31 ELR 11001 | Environmental Law Reporter | copyright © 2001 | All rights reserved

Innovative Solutions to Euclidean Sprawl

Nicolas M. Kublicki is a Senior Associate at Ervin, Cohen & Jessup LLP, Beverly Hills, California. He received his B.A. from the University of California, Los Angeles in 1987; his J.D. from Pepperdine University School of Law in 1992; and his LL.M. (Environmental Law) from George Washington University National Law Center in 1993. Mr. Kublicki represents individual and institutional clients in real property matters involving development, purchase and sale, leasing, finance, construction, subdivision, zoning, environmental contamination, and title insurance. He is grateful to California land use consultant Craig Lawson of Lawson & Company for his invaluable comments during the writing of this Dialogue. Mr. Kublicki is also thankful to Joseph Cilic of the University of California, Los Angeles School of Law and Rodney Lee of Pepperdine University School of Law for their assistance in the research for this Dialogue. The views expressed in this Dialogue are solely those of the author and do not necessarily reflect the views of Ervin, Cohen & Jessup LLP, or the Environmental Law Reporter.

[31 ELR 11001]

Improperly planned urban development has resulted in catastrophic sprawl.¹ The present land use zeitgeist hails urban and suburban mixed-use zoning as the solution.² Mixed-use zoning combines—rather than segregates—residential, commercial, and sometimes industrial land uses, and thereby decreases housing costs, decreases commuting periods, decreases vehicle miles traveled and air emissions, increases the efficient use of land and time, and increases consumer convenience.³

Despite the conceptual validity of these arguments, mixed-use zoning does not automatically decrease sprawl and often encourages it. This is because mixed-use zoning presents two different models of development: suburban mixed-use development and urban mixed-use development. Suburban mixed-use development combines residential and commercial land uses in the suburbs. This model often tends to foster sprawl by importing or replicating urban commercial uses in residential suburbs without adding or retaining housing in the city. In contrast, urban mixed-use development combines residential and commercial land uses in the city. This model generally reduces sprawl by increasing the supply of urban housing without exporting urban commercial uses to the suburbs.

Although urban mixed-use development reduces sprawl more effectively than its suburban counterpart, the model requires additional incentives and limitations to encourage and guide its desirable implementation, such as the municipal pre-approval of mixed-use areas, the reform of municipal density limitations, the increase in municipal services, the targeting of blighted urban areas, the addition and enforcement of municipal low-income housing and greenspace requirements, the facilitation of air-space subdivision and conservation easements, and the reform of state construction defect liability laws.

The purpose of this Dialogue is twofold. First, it highlights the positive effects of urban mixed-use development on urban sprawl in contrast to the negative effects of suburban mixed-use development. Second, it proposes methods to encourage the desirable implementation of the urban mixed-use development model. The first section of this Dialogue provides a general overview of urban sprawl by examining some of its historical, legal, economic, and cultural causes. The second section examines mixed-use zoning as an alternative to the present system of Euclidean zoning, differentiates the dual models of suburban and urban mixed-use development, and demonstrates the inadequacy of suburban mixed-use development as a solution to urban sprawl. The next section discusses the positive effects of urban mixed-use development on urban sprawl and proposes mechanisms to facilitate its desirable implementation. The final section concludes with the brief reflections of the author.

Sprawl: The Progeny of Euclidean Zoning

American⁴ urban sprawl results from a variety of factors. Among these are Euclidean zoning, the high cost of land and housing near urban centers, the relatively low cost of gasoline,⁵ the historically low cost of wood for construction,⁶ the [31 ELR 11002] federal and state subsidies of the national and regional highway systems, and the post-World War II cultural doctrine of the single-family residence with a yard, pool, and two automobiles as the lifestyle summum.⁷ Although not solely responsible for sprawl, principal among these culprits is the modern municipal regime of Euclidean zoning, which segregates land uses geographically by level of intensity, from agricultural to single- and multiple-family residential to low-, medium-, and high-intensity commercial, and to low-, medium-, and high-intensity industrial, generally with greenspace buffer zones between each land use zone.

Euclidean Zoning Generally

Until 1909, American landowners relied on the laws of nuisance and trespass, the private imposition of covenants, conditions, and restrictions on land, and weak ad hoc municipal land use controls to prohibit noxious and otherwise undesirable land uses.⁸ The system lacked uniformity, relied mostly on private enforcement, and was generally ineffective. The advent of the Industrial Revolution, large-scale international immigration, and the government-backed westward expansion into near-virgin territory including the gold, silver, and oil rushes, created new cities and expanded existing urban centers faster than possible ceteris paribus.⁹ New and old cities alike soon were mired in compressed amalgams of conflicting land uses. Industrial and commercial uses that produced noxious odors, noise, multimedia pollution, and other undesirable effects were located directly next to homes, schools, hospitals, and churches.¹⁰ The city of Los Angeles, California, in 1909,¹¹ the city of New York, New York, in 1916,¹² and the Advisory Committee on Zoning in 1922¹³ proposed, adopted, and implemented "zoning" as a simple solution. Cities used zoning to neutralize tensions among conflicting land uses by segregating different land uses into geographically separate zones. The constitutional validity of zoning remained uncertain until 1926, when the U.S. Supreme Court decided the landmark case of Village of Euclid, Ohio et al. v. Ambler Realty Co.¹⁴

The politically separate municipality of Euclid, located in suburban Cleveland, Ohio, established geographically defined land use zones and prohibited land uses outside their designated zones.¹⁵ The ordinances restricted Ambler Realty's land to residential use.¹⁶ However, the land had more value for industrial use.¹⁷ Ambler Realty brought suit in federal court against the municipality, arguing that the zoning ordinances deprived it of property without due process and equal protection of the law.¹⁸ Although the lower court struck down the ordinances, the Court reversed, pronouncing Euclid's zoning ordinances valid.¹⁹ The Court reasoned that the zoning ordinances were within the municipality's police power to safeguard the health, safety, welfare, and morals of its citizens.²⁰ After the eponymous case, the land use technique became known as "Euclidean zoning."

The bodies of law and planning techniques under the Euclidean zoning regime have developed greatly during the 75 years since its judicial approval by the high court. Yet the central mechanism remains essentially the same. A state adopts zoning enabling legislation that grants its municipalities the right to enact land use ordinances for the health, safety, welfare, and morals of its citizens under the state's police power.²¹ Municipalities adopt land use policies and strategies in comprehensive or "general" plans and implement them via "specific" plans that establish geographically separate land use zones.²² Although exceptions to Euclidean zoning exist, in the main, most American municipalities follow Euclidean zoning with near-religious fervor.

Euclidean Zoning and Sprawl

Since the Euclid decision and the vertiginous growth of American cities, Euclidean zoning has resulted in cities that expand outward rapidly due to their inability to combine land uses and grow vertically. Population increases, economic growth, and the inability to implement residential uses in commercial areas and vice versa conspire to increase the cost of land in urban residential areas. This increase and the lower cost of land outside the urban center lead developers to meet residential demand by building single-family residential subdivisions outside the urban center in the outlying "suburbs." Inter alia, American suburban development is facilitated by the generally lower cost of land than in [31 ELR 11003] urban areas, the artificially low price of wood for use in construction,²³ the relatively low price of gasoline²⁴ that enables cheap commutes on federally and state-subsidized highways, and the belief that a stand-alone single-family residence is the only appropriate place of residence.²⁵

The suburbs offer single-family residences complete with landscaping, yards, and often pools at a cost equal to less desirable or smaller single-family residences or condominiums in the city.²⁶ Despite the increase in commuting distance and time, the suburban proposition is difficult to resist and the new suburb fills to capacity. Urban commercial uses steadily expand outward to meet suburban demand. The suburb becomes assimilated into the adjoining city. Land values in the new suburb increase and developers again address the demand for affordable single-family residential housing by constructing another single-family residential subdivision. The pattern continues, with each new suburb geographically farther from the city than the last.

At times, new municipalities are incorporated through the efforts of residential landowners intent on preventing uncontrolled development. After incorporation, the new municipality must raise revenue to pay for city services such as police and fire/emergency medical. The result is either (1) higher property taxes assessed against an artificially low number of residential properties, which increases property values due to the desirability of homes in limited development areas and thus encourages the development of more affordable suburbs, or (2) increased development to expand the property tax base. Each of these paths leads to sprawl.

It is important to note that although the combination of Euclidean zoning with other factors results in sprawl, the failure to adopt Euclidean zoning does not automatically prevent sprawl. For example, the city of Houston, Texas, did not adopt Euclidean zoning until 1991, yet was already a sprawling metropolis at the time.²⁷ As this Dialogue presents mixed-use zoning as a remedy only to sprawl caused at least in part by Euclidean zoning and not to sprawl caused by other factors, to avoid confusion, this Dialogue will refer to sprawl caused or facilitated by Euclidean zoning as "Euclidean sprawl."

Several Problems Caused by Sprawl

The uncontrolled expansion of Euclidean sprawl per se would be of no moment absent its ill effects. Although a comprehensive study of the problems presented by Euclidean sprawl is beyond the scope of this Dialogue, a meaningful discussion of mixed-use zoning requires a brief discussion of certain Euclidean sprawl's negative results—namely high commuting costs, the inefficient use of land, the separation of economic classes, the exacerbation of the housing shortage, and sociological detachment.

Euclidean Sprawl Increases Commuting Costs

Euclidean sprawl increases the cost of commuting between home and work by pushing affordable housing away from the urban center while retaining most urban commercial uses. This increases the distances traveled between home and work. The speed of this increase may be slowed once multimedia telecommuting, virtual reality, and holographic conferencing technologies become commercially available, yet at present, most persons work in centralized offices rather than at home. The long commuting distances generated by Euclidean sprawl in turn cause at least three undesirable effects: an increase in air emissions, a decrease in the efficient use of time, and an increase in traffic congestion.

[] Increased Air Emissions. Increased commuting distances result in increased vehicle miles traveled (VMTs). Even with extremely low emission vehicles,²⁸ high VMTs result in high total air emissions. High air emissions make it technologically more difficult and economically more costly for air quality control regions to decrease total air emissions and for states to develop state implementation plans in compliance with the federal Clean Air Act (CAA) mandate of progressively lower air emissions.²⁹

[] Decrease in the Efficient Use of Time. Longer commuting distances result in longer commuting time periods. The additional amount of time spent commuting translates into a loss based on the opportunity cost of time. To illustrate, let us assume that a person earns $ 20 per hour, commutes two hours more per day than her urban counterparts, commutes [31 ELR 11004] by a personal non-pooled automobile,³⁰ and is sufficiently safety conscious not to work with her cellular telephone and portable computer while driving. Her loss of two hours times $ 20 per hour equals $ 40 per day, $ 800 per month, and $ 9,200 per year.³¹ Assuming that her husband follows the same pattern, their combined loss totals $ 18,400 per year. The economics-minded reader will note that the loss is even greater when fuel, vehicle maintenance, insurance, highway and bridge tolls, and other costs are internalized. Although this loss must be weighed against the benefit of living in a larger single-family residence and a possibly quieter environment, it remains significant. Even if the economic cost of commuting does not present a sufficient motivation to live in the city instead of in the suburbs, a net loss of 2 hours per day, 10 hours per week, and 40 hours per month is significant when raising children, nurturing relationships, and relieving unhealthy stress.

[] Increased Traffic Congestion. Increased commuting distances are not unique to a single person or family but applicable to all suburban residents, except for those who do not work, work at home, or work in the suburbs. As suburbs are generally linked to the urban center by only one or two highways, longer commuting distances result in higher traffic congestion. Aside from the obvious unhealthiness and frustration of driving on congested highways, grim newspaper headlines attest to the fact that traffic congestion combined with stress and the lack of available time often leads to road rage, sometimes with tragic results.³²

Euclidean Sprawl Encourages the Inefficient Use of Land

Urban land values are higher than most suburban land values, which is the principal cause of urban flight and sprawl. Despite high urban land values, the separation of land uses under the Euclidean regime results in commercial areas that are not used at night and residential areas that are at best underused during the day. Imagine the hundreds of millions of dollars wasted by the simple fact that commercial retail-zoned, one- to three-story limited land in Beverly Hills, California, which at the time of this writing commands between $ 150 and $ 190 per square foot³³ is unused approximately 14 hours a day.³⁴ It is ironic that Euclidean zoning, which was developed partially to encourage the highest and best use of land, often fosters the grossly inefficient use of artificially high-cost land.

Euclidean Sprawl Separates Economic Classes

Euclidean sprawl separates the urban rich and the urban poor. Suburban residential developments target middle-in-come earners who seek single-family residences in the suburbs for the same cost as a condominium or small single-family residence in the city. Suburban developers do not target low-income earners because, at present, absent massive government subsidization, far greater profit may be reaped from middle-income housing with no visible shortage of demand. Instead, low-income earners generally remain in the city because the middle-income targeted suburban subdivisions are too expensive and commuting costs are often prohibitive. Although certain low-income earners find affordable housing in deteriorating urban residential areas, high urban land values and high middle-income suburban housing demand increasingly lead many low-income earners to the tragic alternatives of weekly hotels or homelessness.³⁵ In contrast, high-income earners either (1) remain in the city because they are able to keep pace with the steadily increasing high prices commanded by upper-echelon urban residential areas once affordable to middle-income earners or (2) move to larger custom-designed high-priced suburban homes.³⁶

The general result is twofold. First, urban middle-income earners seeking housing migrate from the cities en masse due to their options of (1) desirable urban residential areas that have become unaffordable,³⁷ (2) once-desirable urban residential areas that are deteriorating, and (3) urban multi-family housing that is less desirable than single-family suburban housing. Second, the strict separation of single-family residential, multifamily-residential, and commercial areas [31 ELR 11005] under the Euclidean regime dictates a geographic isolation of rich from poor, most often separated by a commercial buffer area. Witness Beverly Hills and East Los Angeles in California, and Georgetown and Southeast, Washington, D.C. In this manner, Euclidean sprawl reduces the interaction and the seamlessness between the urban rich and the urban poor. Although commercial urban areas continue to serve as venues for social interaction between the wealthy and poor, this interaction is limited and unequal.³⁸

Psychologically and sociologically, humans fear and distrust what they do not know and do not understand, which, sadly, often leads to, religious, cultural, and racial bigotry.³⁹ Ceteris paribus, the reduced interaction between the urban rich and the urban poor can only lead to increased fear and distrust between the two groups. Query how much anger and an economic gap are needed to ignite a conflagration. Some will be quick to note that democratic America provides economic, sociological, and psychological relief valves to counter such nefarious results. Clearly, America's system of meritorious rewards, economic opportunity, entrepreneurship, federal and state economic empowerment programs, and readily available educational loans provide a path from poverty to wealth. These paths can alleviate the tension between the urban rich and urban poor, yet unless they are expanded or the cause of the problem properly addressed, they cannot eliminate it. The foregoing—combined with rapidly increasing urban land values, the rapidly widening economic gap between rich and poor, the physical and electronic barricading of single-family homes in certain neighborhoods,⁴⁰ private police, and retail sales of armored cars as a matter of course⁴¹—exhorts sober reflection by city leaders, urban planners, land developers, and private citizens.

Euclidean Sprawl Exacerbates the Housing Shortage

Euclidean sprawl exacerbates the shortage of affordable urban housing. As urban economic and population growth continue, so too urban land values. To reap a profit, owners of urban residential properties must increase sale prices and rent. This increase makes it progressively more difficult for developers to construct urban housing affordable to lower income earners, whose wage increases do not match the increase in urban residential land values.

Euclidean Sprawl Intensifies Sociological Detachment

Euclidean sprawl is typified by an urban workplace and a suburban residence. This poses at least two undesirable psychological and sociological effects: isolation and the abdication of social responsibility.

[] Isolation. Suburban-to-urban commuting distances and time periods lead many suburbanites to use computer and Internet technology to work from home.⁴² Instead of commuting physically, these persons "telecommute" and rarely drive to their offices. As commuting distances increase and still-experimental technologies such as virtual reality and holographic conferencing become commercially available, telecommuting will also increase.⁴³ Although telecommuting decreases vehicle emissions, lost time, and gas and maintenance costs for the telecommuter, it also isolates the telecommuter from society.⁴⁴ True, the telecommuter is able to purchase food and other essentials at a suburban shopping center, fill up her gas tank at a suburban service station, drop off her laundry at a suburban dry cleaner, exercise at a suburban fitness center, and borrow books at a suburban library. Yet this type of interaction requires an affirmative act, after which the telecommuter returns home to isolation. This is a sharp contrast to being surrounded by coworkers, colleagues, friends, and the general public in an office tower and in the street. The nature and level of the psychological impacts caused by telecommuting may be debated, but the fact that humans are social beings leads this author to surmise that the net impact is not positive.

[] Abdication of Social Responsibility. For those suburbanites who cannot or do not wish to telecommute, the psychological impact is not isolation, but one where the commuter loses a certain amount of responsibility for the area in which he works. Query in which situation a person will take greater personal responsibility for the homeless person on the street, the at-risk youth skipping school, or the handicapped person unable to find a job: the "I just work here" situation, in which the person commutes two hours each day from and to his urban workplace where he encounters such persons in need or the "I live here" situation, in which the person lives in a mixed-use development near the urban center one block from work.⁴⁵ Few would disagree that a person's [31 ELR 11006] exercise of social responsibility is directly proportional to the person's geographic proximity to the social ill.

While not exhaustive, the foregoing list highlights a few of the problems caused or fostered by Euclidean sprawl. These and other problems beg a solution. One proposed solution shines bright within the firmament of creative mechanisms proposed to solve Euclidean sprawl: mixed-use zoning.

Mixed-Use Zoning: An Alternative to Euclidean Zoning

Mixed-Use Zoning Generally

Mixed-use zoning is hailed as a solution to Euclidean sprawl.⁴⁶ The terminology is important. One must differentiate mixed-use zoning from mixed-use development. Whereas unregulated mixed-use development ultimately leads to the problems Euclidean zoning was adopted to prevent, mixed-use zoning is used within the modern Euclidean zoning regime to allow a limited combination of land uses—generally residential and commercial—within the same geographic zone. However, mixed-use zoning is not a uniform mechanism and its varying effect upon Euclidean sprawl must be examined in detail.

Urban Versus Suburban Mixed-Use Development

Mixed-use zoning is composed of two real property development models: urban mixed-use development and suburban mixed-use development. The difference between the two models lies mainly in their geographic application.⁴⁷ As evidenced by their appellation, urban mixed-use development occurs in urban areas and suburban mixed-use development occurs in suburban areas. Urban mixed-use development allows limited residential uses in certain urban commercial zones and, less frequently, limited commercial uses in certain urban residential zones. Suburban mixed-use development allows limited commercial uses in certain suburban residential zones. However, as there exist far more residential areas than commercial areas in the suburbs, suburban mixed-use development rarely places residential uses in preexisting suburban commercial zones.⁴⁸

Whether mixed-use zoning reverses, stops, slows, or alleviates Euclidean sprawl depends upon which of the two mixed-use development models is applied. For the reasons set forth below, as between the two models, in the opinion of this author, only urban mixed-use development effectively reduces Euclidean sprawl.

Suburban Mixed-Use Development Does Not Reduce Euclidean Sprawl

In the battle against Euclidean sprawl, suburban mixed-use development provides an excellent mechanism to create small, independent communities away from urban centers and near large suburban employers. The development model brings retail uses into a residential suburb that already has employers within it so that residents are not required to travel long distances to shop.⁴⁹ However, the American workplace geographically is far more urban than suburban. Therefore, whatever positive impact suburban mixed-use development may have on Euclidean sprawl is necessarily outweighed by the current urban-centered American workplace. In fact, the urban American work-place geography often causes suburban mixed-use development to allow Euclidean sprawl to continue unchecked, for the following reasons:

1. Suburban mixed-use development does not provide any incentive for urban dwellers to remain in the city because it does not create additional or more affordable urban housing.

2. Suburban mixed-use development does not per se provide incentives for large employers to move to the suburbs and thus does not decrease the need to commute to the urban center.

3. Suburban mixed-use development increases the motivation to move to the suburbs not only by providing more affordable housing than in the city, but also by providing desirable commercial uses in suburbs.

Despite the foregoing, scholars, land use planners, and developers are not incorrect in asserting that mixed-use zoning generally provides a solution to Euclidean sprawl. It is merely that, technically, the solution lies in urban mixed-use development rather than in suburban mixed-use development.

Urban Mixed-Use Development: An Effective Solution to Euclidean Sprawl

In contrast to the deficiencies of suburban mixed-use development in reducing Euclidean sprawl, the urban mixed-use development model is effective for a variety of reasons.

Urban Mixed-Use Development Solutions to Euclidean Sprawl

Urban mixed-use development encourages the retention of urban housing,⁵⁰ increases urban housing less costly than [31 ELR 11007] many urban single- and multiple-family residences in purely residential zones, increases the effective use of prime urban areas, decreases commuting distances and time periods, reduces VMTs and vehicle emissions, increases urban tax revenue, decreases parking development costs, increases the stability of urban areas, desegregates economic classes, decreases negative psychological and sociological impacts, and increases the urban resident's social responsibility.

Increases the Supply of Urban Housing

Urban mixed-use development encourages the addition of urban housing by allowing the construction of housing units in urban commercial zones that would not be economically feasible in purely residential zones. As an added benefit, urban mixed-use development does not sacrifice urban commercial uses because urban mixed-use housing units (1) are constructed in addition to and not in the place of urban commercial uses and (2) help support nearby retail uses.⁵¹

Increases the Supply of Affordable Urban Housing

Urban mixed-use development provides many urban dwellers with housing that they would not be able to afford in a purely residential zone. To illustrate, let us assume that a parcel of land is zoned for residential use, that a developer can build a 20-unit apartment building on the land, and that the market will allow him to obtain $ X in monthly rent. The monthly gross revenue for the building is thus $ 20X. If the developer could simultaneously use the land for commercial purposes and lease four retail spaces on the otherwise un-used portions of the ground floor at $ Y per month each, for example to a specialty coffee shop, a flower shop, a bakery, and a beauty salon, the gross monthly revenue now would total $ 20X plus $ 4Y. Due to increased activity, noise, and other factors, mixed-use residential/commercial buildings generally command lower residential rents. So let us assume that the developer's monthly residential rents would decrease to 85% of $ X. The gross monthly revenue would thus be (85% of $ 20X) plus $ 4Y. Assuming that the income of (85% of $ 20X) plus $ 4Y (mixed-use) is equal to or greater than $ 20X (single-use), the developer can reap the same profit by charging 85% of $ X in monthly residential rent in the mixed-use building as he could by charging 100% of $ X in the single-use residential building.

Although this example is overly simple and ignores many caveats and additional costs, most notably that purely residential multifamily units are different in nature from mixed-use multifamily units and that mixed-use land is often more expensive than single-use land because of its potential to generate greater total revenue, the concept remains the same: rents in purely residential areas are generally higher than rents in mixed-use areas. This may not economically impact middle and high-income earners, but it is of concern to low-income earners who may afford a monthly rent of 85% of $ X but not $ X.

Decreases Commuting Costs

The addition of urban housing through urban mixed-use development allows the resident to commute less than if she had moved to the suburbs. This reduces total commuting distances and time periods, total VMTs and total vehicle emissions, and other commuting costs such as highway and bridge tolls, insurance, gasoline, and vehicle maintenance.

Increases Urban Tax Revenue

The addition of mixed-use housing units in formerly commercial-only areas expands the property tax base by allowing the development of more valuable property and increases total municipal tax revenue, including sales tax by increasing the number of retail sales. Absent the mixed-use housing units, this additional revenue would have been realized by the suburbs.

Increases the Effective Use of Prime Urban Areas

Urban mixed-use development provides an effective method both for urban renewal, such as the renovation of degraded urban areas, and for urban development, such as the efficient use of scarce urban land in prime urban areas. High demand and low supply are two main reasons for high urban land prices. The greater economic return presented by a combination of land uses on such scarce and expensive urban land—as opposed to a single land use—facilitates the purchase and successful development of such land. Absent the ability to perform several uses on such land, it may lay underused due to its prohibitive cost and low economic return as a single use property.

For example, despite that the city of Santa Monica, California, was already a vibrant part of the Los Angeles urban area in the 1980s, near its center lay nearly dormant an unattractive passageway with low foot traffic leased at low rents to small retail establishments. In the late 1980s to early 1990s, developers modified the location into the incredibly successful mixed-use Santa Monica Third Street Promenade, combining offices, studios, theaters, restaurants, and retail establishments to create a booming center for both Santa Monica and surrounding communities. The same is true of the mixed-use Old Town development in Pasadena, California, that combines office, theaters, retail establishments, and restaurants, among others, to develop creatively an old and underused part of an already vibrant urban center.

Reduces Parking Development Costs

The synergy inherent in urban mixed-use development decreases the cost of important parking spaces in urban areas. The high cost of providing parking is one of the most frequent complaints of urban developers. Development costs associated with parking are lower in mixed-use developments than if each of the uses is developed separately. This is because cities often permit a shared parking regime that [31 ELR 11008] allows mixed-use developments to provide fewer parking spaces than required if the uses were geographically separate. For example, commercial uses such as offices and retail establishments can use parking spaces in the development during the day while other uses, such as residential, can use them at night.

Increases the Stability of Areas

Urban mixed-use development increases the resilience of urban areas to degradation. Although urban areas degrade for a variety of reasons, the degradation of a single-use area requires the degradation only of that one use. In contrast, the degradation of a mixed-use area ultimately requires the degradation of all the uses undertaken thereat. It is thus more difficult for mixed-use areas to succumb to blight than single-use areas.

Increases the Interaction Between Socioeconomic Classes

America's motto is e pluribus unum. From many, one. America is one of the few nations where, in the main, diversity is desired rather than avoided. Despite still-existing pockets of suppurating bigotry, the American people understand that diversity strengthens rather than weakens the nation. The same is true within the context of urban planning. Both urban and suburban mixed-use development strengthen communities by combining diverse uses. In particular, urban mixed-use development allows urban residents to live and work in close proximity. Although the practical application of urban mixed-use development will not create a perfectly mixed society, Euclidean zoning forces persons from different economic levels and, to a lesser extent, from different cultural, religious, and racial backgrounds, to mix only within a few selected areas. The addition of mixed-use housing units to purely commercial areas fills the gap between urban rich and urban poor with middle-income residents, and increases the interaction between persons of different economic, cultural, religious, and racial backgrounds. Interaction increases mutual understanding, decreases fear and distrust of the unknown, and fosters meaningful interaction between different socioeconomic classes.

Decreases Certain Negative Psychological and Sociological Impacts of Euclidean Sprawl

Urban mixed-use zoning decreases certain negative psychological and sociological effects of Euclidean sprawl. Decreased commuting distances and time periods increase the time available for raising children, nurturing relationships, and pursuing leisure activities that reduce urban stress, not least of which is the stress produced by the time-compressing technologies of fax machines, cellular telephones, voicemail, e-mail, and the Internet. For those who still desire to telecommute in mixed-use areas despite shorter distances to work, urban mixed-use development allows persons to telecommute not from an isolated suburb, but surrounded by retail and office space, where they can feel part of a community.

Increases the Urban Resident's Sense of Community Responsibility

As noted, persons are more likely to assume responsibility for their community if they are geographically closer to, and feel a greater part of, their community. By combining residential and commercial uses into one area, urban mixed-use development eliminates the large geographical dichotomy between home and workplace. This strengthens the urban resident's ties to the community and hence increases the exercise of social responsibility to prevent a community's deterioration.

Additional Considerations to Strengthen the Urban Mixed-Use Development Model

Although urban mixed-use development is more effective than its suburban counterpart in solving problems created by Euclidean sprawl, additional mechanisms must be implemented for the model to reach its full potential. These mechanisms are centered not so much on the urban mixed-use development model itself as on the ways in which the model is implemented.

Cities Should Become Active Partners in the Implementation of Urban Mixed-Use Development

At present, most large American municipalities have authorized at least a few urban mixed-use projects. Yet, in most cases, the model has been and continues to be authorized only on a case-by-case basis.⁵² To be certain, municipalities must ensure that the mixed-use model is implemented with great care and cannot authorize its implementation as a matter of right everywhere in the city. After all, the mixed-use model contradicts the historical land use intuition bred into municipalities by Euclidean zoning during the past century. The careful review of plans and specifications, full public notices and hearings, internal and external project conditions, and height, size, bulk, setback, parking, and other considerations is of paramount importance to municipalities when authorizing the combination of land uses heretofore kept strictly separate. However, now that cities have experimented with the mixed-use model, the time has come for cities to progress from overcautious experimentation to planned implementation.

[31 ELR 11009]

[] Specific Plan Preapproval of Permissive Mixed-Use Development. Cities must amend their specific plans to allow mixed-use projects permissively⁵³ in certain geographical areas that meet established development criteria, such as height, density, bulk, and parking. If not, developers who seek to construct mixed-use projects will be burdened by often prohibitive transactional costs with no assurance of ever obtaining mixed-use approval.

Cities are living, growing organisms. Euclidean zoning contains flexible mechanisms through which developers and others can adapt the land use rules, provided that the adaptation is approved by the city. These flexible mechanisms include rezoning, in which a land use zone is modified and mapped into the specific plan; variances, in which a land use is modified but not mapped into the specific plan; and conditional use permits, in which a land use otherwise prohibited is authorized, provided that certain conditions are met.⁵⁴ However, a city is not required to approve any of these flexible mechanisms. As a result, an application for any of these mechanisms triggers the full panoply of land use due process requirements, such as public notice, public hearings, and rights to appeal to the board of zoning commissioners and the city council.⁵⁵ A developer's application to construct a mixed-use project otherwise not allowed by the applicable land use zone, therefore, imposes high transactional costs. These include architects', surveyors', contractors', land use consultants', and attorneys fees⁵⁶; application and review fees; the costs of complying with conditions imposed by the city's discretionary approval; and the cost of project delays, such as the developer's mortgage premium, interest, tax, and insurance costs, while the discretionary approval is applied for, reviewed, decided, and often appealed. Unless mixed-use development is permissively authorized for a project's intended locus as a matter of right within pre-established guidelines, a developer seeking to construct a mixed-use project will often be burdened by prohibitive development costs. Cities willing to implement mixed-use zoning must therefore ease the path for developers by reviewing the desirability, impact, parameters, and necessary conditions to mixed-use projects and, where appropriate, amend their specific plans separate and apart from developers' mixed-use applications. Once cities accomplish this task, developers no longer will have to guess, negotiate, and sometimes nearly be held hostage to discretionary approval conditions imposed by municipal whim before developing a mixed-use project.⁵⁷

[] Reform of Density Limitations. Cities must reform the manner in which they regulate building size to facilitate urban mixed-use development. At present, most cities limit the size of buildings via density limitations generally expressed as floor area ratios (FARs). Although density and height are necessarily linked, density regulations limit the size and not the height of buildings. The mechanism is severely flawed, particularly within the context of urban mixed-use development.

To illustrate, let us assume that a parcel of commercial land zoned for retail use measures 100,000 square feet. Based on an FAR of 3 to 1, the developer would be limited to 300,000 feet of floor area.⁵⁸ Assuming that the city permits the construction of a mixed-use project, the developer will be able to build, for example, 100,000 square feet of retail space and 200,000 square feet of apartments, for a total of approximately 180 apartments of 1,000 square feet each.⁵⁹ Even if a creative architect can design a 400,000 square-foot building on the land that complies with height restrictions, the 3 to 1 FAR will limit the building to 300,000 square feet. This is especially restrictive in connection with mixed-use projects that must obtain as much square footage as possible from each land parcel and that may be economically prohibitive based on current FAR limitations.

Cities should replace the antiquated FAR density limitation with a "building envelope" limitation that allows a developer to build as many square feet as possible, subject to a preset three dimensional building envelope, including height and bulk. This would allow the city to limit building size while also allowing developers to implement more productive and creative floor plans, particularly within the mixed-use context.

[31 ELR 11010]

[] Municipal Commitments to Encourage Urban Mixed-Use Development. Urban mixed-use development adds urban housing units without causing the flight of urban commercial uses to the suburbs. By doing so, urban mixed-use development results in increased municipal tax revenue. For this and the above-mentioned reasons, cities have not only a mere academic urban planning interest in encouraging urban mixed-use development, but also a vested economic interest. In consideration of these interests, cities should not only establish permissive mixed-use zones, but should also become active partners in the implementation of mixed-use projects.

(i) Tax Credits

Depending on the severity of sprawl, cities should encourage the implementation of the still-new mixed-use development model by granting time-limited property tax credits to defray a portion of the cost of developing mixed-use projects. The tax credits could be used to encourage specific types of mixed-use projects and could be granted based on a variety of considerations, for example, the total number of housing units and the total number of affordable housing units.

(ii) Additional Police and Fire/Emergency Services

The addition of mixed-use housing units directly increases the total need for police and fire/emergency services in the mixed-use area. Cities should increase police and fire/emergency services in direct proportion to the number of mixed-use housing units constructed so that the mixed-use areas benefit from the same level of essential city services as purely residential and commercial zones.

(iii) Additional Public Transportation

Urban mixed-use development decreases the commuting distances for urban mixed-use residents. However, by increasing the number of urban housing units, urban mixed-use development increases the population residing in the city and can lead to traffic congestion and high urban air emissions. Cities should increase public transportation in direct proportion to the number of urban mixed-use housing units constructed.

(iv) Construction of Parking Structures

Urban mixed-use development often reduces parking development costs by decreasing the total number of parking spaces required under a shared parking regime. Nevertheless, parking development costs are still high. Cities should assist in financing parking structures accessible both to commercial and residential users in densely populated urban areas. Additional parking would increase the number of retail shoppers, thus increasing municipal tax revenue, and decrease developers' costs.

[] Municipal Preconditions to Permissive Urban Mixed-Use Development. Solutions are never without cost. Whereas urban mixed-use development is desirable in large cities, unbridled urban mixed-use development is not. Indeed, land use controls present an ironic cycle. Although urban mixed-use development potentially reduces Euclidean sprawl, Euclidean zoning originally was adopted to reverse the intense use congestion caused by uncontrolled mixed-use development. Therefore, inasmuch as mixed-use development should be implemented to reduce Euclidean sprawl, its methods of application should be carefully tailored to avoid the negative results of concentrated mixed uses such as urban traffic congestion, urban noise and air pollution, the reduction in urban green space, and an overly tall skyline. To use a physics analogy, cities must amend their specific plans to allow mixed-use development to reach critical mass, facilitate its application to create a steady mixed-use chain reaction, but control its implementation to prevent a meltdown.

The most obvious way to control mixed-use development is to limit the number and scope of mixed-use projects. However, determining the maximum number of allowable mixed-use development projects is no simple task. Query whether the determination should be based on the number of mixed-use housing units or commercial space, the number of mixed-use projects, the ratio of residential-to-commercial mixed uses, the geographic locations able to support mixed-use developments, or a combination of these and other factors. This author suggests that the organic nature of cities renders any command-and-control regulations of the number of mixed-use projects ineffective, however designed. Instead of placing arbitrary numerical limits on mixed-use projects, cities would be wise to allow the supply and demand of the urban land use marketplace to determine the number of mixed-use developments that each particular urban area can support, while imposing incentives and disincentives to encourage their desirable implementation; for example, added economic benefits for mixed-use developments in blighted areas, increased green space requirements, and increased low-income housing requirements.

(i) Redevelopment/Brownfield-Style Urban Blight Targeting

Each discipline has its lexicon. Urban planners define the reversal of urban degradation as "urban renewal." Environmental policymakers name it "brownfields." Architects, general contractors, and developers designate it "rehabilitation." Regardless of its appellation, the concept is the same: blighted urban areas must undergo a process of recycling, redesign, and reanimation before they may once again be productive.

Although urban blight occurs for a variety of reasons, its result is generally the same: a once economically viable, safe, and esthetic area becomes captive of poor maintenance, a lack of city services, vacant retail and office spaces, and crime. For cities, these areas represent a lack of tax revenue, a drain on city funds, and an inefficient use of land. Alone, cities have little ability to renew blighted areas and require the assistance of developers.⁶⁰ Query how to attract [31 ELR 11011] developers to such areas. Urban planners and environmental policymakers have developed the twin mechanisms of redevelopment zones and brownfields, respectively, as solutions to the problem. Through the redevelopment process, a city creates a redevelopment agency, exercises its power of eminent domain to impose an urban redevelopment zone and plan upon a blighted area, freezes tax assessments based on a certain date, and uses the revenue from the tax increment increase resulting from new assessments to renew the area with safety, lighting, public space reconstruction, beautification, and other projects. The environmental brownfields mechanism seeks to prevent the inefficient use of contaminant-free or "green" areas and to recapture environmentally impacted or "brown" areas by fixing the required level of environmental contamination cleanup at apre-agreed level so that future owners, operators, and, potentially, lenders are not held liable after they meet this fixed cleanup level, ceteris paribus.⁶¹

Urban mixed-use development complements the redevelopment zone and brownfields solutions to urban blight. Urban mixed-use development accelerates and intensifies the use of the area under renovation and thus increases its long-term stability. Indeed, it is more difficult to renew a blighted area by keeping it purely residential or commercial than by combining land uses. Whereas purely residential and commercial uses lay idle nearly 50% of the time, mixed-use areas are in near continual use. They are also less susceptible to degradation and provide a greater intensity of renewal. Therefore, in addition to redevelopment funds and environmental liability-limiting agreements, cities should invest a portion of the additional tax revenue they will reap from mixed-use development to encourage the construction of mixed-use development projects in specifically targeted blighted urban areas.

(ii) Imposition of Greenspace Requirements

Cities should guide the implementation of mixed-use development by imposing certain requirements on each such project. To avoid uncertainty and high transactional costs, these requirements should be clear and nondiscretionary. One particularly beneficial restriction would be for each mixed-use project to provide a certain amount of greenspace on the grounds of the project itself. This would be similar to the federal "no net loss of wetlands" policy, under which developers must either preserve wetlands on the project or purchase replacement wetlands outside the project. In connection with urban mixed-use development, however, cities would be wise not only to mandate a "no net loss of greenspace" and a "no net loss of greenspace within the project," but a requirement that would result in a net gain of greenspace within the city. In the short term, developers and city officials may perceive such a "net gain of greenspace" requirement as heavy handed and anti-development. Skeptics may also point to the common current municipal requirement that each development must provide a certain amount of private and public open space. However, open space and greenspace are different. Open spaces such as balconies, rooftop patios, tennis courts, and large outdoor building entrances are open, but not green.⁶² A quick comparison of the almost complete absence of greenspace in New York City—except for Central Park—with the park-rich cityscapes of Los Angeles, San Francisco, Paris, and London, together with the long-term importance of green plants as carbon sinks for carbon dioxide emissions in the urban environment and as psychologically calming mechanisms, should convince developers and city planners of the strong need for a greater total area of greenspace.⁶³

(iii) Imposition of Low-Income Housing Requirements

The wealth of a nation is measured by the well-being of its people. A people cannot attain well-being without adequate housing. Cities should create a regulatory environment that makes it profitable for developers to provide a minimum of low-income housing units at each urban mixed-use project. This author does not believe that command-and-control requirements are effective in addressing problems better solved by free market forces. Regardless of one's economic philosophy, an objective review likely will conclude that most American cities are sorely lacking in the number of low-income housing units. Given America's wealth vis-a-vis the other nations of the world and its longest continuous economic boom in history as of the writing of this Dialogue, it is simply unacceptable that our democracy is unable to stimulate development in a manner that provides adequate housing for its low-income earners.⁶⁴

[31 ELR 11012]

While the determination of the total number of low-income mixed-use housing units required necessarily must be based on the needs of each respective city and of developers so that municipal fiat does not prevent developers from earning a profit that takes into consideration risk and investment, at present, absent massive federal and state subsidies, the dire need for low-income housing across urban America cannot be addressed merely by relying on the fact that mixed-use housing units generally can support lower rents than housing units in purely residential areas. Many cities already impose a minimum percentage of low-income housing units on residential projects.⁶⁵ If such a mechanism is already in place and enforced in a particular city, it is possible that the minimum number of low-income housing units imposed on mixed-use projects may be lower than those imposed on purely residential projects. Also, low-income housing must not necessarily be located within mixed-use projects themselves, so cities could offer urban mixed-use developers the alternative of contributing "in lieu" funds over several years to an approved nonprofit organization that uses the funds to construct low-income housing.⁶⁶ Instead of requiring developers of multi-family residential property to provide a minimum percentage of low-income housing units via command-and-control ordinances, cities could encourage the development of low-income housing units by authorizing developments with higher densities than normally allowed if such developments provide low-income housing. Regardless of the methodology, cities will waste a precious opportunity if they do not use mixed-use development approvals to address the shortage of low-income housing in America.

Cities Should Streamline Air-Space Subdivision Approvals

The often extreme difficulty in obtaining acquisition and construction financing is one of the most common complaints by developers who seek to develop mixed-use projects.⁶⁷ Although the municipal preestablishment of permissive mixed-use development projects via specific plan amendments will go far in convincing lenders of the acceptability of mixed-use projects as subject matters and collateral for financing, cities should further ease the lending community's reticence to finance mixed-use projects by streamlining the approval process for air-space subdivisions.

Also known as "three-dimensional subdivisions," air-space subdivisions are nearly identical to land subdivisions. The major difference is that, unlike an ordinary land subdivision, whereby the city approves a parcel or tract map that divides a land parcel into separate two-dimensional land parcels, in an air-space subdivision the city divides the air-space above a land parcel into separate three-dimensional parcels, each of which may legally be owned, transferred, encumbered, and foreclosed separately.⁶⁸ Air-space subdivision should not be confused with condominium development, whereby the city approves the creation of one lot with separate three-dimensional condominium units and common areas. Air-space subdivision also should not be confused with transferable development rights, whereby the owner of a land parcel is entitled to construct improvements up to a certain density, which rights can be transferred to other property. Instead, air-space subdivision is more simple and has far greater impact on urban mixed-use development. The relatively new subdivision mechanism facilitates mixed-use development because it allows the separate development, ownership, and financing of each separate use three-dimensional parcel. Pursuant to an air-space subdivision, developers, investors, and lenders who do not wish to develop, own, or lend against residential mixed-use property may respectively develop, purchase, and lend—and foreclose against—only the commercial three-dimensional parcel(s) above the land. Air-space subdivision is particularly beneficial to cities, which can reassess each three-dimensional parcel separately from the others. Although certain large cities such as Los Angeles are familiar and generally comfortable with air-space subdivisions, other cities are not. The latter should familiarize their urban planners with this subdivision mechanism, especially with the difficult issues posed by three-dimensional easement access rights in such subdivisions, and facilitate this technique of the future to realize the full potential of their interest in mixeduse development.

Cities Should Facilitate Conservation Easements

States and cities should facilitate the financing of mixed-use development projects by passing tax relief legislation for "conservation easements." Certain states, such as California,⁶⁹ have already done so. A conservation easement is an [31 ELR 11013] easement in favor of a governmental entity recorded against all or a portion of a historic or culturally significant property that prohibits the encumbered property's destruction or modification in a manner other than as approved by the benefitted government entity.⁷⁰ The property's value is then negatively reassessed by the loss of value resulting from the restrictions in the conservation easement, resulting in a tax benefit to the property owner.

Conservation easements serve a dual purpose in connection with urban mixed-use development. First, they provide developers tax relief, which increases the profitability of applicable mixed-use projects. Second, they apply mainly to historic or culturally significant properties and provide an incentive for developers to renew degraded historic areas, such as once-vibrant and now-abandoned city centers, which are desirable but expensive targets for urban mixed-use projects.

(NEWLINE)States Should Reform Construction Defect Liability Laws

The draconian liability often imposed on developers, contractors, architects, and others in connection with construction defects is another major complaint of those seeking to develop mixed-use projects. Although construction law and its reform are beyond the scope of this Dialogue, it is important to note that generally there are five bases of liability for construction defects: in tort for strict liability for mass-produced homes,⁷¹ in tort for negligence,⁷² in contract for breach,⁷³ in warranty for breach,⁷⁴ and in fraud for misrepresentation.⁷⁵

Despite the variety of avenues through which construction defect liability is imposed, it is not the standard of liability but the types of damages recoverable and the length of the statutes of limitation that constitute impediments to mixed-use development. For example, certain states allow plaintiffs to recover against builders in tort for any deviation from building codes and industry standards, regardless of any property or physical harm.⁷⁶ In practice, this signifies that a homeowner may recover from a builder the estimated difference between the value of the home and the price paid due to a defect that has not caused and will not cause actual physical damage, for example, a wall that is one-half an inch too high. Such recovery is rendered particularly unfair by the inherently speculative difference in value, if any. Some states provide such long statutes of limitation for construction defect-related causes of action that developers face liability during many years after construction. This unfairness is exacerbated by the aging of construction material evidence in defense of the builder over the statute's long duration.⁷⁷ Such broad liability hinders developers' ability to obtain insurance at affordable rates and sometimes prevents builders from obtaining any insurance whatsoever. This adversely impacts developers' economic ability to develop mixed-use projects, whose construction is inherently complex in nature.

Whereas healthy construction defect liability is essential to ensure proper construction and just redress for actual harm, states must realize the chilling effect of their broad construction liability on the cost of housing and limit recovery to those cases in which actual harm to persons or property has occurred⁷⁸ and equalize the length of applicable statutes of limitation with those of other torts or contracts.

Conclusion

Urban mixed-use development provides an effective method by which to decrease Euclidean sprawl. However, certain reforms must be implemented to unleash the potential of urban mixed-use development from its present small minority role in urban development.

First, cities must realize that strict Euclidean zoning no longer constitutes an effective model for land use planning based on the present reality of urban sprawl. Instead, cities must amend their specific plans to embrace mixed-use projects as permissive developments within certain established guidelines. In doing so, cities should view themselves as active partners in well-planned mixed-use development, with the establishment of density limitation reform, mixed-use property tax credits, increased police and fire/emergency services, increased public transportation, parking structure financing, blighted area redevelopment, increased greenspace requirements, facilitated airspace subdivision, and increased conservation easements as positive mechanisms toward this goal.

Second, cities must encourage the development of low-income housing to meet the needs of their respective populations. Sprawl wreaks havoc on low-income earners who are often economically unable to commute to the suburbs, yet who find it extremely difficult to obtain affordable urban housing. Low-income earners should not and in fact cannot be ignored in urban planning, not only due to each person's inherent human dignity, but also because low-income earners are an essential part of every city's economy. Massive federal and state subsidies and command-and-control measures are not necessary if cities establish creative incentives for developers to construct low-income housing. The relaxation of regulations such as density limitations for [31 ELR 11014] mixed-use development that includes low-income housing is a good example.

Third, in keeping with the maxim that all politics are local, urban residents themselves must reject the present popular trend of political apathy and become more aware of the land use planning political process within their cities. After all, city governments are governments by, for, and of the people. If elected city officials prohibit mixed-use measures that reduce housing costs and increase housing units in a manner not detrimental to the city as a whole and with a view to the future, the people should use the initiative and referendum process—if available in their state⁷⁹—to bypass the city council and amend the specific plan themselves. Although city planners are better equipped than ordinary citizens to undertake urban planning due to their specialized training, historical experience, and wider geographical planning view, it is essential that citizens make their needs and ideas heard to move the often massive inertia of bloated municipal bureaucracies into action. Free speech and the right to vote are fundamental American rights for this very reason.

Fourth, and most fundamental within the panoply of reforms required to allow urban mixed-use development to reach its full potential in the battle against sprawl, the popular philosophy dictating stand-alone single-family residential housing as the only acceptable form of housing for a successful American family must adapt to present reality. Where sprawl is not a problem or in situations where telecommuting can replace long commute periods, such a philosophy still has a basis in reality. However, Americans choose where they live. When people choose to live in sprawling urban centers, crowding suffocates the logic of single-family residential residences as the preferred housing medium.

In sum, human beings are social and gregarious. Urban sprawl is a byproduct of this fact. Urban mixed-use development is merely a logical method to accomplish an ordered and efficient living arrangement that human beings inherently favor.

1. See generally Mark Fina & Leonard Shabman, Some Unconventional Thoughts on Sprawl, 23 WM. & MARY ENVTL. L. & POL'Y REV. 739 (1999); Dick Thompson, Asphalt Jungle, TIME (Earth Day ed.), Apr./May 2000, at 50; Christopher Redman, A Princely Pioneer, TIME (Earth Day ed.), Apr./May 2000, at 72 (discussing Prince Charles Windsor's support of campaigns against urban sprawl). Visionary author and scientist Isaac Asimov took urban sprawl to its logical conclusion in one of his many books, in which he wrote of a planet whose entire land mass was a single city. ISAAC ASIMOV, FOUNDATION (Del Rey 1982).

2. Many developers hail mixed-use zoning as the land use mechanism of the future. John Bell, Mixed-Use Property Review E Pluribus Unum: The Synergies of Mixed Use, MIDWEST REAL ESTATE NEWS, Apr. 30, 2000, available in 2000 WL 13049470. One Columbus, Ohio, developer states that "mixed-use is a response to the requirements of the times." Id. A Chicago, Illinois, developer asserts: "It's [mixed use] not a trend. It's the wave of the future." Id. See also John McCloud, Mixed-Use Gains Momentum, SHOPPING CENTER WORLD, Mar. 30, 2000, available in 2000 WL 13059459 and Katherine Hayes Tucker, Saying Goodbye to the 'Burbs, N.Y. TIMES, Mar. 5, 2000, available in 2000 WL 16313205.

3. See generally Stanley Abrams, Flexible Zoning Techniques to Meet State and Local Growth Policies, C390 ALI-ABA 537 (1994).

4. This Dialogue focuses on mixed-use development as a solution to sprawl in the United States of America. For the sake of simplicity, this Dialogue refers to "America."

5. See Fina & Shabman, supra note 1, at 755-56; see also James Flanigan, Why We Pay So Much for Gasoline; And Other Answers, L.A. TIMES, Oct. 22, 2000, at C1. Although it is true that gasoline prices have increased and continue to rise, American gasoline prices are still relatively low compared to those in Europe and other parts of the world.

6. Although the trend recently seems to have changed, since the residential and commercial construction boom after World War II, the U.S. Department of Agriculture's National Forest Service (NFS) has considered America's national forests as "America's wood lot." See generally HAROLD K. STEEN, THE U.S. FOREST SERVICE: A HISTORY (2d ed. 1977). Even today, the NFS sets national forest timber prices artificially low and, many argue, harvested quantities dangerously high. See generally Nicolas M. Kublicki, The Paper Triangle: National Forest Timber, Solid Waste Disposal and Recycling, 7 TUL. ENVTL. L.J. 1, 16-20 (1993).

7. According to onejournalist writing about the issue of sprawl, "[a] three bedroom house with a nice yard in a platted subdivision that has a single entrance and exit is something the majority of Americans want, according to surveys." Mike Ramsey, Planners Warming to Mixed Zoning; Not All Are Hot for Return to Tradition, MORNING STAR, Apr. 6, 2000, at IA. See also ANTHONY DOWNS, NEW VISIONS FOR METROPOLITAN AMERICA 5-7 (1994) (stating that a majority of Americans visualize a single-family residence as the ideal living arrangement).

8. See ROBERT C. ELLICKSON & A. DAN TARLOCK, LAND-USE CONTROLS 39-41 (1981).

9. Id.

10. Id.

11. In 1909, Los Angeles adopted a zoning ordinance establishing one residential zone and seven industrial zones. See Ex Parte Quong Wo, 161 Cal. 220 (1911).

12. See ELLICKSON & TARLOCK, supra note 8, at 40. For more information concerning the 1916 New York ordinance, see SEYMOUR I. TOLL, ZONED AMERICAN 164 (1969).

13. In 1921, then-Secretary of Commerce Herbert Hoover organized a committee that promulgated the first Standard State Zoning Enabling Act (SZEA) in 1922. See ELLICKSON & TARLOCK, supra note 8, at 39; see also U.S. DEP'T OF COMMERCE, STANDARD STATE ZONING ENABLING ACT OF 1926, reprinted in 8 PATRICK J. ROHAN, ZONING AND LAND USE CONTROLS § 53.01[1] (1983) [hereinafter SZEA]. For more information concerning the SZEA, see ROBERT M. ANDERSON, AMERICAN LAW OF ZONING § 30.01 (2d ed. 1977).

14. 272 U.S. 365 (1926).

15. See id. at 379-80.

16. See id. at 384.

17. See id.

18. See id.

19. See id. at 397.

20. See id. at 389-90. The Court stated that before a zoning ordinance may be declared unconstitutional, it must be shown that its "provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Id. at 395.

21. All 50 states have adopted the SZEA, although many have modified the original statute. See NORMAN WILLIAMS JR., 1 AMERICAN LAND PLANNING LAW 361-70 (1974)

22. The most important provisions of the SZEA were: (1) a grant of zoning power from the state to its municipalities, (2) a state empowerment of cities for the division of land into separate land use zones, and (3) the requirement that municipalities regulate land uses according to a comprehensive plan. See SZEA, supra note 13, § 53.01[1](1)-(3).

23. See supra note 6.

24. See supra note 5.

25. See supra note 7. This philosophy continues, despite all contrary evidence presented by even wealthy families living comfortably in condominiums on the East Coast and in most European cities, and poor families living in unsafe, unhealthy, and underserved single-family residential American ghettos.

26. See Lynn Meersman, California Housing Snapshot, L.A. TIMES, Jan. 7, 2001, at A17. See generally Homes (Supplement), L.A. TIMES, Jan. 14, 2001 [hereinafter Homes].

27. See Houston, Tex., Ordinance 91-63 (1991). See Siegan, Non-Zoning in Houston, 13 J.L. & ECON. 71 (1970). The Houston general area contains approximately 2.7 million persons. Houston, Texas,AIR FRANCE MAG., July 2000, at 154. The concept of Houston originally was proposed by real estate developers Augustus G. Allen and John K. Allen, who sought to build a capital with a port near the Gulf of Mexico. The city was designed in 1836. See id.

28. At present, hybrid automobiles being developed for production provide gasoline efficiencies of 52 miles per gallon and are 90% cleaner than the average existing automobile. Margot Roosevelt, Hybrid Power, TIME, Dec. 11, 2000, at 94. See also Evolution of the Modern Car, TIME (Earth Day ed.), Apr./May 2000, at 62; Michael D. Lemonick, How to Prevent a Meltdown, TIME (Earth Day ed.), Apr./May 2000, at 61.

29. See Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671, ELR STAT. CAA §§ 101-618. The CAA primarily authorizes the U.S. Environmental Protection Agency (EPA) to promulgate national ambient air quality standards (NAAQS) for the six "criteria" pollutants of ozone (O₃), see id. § 7511, ELR STAT. CAA § 181, carbon monoxide (CO), see id. § 7512, ELR STAT. CAA § 186, particulate matter less than 10 microns in diameter (PM[10]), see id. § 7513, ELR STAT. CAA § 188, sulfur oxides (SO[x]), nitrogen oxides (NO_x), and lead (Pb), see id. § 7514, ELR STAT. CAA § 191. Once the NAAQS are set, each state must devise and file a state implementation plan that specifies "the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region" within each state designated by the governor with the approval of the EPA Administrator. Id. § 7407, ELR STAT. CAA § 107. In addition, the CAA regulates emissions standards for new automobiles, see id. § 7521, ELR STAT. CAA § 202, inspection and maintenance programs for existing automobiles, see id. § 7541, ELR STAT. CAA § 207, and any fuel or fuel additive, see id. § 7545, ELR STAT. CAA § 211. Although the CAA contains certain positive incentive mechanisms, the statute is primarily a command-and-control statute through which upper limits on criteria pollutant emissions are progressively reduced over time, which pushes science to invent increasingly efficient mechanisms to reduce air emissions.

30. Although one may logically assume that increased public transportation would decrease the cost and certain other difficulties involved in commuting, in fact many urban public transportation systems in the United States find it difficult to attract customers. See Fina & Shabman, supra note 1, at 749-50. According to the U.S. Department of Transportation, out of 10 public transportation systems sampled, not 1 met its ridership forecast. TRANSPORT SYSTEMS CENTER, U.S. DEP'T OF TRANSP., URBAN RAIL TRANSIT PROJECTS: FORECAST V. ACTUAL RIDERSHIP AND COSTS (1989). Indeed, it appears that developments near public transportation systems are unlikely to alter commuting patterns. Robert Cervero & Roger Gorham, Commuting in Transit Versus Automobile Neighborhoods, 61 J. AM. PLAN. ASS'N 217 (1995).

31. This assumes that this commuter's time is worth $ 20 when she is not working. However, the value of such time to the commuter personally may be far greater than $ 20 per hour.

32. See Videotape: Road Rage: Havoc on the Freeway (Meridian Education Corporation instructional video program 1999). See also McCloud, supra note 2 (arguing that traffic is one of the most important problems leading to mixed-use development).

33. These rental rates are for the geographic area bounded by Canon Drive, Santa Monica Boulevard, and Wilshire Boulevard, locally known as the "Golden Triangle." Information on residential and commercial rental rates in Beverly Hills may be obtained from the Beverly Hills Chamber of Commerce at (310) 248-1000.

34. The amount of time during which the commercial property is unused is greater if weekends and holidays are incorporated into the calculation.

35. See Daryl Strickland, Housing Crisis Forces Many Into Motels, L.A. TIMES, Oct. 22, 2000, at C1. The homeless population of Los Angeles and Orange counties, California, is estimated at 100,000. See id. Between 1997 and 2000, the rental rate for an average two-bedroom apartment in Los Angeles County, California, has increased 20% and in Orange County, California, has increased 26%. See id. at C6. As of the time of this writing, the average monthly rental rate for an apartment is $ 838 in Los Angeles County and $ 1,100 in Orange County. See id. at C1. From 1990 to 2000, the population of the city of Los Angeles increased by approximately 300,000 persons, but only 30,000 new housing units were created. See id. at C6. Therefore, even if a low-income earner is able to afford an apartment, he or she may not be able to find one vacant.

36. One single-family residence in Beverly Hills, California, recently sold for $ 21 million and a vacant lot planned for a single-family residence currently is offered for sale at $ 35 million. Although these areas of Beverly Hills are not technically "urban," neither are they true suburban areas because of their very close proximity to the urban centers. This does not signify an absence of high-priced suburban homes. In fact, some of the most expensive homes are located far from the loud and crowded urban centers in the quiet, green, and safe suburbs. See generally Homes, supra note 26.

37. See Rebecca Trounson & John Johnson, Housing Strain Unravels Community Ties, L.A. TIMES, Jan. 7, 2001, at A1. Only 15% of residents can afford the $ 400,000 median price of a home in San Francisco. Veronique de Turenne, In San Francisco's Tight Housing Market, Auto Shop Becomes Castle Cities, L.A. TIMES, Mar. 6, 2000, at A3.

38. The situation of rich and poor walking on the street or in a park is quite different from the rich consuming in front of the counter and the poor serving behind the counter.

39. Cardinal Roger Etchegaray aptly named this psychological reaction the "fear of the other." Vatican Official, in China, Emphasizes Church Defense of Rights, THE TIDINGS, Sept. 22, 2000, at 2.

40. The physical barriers erected by the rich to separate themselves from the poor have reached dramatic proportions in certain areas. On a visit to Sao Paulo, Brazil, in September 2000, this author witnessed entire residential areas where nearly each single-family residence was barricaded from the street by a tall wall topped by razor wire, and its entrance patrolled by a private guard (most often armed) inside a concrete pillbox behind armored glass. To be certain, there are many causes for the division of rich and poor in Sao Paulo that do not exist or that do not exist with such intensity in American cities such as Chicago, Dallas, or Los Angeles. However, it is a sobering image of possible things to come.

41. Daimler-Chrysler will begin retail sales of its Mercedes S500 Guard model in the autumn of 2001, complete with ballistic steel armor plating and one-inch thick composite glass. Richard John Pietschmann, James Bond Never Had It so Good, DEPARTURES, Nov./Dec. 2000, at 58.

42. Telecommuting grammar is ironic. Instead of working "at" home, the telecommuter works "from" home because he or she is still linked to a main office in an urban center.

43. Author and scientist Isaac Asimov critiqued 20th century society by extrapolating situations and mind sets to their logical end. In connection with telecommuting technology, robotics, and the "fear of the other," Asimov imagined a technologically advanced world where the population numbered only 50 and robots performed all necessary work. ISAAC ASIMOV, THE ROBOTS OF DAWN (1983). The distances and the fear between the inhabitants were so great that they communicated only by three-dimensional holograph and never saw each other in person for fear of actual physical contact. See id.

44. See Chris Taylor, Why Mother Nature Should Love Cyberspace, TIME (Earth Day ed.), Apr./May 2000, at 82.

45. This does not suggest that suburbanites are less willing than urban residents to exercise social responsibility. However, the locus of suburbanites' charity would most likely be near their suburban homes rather than their urban places of work because social ills tend to have a greater psychological effect on people near their homes. The exercise of social responsibility near home in the suburbs is positive, yet it has little effect on the good of the community in total, as suburban social ills generally migrate to the urban center due to careful patrolling by homeowners and police intended to maintain safety and to prevent decreases in residential property values. Despite the foregoing, the best situation in terms of community involvement and social responsibility is presented by a small self-contained community where it is nearly impossible for any resident to be lost or overlooked.

46. See supra note 2.

47. For examples of different types of mixed-use developments, see Edvard Pettersson, Moving in Downtown, L.A. BUS. J., July 10-16, 2000, at 3 and Kathryn Bold, Upstairs Downstairs; The New Commute, L.A. TIMES, May 7, 2000, at K1.

48. Sometimes, suburban mixed-use development consists of the creation of an entire residential-retain-office project where large employers are located away from all other uses.

49. The Internet will further reduce the demand for such retail importation into the suburbs. See Taylor, supra note 44, at 82. In the Washington, D.C., suburb of Reston, Virginia, 20 miles from the city center near a growing number of employees along the Dulles Toll Road, the Reston Town Center mixed-use zoning development brought a 514-room hotel, 230,000 square feet of retail commercial space, and 540,000 square feet of office space directly into an already existing residential area, which it expanded by several hundred multifamily residences. See McCloud, supra note 2. As a result, Restonians no longer are forced to drive to Alexandria, Arlington, Bethesda, or Washington, D.C., to shop, go to the movies, or dine.

50. Some clarification is required concerning terminology. Urban mixed-use development adds housing to urban areas where residential uses were previously banned by single-use commercial zoning ordinances. Mixed-use development retains housing in urban areas by keeping persons in urban areas who would have moved to the less expensive suburbs but for such new mixed-use housing.

51. Mixed-use logic assumes that if one lives above a specialty coffee shop or bakery, he or she will likely purchase coffee and baked goods from these establishments. This was a principal motivating factor behind the mixed-use development of condominiums above a super-market on Beverly Boulevard and above several specialty coffee and food shops on Wilshire Boulevard, both located in Los Angeles, California. For a detailed examination of the synergies between mixed uses, see Bell, supra note 2.

52. For example, although the city of Los Angeles has adopted a set of preconditions to the approval of mixed-use development projects and has approved several mixed-use development projects, it has refused to adopt any ordinances authorizing mixed-use projects as a matter of right. See City of Los Angeles, Department of City Planning, Vesting Tentative Tract No. 53206 (Nov. 21, 2000) (approving mixed-use project at 6301 West Sunset Boulevard consisting of 105,000 square feet of retail and restaurant uses, 300 apartment units, and an 820-space parking structure) [hereinafter L.A. Tract No. 53206]; see also Los Angeles, Cal. Ordinance 167417 (Nov. 13, 1991) (amending Los Angeles Municipal Code § 12.24 to require specific findings and to impose certain limitations on mixed-use development but without allowing mixed-use development by right in any geographic location); Los Angeles City Planning Department Staff Report to the City Planning Commission, File No. CPC 93-0287 CA, circulated Mar. 6, 1996 under cover letter by Franklin P. Eberhard, Deputy Director, Los Angeles Department of City Planning (recommending adoption of ordinance authorizing residential and commercial mixed-use buildings implementing mixed-use policies in the Los Angeles Citywide Plan, the Housing and Air Quality Elements of the Los Angeles General Plan, and the Los Angeles Citywide General Plan Framework approved in July 1998 by the Planning Commission, but which was never adopted).

53. Municipal ordinances granting permissive authorization for mixed-use projects would allow developers to construct mixed-use projects as a matter of right if the projects meet preestablished conditions. Cities' refusal to adopt such ordinances is mainly intended to preserve their ability to impose conditions on project approvals and thereby extract from developers the performance of, or payment for, improvements or other work. However, cities' fear of losing such power is unfounded because at present nearly all development requires a certain amount of discretionary city approval regardless of whether the use is permissive, conditional, or unauthorized.

54. See ANDERSON, supra note 13, § 6.59.

55. The U.S. Constitution requires procedural due process to be accorded whenever there is "state action." U.S. CONST. amend. XIV, § 1. The SZEA provided that:

no such [municipal zoning] regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 15 days notice of the time and place of such hearing shall be published in an official newspaper, or a paper of general circulation, in such municipality.

SZEA, supra note 13, § 53.01[1](4). See also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (notice and opportunity to be heard are minimum due process requirements). One possible remedy for municipalities' refusal to map permissive multiple-use zones in their specific plans is for the residents of the municipalities to do so themselves via initiative and referendum. See infra section, Conclusion. For a detailed examination of the issues involved in initiative and referendum zoning, see generally Nicolas M. Kublicki, Land Use by, for, and of the People: Problems With the Application of Initiatives and Referenda to the Zoning Process, 19 PEPP. L. REV. 99 (1991) [hereinafter Initiatives and Referenda].

56. It is necessary to expend such costs for most developments even if the intended land use is permissive, but such consultants perform less work—and therefore their total fees are lower—if the project sought is permissively allowed under zoning ordinances as a matter of right rather than fully discretionary.

57. Cities often impose substantial requirements on developers in exchange for project approvals, thereby shifting the construction of, or payment for, roads, sidewalks, traffic signalizations, street lighting, sewer and water connections, and landscaping sometimes worth millions of dollars from the municipality to the developer, even when the project is badly needed. See, e.g., Palm Springs, Cal., Resolution 18815 (northern California statute reporter) (1996) (imposing multiple conditions on developer for approval of expansion to comprehensive cancer center expansion).

58. Parking areas are generally excepted from FAR requirements and must comply with separate rules, generally expressed as parking spaces per square feet per type of use.

59. This would total only 180,000 square feet of actual apartment space, but common areas (often calculated as 10% of the total square footage) must also be included in the FAR requirements.

60. For example, the city of Los Angeles, California, has long desired to renovate the "Hollywood Strip" area, which once was the center of the Golden Age of Hollywood, but during the 1960s, 1970s, and 1980s it degraded into a venue for prostitution, illegal drugs, and vandalism. Not until the city attracted large developers did the Hollywood area begin redefining itself as a desirable Los Angeles business venue. See Reed Johnson, The Clash of Glamour and Grunge, L.A. TIMES, Dec. 10, 2000, at E2 (discussing the renewal of Hollywood) and Mitchell Landsberg, Old Becomes New in the Changing Face of Downtown, L.A. TIMES, Aug. 13, 2000, at B1 (discussing developers' renewal of neglected areas of downtown Los Angeles).

61. However, it must be noted that certain "brownfield" areas, while acceptable for industrial and even certain commercial uses, may be inappropriate and even dangerous for residential development. See generally Todd S. Davis & Kevin D. Margolis, Brownfields: A Comprehensive Guide to Redeveloping Contaminated Property, 1997 A.B.A. Sec. of Nat. Resources, Energy, and Envtl L.

62. Environmentally, green open areas are more important than paved open areas because they absorb and store carbon dioxide (CO₂) generated in the urban environment. See Vicki Smith, Scientists Exploring Novel Ways to Get Carbon Dioxide Under Control, L.A. TIMES, available in 2000 WL 25909847. Thomas Feeley, director of a CO₂ use project at the U.S. Department of Energy, National Energy Technology Laboratory, loosely estimates that "[1] to 10 tons of carbon could be stored on 2.5 acres [of trees]." Id.

63. The importance of urban greenspace vis-a-vis sprawl has long been recognized; witness Central Park in New York City, designed in the late 19th century by Frederick Law Olmstead Sr., based on the visionary landscaper's concept of placing nature in its "natural" form in the center of American cities. See Greg Goldin, Paradise Lost, L.A. TIMES, July 16, 2000 (Book Review), at 4. At the request of the Los Angeles Chamber of Commerce, veteran urban planners Frederick Law Olmstead Jr. and his partner Harland Bartholomew in 1930 prepared a report proposing a plan to preserve Los Angeles' idyllic scenery from speculative development. OLMSTEAD BROTHERS & BARTHOLOMEW AND ASSOCIATES, A REPORT SUBMITTED TO THE CITIZENS' COMMITTEE ON PARKS, PLAYGROUNDS, AND BEACHES (1930), reprinted in GREG HISE & WILLIAM DEVERELL, EDEN BY DESIGN 65-282 (University of California Press 2000). The landscapers boldly recommended that nearly the entire southern California coastline be held undeveloped in a public trust, proposed that every home should not be farther than one mile from a park, and designed a 440-mile network connecting 95 parks throughout the city. See id. Although the plan would have cost no more than $ 3 to $ 15 per house per year over 40 or 50 years, its total of $ 70 million required through bond financing threatened the public's approval of the $ 220 million bond financing of the California Aqueduct and was abandoned. See id. at 44-45.

64. The author does not suggest that the federal or state governments provide free housing on demand, but rather that federal and state funds be appropriated and authorized to encourage the implementation of a municipal mechanism that ensures adequate and affordable housing for all persons earning the minimum wage. The absence of such federal encouragement is puzzling considering an average annual federal budget surplus of $ 200 billion. To be certain, urban mixed-use development is not the only solution to the low-income housing shortage, but it provides a practical and efficient mechanism to make American cities livable during the next century. As of the date of the writing of this Dialogue, the White House Office of Management and Budget estimated the federal government budget surplus from 2002 through 2011 at $ 2 trillion, up from $ 1.5 trillion from 2001 through 2011, Latest Budget Surplus Estimate Approaches $ 2 Trillion, L.A. TMES, Dec. 29, 2000, at A29.

65. For example, Los Angeles passed what is referred to as the "15% ordinance," which requires certain residential developments to set aside 15% of housing units for low-income earners. Los Angeles, Cal., Ordinance 145927 and 159162 (1974). Often, developers may avoid compliance based on "hardship." See id. As the ordinance fails to define hardship, the ordinance often has no practical effect.

66. For example, Beverly Hills, California, has an "in lieu" parking program whereby developers and other property owners who cannot provide the necessary amount of parking spaces required by the municipal code may make staggered payments to the city over several years, which the city uses to construct and maintain public parking and allows the developer to reduce its required initial cash outlay. B.H.M.C. § 10-3.3301 et seq.

67. See Pettersson, supra note 47.

68. Air-space subdivision was an integral part of a mixed-use project at 6301 West Sunset Boulevard permitted by the city of Los Angeles. See L.A. Tract No. 53206, supra note 52. Absent air-spacesubdivisions, developers in many states would be unable to transfer the ownership of three-dimensional parcels. Certain states prohibit the transfer of parcels without municipal or county preapproval to protect against wildly shaped and sized parcels incongruous to a city's general plan. For example, the California Subdivision Map Act prohibits the transfer, encumbrance, lease, easement, and other transfers of certain land parcels that have not been approved by the applicable municipality or county, pursuant to a fixed procedure, subject to certain exceptions. CAL. GOV'T CODE § 66410 et seq. (Deering 1987 and Supp. 2000). Such subdivision laws are often complicated and contain many confusing and unclarified exceptions and conditions. Often, the only way for developers and lenders to protect against a violation of such subdivision laws is to obtain an endorsement to their policies of title insurance. See California Land Title Association endorsement form 116.7.

69. See CAL. GOV'T CODE § 50280 et seq. This statute, commonly known as the Mills Act, allows for the owner of a "qualified historical property" to contract with a legislative body, such as a municipality, to restrict the use of the property to preserve its historic character. The devaluation in the value of the property results in tax benefits, provided all requirements are met. See generally CAL. REV. & TAX. CODE § 493 et seq. (valuation of restricted historical property to obtain reduction in property taxes); IRC § 170 (charitable contributions); IRC §§ 2031 and 2055 (estate tax charitable exclusion).

70. See, e.g., City of Los Angeles Cultural Monument No. 299 Agreement and Covenant, Between Manice Associates, LLC, as owner, and the State of California, acting through the Department of Parks and Recreation and Its State Historic Preservation Officer, as state government entity, dated July 13, 1998, and recorded on March 11, 1999, in the Official Records of the County of Los Angeles, State of California, as instrument number 99-0404385 (preserving facade and other areas of the Embassy Hotel, Los Angeles).

71. See, e.g., Stearman v. Centex Homes, 78 Cal. App. 4th 611 (2000) (finding construction defect tort remedy in strict products liability); JAMES ACRET, CALIFORNIA CONSTRUCTION CONTRACTS AND DISPUTES §§ 8.28 and 8.32-.36 (CEB 3d ed.).

72. See, e.g., Sabella v. Wisler, 59 Cal. 2d 21 (1961); Sumitomo Bank v. Taurus Devs., Inc., 185 Cal. App. 3d 211 (1986) (applying doctrine of negligence to construction defects); ACRET, supra note 71, §§ 8.20-.22 and 8.31.

73. See, e.g., ACRET, supra note 71, §§ 8.14-8.16.

74. See id. §§ 8.17-.19 and 8.23-.27.

75. See id. §§ 6.21-.23 and 8.44.

76. This is the rule in South Carolina. See Kennedy v. Columbia Lumber & Mfg. Co., 384 S.E.2d 730 (S.C. 1989). But see Council of Co-Owners v. Whiting-Turner, 517 A.2d 336 (Md. 1986) (Maryland rule allowing recovery in negligence for cost of correcting defects presenting clear danger of death or personal injury).

77. California provides a 10-year statute of limitations to recover for latent construction defects, CAL. CODE CIV. PROC. § 337.15 (Deering 1991 and Supp. 2000), and a 4-year statute of limitations to recover for patent construction defects, CAL. CODE CIV. PROC. § 337.1 (Deering 1991 and Supp. 2000).

78. The California Supreme Court recently adopted this rule in Aas v. Superior Court, 2000 DAILY J. D.A.R. 12831. See also Dennis Pfaff, Justices' 5-2 Ruling Protects Builders, L.A. DAILY J., Dec. 5, 2000, at 1.

79. See Initiatives and Referenda, supra note 55.

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