“Comparative Urban Governance: Why the United States is Incapable of Reform” by James A. Kushner

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June 4th, 2014

In the effort to make cities more equitable, efficient, and sustainable, the success of older Western European cities and states might provide models for best practices for restructuring municipal governance.  In this article, I will look at issues such as environmental ideology, automobile transport influence, and the anti-tax movement, and discuss governance models from the standpoint of susceptibility to corruption, capture by corporate entities, commitment to constituency, and the role of community political fragmentation.

Susceptibility to Corruption

      Land use planning and regulation in American municipal governments often appears structured to permit the maximum amount of corruption possible.[1]  Developers[2] and other contractors[3] are typically expected to pay exactions or make political campaign contributions to politicians who possess the apparent power of blocking or facilitating development and public contracts.[4]  In Los Angeles, it appears that there is an understanding among members of the city council that they will typically defer to the council representative from the district where the development is proposed on zoning matters, such as proposals for zoning amendments, variances, subdivisions, or site plans.[5]  This allows legislators to have free reign over whether the project is approved and thus facilitates corrupt exactions as a price of development.  In Philadelphia, at least before that city’s recent overhaul of its zoning code,[6] zoning and other regulatory measures prevented developers from enjoying any development of right, whereby a developer would be informed from codes that a certain type and intensity of development was permitted.  Instead, the codes were so prolix that every development project required the equivalent of a variance,[7] and thus the system encouraged political exploitation of developers.  Typically, and in every jurisdiction, all but the smallest of projects requires some form of discretionary approval in the form of subdivision, site plan, variance, plan or zoning amendment, thus facilitating political exploitation.

Best practices from Europe can mitigate these tendencies significantly.  For example, Stockholm’s city council, its legislative body, contains 101 elected members,[8] making group decision-making lengthy and complex, but its decisions more transparent.  With so many decision-makers, corruption by payoff or campaign contribution would be much more complicated.  Another practice that carries a number of benefits is the sharing of decision-making between local governments, state or provincial governments, and the national government.  In the United Kingdom, local development projects call for national agency approval as well as local review.[9]  In the Netherlands, significant projects traditionally required agreement of the provincial government, the equivalent of an American state, with both the local and the provincial government, subject to national standards.[10]  The Dutch bestemmingsplan requires that state and adjacent towns concur in development plans, a system that precludes unilateral sprawl development and results in the maintenance of a clearly defined urban boundary, generating projects less likely to involve corruption.[11]  In Germany, similar to the Netherlands, the Länder, or state, must be consulted and approve significant local projects and plans.[12]  Throughout Europe, due to recession and the decline of federal or state subsidies, land development decisions are becoming more a function of local control.  In contrast, the call for local autonomy in the United States has prevented any participation by the federal, state, county, or regional governments, leaving local land use decisions to the local city council, commission, or planning board.  For example, in Maryland, zoning and development decisions are carried out by professional hearing examiners rather than purely political bodies following a recommendation from a planning commission, and have been credited with superior discretionary decisions.[13]

Capture by Corporate Entities

      Related to the issue of corruption in public contracting and land development is what I refer to as corporate capture of local government, or indeed, corporate capture at all levels of government.  Local government may excessively defer to developers, banks, or venture capitalists.  This may be particularly the case where local government, strapped for tax revenues, closes or reduces the size and capacity of its planning department and code enforcement administration.  Often, the fear or threat of canceling a project and the promise of tax base expansion may have the desired effect of generating project approvals.  Historically, many European cities had significant planning infrastructure and were able to impose their design preferences along with national development standards on private developers.  In the Netherlands, it was typical for the community and local government, with the approval of the provincial state-regional government, to promulgate a comprehensive specific plan and only then invite private developers to execute a portion of the plan.[14]  In recent years, with globalization, increased competition, and the need to lower taxes to increase the competitiveness of locally-produced goods, planning departments and their budgets have been reduced.  At the same time, large-scale international capital investors have become ever-larger players in local development, and local governments attempting to regulate and influence development projects are simply overwhelmed.[15]  In the same way, large developers and large projects have become particularly attractive to budget-conscious municipal governments in the United States.

Commitment to Constituency

The ideology of the electorate, influenced by politicians, the media, and a healthy portion of self-interest, may also serve to influence the potential for implementing structural urban governance modernization.  In European communities, the electorate generally shares a deep commitment to the environment and sustainability, and thus it is easier for elected officials to design initiatives to serve those values.  In the United States, politicians have long advocated smaller budgets, fewer and lower taxes, and have eschewed environmental regulation as inconsistent with growing the economy.  Urban design focused on lower density suburban sprawl has generated a public dependent upon the automobile, seeking lower fuel prices, more free parking, and less costly public transport.[16]  By comparison, Europeans are eager to elect candidates with a strong environmental ethic who, in turn, support more sustainable policies and projects, such as public transport improvement.

Reform advocates have long called for regional regulation as cities, suburbs, and nonmetropolitan areas are connected and affected by the development patterns of adjacent municipal governments.[17]  Traffic, transportation, air pollution, job location and housing access are all regional issues.  Therefore, it makes little sense to render planning excessively local.  Europe has sought to address regionalism through participation in planning and development decisions at the state or provincial levels of government, or through the application of nationally-established criteria.  In the United States, just as states’ rights have special meaning for states distrustful of policies set at higher levels of government, at the state level, cities and counties celebrate home rule and independence from state or regional preemption or shared decision-making and have zealously defended local autonomy and thus provincialist planning.  In contrast to the American distrust of government and city hall, reflecting popular belief that elected officials are more concerned with satisfying current and future campaign contributors rather than constituents, Europe enjoys a much greater trust of government.  This contrast is due in part to the power of unions and due to the fact that elected officials share the same experience as their constituents and are typically not aligned with development interests.

Community Political Fragmentation

There exists a myriad of variables that might be considered in defining and adjusting local government structure, such as local neighborhood autonomy compared to at-large community wide regulation.  Although citizen preferences would be reflected in more localized decision-making, national, regional, and large metropolitan objectives might only be achieved if decision-making were removed from the affected neighborhoods, where the greater good of the city may not outweigh local interests.[18]  Neighborhoods are not likely to be concerned with regional traffic, transit, or housing patterns.  Instead, neighborhoods largely focus on NIMBY (not in my backyard) interests, such as excluding unwanted land uses.  Neighborhoods may oppose affordable housing or transit corridors that may be perceived as linked to traffic, noise, crime, educational quality, and an increase in lower socio-economic residents.[19]

Neighborhood autonomy is also affected by the design of voting and regulatory districts.  Regional government would have less of a tendency to serve local neighborhood parochial concerns and goals to reduce noise, crime, and traffic, or to maintain exclusive residential districts.[20]  Reapportionment and the design of governmental districts for the state legislature, federal Congress, county and local government, as well as special districts such as schools, water, or sewer districts, may further discourage local government structure in favor of modernization and the utilization of best practices.[21]  As the voting power of the political majority is enhanced through gerrymandering voting districts in response to reapportionment obligations mandating an equal number of votes in each district,[22] the power of minority interests, whether they may be concerned with ethnicity,[23] class, political party,[24] or matters such as environmental sustainability, is reduced.  In addition, the influence of the high cost of campaigning for public office results in excessive power in the hands of elected officials and those contributors funding successful office seekers.[25]  Gerrymandering district boundaries often results in greater control of the legislative body by the dominant political party and thereby tends to thwart reform of both urban design and governance structure.[26]  Typically, these groups are opposed to environmentalism, public transport expansion, and equity in housing access, and they are likely to be satisfied with the status quo and opposed to structural modification.

Conclusion

Comparative studies of urban governance regimes and policy innovations are important in shaping local and regional responses to urban growth, development, and sustainability.  However, observations on the topics of corruption, capture, constituency, and community suggest that in the United States, vested interests of office holders, corporations, and developers, as well as opposition by voters will prevent meaningful experimentation with best practices from abroad.

 

 

 


 

*  Professor Emeritus, Southwestern Law School.

Φ  Suggested Citation: James A. Kushner, Comparative Urban Governance: Why the United States is Incapable of Reform, 41 Fordham Urb. L.J. City Square 20 (2014), http://urbanlawjournal.com/comparative-urban-governance-why-the-united-states-is-incapable-of-reform/.

        [1].  See George Amick, The American Way of Graft—A Study of Corruption in State and Local Government, How it Happens and What Can Be Done About It 77 (1976) (surveying corrupt practices in several contexts, and concluding that land use control is the governmental activity “most closely associated with corruption in the public’s mind”); Richard F. Babcock, The Zoning Game 7-16 (1966) (highlighting the disorder and chaos that exists in land use planning and regulation, which the author doubts “even the most intransigent disciple of anarchy ever wished for or intended”); Robert C. Ellickson & Vicki L. Been, Land Use Controls 308, 347-49 (Aspen Publishers 3d ed. 2005) (describing the land use system as one which “has long been tainted with discoveries and allegations of corruption”); Robert C. Ellickson & A. Dan Tarlock, Land-Use Controls 234-76 (1981) (referring to pattern of zoning changes as “dealmaking”); John A. Gardiner & Theodore R. Lyman, Decisions for Sale: Corruption and Reform in Land-Use and Building Regulation (1978) (reporting instances of corruption in six states); Judith Getzels & Charles Thurow, An Analysis of Zoning Reforms: Minimizing the Incentive for Corruption 6, 13 (1979) (discussing the amount of discretion permitted in “negotiated zoning” practices as a possible source of corruption in American zoning systems. The study found that land use decisions were particularly susceptible to corruption because of the significant financial losses and gains imposed as a consequence of zoning); Frank J. Popper, The Politics of Land-Use Reform 52 (1981) (“Zoning and subdivision regulation have traditionally been the greatest single source of corruption in local government. Zoning personnel rarely constitute even 2 percent of a city government’s work force, but zoning scandals seem to account for nearly half the convictions of local officials.”); Peter D. Salins & Gerard C.S. Mildner, Scarcity by Design: The Legacy of New York City’s Housing Policies 42 (1992) (discussing corruption in the administration of New York City’s housing code); Denis Binder, The Potential Application of RICO in the Natural Resources/Environmental Law Context, 63 Denv. U. L. Rev. 535, 560 (1986) (stating the “most likely area of application of RICO” is in land use regulation, since “fraud, kickbacks, and corruption are very common in land development”); Alejandro Esteban Camacho, Mustering the Missing Voices: A Collaborative Model for Fostering Equality, Community Involvement and Adaptive Planning in Land Use Decisions: Installment One, 24 Stan. Envtl. L.J. 3, 42 (2005) (noting that “[t]here are many accounts of unfair dealing facilitated by bilateral deal-making in local land use regulation–with outright corruption of local officials as the extreme, although not exceptional, case”); David A. Dana, Land Use Regulation in an Age of Heightened Scrutiny, 75 N.C. L. Rev. 1243, 1272-73 (1997) (discussing accounts of bribery and developers’ influence in local government); Robert H. Freilich, The Nature of Land Use Proceedings: Legislative, Adjudicatory, or Administrative?, SB06 ALI-ABA 695, 702 (1996) (referencing Stanford Research Institute, Corruption in Land Use Building Regulation (1978), a study revealing that widespread corruption permeates municipal land use decisions); Ira Michael Heyman, Innovative Land Regulation and Comprehensive Planning, 13 Santa Clara L. Rev. 183, 187-200 (1973); Carol M. Rose, Property Rights, Regulatory Regimes and the New Takings Jurisprudence—An Evolutionary Approach, 57 Tenn. L. Rev. 577, 588 (1990) (“It is well-known that land use control offers many opportunities for corruption.”); Patricia E. Salkin, Ethical Considerations in Land Use Decision Making: 2006 Annual Review of Cases and Opinions, 38 Urb. Law. 669 (2006) (summarizing reported cases and opinions “documenting allegations of unethical conduct involved in land use planning and zoning decision making”); Kris Wernstedt, Terra Firma or Terra Incognita?  Western Land Use, Hazardous Waste, and the Devolution of U.S. Federal Environmental Programs, 40 Nat. Resources J. 157, 182 (2000) (“[F]ew areas of local government administration have been skewered by charges of cronyism and corruption as have local land use decisions.”); Harlan Draeger, A Crime Waive for Aldermen, Chi. Sun-Times, Jan. 1, 1992 (reporting that fifteen of the seventeen Chicago aldermen convicted of criminal offenses since 1973 were convicted for bribery or extortion).

        [2].  See Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 Yale L.J. 385, 407-08 (1977) (“With the possible exception of municipal labor unions, land-development interests appear to be the largest investors in municipal politics in the United States.”); Kenneth A. Stahl, Neighborhood Empowerment and the Future of the City, 161 U. Pa. L. Rev. 939, 982 (2013) (citing John R. Logan & Harvey L. Molotch, Urban Fortunes: The Political Economy of Place 230-32 (1987) (discussing the importance of campaign contributions from developers in local elections which enables the election of “politicians sympathetic to development”)).

        [3].  See Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118, 138-42 (2010).

        [4].  See Patrick McGreevy, Campaign Against Westwood Project Builds, L.A. Times, Aug. 30, 2003, http://articles.latimes.com/2003/aug/30/local/me-casden30 (describing illegal campaign contributions given to public officials in exchange for project support); T. Christian Miller, Developer Money Pours into Campaign Coffers of Officials, L.A. Times, Dec. 27, 1998, http://articles.latimes.com/1998/dec/27/news/mn-58074 (reporting that contributions are followed by requests for new projects or changes in pending ones and that officials deny any connection); Maeve Reston, Donations to Weiss are Hard to Sort Out, L.A. Times, May 11, 2009, http://articles.latimes.com/2009/may/11/local/me-city-attorney-ethics11; Hollywood Becomes Fraudywood, Save Hollywood (June 28, 2013), http://www.savehollywood.org/?p=1172#more-1172 (describing city project review’s questionable population estimation practices that strongly suggest corruption).

        [5].  See Beth Shuster, One Zoning Law, Two Outcomes, L.A. Times, Nov. 11, 1997, http://articles.latimes.com/1997/nov/11/local/me-52474.

        [6].  See Inga Saffron, Changing Skyline: New Zoning Code: Toward a More Competitive, Livable City, Philly.com (Aug. 25, 2012), http://articles.philly.com/2012-08-25/news/33367899_1_new-code-variances-livable-city.

        [7].  See id.

        [8].  James A. Kushner, A Tale of Three Cities: Land Development and Planning for Growth in Stockholm, Berlin, and Los Angeles, 25 Urb. Law. 197, 219 n.71 (1993) (describing the 101 member city council).

        [9].  See generally Deborah Rhoads, Developer Exactions and Public Decision Making in the United States and England, 11 Ariz. J. Int’l & Comp. L. 469 (1994) (contrasting the extensive local involvement in the American model of land use controls with the much more national English approach in the context of how this affects the amount exacted from developers); David A. Thomas, Anglo-American Land Law: Diverging Developments from a Shared History—Part III: British and American Real Property Law and Practice—A Contemporary Comparison, 34 Real Prop. Prob. & Tr. J. 443 (1999) (comparing the British experience of centralized and systematic real property law reform in the twentieth century with the more uneven and less successful American reforms from the same period).

      [10].  See generally George Lefcoe, The Right to Develop Land: The German and Dutch Experience, 56 Or. L. Rev. 31, 34 (1977) [hereinafter Lefcoe, The Right to Develop Land]; George Lefcoe, When Governments Become Land Developers: Notes on Public-Sector Experience in the Netherlands and California, 51 S. Cal. L. Rev. 165, 221-29 (1978) [hereinafter Lefcoe, When Governments Become Land Developers]; Damien Leonard, Note, Raising the Levee: Dutch Land Use Law as a Model for U.S. Adaptation to Climate Change, 21 Geo. Int’l Envtl. L. Rev. 543 (2009) (each article describing the Dutch system of planning law and policy).

      [11].  See Lefcoe, When Governments Become Land Developers, supra note 10, at 218.

      [12].  See Matthew A. Light, Note, Different Ideas of the City: Origins of Metropolitan Land-Use Regimes in the United States, Germany, and Switzerland, 24 Yale J. Int’l L. 577, 588-90 (1999). See generally James A. Kushner, Growth for the Twenty-First Century—Tales from Bavaria and the Vienna Woods: Comparative Images of Planning in Munich, Salzburg, Vienna, and the United States, 29 Urb. Law. 911 (1997) (comparing urban initiatives to develop economic policy and the physical city in German cities with those in the United States); James A. Kushner, Social Sustainability: Planning for Growth in Distressed Places—the German Experience in Berlin, Wittenberg, and the Ruhr, 3 Wash. U. J.L. & Pol’y 849 (2000) (describing German planning and strategies for community development); Thomas J. Schoenbaum, Planning and Land Development Law in the Federal Republic of Germany, 54 Tul. L. Rev. 624 (1980) (detailing the German land-use system).

      [13].  See John J. Delaney, Tribute to Judge Rita C. Davidson, 44 Md. L. Rev. 236, 238-39 (1985) (“Maryland’s zoning hearing examiner system has in turn become something of a model for the nation and has been emulated in several states.”); Stuart Meck & Rebecca Retzlaff, The Zoning Hearing Examiner and its Use in Idaho Cities and Counties: Improving the Efficiency of the Land Use Permitting Process, 43 Idaho L. Rev. 409, 414, 416, 419-20 (2007) (describing how nine states, including Idaho, follow the zoning hearing examiner system in Maryland).

      [14].  See generally Lefcoe, The Right to Develop Land, supra note 10, at 50-51.

      [15].  See generally Tuna Tasan-Kok, Budapest, Istanbul and Warsaw: Institutional and Spatial Change (2007) (describing the capture of international development by large international capital investors).

      [16].  See generally James A. Kushner, The Post-Automobile City (2004) (discussing the impact of the automobile on the design of American cities and proposing an alternative).

      [17].  See Anthony Downs, New Visions for Metropolitan America 31-42 (1994); Richard Briffault, Localism and Regionalism, 48 Buff. L. Rev. 1, 1-5 (2000); Sheryll D. Cashin, Localism, Self-Interest, and the Tyranny of the Favored Quarter: Addressing the Barriers to New Regionalism, 88 Geo. L.J. 1985, 2028 (2000); Matthew J. Parlow, Equitable Fiscal Regionalism, 85 Temp. L. Rev. 49, 82 (2012); Laurie Reynolds, Intergovernmental Cooperation, Metropolitan Equity, and the New Regionalism, 78 Wash. L. Rev. 93, 109-11 (2003). See generally Nestor M. Davidson & Sheila R. Foster, The Mobility Case for Regionalism, 47 U.C. Davis L. Rev. 63 (2013); Andrew Auchincloss Lundgren, Beyond Zoning: Dynamic Land Use Planning in the Age of Sprawl, 11 Buff. Envtl. L.J. 101 (2004); Roger B. Parks & Ronald J. Oakerson, Regionalism, Localism, and Metropolitan Governance: Suggestions from the Research Program on Local Public Economies, 32 St. & Loc. Gov’t Rev. 169 (2000); Richard C. Schragger, Is a Progressive City Possible?  Reviving Urban Liberalism for the Twenty-First Century, 7 Harv. L. & Pol’y Rev. 231 (2013).

      [18].  See Vicki Been, Comment on Professor Frug’s the Geography of Community, 48 Stan. L. Rev. 1109, 1112-1114 (1996).

      [19].  See Am. Bar Ass’n Steering Comm. on the Unmet Legal Needs of Children and Comm’n on Homelessness and Poverty, NIMBY: A Primer for Lawyers and Advocates 1-3, 5-15 (1999) (describing the legal and community responses to changes introducing facilities for poverty, homelessness, and addiction into neighborhoods). See generally Fiscal Zoning and Land Use Controls (Edwin S. Mills & Wallace E. Oates eds., 1975) (illustrating the ways in which the instruments of local government can be structured and used to further residents’ interests from a financial and economic standpoint); Jane Anne Morris, Not in My Backyard: The Handbook (1994).

      [20].  See Been, supra note 18, at 1112-13.

      [21].  See generally Howard Ball, The Warren Court’s Conceptions of Democracy: An Evaluation of the Supreme Court’s Apportionment Opinions (1971) (providing a conceptual framework for analysis of the Supreme Court’s reapportionment cases); Bruce E. Cain, The Reapportionment Puzzle (1984) (illustrating the difficulties involved in the political process of redistricting); Richard C.Cortner, The Apportionment Cases (1970) (analyzing the effect of judicial power as an instrument of political policy in the apportionment cases); Robert G. Dixon, Jr., Democratic Representation: Reapportionment in Law and Politics (1968) (describing case studies applying apportionment case law); Robert B. McKay, Reapportionment: The Law and Politics of Equal Representation (1965) (discussing the implications of the equal-population principle in state representation and congressional districting).

      [22].  See Arthur J. Anderson, Texas Legislative Redistricting: Proposed Constitutional and Statutory Amendments for an Improved Process, 43 Sw. L.J. 719, 723-24 (1989) (describing the quantitative population requirements for the redistricting process). See generally Ronald Keith Gaddie, Justin J. Wert & Charles S. Bullock, III, Seats, Votes, Citizens, and the One Person, One Vote Problem, 23 Stan. L. & Pol’y Rev. 431 (2012) (discussing the limitations of the standard of one-person, one-vote in achieving “fair” representation).

      [23].  See, e.g., Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840, 854-58 (E.D. Wis. 2012) (holding that new legislative and congressional districts did not violate “one-person, one-vote” principle, but that the redistricting plan violated the Voting Rights Act by “cracking” the Latino community that had previously been in one majority-minority district into two Latino influence districts).

      [24].  Cf. Davis v. Bandemer, 478 U.S. 109, 127 (1986) (holding that political gerrymandering is justiciable, and requiring proof of intent to dilute and significant dilution of political party vote pattern over a series of elections); Vieth v. Jubelirer, 541 U.S. 267 (2004) (requiring a showing that districting was unduly influenced by politics to invalidate partisan political gerrymandering of state legislative districts).

      [25].  See Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) (sustaining voluntary candidate financing law as not burdensome to minority parties and candidates and protects spending as well as contributions under freedom of speech). But cf. Citizens United v. FEC, 558 U.S. 310 (2010) (corporations have the right to make unlimited independent expenditures to support or oppose candidates in political campaigns under free speech clause); see also Michael S. Kang, The End of Campaign Finance Law, 98 Va. L. Rev. 1 (2012) (arguing that the future of campaign finance reform must leave traditional campaign finance regulation behind with the campaign finance law that ended with Citizens United).

      [26].  See Bruce Adams, A Model State Reapportionment Process: The Continuing Quest for “Fair and Effective Representation”, 14 Harv. J. on Legis. 825, 839-41 (1977).