Monday, July 1, 2013

Why Are Planners Mad About Koontz?

Last week the Supreme Court ruled on a case that challenged local land use regulations. The case was Koontz v. St. Johns Water Management District and an overview of the ruling and case is at SCOTUS Blog. Many planners and urbanists are upset about the ruling. See here and here and here and here and here for a few examples. It seems that the negative feelings against the ruling are shaped by concern for the environment and weakened local regulations.

It strikes me that the merits of the case, and the implications of the SCOTUS ruling, should be measured against a couple of factors. First, do these types of exactions work? At the heart of the Koontz case was a requirement for wetlands reconstruction in an area away from the development site, which was going to destroy some wetlands. As it turns out, these types of habitat restoration projects have mixed records of success. Here is a link to a timely story in New Scientist about habitat replacement. From the story:
So far, the evidence that eco-offsetting works is not exactly overwhelming. In the biggest and longest-running offset market, the US, auditing of outcomes has been paltry, says Hannah Mowat of FERN, a non-profit European environmental policy think tank. One study that was carried out in Ohio found that two-thirds of wetland offsets did not deliver what they promised.
Planners should be wary of requiring ineffective policies. We must consider the evidence as to whether policies work, and in this case the evidence doesn't suggest that this type of exaction is necessarily worth the expense, at least as a generalized policy. 

Second, it is currently popular in planning circles to blame onerous regulations for high housing and commercial real estate prices. Well, the regulations addressed in Koontz are exactly the types of regulations that coastal areas have and that increase the cost of supplying new development. You won't see a lawsuit like this come from Texas. Height restrictions are often used as a boogeyman to blame for high costs but in reality the environmental regulations add far more cost to new development than height, density or FAR constraints. 

So where does that leave planners? If we value the environment as our priority then all development should be restricted, but of course we need to balance our environmental concerns with economic ones. The court ruling may help planning by focusing regulations on the rational nexus that is the legal basis for these types of interventions in the first place.  If we want to encourage better development in the future then we shouldn't make new development economically infeasible. If we want to encourage affordable development in the future then we need to consider what types of regulations we are willing to forego. The Koontz ruling in no way invalidates urban planning. It does remind planners that there are limits to what we can require.

Also consider who was the defendant. The St. Johns Water Management District is overseen by an appointed body (Appointed by the governor. Details here.). These aren't planners in the conventional sense of police power. They weren't elected, and while I am sure they are all good people, why should they decide local land use regulations? The water district doesn't sign on to long range transportation and land use plans. They serve to protect and manage water.

It may be that this ruling makes regulating land use more difficult, but this remains to be seen. At this point, the ruling limits a policy (eco-offsetting) that doesn't have strong empirical support.  Perhaps the defense would have been stronger had the evidence supporting the benefits of these policies would have been clear. Planners who are concerned that regulations are making new development too expensive should be mildly encouraged, I think, but I am open to considering all sides for this issue.
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