natural disasters, and fraudulent lenders. The collapse of the land development market, and the investments derived from it, brought about the bankruptcy and demise of the global financial giants Lehman Brothers and Bear Stearns in 2008, followed by the federal bailout of many other banks considered "too large to fail." The drop in real estate values nationwide caused millions of households to become "underwater" (i.e., owing more on their home than it was now worth, or having "negative equity" in the home), often leading to foreclosure or abandonment of the premises. Thus real property and the pyramid of investments based on it can generate great wealth for a few and reasonable gains for many in times of prosperity, but can also inflict profound misery for millions of hopeful buyers who lose their homes, investments, and dreams when a housing bubble bursts.
Fifth, land held as common property or in public ownership is exempt from the roller coaster of the private market. The entire world, of course, is literally awash in common resources: the oceans, the atmosphere, large lakes and rivers, and land areas held in common by tribes, villages, and other social entities. In preindustrial societies, the organization of common resources—arable soils, water, fisheries, meadows, forests, wetlands, minerals, and living space—was (and still is in some places) based more on unwritten "custom" than on formal written laws.
In contemporary urban life, land and buildings in housing subdivisions, condominium developments, and cohousing projects are shared in common by the members of the community. Outdoor spaces in subdivisions are administered as common spaces for the use of the residents, who in turn pay maintenance assessments to a homeowners' or renters' association. Similarly, the lobbies, roofs, elevators, fitness facilities, landscaping, parking facilities, and other amenities of condominium buildings are legally owned in common by the unit owners who share benefits and costs as provided in their purchase contracts.
Finally, the concept of "land" embraces a psychic or emotional dimension: spirit of place or sense of place. These terms refer to feelings of attachment, pride, affection, or safety associated with familiar or distinctive landscapes and cityscapes5 or their opposites in places that instill fear or unhappy memories. Spirit of place, by definition, is shared in common with whomever happens to be aware of places where they live, work, visit, or simply experience vicariously through postcards, photographs, works of art and literature, websites, or a vivid imagination.
Spirit of place defies representation in the computer graphics and jargon of professional planners. How does one capture the clashing moods of large and small places: belonging-alienation, excitement-tedium, safety-fear, exhilaration-depression? Rather, the "mood" and "feel" of landscape and cityscape are the province of the novelist, the artist, the photographer, the poet, the movie director, and sometimes the journalist. In the nineteenth century, the great Hudson River School paintings of Thomas Cole, Frederick Church, Albert Bierstadt, and others stirred nostalgia for "vanishing Nature" among wealthy patrons who themselves may never have stood alone on a Sierra peak or viewed Maine's Mount Katahdin from a canoe (art spares one the nuisance of mosquitoes). Many historic and cultural places exude a spirit of place, as with Civil War battlefields, the National Mall in Washington, D.C., Boston Common, burial grounds of native peoples, or Ground Zero in downtown Manhattan.
Sense of place is also rooted in urban settings, from the grand to the humble. Some of our most emotive images of late-nineteenth-century Paris and London are paintings by Claude Monet, Camille Pissarro, Camille Corot, John Singer Sargent, and James McNeill Whistler, artists who portrayed both the spectacular and the humdrum elements of those cities and their surrounding villages and countrysides. Childe Hassam's World War I paintings of flags flying along Fifth Avenue stimulated pride in country and the city of New York. Meanwhile, the early-twentieth-century Ash Can School artists like John Sloan, Robert Henri, and George Bellows focused on New York's backstreets, its homeless, and its squalor. Edward Hopper, who would dominate midcentury modernist realism, added ennui and loneliness to the list of modern urban ills: disconsolate women sitting alone on hotel beds, in railroad cars, or in a theater or a diner or staring out windows at empty city streets. His iconic Night Hawks (l942) pictures a "broad" and two "stiffs" in fedoras, seeking refuge in a cheerless café from the anonymous darkness of the street outside.
Movies have portrayed cities from many perspectives. Woody Allen's 1979 film Manhattan opens with a black-and-white wander among the nooks and crannies of that city, whereas his Midnight in Paris (2011) begins with a homage to the spirit of Paris. The gritty streets and neighborhoods of Chicago have been the backdrop for films like The Sting, The Blues Brothers, and The Fugitive.
In literature, few contemporary writers can match the eloquent nostalgia expressed by Nobel Laureate Orhan Pamuk for his beloved Istanbul:
I love the early evenings when autumn is slipping into winter, when the leafless trees are trembling in the north wind and people in black coats and jackets are rushing home through the darkening streets. I love the overwhelming melancholy when I look at the walls of old apartment buildings and the dark surfaces of neglected, unpainted, fallendown wooden mansions; only in Istanbul have I seen this texture, this shading.... as I watch dusk descend like a poem in the pale light of the streetlamps to engulf these old neighborhoods, ... the chiaroscuro of twilight—the thing that for me defines the city—has descended.
Excerpted from Land Use and Society by Rutherford H. Platt. Copyright © 2014 Rutherford H. Platt. Excerpted by permission of ISLAND PRESS.
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Table of Contents
Introduction. Geography, Law, and Landscape: Reflections from 30,000 Feet PART I. Preliminaries: Land, Geography and Law Chapter 1. Land Use and Society: Fundamentals and Issues Chapter 2. Shaping the Human Landscape: The Interaction of Geography and Law PART II. From Feudalism to Federalism: The Social Organization of Land Use Chapter 3. Historical Roots of American Land Use Institutions Chapter 4. Building a Metropolitan Nation: 1900-1940 Chapter 5. The Polarized Metropolis: 1945-2010 PART III. Discordant Voices: Property Rights vs. The Public Interest Chapter 6. Property Rights: The Owner as Planner Chapter 7. The Tapestry of Local Governments Chapter 8. Zoning, Regionalism, and Smart Growth Chapter 9. Land Use and the Courts Chapter 10. Congress and the Metropolitan Environment Epilogue List of Acronyms