The Use of Land:  A Citizens’ Policy Guide to Urban Growth

Keynote Speech to the Harvard Law School Conference on The Use of Land:  A Citizens’ Policy Guide to Urban Growth

by William K. Reilly

October 16, 2014

Cambridge, MA


            I want to begin by thanking the organizers of this forum, Jody Freeman, Richard Lazarus, Armando Carbonell of Lincoln Institute.  Two law school students, Cecelia Segal and Matthew Rose.  And especially Kathleen Curley, who handled so many of the arrangements and logistics.  Gordon Binder, who himself contributed significantly to planning the conference, told me to be especially nice to you, Kathleen!

            The Rockefeller Brothers Fund supported the task force and report and also this forum.  Larry Rockefeller personally contributed as did the Laurance S. Rockefeller Fund and the American Conservation Foundation, the Packard Foundation, and Harvard University’s Center for the Environment.  Thank you also to the Lincoln Institute for supporting travel and lodging for several of their colleagues.

            When we published and marketed the report, we created a novel problem for the Rockefeller Brothers Fund lawyers.  Even though we had negotiated a low price--$3.95 for the paperback issue of the report—when it quickly sold out 50,000 copies, it generated profits for RBF.  No other project had ever done that, and for a time the lawyers confronted an unfamiliar dilemma.  I learned last week that the report appears on the Amazon bestseller list, where it’s now sold out—my wife Libbie bought the last two used copies.  It stands among all of Amazon’s books at 3,561,510th place.  Well, maybe it’s not the bestseller list.

            Harvard Law School hosted and organized a conference on the 40th anniversary of the Clean Water Act in 2012 where Jody Freeman and Richard Lazarus convened a group that included several people who had drafted the law as well as leading figures who had worked with it, administered it, and analyzed it.  This conference is about a report, not a comprehensive land use law or policy—though the Rockefeller Task Force recommended one—and it includes equally experienced figures—two or three of us who were involved as staff to the task force and others who are experienced land use lawyers, planners, and analysts.

            In my remarks tonight I will provide some context and history for the task force and the issues it addressed, and identify the big ideas it stands for

            Laurance S. Rockefeller was chairman of the President’s Citizen’s Environmental Advisory Committee and he conceived the idea to use the committee’s auspices to influence understanding and maybe policy on urban issues.  He told me that his brother, John, had recommended me as I had written a proposed National Land Use Planning Assistance bill and also drafted a keynote speech delivered by Leonard Garment to the American Planning Association which explained the need for it.

            I declined the invitation—I liked my job at the Council on Environmental Quality.  And then I was asked to become the principal issues speechwriter for the Nixon campaign, and though I declined that also, the summary remarks of the White House official who made the offer left me little doubt that had I continued at the Council I would end up in the campaign.  As I took leave of him he said coldly, “Remember that when the President blows the trumpet, the loyal troops get behind and they march.”  I reconsidered Mr. Rockefeller’s offer.  But first I consulted with two very astute land use lawyers, Jack Noble and Fred Bosselman.  Jack saw the need for an establishment pronouncement that would recommend greater deference to public interests in the regulation of privately owned land.  Bosselman reinforced the need to clarify that local authorities needed more power and more confidence to manage growth pressures in rapidly urbanizing areas.

            I met with Mr. Rockefeller and laid out the argument and told him that I would come to work for him if he agreed on the central thrust and recommendation of the task force report.  Very much in the tradition of the Rockefellers, he said that I had been recommended to him as someone who understood these issues and he would defer to my judgment.

            Throughout the year that it took us to produce the report, there was a remarkable degree of consensus among our members.  I will confess now that the evening before the final task force meeting in San Diego, Rockefeller balked.  He said that I had led him out into deep water and taken away his life raft.  He feared that our discussion of the Constitution and the need to reinterpret the balance accorded to public regulatory power would be provocative and controversial.  He was only partly mollified when other task force members praised the language and key recommendations at the final meeting the following morning.  Harvard’s Dean of Education was particularly helpful.  He had served on the Kerner Commission, which famously declared that there were two Americas—one white and one black.  He said The Use of Land would stand with the Kerner Commission as a historic and persuasive call for important reforms.  As I tried to understand Rockefeller’s sudden apprehension before our last meeting, I surmised that his concern was to protect his brother, Nelson, against right-wing criticism in his planned campaign for president.  I called up Ed Logue, then head of the New York Urban Development Corporation and someone Governor Rockefeller would listen to and I told him I wanted him to tell the Governor that his brother was about to release a terrific report, one that would strengthen his powers to protect the Adirondacks and get needed projects approved in New York.  Logue asked drily, do you want me to read it?  I had known and admired Logue when he and I were both in New Haven, then Boston, and I had written a law review article and interviewed him about the Urban Development Corporation, so I knew him well.  I said, no, you don’t need to read it, you’ll like it, just praise it.  He said, okay.  He weighed in, the Governor reassured Laurance, and we had our report.  Years later, during my confirmation by the Senate for EPA Administrator, I did come in for some conservative criticism for the report and for my association with Fred Bosselman.  Senator Steve Simms of Nevada concluded his questioning by saying, “The witness is clearly qualified, but I’ll be watching him very closely.”

            Laurance and the president of the Rockefeller Brothers Fund, Bill Dietel, and I selected the task force members—Jim Rouse, the developer of Quincy Market and Columbia, Maryland; the former Democratic mayor of Boston, John Collins, and the then-current Republican mayor of San Diego, Pete Wilson; the chief economist of the Bank of America, Walter Hoadley; the former law partner of President Nixon’s Assistant for Domestic Affairs, Wesley Hodge; the head of the land use committee of the League of Women Voters, Virginia Nugent; Dean Ylvisaker of Harvard; and the head of the National Urban League, Vernon Jordan.  I placed the calls to each of them and the only conversation I recall was with Jordan.  He said he was too busy.  When I passed this onto the RBF president, he raised his eyebrows and said, “Vernon Jordan declined an invitation from the Rockefellers?”  I said, I’ll call him back; Dietel said “You do that.”  So I called Jordan and told him exactly what Dietel had said and Vernon said, “Oh, shit, how many times are you going to meet?”  And we agreed he would send his general counsel Ron Brown to two of the four meetings.

            We thus had an inclusive and very high-powered group of people.  When anyone questioned whether developers would balk at our recommendations, Jim Rouse was there to be reassuring and even eloquent about the timeliness and urgency of what we were proposing.  Probably no one fully appreciated that Jim Rouse’s views were hardly representative of his profession.  He was the country’s most creative and progressive developer, a believer in big government interventions, who frequently quoted David Burnham’s ringing injunction:  “Make no little plans—they have no power to stir men’s souls.”  Rouse famously debated Jane Jacobs, who distrusted government and favored organic, incremental growth.

            I prepared a 25-page detailed outline for the first task force meeting and despite some expressions of surprise, task force members accepted that their black-letter recommendations could probably fit within the framework set out in the outline.  We asked a writer, Phyllis Myers, whom I had worked with at Urban America, to sample opinions and report about the conflicts over growth as they were playing out around the country.  She researched in-depth various controversies in Long Island and Ramapo, NY; Stuart County, FL; Northern California; and Hawaii.  Later, when I was shopping for a publisher, the agent looked at the report and said, “Did you pick these places after researching where people do not buy books?”

            We envisioned a popular report accessible to the lay person interested or active in growth issues.  We wanted the report to be grounded in real experience, hence the frequent inclusion of photos and quotations from citizens.  My wife’s Harvard roommate, Janet Mendelsohn, was the photographer.  She would go on to make several award-winning environmental films.  The cartoonist, Bill Hamilton, was a college classmate of mine whose work was frequently in the New Yorker.  I simply provided him with the draft chapters.  He asked a few questions and drew the images that effectively convey the opposing values that people bring to conflicts about private property, growth, and emerging environmental values.  When I presented the proposed cartoons to Mr. Rockefeller, he took the stack and very deliberately and slowly examined each image, read the caption, then turned to the next one.  Not a trace of a smile.  Only one occasioned his comment.  It showed a large house in severe decline as two young black teenagers looked on and one said to the other, “Do you believe that that old wreck used to belong to one of those rich old honkies in history?”  Laurance looked up from the image and said, “When giving advice to the landowning class, one should be careful not to give offense to that class.”  I said, yeah, that one doesn’t belong, and we scrapped it.  Until that moment, I had not conceived of the report as directed at the landowning class.

            At the presentation of the report at the Smithsonian, I introduced the cartoonist, Bill Hamilton, to Rockefeller.  Laurance was tall, but Hamilton, at 6’5”, towered over him.  Rockefeller looked up at Hamilton and said, earnestly and with not a hint of a smile, “Humor is very important.”  Hamilton gravely nodded agreement.

            When the final draft was presented to the full parent, Citizens Committee on Environmental Quality, I was seated next to Charles A. Lindberg.  He expressed concerns not to disadvantage widows and orphans in the way their land values might be affected by regulation.  When I met with the book editor of the Today Show to ask if we might have the book reviewed, he saw Lindberg’s name and asked whether there was any chance Lindberg might be willing to appear to discuss the report.  I asked whether that would help us get the book covered.  He said, “You produce Lindberg, you can have two hours of prime time.  But he’s never done it.”  In the end, they invited me to go on The Today Show, and gave the report 7 minutes, 3 more than they had planned.

On one occasion, our group—the full parent Citizens’ Committee together with the Task Force—accompanied Charles Lindberg to the airport, Lindberg Field, to see a memorial to his flight.  His airplane, The Spirit of St. Louis, had been built there while Lindberg waited and spent his days in the public library, teaching himself navigation.  From behind the memorial appeared an elderly mechanic who smiled at Lindberg and said, “Hello, Slim.”  It was their first meeting since 1927.  And although our group included a governor, mayors, TV personality Arthur Godfrey, and Rockefeller, the press was interested only in Lindberg.  For his part, he hid from them, the only celebrity who would not talk to them

            The architecture of the report was designed to speak to people’s growing impatience with the changes urban growth was making in their lives and a groundswell of protests emerging in many parts of the country over those changes.  “There is a new mood in America,” the report began.  “Increasingly, citizens are asking what urban growth will add to the quality of their lives.  They are questioning the way relatively unconstrained, piecemeal urbanization is changing their communities and are rebelling against the traditional processes of government and the marketplace which, they believe, have inadequately guided development in the past.  They are measuring new development proposals by the extent to which environmental criteria are satisfied—by what new housing or business will generate in terms of additional traffic, pollution of air and water, erosion, and scenic disturbance.”

            We documented the concerns and acknowledged the legitimacy of the dissatisfactions with specifics from around the nation.  In the opening chapter, the Task Force validated these concerns, illustrated them sympathetically, and described people’s reactions to them.  As one pictured citizen said, “Real estate is the last frontier.  Only now people are thinking of getting up a posse.”  No growth, growth limits, growth moratoriums, height limits.  Wait, stop, stop til we plan, we reported on them all.  We acknowledged the currents in some anti-growth protests of exclusion, of racism or anti-immigrant feelings.  But we clearly shared the popular frustrations with what the reflex accommodation of growth and development had resulted in across the country.  And we offered policy proposals to address the concerns, to control and manage growth with agricultural zoning and tax incentives, ecological mapping, and protection of wetlands and scenic areas.  And of course a constitutional formulation that empowered regulation to restrict development even as it reduced property values.

            The new-mood stories captured public attention, resonated with environmentalists, planners, anti-development activists, and no-growthers.  But we were clear that no growth was not a realistic or responsible policy for the nation.  Our second chapter was entitled, “But Grow We Will,” and in it we projected increasing population numbers, immigration, household formation as baby boomers grew up, and more power plants, cars and roads, and places of employment.  We said,

                                    “While we welcome or fight it, development is going to continue during the rest of this century in the cities and suburbs and exurbs of our nation.  There will be more people and more households.  And those people and households (barring some unforeseen shift in the preference for low-density living) be spread over much larger urban areas than we know today.  More people in vast urban regions are what the future appears to hold.  Knowledgeable authorities believe that the prevailing growth trends put us on a collision course with nature and ourselves as natural resources run out, pollution builds, and social systems collapse under the burden of stress caused by crowding….We only say that, looking at urban development needs, the die is cast:  we must provide for the people who are already here or whose birth is foreseeable under all but the most cataclysmic scenarios of the future.”

            Looking back at the report, I was surprised to be reminded how stern our warning was to the states that they could not restrict immigration.  Colorado was one state we had in mind, for analysis showed that with current zoning it could accommodate 14 million people, and a movement to cap growth was in the air.  We concluded that a right to mobility could be inferred from the U.S. Constitution and cited several Supreme Court holdings in support.

            A chapter entitled “Protecting What We Value” laid out the case for stricter regulation of significant ecological and scenic open spaces.  We reviewed British planning law, its successful establishments of greenbelts around major cities, and its strict regulation of “areas of outstanding natural beauty.”  British constitutional law permitted severe limitations on private development without compensation to the landowner.  And these planning restrictions were not the object of conservative derision or public controversy that far less ambitious restrictions suffered in the United States.  The reason for including the British example was not that America should try to copy it; it was the very sophisticated mix of measures:  public acquisition (10 percent or so of the London Greenbelt is in public ownership), plus access agreements—sensitive “rounding out” deals with towns and villages in the Greenbelt.  The real point of the chapter was to identify the very large pressures that could be anticipated on open spaces and critical ecologies, and lay out the full panoply of approaches for their management:  agricultural zoning, easements, density transfers, environmental impact assessment, “wait-and-see zoning.”  And also to recommend the institutional mix of land trusts, conservancies, environmental law firms, hunting and fishing groups, which could be enlisted in their defense.  We were not naïve:  we documented recreation needs and recommended large-scale acquisition to ensure adequate supply and protection of beaches and waterfronts and trails.  We did not subscribe to the Le Corbusier philosophy of high-rise buildings in islands of green space.  Enough was known from public housing to reject that.  We explicitly said it would be possible to meet urban growth needs without building up.  William H. Whyte, who was to write “The Last Landscape,” had alerted us that environmentalists reflexively advocated less density and fewer units in commenting on proposed new developments and thus were unwitting drivers of sprawl.

            So although we set out a largely regulatory strategy, we made the case for acquisition and we understood the irresistible impact of infrastructure.  When Florida opted to site its interstate along the east coast rather than through the center of the state, we knew that the future of the coastal counties was determined and the character of coastal towns would yield to cars, congestion, and high-rises.

            Although we documented and championed a new mood in America, which would go on to receive much publicity and be cited in planning and zoning hearings across the country, we did not fully trust the major decisions about growth to be made locally.  We proposed state laws patterned after the American Law Institute Model Land Development Code, which I had also used as the basis for the Nixon Administration’s National Land Use Policy bill.  It provided state authority to site “development of regional benefit,” such as airports, wastewater treatment facilities, areas along the corridors of major roads, and publicly assisted housing.  And it also proposed to grant states authority to protect areas of “critical environmental concern.”  Florida was at that time working through the Florida Land and Water Management Act, which adopted the main lines of the ALI code.  I had drafted a letter and obtained President Nixon’s signature strongly endorsing the Florida bill as modeled on his own.  And in announcing the Nixon National Land Use Policy Act as it was first called, Nixon had said, “The time has come when we must accept the idea that none of us has the right to abuse the land and that, on the contrary, society as a whole has a legitimate interest in proper land use…”  Having been hired to write that bill and the President’s statement and seen it through to inclusion in the Nixon Environmental Legislative Program, I was very happy.  Thirty-four years later, at the inauguration of the Nicholas Institute for Environmental Policy Solutions at Duke University, I introduced Russell Train to deliver the keynote address.  Train had been chairman of the Council on Environmental Quality and my boss in the Nixon White House.  In the course of his remarks he described his experience presenting to the President the environmental program, by then cleared and signed off on by the White House.  When Nixon reached the language on land use, he asked Train, “Who’s the son of a bitch who wrote this?”  Train said at Duke, “The son of a bitch is actually sitting over there,” and he pointed at me.  I would have been very disappointed in 1973 to learn what my President thought of my work.  By 2005 I had come to consider that it doesn’t matter what a President really thinks or why he does something.  It’s enough if he does the right thing.  And on land use and the environment generally, Nixon generally did.

            One can imagine what he would have thought of the chapter, “Adapting Old Laws to New Values.”  It reached deep into the history of English property law, examined the conflicting values involved in development proposals on the shores of Lake Tahoe, on Great Salt Marsh in Connecticut, and in Grand Central Station in New York.  We reviewed the landmark U.S. Supreme Court decision in Pennsylvania Coal v. Mahon.  The case concerned the validity of Pennsylvania law forbidding coal mining that would cause subsidence under homes, streets, or public buildings.  Writing for the majority, Justice Oliver Wendell Holmes wrote:

                        “The general rule, at least, is that while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking….We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

            Justice Louis Brandeis wrote a dissent, arguing that where the facts demonstrate an important public need:

                        “Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State of rights in property without making compensation.  But restriction imposed to protect the health, safety, or morals from dangers threatened is not a taking….The property so restricted remains in the possession of its owner.  The State does not appropriate it nor make any use of it.  The State merely prevents the owner from making a use with the paramount rights of the public.”

            Strong stuff.  And amazing that our task force embraced it.

We went on to write that English land use law regards potential development value as “floating” and as impossible to tell where the “float” will settle.  And the English also see land values as largely created by public actions such as utilities and roads.

            In its most significant recommendation, the task force went on to recommend “the U.S. Supreme Court reexamine its earlier precedents that seem to require a balancing of public benefit against land value loss in every case and declare that when the protection of natural, cultural, or aesthetic values are involved, a mere loss in land value will never be justification for invalidating the regulation of land use….It is not too late to recognize that Justice Brandeis was right.”

            Apropos of the chapter entitled, “Creating What We Want:  Regulating Development,” the reporter for the American Law Institute’s Model Land Development Code, Fred Bosselman, read it in draft in my office on evening.  He then appeared at my door obviously moved.  He said, “This is simply the best exposition of American land use policy and practice I have ever read.  It is a masterpiece.”  The writer was Jack Noble.

            In it, the task force set out the peculiar challenge of creating quality development.

“Is it better that people live close together or far apart?  That they walk to work, drive, be carried by mass transit…?  How much social contact should we aim for among people of different temperaments, incomes, races, and ethnic backgrounds?

                        No consensus exists on those issues, and none is likely to be forthcoming soon….The decisions that create and shape our communities and regions will continue to be made without ideal development patterns, social or physical.”

            The task force proposed, therefore, that creation, much more than preservation, must make its peace with pluralism and use the power of new mooders to balance longstanding development primacy and create institutions capable of reconciling the two values.

            I look back on the report and see that, except for espousing the Brandeis dissent, it is a centrist document.  In it, we fully acknowledged that the resolution between protection and creation would be struck differently in Florida and Texas than in Oregon and California.  It seems to me that it comes down to culture.

            A couple of years ago I attended a small dinner in Dallas, Texas, at which the mayor passed around a small mahogany box.  It featured a brass plaque on the cover which read, “Presentation Prepared for Richard Lazarus, CEO of the Lazarus Corporation.”  (Allow me a slight liberty, Richard.)  Inside was an iphone with an app that compared the costs associated with the corporation’s location in California versus the attractions of Dallas.  “Your company last year reported X in taxes to California.  In Dallas, your tax bill would have been zero.  You personally had taxes on your salary and bonus of Y.  In Dallas, it would have been zero.  Your employees reside in houses three times the cost for equivalent homes in Dallas.  It requires 24 days to start a business in Dallas versus most of a year in California, assuming it can be done at all.  Dallas is welcoming to immigrants and has a large labor force with an unemployment rate half that of California’s.  Dallas has the best private schools in the country.”  (He might have added that California’s public schools, which used to be superior, had declined and were now no better.)  He concluded by quoting Fortune as ranking Dallas the most business-friendly city in the most business-friendly state in the country.

            I asked him how he used the pitch.  He said he had sent the boxes to companies in New York, Illinois, and California and had been getting two a year from California.  Fluor had relocated the year before.  At first, employees oppose moving, he said, but then they visit Dallas and see the house they can afford with a fraction of their California house sale price, many become won over.

            David Brooks this past Tuesday contrasted Houston with San Francisco.  He noted that since 2000, Houston’s employment figures have risen by 32%, ranking it number 1 in percentage job growth.  In August, he reported, Houston added more single-family housing permits than all of California.  And earnings per job, considering the cost of living, puts Houston among the top for standard of living.  And African American and Hispanic home ownership rates are much higher than in the Bay Area and the community more egalitarian and a more livable place to raise children.  He adds that “the Bay Area is beautiful in the way urbanists like, while Houston is mostly ugly, in the way fast-food chains like.”

            Houston, with no zoning and a come-on in attitude, more diverse and less regulated, would never have refused the gift of a major new museum as San Francisco’s Presidio did earlier this year.

            Reading the Land Use task force recommendations today, I am pleased we allowed for different models in a large country.  As others have noted, most Americans have chosen to live in single-family homes with yards for their greater space and safer streets and better schools.  When we designed the task force agenda, we did not include an urban chapter.  We didn’t consider we had enough new to say.  Now that’s changing, even vehicle miles traveled is down in the United States, something I don’t recall ever happening before.

            In 1989, Prime Minister Margaret Thatcher hosted a conference on protection of the ozone layer, about which she, a chemist, knew and cared a great deal.  We spoke about politics and culture.  I asked her why it was that British conservatives freely accepted highly restrictive planning restrictions, whereas in the United States they occasion the most angry and divisive controversies.  She said, “We understand that, living in densely settled communities on a small island, we have to compromise to get along.”

            The United States has moved toward the vision the task force set out and the values and rules in many of our most beautiful areas are different than they were in the 1970’s.  In others, where nature has been overcome, obliterated by sprawl, the new mooders’ fears have been realized.  Where the culture is attuned to the environment, states and cities have found it possible to protect more aggressively and have persuaded courts to sustain them.  In other areas, the culture and therefore the politics are different, and in both kinds of places, polling indicates relative satisfaction with the results.

            Different models, but both more respectful of nature and the environment, I would argue, than 40 years ago.  And as for the development preferences, different cultures.

            What has made a big difference in California and Texas and everywhere else is local land trusts.  I agreed to join the board of the Sonoma Land Trust on Tuesday.  There are 1700 of them and they have conserved 47 million acres.  Local volunteers do most of the work and their numbers are growing.  Spending on monitoring and stewardship and enforcement of easements have more than doubled.  There’s even a Cattlemen’s Trust in Colorado.  The Land and Water Conservation Fund has supported 40,000 plus projects.  Everybody likes the parks they finance.

            As I look around American now, I am struck by how powerful are the portents of change, and how Americans’ responses to those portents can be so different.  All of this will require new urban policies.  Our response to climate change is not solely the province of environmental or energy policy.  It is very much place-based policy, in the best sense.  And it will require a change not just of city planning, but of the culture of cities, supported by citizens and all of the wisdom and creativity of the public and private sectors alike.  I will close with a quotation from the distinguished Senator, Daniel Patrick Moynihan, who knew something about cities and about architecture and about wise government and getting hard things done:

                        “In some forty years of government work, I have learned one thing for certain…. The central conservative truth is that it is culture, not politics, that determines the success of a society.  The central liberal truth is that politics can change a culture and save it from itself.  Thanks to this interaction, we’re a better society in nearly all respects than we were.”

William Reilly