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.

Evidence for Regulatory Constraints on Housing Types

A new paper by Alan Evans and Rachael Unsworth ("Housing Densities and Consumer Choice" Urban Studies, 49(6), pp. 1163-1177, May 2012) provides some evidence for the role of local regulations on residential development. Here is the abstract:

From 2001, the construction of flats and high-density developments increased in
England and the building of houses declined. Does this indicate a change in taste or
is it a result of government planning policies? In this paper, an analysis is made of the
long-term effects of the policy of constraint which has existed for the past 50 years but
the increase in density is identified as occurring primarily after new, revised, planning
guidance was issued in England in 2000 which discouraged low-density development.
To substantiate this, it is pointed out that the change which occurred in England did
not occur in Scotland where guidance was not changed to encourage high-density
residential development. The conclusion that the change is the result of planning
policies and not of a change in taste is confirmed by surveys of the occupants of new
high-rise developments in Leeds. The new flat-dwellers were predominantly young and
childless and expressed the intention, in the near future, when they could, of moving
out of the city centre and into houses. From recent changes in guidance by the new
coalition government, it is expected that the construction of flats in England will fall
back to earlier levels over the next few years.

The authors had a natural experiment where England and Scotland had very different regulatory policies during the past decade. Here is how the authors describe their research question:

The question we address is: ‘what was driving this move to higher densities?’ Is it that there has been a change in taste, with the English suddenly preferring to live in flats rather than houses? This is one alternative, a view which was put to one of the authors recently by a senior planner—“People are buying these flats so they must want them”. The other alternative is that the shift results from a combination of government policies, mediated by economic pressures, a view which might be similarly summarised as ‘People are buying these flats because they can’t afford anything else’.

Through surveys and analyses of housing markets in Leeds, the authors conclude that consumer preferences are not the leading factor driving development of high density housing. Rather, the relaxation of governmental policy is the key influence. The survey respondents were mostly young and single, and their choice to live in a flat was largely economic (i.e. what they could afford) and they hoped to move to lower density housing as they formed families.

A comment that I will add to this is that we know that young people are 1) driving less, 2) starting families later in life, and 3) living alone more often than previous generations. What we don't know is if these characteristics reflect permanent shifts in preferences for housing and transportation. Time will tell. In any event, the paper discussed here offers encouragement for those who think land development is over regulated and for those who think that suburban landscapes reflect market preferences. There will never be a perfect match of consumer preferences and regulatory policies, but hopefully local regulations can be flexible enough to accommodate heterogeneous desires.