How postwar DuPage County used zoning to limit poorer and non-white residents

I was recently reading the 1976 political science book Poliscide and part of Chapter 8 on the postwar zoning practices of DuPage County caught my attention:

Although no county can place guards at the county line to inspect the socioeconomic and racial characteristics of newcomers, such powers as zoning and control over subdivision and building codes make the county a highly effective arbiter of the types of structures to be built and, hence, the final arbiter of the types of people who will live in its jurisdiction.

For example, DuPage County enacts a subdivision ordinance requiring a developer to retain a large portion of his prospective subdivision for public facilities such as parks and schools; the county combines this with a zoning ordinance requiring single-family dwellings and a large minimum lot size. This effectively prohibits a developer from profitably building anything but high-cost housing not accessible to lower-income persons.

Stringent county building code standards, requiring expensive building materials and high-quality plumbing, wiring, and heating systems, also serve to increase housing costs. The county’s industrial zoning policy restricting heavy industry serves to limit job opportunity for lower-income persons and to prevent a decline in residential property values surrounding an industrial development – which might create housing opportunities for lower-income groups. Moreover, the county’s relations with various financial institutions make it difficult for a developer to secure financing for a project not approved by the county. Indeed, because of the obstacles the county is capable of placing in the path of a developer, the county’s objection may be sufficient to convince a financial institution that investment in a project would be unwise.

The county’s relations with other units of government give it yet another means of influencing the course of residential and industrial development. It is not, for example, an uncommon practice in Illinois for the county forest preserve district to condemn, at the count government’s behest, land on which an unwelcome development is planned…. And courts have made it a point not to intervene. If the acquisition was for a “public purpose,” there is no inclination to examine the underlying motives. (179-180)

And, as the political scientists point out, these were all legal procedures. Local governments, whether at the municipality, township, or county level, often have the power to dictate what can be built on the land over which they have jurisdiction.

At the same time, there have been court cases seeking to reverse these zoning powers. In 1971, DuPage County residents and a local fair-housing group brought suit against the county for exclusionary zoning practices. The Mount Laurel cases in New Jersey led to famous decisions suggesting municipalities cannot completely restrict cheaper housing (even if implementation has been messy).

More broadly, Sonia Hirt argues zoning in the United States serves one primary purpose: single-family homes. When wealthier suburbanites or urban dwellers get the opportunity to live in the homes they want or ones that have plenty of desirable traits, they tend to resist efforts to include cheaper housing nearby. (For a more recent urban case, see Portland.)

To some degree, the plan worked for a while in DuPage County. The authors of Poliscide say the county was the 3rd wealthiest in the nation, businesses were growing, and much of the development was relatively high-end. Yet, things changed over time. In the 2010 Census, DuPage County was the 62nd wealthiest county in the United States. (It would be interesting to analyze what role zoning played in vaulting all those other counties above DuPage County.) In the same census, the white along population was just over 70%. Some of this might be due to how the authors of Poliscide suggest municipalities fought back against the county: they moved to incorporate themselves as well as annex land so that they took over jurisdiction of land and DuPage County had less control over new development.

Ongoing fights over zoning for religious buildings

The Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed in 2000 and still there are numerous local battles between local governments and religious groups who want to use or build a structure for religious purposes:

By the time they take on a zoning challenge, many religious groups are already struggling to find and retain members, and to get by on shoestring budgets. Without an adequate place to gather, they miss opportunities to assemble in study, service, and prayer. The stakes are high for towns, too. Churches, synagogues, and mosques influence life well outside their walls: People who belong to religious institutions are more civically engaged than their secular neighbors. They are more likely to serve on school boards, volunteer at charities, and join clubs. In the absence of these institutions, communities can become fractured and isolated. Neighborly infrastructure decays…

Many of the groups that wind up at the center of RLUIPA cases have it worse than North Jersey Vineyard. Cases can stretch on for decades, and the majority of religious organizations end up losing: According to Dalton, who wrote a book on RLUIPA, roughly 80 percent of RLUIPA claims filed in federal court fail. “This is a very hard statute to follow,” he said. “For the inexperienced, it is easy to lose.” An untold number of religious groups never make it to court at all, either because congregations don’t realize they have special protections under the law, don’t know how to file a claim, or don’t have the resources to pursue a case. Many simply walk away from purchasing a property when they discover that it is not zoned for religious use.

North Jersey Vineyard was also spared the ugly bigotry underlying many zoning disputes. Other than a few awkward comments confusing Catholic and Protestant styles of worship, officials in South Hackensack didn’t seem to oppose North Jersey Vineyard’s purchase based on the congregants’ faith. Often, though, zoning books are wielded by intolerant or ignorant officials; about half of RLUIPA disputes involve religious or ethnic minorities, according to Dalton. As a participant in a Department of Justice listening session recently told government officials, “People don’t come into hearings now and say, ‘I hate Muslims.’ They say, ‘The traffic is going to be terrible on [Fridays,]’” when Muslims gather for Jumah prayer…
This is where the practicalities of land-use law shade into something more philosophical: Where is the line between preserving a community’s character and preventing its evolution? While it’s easy to sympathize with a church that can’t find a space in which to pray, it’s also easy to imagine aggrieved residents sitting in Sunday-morning traffic or searching in vain for parking near their house.

My own take on this is similar: it is not as simple as saying that most communities dislike certain religious groups (though some requests certainly gain more attention – I’ve seen more cases in the last ten years or so involving Muslims and orthodox Jews) as many times the concerns raised by local residents and governments are similar to those raised for any development project. The difference is here that religious groups have certain legal options open to them that are not available to non-religious development projects.

Five unusual lawsuits between neighbors over smells

Neighbors can fight over many things with numerous examples involving McMansions noted on this blog (see here and here for two cases). How about squabbling over smells? Here are five interesting cases with two examples excerpted below:

In 2001 David and Joan Gallant bought their house outside Moncton, New Brunswick, Canada, from Lee and Shirley Murray, whose farm abuts the Gallants’ property on three sides. For years, the two couples appear to have coexisted peacefully, but relations soured for unnamed reasons toward the end of the decade. In 2013 the Murrays erected an unusual barrier on their property line near the Gallants’ house: a massive, reeking pile of cow dung so large it could be seen on Google Earth.

“The manure was fresh, unseasoned, wet, [and] raw,” David Gallant said in his affidavit. In 2015, the Gallants sued the Murrays, and were awarded $11,300 USD in damages…

In Singapore, a newly-arrived Chinese family living in an apartment next to a Singaporean Indian family could not abide their neighbors’ cooking smells—particularly curry dishes. The Indian family agreed to shut their doors and windows when they cooked curry, but they balked when the Chinese family subsequently asked them to stop cooking it altogether.

A government mediator helped them come to an agreement: The Indian family would cook curry only when the Chinese family was out, and the Chinese family would try a curry dish. The case caused an uproar in the Southeast Asian city-state, with many Singaporeans declaring that the agreement treated the Indian family unfairly and that the Chinese family should learn to tolerate Indian Singaporean cooking. A nationwide curry movement erupted, including a “Cook and Share a Pot of Curry” campaign and an annual weeklong series of curry-themed events.

I am now trying to imagine a case that includes the odd combination of a smelly McMansion…

Seriously, though, smells can have a large effect on quality of life. Few people want to live near a landfill or certain industrial properties. I would guess that most suburban communities don’t have a distinctive positive or negative smell outside of their regional distinctions (such as being close to the ocean or the mountains, as two examples). Perhaps this is like having a generic American accent that makes it difficult to know where someone is from – suburbs everywhere have a faint smell of lawns.

Smells can also cross property lines or units within the same property in unique ways. Indeed, you might not even notice anything until the smell is overwhelming. It can be difficult to trace the source. It may not be present at all times (in the cases above, the manure wasn’t going anywhere while a cooking smell can come and go).

Would such lawsuits involve air rights? What expectations should the average resident have that they can control the smells in their space?

Ongoing zoning controversies with mosques in New Jersey

Two recent zoning cases involving proposed mosques in New Jersey have garnered attention. A quick overview of each.

First, a newly filed federal lawsuit in Bayonne, New Jersey:

The mosque is proposed for an old warehouse at the end of a dead-end street on the city’s east side. The structure, built as a factory, previously housed a chapter of the Hired Guns Motorcycle Club, “made up of sworn law enforcement officers,” according to its website

To build the mosque into the existing space, Bayonne Muslims — the nonprofit organization that owns the space — went to the city in August 2015 to request zoning exemptions. It asked for requirements that a buffer between the existing building and adjacent properties be waived, and that it be able to provide less parking than required.
Ultimately, after three tumultuous public hearings, the proposal failed to gain approval at a March 6 meeting. The vote was 4-3 in favor of the project, but a supermajority — greater than the four votes in favor — was required under state law…
During the public hearings, some opponents expressed concern over the traffic and noise a mosque might bring to their dead-end street. Others cited verses from the Koran they asserted supported violence against non-Muslims.

A New Jersey town will pay an Islamic group $3.25 million to settle a lawsuit over its denial of a permit to build a mosque, the Department of Justice announced Tuesday…

The Islamic Society of Basking Ridge sued Bernards Township, an upscale town in central New Jersey, last year, claiming it changed its zoning ordinances in order to deny the group’s plans. The Justice Department also sued the town last year, alleging it treated the group differently than other religious groups…

Central among those was parking: Township planners had concluded that because Friday afternoon was considered peak worship time, congregants would most likely be arriving straight from work and would each need a parking space.

But a federal judge disagreed, and wrote in a ruling Dec. 31 that the town hadn’t conducted similar assessments of worship habits when churches or synagogues had made applications.

The Justice Department lawsuit also alleged the town changed its zoning laws to require houses of worship in residential districts to be at least 6 acres — larger than the lot the Islamic Society had purchased in 2011.

There are multiple issues at play in these cases:
1. Do municipalities apply the same standards to all religious groups? If not, why do particular groups receive more attention? (The two cases above involve Muslim groups. Do orthodox Jewish groups also receive a lot of attention?)
2. Is it legitimate to deny religious land uses for issues like traffic and parking (common complaints in suburban settings regarding many proposed land use changes)? In other words, are these typical NIMBY complaints or is there something unique about religious buildings?
3. Why are a number of these cases popping up in New Jersey? The state has a long history with exclusionary zoning issues – see the Mt. Laurel doctrine which developed out of a lawsuit. Additionally, it is home to a number of white suburbanites living in suburbs that they would like to preserve or protect.
4. Is the only path to resolution a federal lawsuit? Once such cases reach the level of a federal lawsuit, I would argue the communities have already lost. This is not just because RLUIPA cases tend to be settled in favor of the religious groups. I also imagine such lawsuits can bring negative attention to a community; do they really want to be known as the suburb that refused a certain group to worship there?
(These are not issues isolated to New Jersey. Perhaps there are similar conditions in the Chicago area suburbs. See earlier posts about mosque controversies in the Chicago region including here, here, and here.)

Legislative options to add more housing in California

A number of legislative options are on the table in California to encourage the construction of more housing and counter the actions of nearby residents:

Dozens of the solutions floating in the state Legislature aim to address that supply problem, including several that would streamline the process by which housing projects get approved (one, for example, would limit the circumstances in which a special permit could be required to build a granny flat). Others would not-so-subtly make it much harder for local residents and government agencies to block new projects, like by requiring a two-thirds vote for any local ordinance “that would curb, delay, or deter growth or development within a city.”

That latter bill epitomizes the frustration many young working people and families have as they try to attain what was once a milestone of adulthood—homeownership—that is now out of reach for even those making decent money. Some of those folks are YIMBYs, or supporters of a “Yes in My Backyard” agenda. “We know that our housing struggles are not the result of impersonal economic forces or lack of individual effort, but derive from bad policy and bad laws that have restricted housing growth for decades,” said YIMBY leader Brian Hanlon, co-founder of the California Renters Legal Advocacy and Education Fund, at an April Assembly committee hearing….

It’s unclear what the chances for each bill are. Though legislators seem eager to spur more housing construction quickly, some of their allies might not be. Many environmentalists, for example, want new projects to comply with CEQA, the state’s landmark environmental law that requires developers to study and possibly mitigate the environmental impact of whatever they build. And developers are never quick to embrace mandates that they include affordable units in their projects.

If the bills do pass, will any of them actually make a dent in what’s become a crippling problem all across the state? The Sacramento Bee’s Dan Walters recently wrote off the current proposals in the Legislature as “tepid, marginal approaches that would do little to close the gap.” Cuff admits many critics dismiss individual bills as a drop in the bucket. “But on the other hand, let’s put a drop in the bucket,” she says. “A drop is better than a drought.”

This is a long-term issue that may take decades to work out. The issue is complicated as it involves social class, race and ethnicity, understandings of local control, and property values.The article notes that some claim the legislative suggestions thus far are too small and I suspect a number of the bills would lead to lawsuits from communities and residents.

If I had to make a prediction (a near impossible task) based on what has happened in many suburbs throughout the United States, I would guess that the wealthier communities will find ways around these legislative actions. This could happen through the courts as they can better afford the time and money or there could be loopholes in the bills. Either way, the burden of the affordable or cheaper housing will likely fall on communities that are lower income and non-white.

Why Google’s plan to scan every book in the world was halted

Google had plans to scan every book but the project hit some legal bumps along the way and now the company has “a database containing 25-million books and nobody is allowed to read them”:

Google thought that creating a card catalog was protected by “fair use,” the same doctrine of copyright law that lets a scholar excerpt someone’s else’s work in order to talk about it. “A key part of the line between what’s fair use and what’s not is transformation,” Google’s lawyer, David Drummond, has said. “Yes, we’re making a copy when we digitize. But surely the ability to find something because a term appears in a book is not the same thing as reading the book. That’s why Google Books is a different product from the book itself.”…

It’s been estimated that about half the books published between 1923 and 1963 are actually in the public domain—it’s just that no one knows which half. Copyrights back then had to be renewed, and often the rightsholder wouldn’t bother filing the paperwork; if they did, the paperwork could be lost. The cost of figuring out who owns the rights to a given book can end up being greater than the market value of the book itself. “To have people go and research each one of these titles,” Sarnoff said to me, “It’s not just Sisyphean—it’s an impossible task economically.” Most out-of-print books are therefore locked up, if not by copyright then by inconvenience…

What became known as the Google Books Search Amended Settlement Agreement came to 165 pages and more than a dozen appendices. It took two and a half years to hammer out the details. Sarnoff described the negotiations as “four-dimensional chess” between the authors, publishers, libraries, and Google. “Everyone involved,” he said to me, “and I mean everyone—on all sides of this issue—thought that if we were going to get this through, this would be the single most important thing they did in their careers.” Ultimately the deal put Google on the hook for about $125 million, including a one-time $45 million payout to the copyright holders of books it had scanned—something like $60 per book—along with $15.5 million in legal fees to the publishers, $30 million to the authors, and $34.5 million toward creating the Registry….

This objection got the attention of the Justice Department, in particular the Antitrust division, who began investigating the settlement. In a statement filed with the court, the DOJ argued that the settlement would give Google a de facto monopoly on out-of-print books. That’s because for Google’s competitors to get the same rights to those books, they’d basically have to go through the exact same bizarre process: scan them en masse, get sued in a class action, and try to settle. “Even if there were reason to think history could repeat itself in this unlikely fashion,” the DOJ wrote, “it would scarcely be sound policy to encourage deliberate copyright violations and additional litigation.”

Out-of-print books with uncertain copyright status scuttle what could be one of the great treasure troves of information? This suggests we still have a ways to go until we have legal structures that can deal with the information-rich and easily accessible online realm. If a deal could eventually be worked out for books, what about older music, art, and other cultural works?

A related thought: having all those books available might indeed change the academic enterprise in several ways. First, we could easily access more sources of data. Second, we could potentially cite many more sources.

Chevy Chase woman files lawsuit after lawsuit against her neighbor’s teardown

Chevy Chase, Maryland has experienced a number of discussions over redevelopment including this one-woman “all-out war” against her neighbor’s teardown:

First, in 2009, she sued the town of Chevy Chase in an attempt to block its approval of the Schwartzes’ building permit — but that failed. Then she appealed — and was denied. “I would say Chevy Chase has spent upwards of $50,000 because of Deborah,” Hoffman said. “Not just in legal bills, but in all the staff costs in answering her letters and telephone calls.”Vollmer next filed a similar lawsuit against Montgomery County and lost again. Soon afterward, she watched in horror as the Schwartzes erected a handsome, stone-encrusted house at 7200 44th St. The house, which she excoriated for its size, offers evidence of the neighbors’ clashing lifestyles.

Vollmer drives a Prius. The Schwartzes have a Mercedes. Vollmer prizes rough-hewn back yards with lots of vegetation. The Schwartzes appreciate a more manicured aesthetic. “Some people may question my motives,” Vollmer said. “But what’s happening in this town, these developers, tearing down old homes. I’m standing up for my rights. .?.?. And then this whole thing just kind of evolved” from that.

The dispute’s next evolution occurred in court. Vollmer sued the Schwartzes in Montgomery County Circuit Court — not once, but twice — over arguments involving the shared driveway. She lost both…

“We have had to go to court more than 16 times because of her multiple lawsuits and her behavior,” Schwartz said. “We love our home and our neighborhood, and we can only hope that reason will prevail in the future.”

And there is more here including an arrest for destruction of property, another lawsuit over paving the shared driveway, and a second arrest. In the end, is Vollmer simply standing up for her property rights (and she apparently has the resources and legal training to do so) amidst the bullying of mansionizing new residents or is she a public nuisance against inevitable change and wasting taxpayer money?

One thing this article does not explain: how in the world was the new house approved with a shared driveway? The picture with the story suggests the teardown was built close to the lot line:

Given Vollmer’s behavior, it is not clear this would have solved the issue. But, having a shared driveway could lead to issues even if the new neighbors didn’t build a new large home. Perhaps this is why suburbanites need passive aggressive signs to fight each other rather than lawsuits…