About Wendell Cox
By Wendell Cox:
If, in public policy, silence implies consent, then the Bush
Administration may forever be held responsible for some of the most
egregious assaults on property rights in history. Though it did not
formally approve the federal funding for the 2002 edition of the
American Planning Association (APA)'s Growing Smart Legislative
Guidebook,1 neither has it taken steps
to distance itself from the massive book. It should, however: The
Guidebook blatantly recommends model "takings" legislation that
would subvert property rights and help states and localities
"improve" land use and design "better" communities.
Based on so-called smart growth principles, the Guidebook's
proposals seek to counter urban sprawl by forcing residential
development into denser communities and by restricting land use and
housing styles. But the APA legislative guide goes further than
other "smart growth" public policies; it recommends a broader
application of the principle of "amortization of non-conforming
uses" to force homeowners to change their property in ways that fit
the new schemes. Those who do not comply must forfeit their
property without compensation.
Such proposals are an affront to basic property rights and the
freedom of choice and opportunity that Americans treasure, to the
President's highly touted goal of increasing homeownership,2 and to the American dream itself. Ironically,
the APA also had to release a Growing Smart User Manual just so
"those interested in statutory reform" could "navigate through" the
many "options" in the unwieldy 1,500-page Guidebook.3
Surprisingly, this assault on homeownership was funded largely
by the Department of Housing and Urban Development (HUD) and other
federal agencies.4 What is most
troubling is that the Bush Administration--particularly HUD
Secretary Mel Martinez--has not yet roundly and publicly denounced
the Guidebook or its unconstitutional proposals.
Losing the Freedom to Choose How We Live
Advocates of the smart growth principles underlying the
Guidebook claim that its proposals will result in less traffic
congestion and air pollution and lower housing and public service
costs. Yet by making communities denser, by forcing more people
into fixed areas, smart growth policies accomplish exactly the
opposite.5 The Guidebook's
land-rationing schemes also raise the cost of housing,6 which acts to deny homeownership to
lower-income households, which are disproportionately
African-American and Hispanic. Research by Dr. Matthew Kahn of
Tufts University has found that African-American homeownership is
higher where there is more sprawl, not less.7
Critics of suburban development claim that the nation's amount
of open space is threatened by urbanization, but this is hardly the
case. More than 400 years after the first European settlement here,
urbanization covers just 2.6 percent of U.S. land area. Moreover,
in the past 50 years, 1.5 acres of rural parks have been created
for each new acre of land dedicated to urbanization.8
But this evidence of the trivial impact of centuries of
development does not deter smart growth advocates, whose intense
devotion to their own architectural tastes and lifestyle choices
compels them to force their preferences on future generations.
Inasmuch as most measures of fashion and good taste are fleeting
and ephemeral (avocado refrigerators in the 1960s and
pink-and-black-tiled bathrooms in the 1940s, for example), a
community's laws and regulations ought to be the last place that
the desires of artistic designers should be codified for all
"Amortization of Non-Conforming Uses"
Perhaps the greatest source of concern in the Guidebook is the
use of "amortization of non-conforming uses." Adopting this
"option" would amount to an unprecedented violation of property
rights by states and localities that would create levels of
uncertainty undermining the economic future of the nation. It is a
deceptively vague euphemism that is being used to describe a way to
force people out of their homes and off property that no longer
complies with planners' new housing preferences.
Up until now, application of the concept of amortization has
been limited largely to highway advertising signs, which when
legally banned are still allowed some grace period--or
amortization--before they must be removed. APA planners want to
treat people's homes in the same way in response to their changing
tastes and styles.
To understand the threat posed by such a vehicle, it is
important to understand the concepts involved. Specifically:
- The term "non-conforming use" refers to a structure, such as a
house or commercial building, that no longer conforms to revised
zoning ordinances or new plans for a particular geographical area
in the community. Traditionally, structures rendered non-conforming
uses by zoning law revisions are "grandfathered in," meaning that
changes in the regulation do not apply to already constructed homes
or buildings, and the right to continue to use one's property
freely is preserved. Thus, a family owning a detached house in an
area that is rezoned for multi-family dwellings may stay and later
sell the property to another family, whose use of the property
would continue to be protected by the "grandfathering."
Even Portland, Oregon, which has enacted the strongest
anti-property rights land use regulations in the country, does not
go as far as the Guidebook recommends. In Portland, a
non-conforming house that burns down or is otherwise destroyed
would, in some neighborhoods, have to be rebuilt as a multi-family
unit if changed zoning patterns required it; but so long as the
house remains intact, the former legal use of it is
- The term "amortization" means that the owner has a certain
period of time to bring the structure into compliance. Most people
are more familiar with this as it applies in home mortgages, where
it refers to the steady extinguishment of the debt over a period of
time (such as a 30-year mortgage). In addition, "amortization" is
used in law and accounting to define a period during which the
value of the property is recovered by the owner.
But for homeowners who live in a community that adopts the
Guidebook's vision, the APA amortization proposal means the
extinguishing over time of their right to occupy their houses, and
without just compensation for loss of that property. How long they
have before they must forfeit their homes would be completely up to
the local government.
The APA proposal also requires non-conforming uses to be brought
into conformance at amortization, which also would be a matter of
arbitrary government policy not necessarily related to the asset's
economic life, mortgage loan term, or any other such standard of
measure. The APA would leave the time period completely up to local
According to the Guidebook:
A local government's zoning ordinance may state a period of time
after which nonconforming land uses, structures, and/or signs, or
designated classes of nonconforming land uses, structures, and/or
signs, must terminate....9
Once that "period of time" is met, the house would have to be
demolished, converted to multi-family use, or abandoned.
By encouraging communities to adopt the concept of amortization
of non-conforming uses, the Guidebook offers bureaucrats another
public policy weapon in their planning arsenal: the forfeiture of
property without compensation. It indeed is troubling that
Secretary Martinez, whose department primarily funded the project,
has not yet roundly rejected such a proposal, which would have been
virtually unthinkable in the not-too-distant past. Indeed, even the
Guidebook forthrightly acknowledges that its proposals may present
some problems, one of which is the potential to violate the
Specifically, the Growing Smart Guidebook admits that an
amortization could be ruled a "taking"--a legal term to describe
government confiscation of property or of the value thereof as a
result of some regulatory or other action, such as invoking the
powers of eminent domain. The Takings Clause of the Fifth Amendment
to the U.S. Constitution states: "nor shall private property be
taken for public use without just compensation." But the courts
have not always upheld a strict interpretation of the Takings
Clause, and it thus would be a mistake to wait for this unthinkable
provision (amortization of non-conforming uses) to be overruled by
the U.S. Supreme Court.
Zoning decisions that lend themselves to the use of amortization
and forfeiture have drastic consequences. A family living in a
newly designated Guidebook community, for example, who had bought
their home for $50,000 in 1980, might well be confronted with the
amortization requirement to abandon, convert, or demolish the house
by 2005 as a consequence of the rezoning of the land on which it
sits. By 2005, the family might find their asset (the house and
land), which recent market transactions had led them to believe had
appreciated in value to $150,000, worth substantially less.
Because the net worth in a home is the major source of wealth
for most Americans, such Guidebook-encouraged forfeitures could
strike a very serious blow to the well-being of families for no
other purpose than to tidy up a community's "look" to make it more
attractive to planners, architects, environmentalists, and the
financially well-off who may dislike vinyl siding, split-foyer
colonials, or economy cars parked in the driveways.
Why There is Little Public Outcry
It is troubling that no mention of this specific use of
forfeiture--a direct assault on the American dream of homeownership
and wealth accumulation--is to be found in any of the APA's
publicity about the Growing Smart Guidebook or highlighted in the
federal government's comments about it. Given the large number of
legal and technical details covered in the book, the forfeiture
provision has been largely missed by the media and the public
Doubtless, the authors of the Growing Smart book and their
financial backers at HUD would argue that this is because the book
lists only options, not requirements. A December 6, 2001, letter
from HUD to a skeptical constituent contends as much.11 But this distorted set of options hardly
represents all of the legitimate land use choices a community
actually has available to it. They are confined largely to those
that limit property rights; none expand them; and all assume that
government planners know more than ordinary citizens, landowners,
developers, or the market process.
No matter what the purpose or slant, the option of property
forfeiture is simply inconsistent with American values and with the
fundamental principle of economic progress. APA's forfeiture option
has no place in a document funded by the federal government, and
federal officials should be eager not only to distance themselves
from the Growing Smart Guidebook, but to condemn it as well.
Some might suppose that it would be politically impossible for a
local community to adopt a provision that requires people to
forfeit their houses, but Growing Smart cleverly avoids this
problem as well, shifting responsibility for the decisions higher
up the bureaucracy. The book includes an option to require that
local land use plans be consistent with regional and state plans,
taking critical and unpopular decisions away from local
To encourage such actions and the enactment of such provisions,
the state or federal government could condition funding on a
community's consistency with state or federal land use dictates.
The Community Character Act of 2001 (S. 975/H.R. 1433), currently
being considered by Congress, would provide federal funds for this
purpose. Bureaucrats in Salem, Harrisburg, Nashville, Atlanta, or
Washington could require a certain portion of a community's land
area to be zoned for multi-family dwellings. The local elected
officials could then tell homeowners with a straight face that it
was not their fault as they enact and enforce provisions that would
have been impossible to adopt if the decision-making had remained
How could such a destructive proposal evolve from a tax-funded
project overseen by HUD, whose mission is to expand homeownership,
not destroy it? The answer lies in the fact that the broader urban
planning community is led by special interests who fancy themselves
not so much public servants as evangelists on a mission to convert
everyone to a particular taste (or ideology) in urban design.
This is not the first time that urban planning has been captured
by fleeting, fashionable ideas. During the 1950s and 1960s, urban
planners enthusiastically embraced the concepts of urban renewal
and the construction of European-style public housing projects,
which have destroyed residential communities in central cities and
sent minorities to more remote sections of town.
Today, the stakes are high. Much of the productivity of the
American economy is tied to the security and free use of real
property and its role in creating wealth. The APA forfeiture
proposal not only would help bureaucrats take people's homes away,
but also would undermine the wealth-creating engine that has made
America the most prosperous nation in the world.
The Growing Smart Guidebook is thus a legislative guide for
increased poverty, not prosperity. The Bush Administration must not
only expose the unconstitutional provisions in this massive book,
but publicly distance itself from it in no uncertain terms.
-- Wendell Cox, principal of the
Wendell Cox Consultancy in St. Louis, Missouri, is a Visiting
Fellow at The Heritage Foundation.
July 2, 2002 |
. The entire 1,500-page
Growing Smart Legislative Guidebook: Model Statutes for Planning
and the Management of Change is available at .
2. See U.S. Department of Housing and Urban Development Web
site, at .
3. See .
4. The other financial backers include private foundations, the
American Planning Association's membership, and the Seimens
Corporation, one of the world's leading manufacturers of light rail
5. See also Wendell Cox, "Smart Growth and Housing
Affordability," paper commissioned by the Millennial Housing
Commission, March 2002, at .
6. See, for example, Wendell Cox, "American Dream Boundaries,"
Georgia Public Policy Foundation, June 2001, at
7. Matthew E. Kahn, "Does Sprawl Reduce the Black/White Housing
Consumption Gap?" Housing Policy Debate, Vol. 12, No. 1 (2001). See
also Wendell Cox and Ronald D. Utt, Ph.D., "Smart Growth, Housing
Costs, and Homeownership," Heritage Foundation Backgrounder No.
1426, April 6, 2001.
8. See also Ronald D. Utt, Ph.D., "Will Sprawl Gobble Up
America's Land? Federal Data Reveal Development's Trivial
Impact," Heritage Foundation Backgrounder No. 1556, May 30,
9. Growing Smart Legislative Guidebook, p. 8-123.
10. Ibid., p. 8-110.
11. Letter from Lawrence L. Thompson, General Deputy Assistant
Secretary, U.S. Department of Housing and Urban Development, to
Nancie G. Marzulla, Defenders of Property Rights, December 6,