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Ethical land use
Book reviews
veloped and there is some justification for A d a m s ' s c o m m e n t that 'the extent to which d e v e l o p m e n t as a whole is influenced by the statutory control framework . . . is worth a book in its own right' (p 9), and to have examined it in this book would have made it much longer. Nevertheless, it can be argued that it is in d e v e l o p m e n t control that the real intervention by urban planning occurs, not simply in a passive stance of control and regulation, but in a positive stance of negotiation and b a r g a i n i n g . A d m i t t e d l y , that statement applies only to the small proportion of planning applications initiated by the d e v e l o p m e n t interests as opposed to the householder applications. But for the major applications involving substantial investment, the legal relationship between the dev e l o p m e n t plan and d e v e l o p m e n t control is crucial to any understanding of the effectiveness of urban planning. In another direction, the book does not deal with the impact of those plans and the flow of d e v e l o p m e n t control d e c i s i o n s on t h e w i d e r f i n a n c i a l strategies of the investing institutions, though this is identified as one of the areas for future research in the last chapter. O f course, it can be argued that s54A and the aim of the Secretary of State for the E n v i r o n m e n t to create a 'plan-led' system could, if it were effective, result in the statutory local plan and its preparation becoming a much more crucial means of state intervention in land and property markets. If that is the way of the future. then A d a m s ' s last chapter points the way for reform. He poses an interesting question: What if we were today creating a planning system for the first time, with our current understanding of the ways in which planning and d e v e l o p m e n t can and have interacted during the past 100 years as planning in Britain has evolved? That is, how would we set about creating a planning system whose objective was 'the promotion of equity, efficiency and sustainability in the built e n v i r o n m e n t rather than the mere pursuit of amenity, c o n v e n i e n c e , safety of public health' (p 222)? In most respects what A d a m s has to say is again devoted to the prepara-
tion, content and use of plans in infuencing and promoting d e v e l o p m e n t in a socially just and, from a market point of view, proactive way. But this is a one-sided view, as in fact it says nothing about the actual implementation of those plans. It does not deal effectively with the issue of what happens, given the time which they must take to prepare, if 'statutory local plans remain fixed at a point in time, by-products of a continuous planning process that reflects the continuous nature of land m a n a g e m e n t and dev e l o p m e n t ' (p 217). It is not enough simply to say that they should be prepared 'on an action basis, rather than on an area or topic basis' (p 224) since on that basis the whole burden of decision making is thrown on the regulatory system. Nevertheless there is a lot of food for thought in A d a m s ' s last chapter as there is a real risk that the present round of statutory local plans now being prepared, coincidentally during
a period in which the property industry is still feeling the effects of the last boom and the subsequent slump, will be as ineffectual as previous rounds. W h e t h e r these new local plans will withstand the pressure and be effective in a renewed level of activity in property d e v e l o p m e n t is highly problematic because attention will necessarily shift back to the framework of control, r e m e m b e r i n g all of the qualifications to be made about s54A and its real meaning in d e v e l o p m e n t control and appeals if the plan is found wanting. A d a m s ' s book is a very useful and valuable addition to the literature of urban planning and land m a n a g e m e n t , and, to coin a phrase, is 'real value for the money'.
H W E Davies Department of Land Management and Development University of Reading
Our duty to the land ETHICAL LAND USE Principles of Policy and Planning by Timothy Beatley Johns Hopkins University Press, Baltimore, MD, 1994, 302 pp, £45.00 hb, £15.00 pb Land is a gift - not a free or deserved gift, but a gift given upon certain rigorous conditions. The gift is a temporary one, so landholders have a certain responsibility to care for and nurture the land and to pass it along to future generations in a similar or improved condition . . . Each generation has a right to use the natural system for its own benefit but also an obligation to care for it so that future generations will inherit a robust planet in no worse condition than previous generations received i t . . . Ethical land use requires that the long-term view be taken, that the traditional shortsightedness of public land-use policies and decisions must be overcome. Land-use obligations to future generations also seem to imply that there are ethical limits which
must be placed on the extent to which land and resources can be consumed in the present generation. This is the central thesis of Timothy Beatley's new paeon to ethical land use. Carefully crafted and superbly written, it is destined to be a classic in land policy, demonstrating as well as can be demonstrated what obligation humanity has towards land and the environment. Our duty, according to Beatley, is non-anthropocentric, ultimately; but even under an anthropocentric view we do not 'use' land as we should: Protecting the natural environment can certainly be defended on the grounds of human self-interest; it seems clear to me that the very survival of the human race depends on a fundamentally different ethical orientation to natural resources, one which degrades and consumes these resources only sparingly and only when other alternatives are first exhausted. Perhaps that is the problem: we use land, rather than husband it.
329
Book reviews What is particularly impressive and useful - is the author's extensive use of ethical frameworks and obligations culled from a wide variety of sources in setting up his own land use ethical statements. In the first several chapters, he reviews basic 'discourses' not only about land (such as Aldo Leopold's classic A Sand County Almanac) but also various economic, social, moral, even political theories on or affecting the use of land. Out of these comes a general statement suggesting ethical land use precepts or minimization of harms as much as possible, and holding accountable those who would cause such harms. Not content to leave such a general principle for a general guideline, Beatley extrapolates and explains a series of land use rights that flow from the principle, though the division into 'constitutional' and moral strikes one as a trifle contrived. Among these rights are due process and equal protection, free speech, shelter, housing, health care and education, physical access, productive employment, environmental goods and a livable environment. Some of these conflict, of course. Beatley spends much of the rest of the book dealing perceptively with these conflicts, though the bottom line comes in the middle, as the quotation which introduces this review demonstrates, The defense of ethical land use in terms of future generations in Chapter 8 is superb and superbly written. However, it is not easy to undertake such a sweeping survey and analysis of land use ethics, and the following chapter on paternalism and voluntary risk-taking demonstrates the danger. Is paternalism really much of a concern, or has Beatley set up a straw man? The relevance of this chapter to his themes - indeed to the rest of the book - is neither clear nor convincing.
Ownership and property rights Chapter 11 on private property and takings is not particularly convincing, either. Tackling a difficult subject, Beatley missteps in an effort to deflect traditional notions of 'ownership', which he chooses to view differently from possessory rights. In doing so, he
330
suggests some controversial hypotheses: land ownership is a private privilege collectively bestowed, and without a socially created system of land property rights, property would not exist. These hypotheses are unfortunate for at least two reasons. First, and foremost, they are unnecessary to the central theses of this book. One need not thoroughly trash, or even trump, private property rights in order to evolve an ethic of land use, and certainly not Beatley's ethic. Second, the examples and arguments marshalled to demonstrate them are marginal. For example, highlighting and tracing the route of eminent domain, property taxes and escheat, supposedly demonstrating that property rights are not "absolute', hardly justifies a 'privilege" notion of private property rights. Moreover, escheat, taxation and eminent domain may well demonstrate government action affecting or even adjusting private property rights, but do they really 'reflect the government's underlying ownership' (emphasis mine)? Does government, by the same token, "own' human life through enactment of a penal code'? Later in the chapter Beatlcy utilizes a famous US Supreme Court case - Mugler v Kansas - to demonstrate that, since the Court held government can freely regulate "public harms' without 'taking" property, government should equally be able to forbid filling and dredging of wetlands because these are, "in a broad sense', public harms. Whatever the merits of this argument, the Mugler case is not a good vehicle upon which to hitch it. The 'harms' there were extensively nuisance-like, directed at uses 'prejudicial to the health, the morals, or the safety of the public'. There is nothing here about public welfare - which is the police power rubric under which wetland and coastal protection usually falls. Likewise, in Chapter 12 on lifestyle and community character, surely difficult standards should apply to the validation of a community decision to prevent a commercial entity like MacDonalds from erecting golden arches, as compared to one regulating the color which one may paint a private residence. What is a 'good' reason to p e r m i t c o m m u n i t y r e g u l a t i o n of
architectural style and color through public use of the police power (as compared with private restrictive covenants)? Is it ever justifiable to use the police power to 'protect and advance a particular community character' (emphasis mine)? Perhaps this is a matter of personal preference. Thus, for example, would Beatley 'personally' find it unethical for a community to restrict or ban a land use which it decides is 'morally wrong' but more defensible if the restriction is to prevent 'visual disaster'? A case can be made that both result in public harms of equal - and very low community importance, and that both restrict lifestyle choices protected by the US Constitution.
Public responsibility Finally, Beatley's otherwise excellent analysis of the needs for regional (as compared to narrowly parochial local or neighbourhood) interests, based upon the widest range of public involvement (Chapters 13 and 14), is weakened somewhat by insufficient attention to concomitant public responsibility to stay informed and make such public participants in a timely and appropriate fashion. We live under largely representative forms of government at the federal, state and local government levels, and must trust our public officials to make the decisions for which we elected them in the manner they think best. Constant solicitation of public opinions and preferences can be inimical to that process, as the rampant overuse of initiative and referendum on every conceivable subject and proposition in states like California clearly demonstrates. These criticisms do not detract from the c o m p r e h e n s i v e and thoughtprovoking analysis of this excellent and carefully crafted exposition of a land use ethic. It well repays the time invested in a careful and thoughtful read.
David Callies University of Hawaii at Manoa Honolulu, HI
veloped and there is some justification for A d a m s ' s c o m m e n t that 'the extent to which d e v e l o p m e n t as a whole is influenced by the statutory control framework . . . is worth a book in its own right' (p 9), and to have examined it in this book would have made it much longer. Nevertheless, it can be argued that it is in d e v e l o p m e n t control that the real intervention by urban planning occurs, not simply in a passive stance of control and regulation, but in a positive stance of negotiation and b a r g a i n i n g . A d m i t t e d l y , that statement applies only to the small proportion of planning applications initiated by the d e v e l o p m e n t interests as opposed to the householder applications. But for the major applications involving substantial investment, the legal relationship between the dev e l o p m e n t plan and d e v e l o p m e n t control is crucial to any understanding of the effectiveness of urban planning. In another direction, the book does not deal with the impact of those plans and the flow of d e v e l o p m e n t control d e c i s i o n s on t h e w i d e r f i n a n c i a l strategies of the investing institutions, though this is identified as one of the areas for future research in the last chapter. O f course, it can be argued that s54A and the aim of the Secretary of State for the E n v i r o n m e n t to create a 'plan-led' system could, if it were effective, result in the statutory local plan and its preparation becoming a much more crucial means of state intervention in land and property markets. If that is the way of the future. then A d a m s ' s last chapter points the way for reform. He poses an interesting question: What if we were today creating a planning system for the first time, with our current understanding of the ways in which planning and d e v e l o p m e n t can and have interacted during the past 100 years as planning in Britain has evolved? That is, how would we set about creating a planning system whose objective was 'the promotion of equity, efficiency and sustainability in the built e n v i r o n m e n t rather than the mere pursuit of amenity, c o n v e n i e n c e , safety of public health' (p 222)? In most respects what A d a m s has to say is again devoted to the prepara-
tion, content and use of plans in infuencing and promoting d e v e l o p m e n t in a socially just and, from a market point of view, proactive way. But this is a one-sided view, as in fact it says nothing about the actual implementation of those plans. It does not deal effectively with the issue of what happens, given the time which they must take to prepare, if 'statutory local plans remain fixed at a point in time, by-products of a continuous planning process that reflects the continuous nature of land m a n a g e m e n t and dev e l o p m e n t ' (p 217). It is not enough simply to say that they should be prepared 'on an action basis, rather than on an area or topic basis' (p 224) since on that basis the whole burden of decision making is thrown on the regulatory system. Nevertheless there is a lot of food for thought in A d a m s ' s last chapter as there is a real risk that the present round of statutory local plans now being prepared, coincidentally during
a period in which the property industry is still feeling the effects of the last boom and the subsequent slump, will be as ineffectual as previous rounds. W h e t h e r these new local plans will withstand the pressure and be effective in a renewed level of activity in property d e v e l o p m e n t is highly problematic because attention will necessarily shift back to the framework of control, r e m e m b e r i n g all of the qualifications to be made about s54A and its real meaning in d e v e l o p m e n t control and appeals if the plan is found wanting. A d a m s ' s book is a very useful and valuable addition to the literature of urban planning and land m a n a g e m e n t , and, to coin a phrase, is 'real value for the money'.
H W E Davies Department of Land Management and Development University of Reading
Our duty to the land ETHICAL LAND USE Principles of Policy and Planning by Timothy Beatley Johns Hopkins University Press, Baltimore, MD, 1994, 302 pp, £45.00 hb, £15.00 pb Land is a gift - not a free or deserved gift, but a gift given upon certain rigorous conditions. The gift is a temporary one, so landholders have a certain responsibility to care for and nurture the land and to pass it along to future generations in a similar or improved condition . . . Each generation has a right to use the natural system for its own benefit but also an obligation to care for it so that future generations will inherit a robust planet in no worse condition than previous generations received i t . . . Ethical land use requires that the long-term view be taken, that the traditional shortsightedness of public land-use policies and decisions must be overcome. Land-use obligations to future generations also seem to imply that there are ethical limits which
must be placed on the extent to which land and resources can be consumed in the present generation. This is the central thesis of Timothy Beatley's new paeon to ethical land use. Carefully crafted and superbly written, it is destined to be a classic in land policy, demonstrating as well as can be demonstrated what obligation humanity has towards land and the environment. Our duty, according to Beatley, is non-anthropocentric, ultimately; but even under an anthropocentric view we do not 'use' land as we should: Protecting the natural environment can certainly be defended on the grounds of human self-interest; it seems clear to me that the very survival of the human race depends on a fundamentally different ethical orientation to natural resources, one which degrades and consumes these resources only sparingly and only when other alternatives are first exhausted. Perhaps that is the problem: we use land, rather than husband it.
329
Book reviews What is particularly impressive and useful - is the author's extensive use of ethical frameworks and obligations culled from a wide variety of sources in setting up his own land use ethical statements. In the first several chapters, he reviews basic 'discourses' not only about land (such as Aldo Leopold's classic A Sand County Almanac) but also various economic, social, moral, even political theories on or affecting the use of land. Out of these comes a general statement suggesting ethical land use precepts or minimization of harms as much as possible, and holding accountable those who would cause such harms. Not content to leave such a general principle for a general guideline, Beatley extrapolates and explains a series of land use rights that flow from the principle, though the division into 'constitutional' and moral strikes one as a trifle contrived. Among these rights are due process and equal protection, free speech, shelter, housing, health care and education, physical access, productive employment, environmental goods and a livable environment. Some of these conflict, of course. Beatley spends much of the rest of the book dealing perceptively with these conflicts, though the bottom line comes in the middle, as the quotation which introduces this review demonstrates, The defense of ethical land use in terms of future generations in Chapter 8 is superb and superbly written. However, it is not easy to undertake such a sweeping survey and analysis of land use ethics, and the following chapter on paternalism and voluntary risk-taking demonstrates the danger. Is paternalism really much of a concern, or has Beatley set up a straw man? The relevance of this chapter to his themes - indeed to the rest of the book - is neither clear nor convincing.
Ownership and property rights Chapter 11 on private property and takings is not particularly convincing, either. Tackling a difficult subject, Beatley missteps in an effort to deflect traditional notions of 'ownership', which he chooses to view differently from possessory rights. In doing so, he
330
suggests some controversial hypotheses: land ownership is a private privilege collectively bestowed, and without a socially created system of land property rights, property would not exist. These hypotheses are unfortunate for at least two reasons. First, and foremost, they are unnecessary to the central theses of this book. One need not thoroughly trash, or even trump, private property rights in order to evolve an ethic of land use, and certainly not Beatley's ethic. Second, the examples and arguments marshalled to demonstrate them are marginal. For example, highlighting and tracing the route of eminent domain, property taxes and escheat, supposedly demonstrating that property rights are not "absolute', hardly justifies a 'privilege" notion of private property rights. Moreover, escheat, taxation and eminent domain may well demonstrate government action affecting or even adjusting private property rights, but do they really 'reflect the government's underlying ownership' (emphasis mine)? Does government, by the same token, "own' human life through enactment of a penal code'? Later in the chapter Beatlcy utilizes a famous US Supreme Court case - Mugler v Kansas - to demonstrate that, since the Court held government can freely regulate "public harms' without 'taking" property, government should equally be able to forbid filling and dredging of wetlands because these are, "in a broad sense', public harms. Whatever the merits of this argument, the Mugler case is not a good vehicle upon which to hitch it. The 'harms' there were extensively nuisance-like, directed at uses 'prejudicial to the health, the morals, or the safety of the public'. There is nothing here about public welfare - which is the police power rubric under which wetland and coastal protection usually falls. Likewise, in Chapter 12 on lifestyle and community character, surely difficult standards should apply to the validation of a community decision to prevent a commercial entity like MacDonalds from erecting golden arches, as compared to one regulating the color which one may paint a private residence. What is a 'good' reason to p e r m i t c o m m u n i t y r e g u l a t i o n of
architectural style and color through public use of the police power (as compared with private restrictive covenants)? Is it ever justifiable to use the police power to 'protect and advance a particular community character' (emphasis mine)? Perhaps this is a matter of personal preference. Thus, for example, would Beatley 'personally' find it unethical for a community to restrict or ban a land use which it decides is 'morally wrong' but more defensible if the restriction is to prevent 'visual disaster'? A case can be made that both result in public harms of equal - and very low community importance, and that both restrict lifestyle choices protected by the US Constitution.
Public responsibility Finally, Beatley's otherwise excellent analysis of the needs for regional (as compared to narrowly parochial local or neighbourhood) interests, based upon the widest range of public involvement (Chapters 13 and 14), is weakened somewhat by insufficient attention to concomitant public responsibility to stay informed and make such public participants in a timely and appropriate fashion. We live under largely representative forms of government at the federal, state and local government levels, and must trust our public officials to make the decisions for which we elected them in the manner they think best. Constant solicitation of public opinions and preferences can be inimical to that process, as the rampant overuse of initiative and referendum on every conceivable subject and proposition in states like California clearly demonstrates. These criticisms do not detract from the c o m p r e h e n s i v e and thoughtprovoking analysis of this excellent and carefully crafted exposition of a land use ethic. It well repays the time invested in a careful and thoughtful read.
David Callies University of Hawaii at Manoa Honolulu, HI