Light, air, or manhattamzation?: Communal aesthetics in zoning central city real estate development

Boston University Law Review

Volumn 78, Issue 2, 1998, Pages 445-506

  Poindexter, Georgette C ^a,b  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

^b UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0032283144     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (440)

1. Cochran v. Preston, 70 A. 113, 114 (Md. 1908).
2. Minimum wage laws, food processing standards, and various safety standards are just such examples.
3. See, e.g., American Smelting & Refining Co. v. Godfrey, 158 F. 225, 229 (8th Cir. 1907) (holding that the factory was a nuisance and stating that "[t]he rights of habitation are superior to the rights of trade, and whenever they conflict, the rights of trade must yield to the primary or natural right").
4. See, e.g., Commonwealth v. Banholzer, 156 A. 237 (Pa. 1931) (holding that a department of health could regulate the operation of a piggery found to be a nuisance).
5. See, e.g., Hadacheck v. Sebastian, 239 U.S. 171 (1915) (holding that a city may regulate a brickyard that is a nuisance by its operation).
6. See, e.g., Reinman v. Little Rock, 237 U.S. 171, 176 (1914) (holding that a city may forbid a livery from locating in a downtown area if it deems such a use to be a nuisance at that location).
7. Natural air circulation within buildings was necessary in the era before modern heating, ventilation, and cooling technology. See TERRY JILL LAZZAR, CARROTS AND STICKS: NEW ZONING DOWNTOWN 88 (1989) (noting that zoning to preserve light has been a long-standing practice). Adequate natural light, which tall buildings often "stole" from others, was, of course, needed for illumination before the invention of artificial lighting. See id.; see also Michael Holleran, Boston's "Sacred Skyline": From Prohibiting to Sculpting Skyscrapers, 1891-1928, 22 J. URB. HIST. 552, 555 (1996) (observing that natural light was a prized commodity in the late nineteenth century). Light, in this context, should not be confused with shadow casting. Shadow casting is an aesthetic concern, while adequate light in the absence of artificial lighting was a health concern. See LAZZAR, supra, at 88-94 (discussing various cities' shadow controls).
8. Natural air circulation within buildings was necessary in the era before modern heating, ventilation, and cooling technology. See TERRY JILL LAZZAR, CARROTS AND STICKS: NEW ZONING DOWNTOWN 88 (1989) (noting that zoning to preserve light has been a long-standing practice). Adequate natural light, which tall buildings often "stole" from others, was, of course, needed for illumination before the invention of artificial lighting. See id.; see also Michael Holleran, Boston's "Sacred Skyline": From Prohibiting to Sculpting Skyscrapers, 1891-1928, 22 J. URB. HIST. 552, 555 (1996) (observing that natural light was a prized commodity in the late nineteenth century). Light, in this context, should not be confused with shadow casting. Shadow casting is an aesthetic concern, while adequate light in the absence of artificial lighting was a health concern. See LAZZAR, supra, at 88-94 (discussing various cities' shadow controls).
9. Residents of San Francisco objected to what they termed the "Manhattanization" of their downtown. See New Realities: A Survey of the Commercial Real Estate Market in the United States, ECONOMIST, Feb. 7, 1981, at 11.
10. The theory of communalism rests upon the marriage of localism with a corporately shaped moral existence. See BARRY ALAN SHAIN, THE MYTH OF AMERICAN INDIVIDUALISM: THE PROTESTANT ORIGINS OF AMERICAN POLITICAL THOUGHT 49 (1994) (discussing the concept of community in colonial America). More than collectivism, it connotes the normative commitment to a particular moral vision. See id. at 23 (commenting that by this theory, the community and families influenced the individual to further the public good). The voice of the residents is heard through the dialog surrounding the implementation of zoning regulation. Although no dialogue can include every member of every community, the adoption of zoning regulation is generally open to all interested parties. See infra notes 318-60 and accompanying text (discussing the coming together of members of a community in shaping communal aesthetics).
11. The theory of communalism rests upon the marriage of localism with a corporately shaped moral existence. See BARRY ALAN SHAIN, THE MYTH OF AMERICAN INDIVIDUALISM: THE PROTESTANT ORIGINS OF AMERICAN POLITICAL THOUGHT 49 (1994) (discussing the concept of community in colonial America). More than collectivism, it connotes the normative commitment to a particular moral vision. See id. at 23 (commenting that by this theory, the community and families influenced the individual to further the public good). The voice of the residents is heard through the dialog surrounding the implementation of zoning regulation. Although no dialogue can include every member of every community, the adoption of zoning regulation is generally open to all interested parties. See infra notes 318-60 and accompanying text (discussing the coming together of members of a community in shaping communal aesthetics).
12. See JOHN J. COSTONIS, ICONS AND ALIENS: LAW, AESTHETICS, AND ENVIRONMENTAL CHANGE 46 (1989) ("We bond to our icons for reassurance; and they, in turn, reinforce our sense of order in the world no less than religion or popular culture.").
13. KEVIN LYNCH, THE IMAGE OF THE CITY 92 (1960).
14. One estimate is that over sixty property rights bills have been introduced at the state level across the nation. See Nancie G. Marzulla, State Private Property Rights Initiatives As a Response to "Environmental Takings," 46 S.C. L. REV. 613, 633 (1995) (providing overview of property rights legislation at state level). For example, Florida enacted such legislation in 1995 as the Private Property Rights Protection Act, which provides: "When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property the property owner of that real property is entitled to relief." FLA. STAT. ANN. § 70.001(2) (West 1997). For an overview of the positions of the property rights movement, see generally WAYNE HAGE, STORM OVER RANGELANDS: PRIVATE RIGHTS IN FEDERAL LANDS (1989).
15. One estimate is that over sixty property rights bills have been introduced at the state level across the nation. See Nancie G. Marzulla, State Private Property Rights Initiatives As a Response to "Environmental Takings," 46 S.C. L. REV. 613, 633 (1995) (providing overview of property rights legislation at state level). For example, Florida enacted such legislation in 1995 as the Private Property Rights Protection Act, which provides: "When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property the property owner of that real property is entitled to relief." FLA. STAT. ANN. § 70.001(2) (West 1997). For an overview of the positions of the property rights movement, see generally WAYNE HAGE, STORM OVER RANGELANDS: PRIVATE RIGHTS IN FEDERAL LANDS (1989).
16. One estimate is that over sixty property rights bills have been introduced at the state level across the nation. See Nancie G. Marzulla, State Private Property Rights Initiatives As a Response to "Environmental Takings," 46 S.C. L. REV. 613, 633 (1995) (providing overview of property rights legislation at state level). For example, Florida enacted such legislation in 1995 as the Private Property Rights Protection Act, which provides: "When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property the property owner of that real property is entitled to relief." FLA. STAT. ANN. § 70.001(2) (West 1997). For an overview of the positions of the property rights movement, see generally WAYNE HAGE, STORM OVER RANGELANDS: PRIVATE RIGHTS IN FEDERAL LANDS (1989).
17. Christopher Nicholas, Property Rights Reform & Local Zoning Can Co-Exist, PENNSYLVANIAN, Oct. 1996, at 30.
18. See, e.g., Peter Mitchell, New Property Rights Law Sends City Planners Scrambling for Cover, WALL ST. J., Oct. 25, 1995, at F1 (Florida ed.) (discussing the impact of Florida's 1995 property rights act on county and local officials).
19. See Charles Means, Property Reform Bill is Anti-Zoning, Anti-Owner, & Anti-Taxpayer, PENNSYLVANIAN, Dec. 1996, at 28.
20. See MICHAEL A. PAGANO & ANN O'M. BOWMAN, CITYSCAPES AND CAPITAL: THE POLITICS OF URBAN DEVELOPMENT 47 (1995) (discussing the different ways a city's image can be created).
21. See id. (discussing cities' use of symbols to create "a unique place identity"). Of course, identifiable city symbols include more than office towers. Times Square symbolizes New York City, while Wrigley Field represents Chicago. "The Washington Monument means Washington, D.C., the Arch means St. Louis, the Space Needle means Seattle, the Astrodome means Houston. These readily identifiable landmarks are unique, peculiar to a specific place, and are seldom mistaken." Id.
22. It is also likely that this battle will be fought in the suburbs of major cities as commercial development decentralizes.
23. CAROL WILLIS, FORM FOLLOWS FINANCE: SKYSCRAPERS AND SKYLINES IN NEW YORK AND CHICAGO 7 (1995) (contending that local conditions in different cities acted to modify the standard high-rise "template").
24. LOUIS H. SULLIVAN, THE AUTOBIOGRAPHY OF AN IDEA 258 (1956).
25. WILLIS, supra note 19, at 15-16.
26. As used in this context, the term "vernacular" refers to the fact that office towers evolved in response to the demands, or lack thereof, placed upon them by zoning regulation, rather than being a result of only either design considerations or economic demands.
27. SULLIVAN, supra note 20, at 313-14.
28. See JAMES W. PYGMAN & RICHARD KATELY, TALL OFFICE BUILDINGS IN THE UNITED STATES app. at 85 (1985) (noting that after the completion of a 32 floor commercial office tower in 1896, 3 more buildings of above 20 stories were constructed before 1910 and 11 more before 1920).
29. See Id. at 8-9 (describing the boom of tall building construction that occurred during the 1920s and 1930s).
30. See id. at app. at 88-89 (tracing the development of tall buildings and observing that although over 100 were constructed in the late 1920s and early 1930s, only 7 were constructed between 1934 and 1950).
31. See id. at 9 (observing that only five cities, in addition to New York and Chicago, "could claim an impressive skyline before the postwar construction period").
32. See id. (noting that New York boasted more than 75 high-rises before World War II, Chicago had 23, Detroit had 8, Philadelphia had 6, and Pittsburgh had 5).
33. See id. (noting that Atlanta, Denver, Los Angeles, Miami, San Diego, San Francisco, St. Louis, and Tampa constructed their first tall downtown projects in the late 1950s through the early 1970s).
34. See id. (explaining that "[t]he boom ended precipitously in 1975 when urban financial institutions reacted to overbuilding by cutting off funding, and in many cases, by taking over projects").
35. See id. at 14 (describing the trends in building height between 1970 and 1983 and noting that the average number of stories of all buildings peaked in 1974 at 36 stories, reached a low of 19 in 1977, remained relatively constant at 20 stories until 1980, and began to increase again in 1981). But see id. ("[t]he proportion of tall (from 25 to 49 floors) and very tall (50 floors and over) buildings remained relatively constant over time at about 55% and 18%, respectively, of the average annual additions of space.").
36. See id. at 11 (noting that the skyscraper boom began in 1980, with 15 new "megabuildings" constructed in 1982 and 1983).
37. See id. at 10.
38. See id.
39. See PYGMAN & KATELY, supra note 24, at 4 (noting that less than ten percent of the labor force was engaged in office occupations).
40. See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, CHARACTERISTICS OF THE POPULATION, GENERAL SOCIAL AND ECONOMIC CHARACTERISTICS 1-73 (1983) (calculating that about 40% of the United States workforce was employed in managerial and specialty occupations and administrative support occupations).
41. See PYGMAN & KATELY, supra note 24, at 4 (noting that changes in the workplace from agrarian to white-collar in this century led to changes in the types of building necessary for the workforce).
42. See SEYMOUR I. TOLL, ZONED AMERICAN 50-51 (1969).
43. See id. at 51.
44. See id. at 49.
45. See id. at 51 (arguing that the invention of electric lights, plate glass mass production, and the telephone were necessary for the utility of skyscrapers).
46. See id. at 47 (noting that the elevator was an important contribution to the growth of skyscrapers). Elisha Graves Otis introduced the world's first safe elevator at New York Crystal Place exposition of 1853. See id. In 1870, Equitable Insurance Company installed the first elevator in a commercial office building at 120 Broadway in New York City. See id. at 48.
47. See id. at 47 (noting that the elevator was an important contribution to the growth of skyscrapers). Elisha Graves Otis introduced the world's first safe elevator at New York Crystal Place exposition of 1853. See id. In 1870, Equitable Insurance Company installed the first elevator in a commercial office building at 120 Broadway in New York City. See id. at 48.
48. See PYGMAN & KATELY, supra note 24, at 5 (noting that early skyscraper development was limited to central business districts).
49. The decision to implement a new zoning code in the central business district usually is influenced by several factors including: (1) the old code does not respond to development pressures; (2) the new project is so large as to force the city to prevent duplication; and (3) the code is used as a tool to actively shape the character and scale of downtown buildings. See generally LAZZAR, supra note 7, at 6-7 (stating that "downtown zoning [uses] . . . techniques such as overlay districts, special use districts, and height[,] density limits[,] . . . linkage requirements, commercial development caps, and tiered bonus programs").
50. See id. at 77-78 (discussing zoning regulations' unintentional and intentional effects on building design); id. at 78 (noting the "wedding cake" skyscraper in New York as a prime example).
51. See id. at 98-99 (discussing congressional efforts to preserve views of the Capitol's dome and other public buildings and monuments, setting a height cap of 130 feet for commercial sectors and 110 feet for residential areas).
52. Act of June 1, 1910, ch. 263, 36 Stat. 452.
53. D.C. Mun. Regs. tit. 11, § 2510 (1995) (adopting the stricter of local regulations or the Building Height Act).
54. See Ch. 263, § 5, 36 Stat. at 453 (stating that the width of the street governs the height of buildings); LAZZAR, supra note 7, at 99 (noting that D.C. height restrictions are aimed at protecting the Capitol's siteline).
55. See Ch. 263, § 5, 36 Stat. at 453 (dictating that buildings in business streets may not exceed 130 feet, except on the north side of Pennsylvania Avenue between First and Fifteenth Streets, where a height of 160 feet is allowed).
56. Barbara Smith, L'Enfant's Legacy, ECONOMIST, Apr. 16, 1988, at 11 (Survey of Washington, D.C.).
57. See Real Estate Research Corporation, Washington, D. C., Metropolitan Area, in 1 ULI MARKET PROFILES - EASTERN NORTH AMERICA AND EUROPE 209, 213 (1994).
58. See id. at 213-14.
59. Smith, supra note 51, at 11.
60. Id.
61. See Holleran, supra note 7, at 552 (discussing Massachusetts's role in setting zoning law precedents).
62. See John King, While Boston Tinkers, Chicago Lets 'er Rip: A Love Affair With Size, BOSTON GLOBE, May 28, 1989, at 33, 36 ("I wouldn't work in Boston unless I had the building pre-leased before I started. The process there is made for adversity." (quoting developer Richard Stein)).
63. See infra notes 131-44 and accompanying text (discussing Chicago's absence of height restrictions).
64. King, supra note 57, at 33.
65. See Act of May 21, 1891, ch. 355. § 1, 1891 Mass. Acts 919 ("No building more than one hundred and twenty-five feet in height . . . shall hereafter be erected in any city . . . .").
66. See Holleran, supra note 7, at 562.
67. See id. at 555-58. See generally Marc Weiss, Skyscraper Zoning: New York's Pioneering Role, 58 J. AM. PLAN. ASS'N 201, 207 (1992) (contrasting the basis for Boston's height restrictions with Chicago, where business and realty interests opposed them as thwarting economic growth).
68. See Holleran, supra note 7, at 555.
69. See id. at 566.
70. See id. ("The height restriction served real estate owners' interest in the stability of their investments . . . . During a period when real estate prices in other American cities went through devastating cycles, Boston was free of bust as well as boom.").
71. See id. at 576.
72. See id. at 577.
73. See id. (noting that the new ceiling passed in 1923).
74. See Weiss, supra note 62, at 209 (noting that "many big cities were changing their zoning focus to adopt 'volumetric' controls and the [New York] set back system for tall buildings").
75. See Holleran, supra note 7, at 578 (discussing the 1928 enactment).
76. See id.
77. See id. at 578-79.
78. See id.
79. For further discussion of the influence of European aesthetics and urban harmony, see id. For a discussion of the contrast between U.S. and European approaches to high-rise development, see Lee Polisano, Complexity and Contrast: American and European High-Rise Buildings, ARCHITECTURAL DESIGN, Jul.-Aug. 1995, at 30.
80. See Susan Diesenhouse, New Waterfront Zoning Sets Priorities, N.Y. TIMES, June 2, 1991, § 10, at 5 (discussing new height restrictions placed on downtown and waterfront development, which were the first since 1964, when all height limits were removed to encourage economic growth).
81. Id.
82. Id.
83. See Charles E. Dole, City Review: Boston, NAT'L REAL EST. INVESTOR, Oct. 1985, at 316.
84. Jane Holtz Kay, The Limits of Growth: Boston's Downtown Plan, PROGRESSIVE ARCHITECTURE, Oct. 1985, at 29.
85. Jonathan Wells, Rezoning Would Cap Heights in City Core, BOSTON HERALD, Apr. 5, 1987, at D1.
86. See Kay, supra note 79, at 29.
87. Growth With Grace, BOSTON GLOBE, May 18, 1987, at A1.
88. See Michael K. Frisby, Flynn Backs Limits on Building Heights, BOSTON GLOBE, May 12, 1987, at A1 (noting that the BRA would encourage development in areas most in need). Based on guidelines from the BRA, the city of Boston also has established a linkage policy in which a developer will pay $5 per square foot for every foot over 100,000 square feet on a non-residential project. The money raised will go toward low- and middle-income housing in the city's neighborhoods. See id. at A6 (describing the inclusionary zoning aspects of the plan that require developers of ten units or more to set aside at least ten percent of the units to low- and moderate-income housing).
89. See Kenneth MacDonald, City Review: San Francisco, NAT'L REAL EST. INVESTOR, Oct. 1985, at 247 (describing the boom in office development in San Francisco between 1965 and 1982).
90. See id.
91. See Spiro Kostof, The Skyscraper City, 140 DESIGN Q. 32, 46 (1988) (discussing the move toward increased limitations on construction in San Francisco because of dissatisfaction with previous safeguards that had already allowed construction of the Transamerica and the Bank of America buildings).
92. See id.
93. See id. (discussing the Urban Design Plan of 1971).
94. See id.
95. See id.
96. The soft rental market in the mid-1980s may not be entirely due to overbuilding. Skyrocketing rents prompted corporate relocation out of the San Francisco CBD and into the suburbs. See LAZZAR, supra note 7, at 71.
97. See MacDonald, supra note 84, at 247 (discussing the Downtown Plan of 1985 that was a response to the surge of speculative office development of the 1980s).
98. San Francisco: Low is Beautiful, ECONOMIST, June 15, 1985, at 27.
99. The plan includes provision to move development to an area south of Market Street. See Paul Sachner, Reshaping the San Francisco Skyline: Seven Current Projects Respond to the City's New Downtown Plan, ARCHITECTURAL R., Mar. 1985, at 58. The plan also lowers the floor-area ratio throughout the CBD to reduce overall building density. See id. In addition, the plan sets bulk controls and height restrictions to create a sculpted skyline, tapering down toward the Bay. See id.
100. See San Francisco: Low is Beautiful, supra note 93, at 27 (describing the restrictions in San Francisco's "downtown plan").
101. John Gregerson, The Democratization of Design, BUILDING DESIGN & CONSTRUCTION, Apr. 1990, at 62.
102. See Sachner, supra note 94, at 58 (stating City Planning Commission recommendations for the downtown plan).
103. See id. (describing the bulk controls of the downtown plan).
104. MacDonald, supra note 84, at 256.
105. See Carol Willis, A 3-D CBD: How the 1916 Zoning Law Shaped Manhattan's Central Business Districts, in PLANNING AND ZONING NEW YORK CITY 3, 6 (Todd W. Bressi ed., 1993) (describing the surge in office building construction prior to 1916).
106. See id. at 6-8 (discussing the height limitations suggested by urban reformers and proponents of the City Beautiful movement); see also WILLIS, supra note 19, at 68 (same).
107. See WILLIS, supra note 19, at 68 (noting that economic actions called for the zoning regulations). Interestingly, the demand for height regulations came from private businesses and institutions concerned with long term real estate market stability. See Weiss, supra note 62, at 208 (discussing the motivations of the private businesses in seeking the height restrictions). Enacted during a period of cyclical downturn in the New York market, the actors pushing the new zoning ordinance saw zoning as a way to stabilize the city's economy, spread out property values, and create incentives for new investment and development. See id. (noting that support materialized largely due to a concern for maintaining property values).
108. See EDWARD M. BASSETT, ZONING: THE LAWS, ADMINISTRATION, AND COURT DECISIONS DURING THE FIRST TWENTY YEARS 20 (1936) (describing the investigative responsibilities of the Commission on Heights of Buildings).
109. Id.
110. See id. (discussing the Commission's recommendations). The motion adopted by the Board of Estimate and Apportionment to create the Heights of Buildings Commission read as follows: Whereas there is a growing sentiment in the community to the effect that the time has come when effort should be made to regulate the height, size and arrangement of buildings erected within the limits of the City of New York; in order to arrest the seriously increasing evil of the shutting off of light and air from other buildings and from the public streets, to prevent unwholesome and dangerous congestion both in living conditions and in [the] street . . . . HEIGHTS OF BLDGS. COMM'N, REPORT TO THE COMM. ON THE HEIGHT, SIZE AND ARRANGEMENT OF BUILDINGS OF THE BOARD OF ESTIMATE AND APPORTIONMENT OF THE CITY OF NEW YORK 1 (1913).
111. See id. (discussing the Commission's recommendations). The motion adopted by the Board of Estimate and Apportionment to create the Heights of Buildings Commission read as follows: Whereas there is a growing sentiment in the community to the effect that the time has come when effort should be made to regulate the height, size and arrangement of buildings erected within the limits of the City of New York; in order to arrest the seriously increasing evil of the shutting off of light and air from other buildings and from the public streets, to prevent unwholesome and dangerous congestion both in living conditions and in [the] street . . . . HEIGHTS OF BLDGS. COMM'N, REPORT TO THE COMM. ON THE HEIGHT, SIZE AND ARRANGEMENT OF BUILDINGS OF THE BOARD OF ESTIMATE AND APPORTIONMENT OF THE CITY OF NEW YORK 1 (1913).
112. See BASSETT, supra, note 103, at 21 (discussing the first zoning resolution, originally called a "districting" resolution); see also Weiss, supra note 62, at 204. This height restriction, however, was set aside if the building was "set back to allow light, air, and open space to reach the lower floors and the street." Id. In addition, a tower of unlimited height could be built if it only covered 25% of the lot. See id.
113. See supra note 101 and accompanying text (discussing the aesthetic considerations coupled with economic forces that led to height restrictions and the zoning ordinances).
114. See Weiss, supra note 62, at 202-04 (explaining that early concerns regarding bulk and height of buildings were based on fear that buildings, such as the Equitable Building, would block sunlight and views from commercial areas, thereby reducing rents and property values of neighboring areas).
115. See supra note 106 and accompanying text (discussing the setback requirements and the tower allowances).
116. For example, the Equitable Building, which covered an entire city block, "cast its permanent shadow even on bright, sunny days over many of the financial district buildings whose owners had failed to prevent its construction." Weiss, supra note 62, at 203.
117. See id. at 208 (discussing differences between the zoning politics in New York and those in other cities).
118. See WILLIS, supra note 19, at 67 (describing the new concept of the zoning envelope).
119. From this formula, the wedding cake building was born and "a new aesthetic clearly had evolved from the requirements of the zoning law." Id. at 77 (citation omitted).
120. See id. at 67 (hailing the zoning code as a "landmark event"). New York is often credited with passing the first comprehensive zoning law because it combined the "precedent of districting by use with restrictions on the maximum mass allowed individual buildings." Willis, supra note 100, at 6.
121. Willis, supra note 100, at 23 n.4; see also TOLL, supra note 38, at 188 (noting the phenomenal growth of zoning in the 1920s).
122. See New York, N.Y., Comprehensive Amendment to the New York City Zoning Resolution (1961).
123. See Weiss, supra note 62, at 209.
124. See Norman Marcus, Zoning from 1961 to 1991: Turning Back the Clock - But With an Up-to-the-Minute Social Agenda, in PLANNING AND ZONING NEW YORK CITY 61, 63 (Todd W. Bressi ed., 1993) (noting that the 1961 provisions allowed removed some restrictions on towers and relied on new floor-area ratio restrictions to reduce bulk).
125. See LAZZAR, supra note 7, at 9 (discussing the concept of the FAR).
126. See Marcus, supra note 118, at 64.
127. See id. (discussing the incentives for providing plazas or arcades).
128. See id. at 63.
129. See LAZZAR, supra note 7, at 9 (explaining that the base FAR set by a city is one of the first considerations in many incentive zoning schemes and discussing the use of FARs by such cities as Cincinnati, Hartford, Los Angeles, and Seattle).
130. See Lois Weiss, Height Limits for Towers Imposed on East Side, REAL EST. WKLY., Feb. 23, 1994, at 1.
131. Therese Fitzgerald, Planning Commission Seen 'Packing the Bulk' Again, REAL EST. WKLY., June 9, 1993, at 1 (describing new zoning laws in the Upper East Side and Lincoln Center areas of New York that reduced building size from 55 to 36 stories).
132. Specifically, 60% of the building floor area would have to be located in the first 500 feet and be built on an 85 foot base that was set back from the street (by about 15-20 feet). See id.
133. Weiss, supra note 124, at 1.
134. See Alan Finder, Planning Panel Approves New Zoning Rules for High-Rises, N.Y. TIMES, Dec. 21, 1993, at B4.
135. See PYGMAN & KATELY, supra note 24, at 9 ("New York was the focus for much of the early construction of large office buildings, followed by Chicago.").
136. See supra notes 106-14 and accompanying text (discussing the introduction of zoning laws in New York in 1916).
137. See WILLIS, supra note 19, at 109 (discussing the proliferation of tall buildings in Chicago in the early 1900s, following the repeal of the 260-foot height limit).
138. See id. at 111 (comparing the New York City ordinance of 1916 which reduced building bulk, whereas the Chicago ordinance increased volume).
139. See id. at 130 (describing the limitations imposed by Chicago's 1942 ordinance).
140. It should be noted, however, that Chicago still did not set any flat height limits, except for the flight path into O'Hare Airport. See King, supra note 57, at 33.
141. See Cheryl Kent, World's Tallest Building Raises Questions, N.Y. TIMES, Mar. 18, 1990, § 10, at 7.
142. See id. (noting that the propsed Miglin-Beitler Tower had a FAR of 33, over twice the FAR of 16 permitted without bonuses).
143. See id. at 13.
144. Among the formidable buildings in the city of Chicago are the 1,468-foot Sears Tower, the 1,105-foot John Hancock building, and the Merchandise Mart, which with 4.2 million square feet is second only to the pentagon in the amount of building floor area, see id. at 7, all buildings that could not have been easily built in other cities across the U.S. Indeed, Chicago continues to live up to its historical reputation of a "size braggart." When Louis Sullivan described Chicago, he commented that "'Big' was the word. 'Biggest' was preferred. And 'Biggest in the world' was the 'braggart phrase on every tongue.'" SULLIVAN, supra note 20, at 200.
145. King, supra note 57, at 33 (quoting Stuart Nathan, Executive Vice President of JMB Realty Corporation).
146. Kent, supra note 135, at 7. But see Ed Zotti, Mirror, Mirror on the Wall, 30 INLAND ARCHITECT 47, 49 (1986) (noting that deputy commissioner of city planning David Mosena stated that city planners are increasingly sensitive to aesthetic considerations).
147. See King, supra note 57, at 33 (discussing the review process instituted after construction of the Sears Tower).
148. See id. Chicago also recently instituted a design review process. See Zotti, supra note 140, at 47 (discussing the beginnings of urban design review in Chicago). While not as rigorous or extensive as other cities', the Chicago Planning Commission is beginning to ask aesthetic questions of developers. See id. at 47-49 (noting the increased involvement of city planners in the aesthetic design of buildings and citing the example of an addition to Charlie Club, for which the developer had originally proposed to add a glass and metal facade, but was convinced by the planning department to substitute a concrete design more in keeping with the existing structure).
149. See Kent, supra note 135, at 33 (explaining that the approval process takes no more than six months).
150. See id. In 1989, the Chicago Planning Commission approved a proposal for the Miglin-Beitler Tower, which was to be the world's tallest building. See id. at 7. Although not constructed due to economic conditions, it appears that Chicago's love affair with all that is big continues. "Bigness now seems characteristic of Chicago." WILLIS, supra note 19, at 181.
151. See LAZZAR, supra note 7, at 99 ("Until recently, no building in Philadelphia could rise above 491 feet, the height of William Penn's statue atop City Hall. This arbitrary ceiling . . . was founded on no more than a 'gentleman's agreement' that the tallest building in the city should be its city hall.").
152. See Plans Revealed for Philadelphia's Tallest Office Building, ARCHITECTURAL REC., Nov. 1986, at 32 Eb.
153. See id.
154. See Paul Gapp, Philadelphia Stories: John Skyscraper Breaks Height Taboo with Taste, CHICAGO TRIB., Dec. 11, 1988, at 18.
155. See id. (explaining that given the economic boom in the 1980s, "something was eventually going to rise above the City Hall limit").
156. See Roderick Oram, How They Broke the Mould (sic) and Went Over Penn's Head, FIN. TIMES, Jan. 19, 1988, at 2.
157. Id.
158. Id.
159. See Paul Goldberger, Philadelphia Carves Out a New Skyline, N.Y. TIMES, June 24, 1990, § 2, at 31.
160. See id.
161. Id.
162. See id. (criticizing the design of Two Liberty Place).
163. See Michael W. Armstrong, Bank Tower To Open in 1990, N.Y. TIMES, Dec. 3, 1989, § 10, at 17 (describing the then proposed 53-story Mellon Bank Center).
164. See Gloria Ringel, Yo, Philly's Got Its Own Structural Engineers, Focus, Nov. 14, 1990. at 52 (describing the Bell Atlantic Tower as one "that helps define the city").
165. See id.
166. See id. ("It's [sic] color is warmer, it carries on the tradition of the area." (quoting Branford White Fiske)).
167. For further discussion, see COSTONIS, supra note 10, at 15 (discussing aesthetic considerations as underlying all zoning regulations).
168. As expressed by Professor Haar: "Regulatory ordinances are, after all, the channels by which the master plan is brought into contact with physical events, since property rights and the course of land development are not affected by the mere promulgation of the plan but only by its implementation." Charles M. Haar, In Accordance with a Comprehensive Plan, 68 HARV. L. REV. 1154, 1156-57 (1955).
169. PAGANO & BOWMAN, supra note 16, at 50.
170. See supra notes 92-99 and accompanying text (discussing San Francisco's "Downtown Plan"). Interestingly, there are areas in Manhattan, such as the Upper East Side, that strive to carve their own visual niche by avoiding "Manhattanization." See supra notes 124-28 and accompanying text (discussing new zoning restrictions that discourage tower and plaza development).
171. LYNCH, supra note 11, at 5.
172. See supra notes 102-03 and accompanying text (discussing the impact of economics and social needs on zoning regulations).
173. THOMAS PAINE, COMMON SENSE (1776), reprinted in THE WRITINGS OF THOMAS PAINE 67, 69 (Moncura Daniel Conway ed., G.P. Putnam's Sons 1894).
174. THOMAS PAINE, COMMON SENSE (1776), reprinted in THE WRITINGS OF THOMAS PAINE 67, 69 (Moncura Daniel Conway ed., G.P. Putnam's Sons 1894).
175. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 390 (1926) (upholding the validity of a zoning ordinance as consistent with the police powers).
176. I resist sliding down the vortex of the free market's suggestion of the economic viability of altruism. At some point, an individual's choice will collide with what may be good for the community at large.
177. STEVEN BREYER, REGULATION AND ITS REFORM 15 (1982).
178. ALFRED E. KAHN, THE ECONOMICS OF REGULATION: PRINCIPLES AND INSTITUTIONS 1 (1970).
179. WARREN J. SAMUELS, ESSAYS ON THE ECONOMIC ROLE OF GOVERNMENT 194 (1992).
180. See KAHN, supra note 171, at 14.
181. As stated by Joyce Appleby: "Upon reflection we can see that the soft underbelly of any society, at least in ideological terms, is the gap between its shared moral commitments and day-to-day fidelity to those unifying principals." JOYCE APPLEBY, CAPITALISM AND A NEW SOCIAL ORDER: THE REPUBLICAN VISION OF THE 1790s at 85 (1984).
182. For example, during the battle over Florida's property rights law, a Brevard County Commissioner and property rights advocate stated: "Individual rights; that's the whole basis of this nation. If you don't have individual rights, you're not going to have collective rights." Lou Misselhorn, Searching for Common Ground, FLORIDA TODAY, Mar. 17, 1996, at 1A.
183. One commentator contends that the historical premise that land use was traditionally subject only to harm preventing regulation is flawed. See John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252, 1252-56 (1996) (stating that it is a "mistaken historical premise" that early American landowners could use their land as they wished if they caused no harm to others); see also WILLIAM J. NOVAK, THE PEOPLE'S WELFARE: LAW AND REGULATION IN NINETEENTH CENTURY AMERICA 83 (1996) (establishing that "the predominance in theory and practice of an approach to economic life in early America antithetical to the classical separation of market and state").
184. One commentator contends that the historical premise that land use was traditionally subject only to harm preventing regulation is flawed. See John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252, 1252-56 (1996) (stating that it is a "mistaken historical premise" that early American landowners could use their land as they wished if they caused no harm to others); see also WILLIAM J. NOVAK, THE PEOPLE'S WELFARE: LAW AND REGULATION IN NINETEENTH CENTURY AMERICA 83 (1996) (establishing that "the predominance in theory and practice of an approach to economic life in early America antithetical to the classical separation of market and state").
185. John Jay stated in 1790 that, "civil liberty consists, not in a right to every man to do just what he pleases," but only to do that which "the equal and constitutional laws of the county admit to be consistent with the public good." SHAIN, supra note 9, at 32.
186. See id. at 26 (noting that "claims defending the good of the whole took precedence over the particular concerns of private individuals").
187. See Deborah A. Ballam, The Evolution of the Government-Business Relationship in the United States: Colonial Times to Present, 31 AM. BUS. L.J. 553, 560-61 (1994).
188. Hart, supra note 176, at 1281.
189. Indeed, land improvement gave rise to the right to land ownership in colonial America. For example, when New England colonists were confronted with Native American conceptions of property ownership, they mistakenly equated lack of improvement with lack of ownership, surmising that only planted fields were "owned," with the "happy result" that the rest of the land lay open for ownership to anyone who would or could improve it. See WILLIAM CRONON, CHANGES IN THE LAND: INDIANS, COLONISTS, AND THE ECOLOGY OF NEW ENGLAND 56-57 (1983) (noting that only the fields planted by Indian women could be claimed as property). The colonists' concept of land ownership comports with a Lockean approach to labor. See JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT (1689), reprinted in LOCKE'S Two TREATISES OF GOVERNMENT 306 (Peter Laslett ed., 2d ed. 1967) (1690) ("Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property."); see also Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329, 330 (1996) ("What induces people to labor? Property does.").
190. Indeed, land improvement gave rise to the right to land ownership in colonial America. For example, when New England colonists were confronted with Native American conceptions of property ownership, they mistakenly equated lack of improvement with lack of ownership, surmising that only planted fields were "owned," with the "happy result" that the rest of the land lay open for ownership to anyone who would or could improve it. See WILLIAM CRONON, CHANGES IN THE LAND: INDIANS, COLONISTS, AND THE ECOLOGY OF NEW ENGLAND 56-57 (1983) (noting that only the fields planted by Indian women could be claimed as property). The colonists' concept of land ownership comports with a Lockean approach to labor. See JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT (1689), reprinted in LOCKE'S Two TREATISES OF GOVERNMENT 306 (Peter Laslett ed., 2d ed. 1967) (1690) ("Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property."); see also Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329, 330 (1996) ("What induces people to labor? Property does.").
191. Indeed, land improvement gave rise to the right to land ownership in colonial America. For example, when New England colonists were confronted with Native American conceptions of property ownership, they mistakenly equated lack of improvement with lack of ownership, surmising that only planted fields were "owned," with the "happy result" that the rest of the land lay open for ownership to anyone who would or could improve it. See WILLIAM CRONON, CHANGES IN THE LAND: INDIANS, COLONISTS, AND THE ECOLOGY OF NEW ENGLAND 56-57 (1983) (noting that only the fields planted by Indian women could be claimed as property). The colonists' concept of land ownership comports with a Lockean approach to labor. See JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT (1689), reprinted in LOCKE'S Two TREATISES OF GOVERNMENT 306 (Peter Laslett ed., 2d ed. 1967) (1690) ("Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property."); see also Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329, 330 (1996) ("What induces people to labor? Property does.").
192. Indeed, land improvement gave rise to the right to land ownership in colonial America. For example, when New England colonists were confronted with Native American conceptions of property ownership, they mistakenly equated lack of improvement with lack of ownership, surmising that only planted fields were "owned," with the "happy result" that the rest of the land lay open for ownership to anyone who would or could improve it. See WILLIAM CRONON, CHANGES IN THE LAND: INDIANS, COLONISTS, AND THE ECOLOGY OF NEW ENGLAND 56-57 (1983) (noting that only the fields planted by Indian women could be claimed as property). The colonists' concept of land ownership comports with a Lockean approach to labor. See JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT (1689), reprinted in LOCKE'S Two TREATISES OF GOVERNMENT 306 (Peter Laslett ed., 2d ed. 1967) (1690) ("Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property."); see also Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329, 330 (1996) ("What induces people to labor? Property does.").
193. See SHAIN, supra note 9, at 185 (commenting that communal intrusion into the life of an individual was prevented by freedom from personal dependence).
194. See JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 210 (1990).
195. See id. at 207 (noting that for the Federalists, property was connected to liberty and security).
196. Of course, the class differences between the Federalists and the Republicans cannot be discounted. The Republicans attacked elitist Federalist assumptions by recognizing that social and economic standing affects political power. See APPLEBY, supra note 174, at 73-74 (discussing the class-consciousness evident in the early years of the Republic).
197. See JOHN BRIGHAM, PROPERTY AND THE POLITICS OF ENTITLEMENT 112 (1990) (emphasizing the tension existing when the Constitution was written between property possession and the public good).
198. See Ballam, supra note 179, at 583 (noting that community welfare was emphasized before the Revolution, but that after the war individual freedom was reflected in the law).
199. See THOMAS HOBBES, LEVIATHAN 162 (Michael Oakeshott ed., Collier MacMillan 1962) (1651). Hobbes criticized the Athenians' and Romans' embrace of republican "liberty" by pointing out that "particular men" did not have the liberty to "resist" their representative but rather their representative has the liberty to "resist, or invade other people." Id.
200. See SHAIN, supra note 9, at 34-35.
201. This concept was maintained despite the power of the libertarian argument for private property. See Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 713 (1986) (suggesting that legal doctrine finds that some "property should not be held in private hands, but should be open to the public or at least subject to what Roman law called the 'jus publicum': the 'public right'").
202. The welfare of the people is the supreme law. This concept evolved from the ancient Roman version, "Salus Populi Romani," which demanded individual responsibility to the health and safety of the people of Rome. See NOVAK, supra note 176, at 52.
203. See SHAIN, supra note 9, at 183. The notion of stewardship survives in modern law under the moniker of "public trust," limiting the rights of the individual in consuming such natural resources as water and air. As one commentator states: "The idea of a 'public trust,' so prevalent in current land use literature, originated in doctrines relating to ownership of lands washed by the tides and lying beneath navigable waters . . . . This trust is in the nature of a inalienable easement, assuring public access." Rose, supra note 190, at 727-28.
204. For example, colonial governments commonly regulated height of buildings and choice of building materials to mitigate the chance of conflagration. See Hart, supra note 176, at 1275.
205. See NOVAK, supra note 176, at 83-84 (suggesting that 19th century Americans "understood the economy as another part of their well-regulated society," enacting numerous controls in aid of "public goods over individual interests").
206. Id. at 84; see also Ballam, supra note 179, at 580 ("In fact the governments, at all levels, during this developmental period were extremely active in business affairs.").
207. NOVAK, supra note 176, at 83.
208. Id.
209. See Ballam, supra note 179, at 594 (noting that classical economic thought, including Adam Smith's works, became dominant).
210. See id. at 574; see also APPLEBY, supra note 174, at 22 (stating that at the beginning of the 19th century, "the productive goal of making wealth to produce wealth supplanted the older notion of wealth as the maintainer of status").
211. See Hart, supra note 176, at 1286 (commenting that according to many scholars, the 19th century was "a time of innovative change in the field of property rights, change calculated to produce 'a release of positive energy' in the service of economic development" (citation omitted)); see also NOVAK, supra note 176, at 220 ("Many courts wrestled with the dilemma of where exactly common interest and general welfare actually lay in a rapidly industrializing, urbanizing economy.").
212. Cooley was a Justice on the Michigan Supreme Court in the late 19th century who favored applying a narrow definition of public purpose. See Harry N. Scheiber, The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts, in LAW IN AMERICAN HISTORY 329, 389 (Donald Fleming & Bernard Bailyn eds., 1971) ("In Cooley's view, there was an abstract (and inviolable) line that separated public-sector from private-sector activities.").
213. John Dillon's seminal work, Treatise on the Law of Municipal Corporations, discusses the constitutionality of the public purpose doctrine. See JOHN F. DILLON, 1 TREATISE ON THE LAW OF MUNICIPAL CORPORATIONS 140-239 (1911).
214. NOVAK, supra note 176, at 80.
215. See id. at 67 ("Fire limits, then, were hardly a timid or primitive form of public regulation. They were prospective and preventative (rather than merely remedial), and they operated on behavior not inherently evil or pernicious.").
216. Use your own so as not to injure another.
217. 94 U.S. 113, 126-29 (1876) (holding that an owner of private property must submit to control by the public only to the extent that he devotes his property to a public use).
218. See Scheiber, supra note 201, at 355 (discussing the affectation doctrine).
219. See Munn, 94 U.S. at 126 (citing Lord Hale).
220. See, e.g., Tyson & Brother v. Banton, 273 U.S. 418, 445-47 (1927) (Holmes, J., dissenting) (characterizing the doctrine as "little more than a fiction intended to beautify what is disagreeable to the sufferers"). Justice Frankfurter pronounced the affectation doctrine an "empty formula." FELIX FRANKFURTER, COMMERCE CLAUSE 87 (1937); see also Scheiber, supra note 201, at 355 (discussing criticism of the affectation doctrine).
221. See Nebbia v. New York, 291 U.S. 502, 539 (1934) (holding that regulations are "unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty").
222. The dissent in Munn foreshadows public good jurisprudence in the 20th century. Justice Field does not dissent from the notion that individual rights must co-exist in balance with collective rights, but on the contrary, he contends that the majority opinion destroys the constitutional guaranty of prohibition of invasion of private rights, declaring that "[a]ll that is beneficial in property arises from its use, and the fruits of that use; and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession." Munn, 94 U.S. at 141 (Field, J., dissenting).
223. See SHAIN, supra note 9, at 60 (stating that "American communalism in the 19th century . . . changed from what it had been in the 18th, to say nothing of the 17th century").
224. See, e.g., DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE 64 (1991).
225. See id. (describing economic protections as one of the Court's "main activities").
226. 198 U.S. 45 (1905).
227. See id. at 64 (holding that the statute was an unconstitutional interference with the right to contract).
228. See id. at 49 (asserting that regulations designed to "secure the public comfort, wealth or safety . . . must appear to be adapted to that end, . . . [and] cannot invade the rights of persons and property").
229. See id. at 53 (stating that police power relates to the "safety, health, morals and general welfare of the public").
230. See id. at 56 (conceding that "there is a limit to the valid exercise of the police power by the state").
231. See id. at 75 (Holmes, J., dissenting) (criticizing the majority for relying upon a particularly popular economic theory).
232. Munn v. Illinois, 94 U.S. 113 (1976).
233. See Lochner, 198 U.S. at 61 (describing such statutes as "meddlesome interferences" with an individual's rights that could only survive if clear support existing for a material danger to the public good).
234. See id. at 60 (stating, without further discussion, that the statute had "the most remote relation" to the public good).
235. 260 U.S. 393 (1922).
236. See id. at 415 (stating that the Fifth Amendment recognizes the public use of private property but also requires compensation).
237. Id. at 414.
238. See id. at 417 (Brandeis, J., dissenting) (noting that a property restriction would be invalid if it had no public purpose).
239. 272 U.S. 365 (1926).
240. Id. at 395.
241. See id. at 387-88 (noting that nuisance law provides helpful analogies in analyzing the zoning scheme at issue).
242. Id.; see also supra notes 205-11 and accompanying text.
243. See, e.g., Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 662 (1874) (striking down a tax imposed to finance iron manufacturing for lack of a public purpose and stating that "there are such rights in every free government beyond the control of the State").
244. See Euclid, 272 U.S. at 387 (stating that the application of the constitutional principles behind regulations "must expand or contract to meet the new and different conditions").
245. See, e.g., Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 4601 (1994); Air Pollution Prevention and Control Act, 42 U.S.C. § 7401 (1990); Water Pollution Prevention and Control Act, 33 U.S.C. § 1251 (1987).
246. See Robert Reich, Policy Making in a Democracy, in THE POWER OF PUBLIC IDEAS 123, 127 (Robert Reich ed., 1988) (observing that after the Depression, the "public goals seemed self-evident - to get the economy moving again and ameliorate some of the worst suffering").
247. See supra notes 207-11 and accompanying text (discussing the affectation doctrine).
248. 291 U.S. 502 (1934).
249. Id. at 537. In writing for the majority, Justice Roberts conceded that the expression "affected with a public interest" is not susceptible of definition. See id. at 536. However, he links public interest with due process limitations on arbitrariness of operation and effect, stating that "[s]o far as the requirement of due process is concerned . . . a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare . . . ." Id. at 537.
250. 298 U.S. 587 (1936).
251. See id. at 618 ("[T]he state legislation fixing wages for women was repugnant to the due process clause of the Fourteenth Amendment . . . .").
252. See id. at 611.
253. Id. at 610-11.
254. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 288 (1936) (striking down a portion of the Bituminous Coal Consumption Act as an impermissible exercise of Congress's taxing powers); U.S. v. Butler, 297 U.S. 1, 68 (1936) (rejecting the Agricultural Adjustment Act because it invades the states' reserved rights); Railroad Retirement Bd. v. Alton R.R. Co., 295 U.S. 330, 347 (1934) (holding that the Railroad Retirement Act exceeded Congress's Commerce Clause authority).
255. 300 U.S. 379 (1937).
256. See id. at 392.
257. See id. at 392-93 (discussing areas of the law that permissibly interfere with the private employment contract).
258. See NEDELSKY, supra note 183, at 247 ("The Lochner era's aggressive use of property and contract to limit governmental power was followed by a virtual abandonment of property as a constitutional barrier and the current state of disintegration of the concept.").
259. See supra note 210 and accompanying text (discussing Nebbia v. New York, 291 U.S. 418 (1927)).
260. But see Panama Refining Co. v. Ryan, 293 U.S. 388, 414 (1935) (referring to a section of the National Industrial Recovery Act as an unconstitutional delegation of legislative power); Schechter Poultry Corp. v. U.S., 295 U.S. 495, 529 (1935) (holding that another portion of the National Industrial Recovery Act was an unconstitutional delegation).
261. See Ballam, supra note 179, at 629.
262. See, e.g., Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 485 (1986) (deferring to the Pennsylvania Legislature's specific findings that "important public interests are served" by its coal subsistence act).
263. See, e.g., Agins v. Tiburon, 447 U.S. 255, 261-62 (1980) (assuming that the zoning ordinance advanced the public interest in that it will "discourage the 'premature and unnecessary conversion of open-space land to urban uses'"); see also Perm Cent. Transp. Co. v. New York City, 438 U.S. 104, 125 (1978) (assuming that New York City's decision to not allow a tower to be constructed above Perm Central Station under the city's historic preservation laws was in the public interest); NEDELSKY, supra note 183, at 233 (noting that most commentators are content to focus on other issues, such as compensation).
264. 512 U.S. 374 (1994).
265. See David W. Dunlap, Community Interests vs. Property Rights, N.Y. TIMES, July 21, 1996, § 9, at 3 (writing that "[Dolan] put a new arrow in the quiver of those who are challenging takings").
266. See Dolan, 512 U.S. at 395 (noting that "[a] strong public desire to improve the public condition [will not] warrant achieving that desire by a shorter cut than the constitutional way of paying for the change" (citation omitted)).
267. See Joseph L. Sax, Takings Legislation: Where it Stands and What is Next, 23 ECOLOGY L.Q. 509, 515 (1996) (questioning Congress's belief that it can better articulate standards of fairness to property owners than the courts).
268. See SIDNEY A. SHAPIRO & JOSEPH P. TOMAIN, REGULATORY LAW AND POLICY 37 (1993) (stating that the conflict's cause is the close relationship between the two).
269. See id. (observing that the public generally supports both principles, despite the conflicts).
270. See BREYER, supra note 170, at 10 (observing that many economists and historians have argued that "many forms of regulation, such as trucking or airline regulation, injure the general public").
271. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 125 (1978) (upholding the application of New York City's historic preservation zoning ordinance). The acceptance of the public purpose in landmark designation has long been settled. See Curtis J. Berger, The Accommodation Power in Land Use Controversies: A Reply to Professor Costonis, 76 COLUM. L. REV. 799, 810 (1976) ("Preservation as a goal of government is no longer debatable; the community may both regulate the use of landmark property and spend public money to further preservation.").
272. See Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984) (upholding a law under which the state took condemned property from lessors and transferred it to lessees, thereby reducing the concentration of landownership, because it was "rationally related to a conceivable public purpose"). While the Court acknowledged that even with compensation one person's property cannot be taken for the benefit of another private person, it held that if "the exercise of the eminent domain power is rationally related to a conceivable pubic purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause." Id. But see Amendariz v. Penman, 75 F.3d 1311, 1321 (9th Cir. 1996) ("If officials could take private property, even with adequate compensation, simply by deciding behind closed doors that some other use of the property would be a public use, . . . the public purpose provision of the Takings Clause would lose all power to restrain government takings.").
273. NEDELSKY, supra note 183, at 233; see also Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1078 (1993) (stating that the public use clause is "of nearly complete insignificance").
274. See Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926) (stating that zoning regulations "must find their justification in some aspect of the police power, asserted for the public welfare").
275. See generally MARK L. POLLOT, GRAND THEFT AND PETIT LARCENY: PROPERTY RIGHTS IN AMERICA (1993) (criticizing modern courts' inability to derive general principles for whether regulations constitutes compensable takings of property); Bernard H. Siegan, Non-Zoning is the Best Zoning, 31 CAL. W. L. REV. 127, 130 (1994) (questioning the appropriateness of giving a voice to anyone other than trained experts in land development).
276. See generally MARK L. POLLOT, GRAND THEFT AND PETIT LARCENY: PROPERTY RIGHTS IN AMERICA (1993) (criticizing modern courts' inability to derive general principles for whether regulations constitutes compensable takings of property); Bernard H. Siegan, Non-Zoning is the Best Zoning, 31 CAL. W. L. REV. 127, 130 (1994) (questioning the appropriateness of giving a voice to anyone other than trained experts in land development).
277. See SHAIN, supra note 9, at 31 (stating that in the Framer's era, the public good took precedence over individual interests).
278. See Marzulla, supra note 12, at 632 (noting that the 103rd Congress attacked property rights amendments to every regulatory reauthorization in the House and Senate, causing some sponsors to withdraw their legislation).
279. See Ballam, supra, note 179, at 637 (stating that modern governmental regulation blends "aspects of both Lockean liberalism with its emphasis on the primacy of the individual, with the republican approach of a proactive government," which has yielded "inconsistencies and contradictions").
280. See SHAIN, supra note 9, at 183 (discussing notions of stewardship in land use policy).
281. See supra note 205.
282. See Euclid v. Amber Realty Co., 272 U.S. 365, 387-89 (1926) (discussing nuisance law).
283. SHAPIRO & TOMAIN, supra note 257, at 46 (citation omitted).
284. See ROBERT H. NELSON, ZONING AND PROPERTY RIGHTS: AN ANALYSIS OF THE AMERICAN SYSTEM OF LAND-USE REGULATION. 174-75 (1977) ("If one must rely on the traditional justifications for public controls over use of personal property, neighborhood zoning literally has no intellectually respectable justification. Although long explained as an exercise of police power, most [zoning law] applications . . . have little to do with protection of health, safety, or morals."). Historically rejecting the English doctrine of "ancient lights," American courts have held that there is no duty to avoid building on your property in such a way as not to cut off a neighbor's access to natural light. See, e.g., Justice v. CSX Transp. Inc., 908 F.2d 119, 122 (7th Cir. 1990); American Nat'l Bank & Trust v. Chicago, 568 N.E.2d 25, 40 (Ill. App. Ct. 1990) (holding that there is no legal right to light and air such that one has a duty not to block another's access to such). Other courts, while recognizing the unpopularity of the doctrine of ancient lights, note that planning restrictions and interests such as solar heating have called the rejection into question, yet, even in questioning such rejection, factors other than aesthetic considerations have supported upholding access to natural light. See, e.g.. Tenn v. 889 Assoc. Ltd., 500 A.2d 366, 370 (N.H. 1985) (holding that the law of private nuisance applies to a property owner's claims of interference with interests in light and air); Fagan v. Philadelphia Zoning Bd. of Adjustment, 132 A.2d 279, 280 (Pa. 1957) (upholding "open air zoning" based on the "health, safety, moral and general welfare of the community"). But see N.Y. REAL PROP. ACTS LAW § 843 (McKinney 1997) (prohibiting property owner from erecting fence or structure over ten feet in height that prevents owner or occupier of adjacent land from enjoying light or air).
285. See ROBERT H. NELSON, ZONING AND PROPERTY RIGHTS: AN ANALYSIS OF THE AMERICAN SYSTEM OF LAND-USE REGULATION. 174-75 (1977) ("If one must rely on the traditional justifications for public controls over use of personal property, neighborhood zoning literally has no intellectually respectable justification. Although long explained as an exercise of police power, most [zoning law] applications . . . have little to do with protection of health, safety, or morals."). Historically rejecting the English doctrine of "ancient lights," American courts have held that there is no duty to avoid building on your property in such a way as not to cut off a neighbor's access to natural light. See, e.g., Justice v. CSX Transp. Inc., 908 F.2d 119, 122 (7th Cir. 1990); American Nat'l Bank & Trust v. Chicago, 568 N.E.2d 25, 40 (Ill. App. Ct. 1990) (holding that there is no legal right to light and air such that one has a duty not to block another's access to such). Other courts, while recognizing the unpopularity of the doctrine of ancient lights, note that planning restrictions and interests such as solar heating have called the rejection into question, yet, even in questioning such rejection, factors other than aesthetic considerations have supported upholding access to natural light. See, e.g.. Tenn v. 889 Assoc. Ltd., 500 A.2d 366, 370 (N.H. 1985) (holding that the law of private nuisance applies to a property owner's claims of interference with interests in light and air); Fagan v. Philadelphia Zoning Bd. of Adjustment, 132 A.2d 279, 280 (Pa. 1957) (upholding "open air zoning" based on the "health, safety, moral and general welfare of the community"). But see N.Y. REAL PROP. ACTS LAW § 843 (McKinney 1997) (prohibiting property owner from erecting fence or structure over ten feet in height that prevents owner or occupier of adjacent land from enjoying light or air).
286. City of Youngstown v. Kahn Bros. Bldg. Co., 148 N.E. 842, 844 (Ohio 1925).
287. Although density may be a consideration for reasons of infrastructure, it is less of an issue in central city construction where infrastructure already exists. See Welch v. Swansey, 214 U.S. 91, 107 (1909) (observing that tall buildings in a city's downtown commercial area may actually be safer than residential areas because of construction materials and access to fire personnel and other infrastructure); see also Weiss, supra note 62, at 210 (noting that many cities debate the density levels of their downtown urban developments).
288. See City of Youngstown, 148 N.E. at 844. The court stated: There must be an essential public need for the exercise of the [police] power in order to justify its use. This is the reason why mere aesthetic considerations cannot justify the use of the police power . . . . It is commendable and desirable, but not essential to the public need, that our aesthetic desire be gratified. Id.
289. Village of Hudson v. Albrecht, Inc., 458 N.E.2d 852, 856 (Ohio 1984) (citations omitted).
290. Id.
291. Id.
292. See Welch v. Swansey, 214 U.S. 91, 92 (1908).
293. See id. at 92-93.
294. See id. at 107-08 (upholding the height restriction as a reasonable interference with his property rights and justified by the police power).
295. Id. at 107.
296. See id. at 107-08. In contrast, the Pennsylvania Supreme Court invalidated a ban on billboards in Bryan v. City of Chester, 61 A. 894 (Pa. 1905), because there was no infringement on public safety. The court held that the ordinance was a "gross attempt at interference with the lawful use of private property . . . [and] a limitation without reason or necessity [that] cannot be enforced." Id. at 895.
297. See supra notes 78-83 and accompanying text (discussing new zoning restrictions and development guidelines in Boston).
298. For a discussion of Boston's height limitations, see supra notes 68-83 and accompanying text.
299. 348 U.S. 26 (1954).
300. Id. at 33.
301. The reliance on Berman as a justification for aesthetic zoning comes in disparate situations. See, e.g., Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984) (citing Berman in political signs controversy); Metromedia, Inc. v. San Diego, 453 U.S. 490, 508 (1981) (citing Berman in billboard case); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 129 (1978) (citing Berman in historic preservation case); Village of Belle Terre v. Boraas, 416 U.S. 1, 5 (1974) (citing Berman in quiet neighborhood zoning case); Geo-Tech Reclamation Ind., Inc. v. Hamrick, 886 F.2d 662, 666 (4th Cir. 1989) (citing Berman in solid waste disposal facility case); Rosenthal & Rosenthal Inc. v. New York State Urban Dev. Corp., 771 F.2d 44, 46 (2d Cir. 1985) (citing Berman in urban renewal case); People v. Stover, 191 N.E.2d 272, 275 (N.Y. 1963) (citing Berman in clothesline case); Village of Hempstead v. SRA Realty Corp., 611 N.Y.S.2d 441, 444 (Sup. Ct. 1994) (citing Berman in metal security gates case).
302. I am not suggesting that the goals of health and safety be strictly defined. I agree that we need not require that "values advanced be solely economic or directed at health and safety in their narrowest senses." Mayer v. New Orleans, 516 F.2d 1051, 1060 (5th Cir. 1975). Nor do I imply that police power be confined to the "elimination of filth, stench, and unhealthy places." Rogin v. Bensalem Township, 616 F.2d 680, 688 (3d Cir. 1980). What is troublesome is that the amorphous, if not boundless, scope of aesthetic zoning travels close to the distortion of language denounced by George Orwell, who wrote: "A mass of Latin words falls upon the facts like soft snow, blurring the outlines and covering up all the details." GEORGE ORWELL, Politics and the English Language, in 4 THE COLLECTED ESSAYS, JOURNALISM AND LETTERS OF GEORGE ORWELL 127, 136-37 (Sonia Orwell & Ian Angus eds., 1968).
303. This is as opposed to zoning that may involve aesthetics, but serves other societal goals, such as urban renewal.
304. See Raymond Robert Coletta, The Case for Aesthetic Nuisance: Rethinking Traditional Judicial Attitudes, 48 OHIO ST. L.J. 141, 152 (1987) ("[T]he attempt to isolate a set of formal visual qualities which constitute beauty remains unsuccessful.").
305. Sauer v. Board of Zoning Appeals, 629 N.E.2d 893, 898 (Ind. Ct. App. 1994) (refusing to label landowner's antique tractors and other items as "junk," and dissolving injunctions granted to zoning board to enjoin appellant from keeping items on lawn).
306. Id.
307. See Coletta, supra note 291, at 151.
308. See id. at 141 (discussing "judicial reluctance to recognize an action in nuisance based on aesthetic considerations").
309. See Kenneth Regan, You Can't Build That Here: The Constitutionality of Aesthetic Zoning and Architectural Review, 58 FORDHAM L. REV. 1013, 1020 (1990) ("[M]any states . . . find that protection of aesthetic value alone is not a valid general welfare purpose.").
310. See Cochran v. Preston, 70 A. 113, 114 (Md. 1908). The court stated: [I]t may be that, in the development of a higher civilization, the culture and refinement of the people has reached the point where the educational values of the fine arts, as expressed and embodied in architectural symmetry and harmony, is so well recognized as to give sanction . . . to the exercise of [police] power, even for such purposes. Id. Despite this language, however, the court upheld Baltimore's height limitations based not on aesthetics, but rather on the threat of fire in tall buildings. See id.
311. See Regan, supra note 296, at 1015 & n.13 (listing cases from 13 jurisdictions that have upheld zoning based on aesthetic factors alone).
312. See Coletta, supra note 291, at 147 ("Because criteria for determining 'beauty' have yet to be articulated, courts fear that aesthetic judgements cannot be expressed with . . . precision.").
313. See Harris B. Steinberg, Introduction to Aesthetics vs. Free Enterprise - A Symposium, 15 PRAC. LAW. 17, 18 (1969) ("We all remember when art nouveau was a sort of period joke, but now it is very expensive. We can remember when the Fauves were wild beasts, and now they are the darling of the auction place.").
314. See Coletta, supra note 291, at 146 & n.35 (attributing courts' reluctance to accept aesthetics as basis for zoning in part to the fact that aesthetic considerations tend to change with the passing of time).
315. See Village of Euclid v. Ambler Realty Co., 272 U.S. 359, 387-88, 391-95 (1926) (finding zoning ordinance valid where it restricted owner's use of land). This nuisance separation argument has prompted some to question why zoning authorities do not simply regulate the nuisance directly, rather than rely on use segregation. See, e.g., Frederick W. Acker, Performance Zoning, 67 NOTRE DAME L. REV. 363, 371 (1991).
316. See Mugler v. Kansas, 123 U.S. 623, 671 (1887) (holding that a state has "power to declare that any place, kept and maintained for the illegal manufacture and sale of [intoxicating] liquors, shall be deemed a common nuisance").
317. See Reinman v. City of Little Rock, 237 U.S. 171, 176 (1915) (holding that "in particular circumstances and in particular localities, a livery stable shall be deemed a nuisance").
318. See Hadacheck v. Sebastian, 239 U.S. 394, 411 (1915) (holding that police power may be exerted, under some circumstances and in certain localities, to deem brickyards as a nuisance).
319. See Albaugh v. Abbot, 235 N.W. 263, 264-65 (Mich. 1931) (upholding lower court decree prohibiting defendants from collecting and hauling garbage to their lands and from maintaining piggeries); Commonwealth ex rel. Woods v. Banholzer, 156 A. 237, 238 (Pa. 1931) (upholding lower court finding that defendants' piggery was a nuisance). But see Lichtman v. Board of Health, 26 A.2d 503, 503 (N.J. 1942) (stating that the denial of a permit for a piggery did not promote public health, safety, and welfare because all adjoining farms were operated as piggeries.).
320. See Coletta, supra note 291, at 167 ("Courts have had little problem in finding that various noises or odors constitute unreasonable interference with an individual's use and enjoyment of land.").
321. See, e.g., Sauer v. Board of Zoning Appeals, 629 N.E.2d 893, 898 n.7 (Ind. Ct. App. 1994) ("[I]t is well settled throughout the country that unsightliness or lack of aesthetic virtue alone does not constitute a . . . nuisance." (citation omitted)); Coletta, supra note 291, at 141 (stating that "nuisance law . . . has consistently denied redress to individuals claiming injury to their visual sensibilities"). But see Members of the City Council of Los Angeles v. Taxpayers, 466 U.S. 789, 806 (1984) ("[T]he visual assault on the citizens . . . presented by an accumulation of signs . . . constitutes a significant substantive evil within the city's power to prohibit.").
322. See Sauer, 629 N.E.2d at 898 n.7.
323. United States v. County Board, 487 F. Supp. 137, 143 (E.D. Va. 1979) (explaining the meaning of "nuisance").
324. See id. at 144.
325. See id.
326. Id.
327. See id. at 175 ("It is time for the law of private nuisance to recognize actions based on aesthetics. Judicial hesitancy to base an action in nuisance upon aesthetic considerations is simply misguided."); George P. Smith & Griffin W. Fernandez, The Price of Beauty: An Economic Approach to Aesthetic Nuisance, 15 HARV. ENVTL. L. REV. 53, 55 (1991) ("The traditional distinction of visual versus aural and olfactory interferences with the enjoyment of property lacks sufficient justification.").
328. See Sauer v. Board of Zoning Appeals, 629 N.E.2d 893, 898 n.7 (Ind. Ct. App. 1994).
329. See Smith & Fernandez, supra note 314, at 54 ("[C]ourts continue to deny relief for injury to the aesthetic interests of . . . landowners."). During the 1930s, planning theory attempted to bolster the argument by asserting the plans produced were of such scientific and technical skill that they reflected a broader interest. See Nelson, supra note 272, at 27 ("An especially critical element in the planning theory of zoning was the conviction widely held at the time that planning was a scientific and technical skill.").
330. John Gregerson, The Democratization of Design, 31 BUILDING DESIGN & CONSTRUCTION 62, 62 (1990) (quoting Winston Churchill).
331. See Mark Bobrowski, Scenic Landscape Protection Under the Police Power, 22 B.C. ENVTL. AFF. L. REV. 697, 744 (1995) (arguing that the importance of visual resource protection "makes it a [public] purpose that may stand alone as an exercise of the police power").
332. See Kerry D. Vandell & Johnathan S. Lane, The Economics of Architecture and Urban Design, 17 J. AM. REAL EST. & URB. ECON. ASS'N 235, 258 (1989) (discussing statistical evidence supporting the argument that perceived design quality affects rents); see also Tom Appelquist, Beauty in the Public Eye Sends Spirits Soaring, PHILADELPHIA INQUIRER, Nov. 15, 1996, at A39 (noting the "connection between a beautiful, historic cityscape . . . and economic vitality").
333. See Kerry D. Vandell & Johnathan S. Lane, The Economics of Architecture and Urban Design, 17 J. AM. REAL EST. & URB. ECON. ASS'N 235, 258 (1989) (discussing statistical evidence supporting the argument that perceived design quality affects rents); see also Tom Appelquist, Beauty in the Public Eye Sends Spirits Soaring, PHILADELPHIA INQUIRER, Nov. 15, 1996, at A39 (noting the "connection between a beautiful, historic cityscape . . . and economic vitality").
334. See BREYER, supra note 170, at 9 (discussing both justifications for, and problems with, regulation).
335. This list is not all-inclusive. Certainly, questions of political and social disenfranchisement color any discussion of the legitimacy of political process. However, these problems are beyond the scope of the present discussion because I assume citizen involvement in the zoning process.
336. See BREYER, supra note 170, at 9 (discussing "'interest group' theories").
337. See Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2128-35 (1990) (discussing social choice theory and the effect that "Voter's Paradox" may have on legitimacy of collective decisionmaking).
338. See BREYER, supra note 170, at 6 ("[A]ll regulation is characterized by administration through bureaucracy.").
339. Id. at 9 (explaining the rationale behind "'interest group" theories").
340. See Daniel A. Farber & Phillip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873, 883-89 (1987) (discussing empirical research on influence of interest groups). Farber and Frickey state: In 1935, a classic case study . . . concluded that interest groups pursuing their own narrow economic objectives profoundly shaped the Smoot-Hawley Tariff of 1930. By the early 1950s, a pluralistic interpretation of politics had emerged, in which legislative outcomes were said to simply mirror the equilibrium of competing group pressures. Id.; see also BREYER, supra note 170, at 9 ("Some writers argue that regulatory programs, initially advanced to serve the 'public interest," became distorted because . . . it becomes 'captured' by the very persons or firms it was designed to regulate."); Jonathan R. Macey, 86 COLUM. L. REV. 223, 229 (1986) (suggesting that "special interest groups tend to dominate the legislative process").
341. See Daniel A. Farber & Phillip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873, 883-89 (1987) (discussing empirical research on influence of interest groups). Farber and Frickey state: In 1935, a classic case study . . . concluded that interest groups pursuing their own narrow economic objectives profoundly shaped the Smoot-Hawley Tariff of 1930. By the early 1950s, a pluralistic interpretation of politics had emerged, in which legislative outcomes were said to simply mirror the equilibrium of competing group pressures. Id.; see also BREYER, supra note 170, at 9 ("Some writers argue that regulatory programs, initially advanced to serve the 'public interest," became distorted because . . . it becomes 'captured' by the very persons or firms it was designed to regulate."); Jonathan R. Macey, 86 COLUM. L. REV. 223, 229 (1986) (suggesting that "special interest groups tend to dominate the legislative process").
342. FARBER & FRICKEY, supra note 213, at 15 (citation omitted) (discussing "Impact of Interest Group Theory").
343. See POLLOT, supra note 264, at 99 (defining "public" as "that group (regardless of number) having the loudest voice, [that] may have an 'interest' in the nonlegal sense in a multitude of things").
344. This term is derived from Lani Guinier. See LANI GUINIER, THE TYRANNY OF THE MAJORITY 1 (1994) (including collection of personal essays in response to "political noise" resulting from her nomination for Assistant Attorney General in Charge of Civil Rights Division); see also Haar, supra note 162, at 1158 ("[T]here is danger that zoning, considered as a self-contained activity rather than a means to a broader end, may tyrannize individual property owners.").
345. See RICHARD F. BABCOCK & CHARLES L. SIEMON, THE ZONING GAME REVISITED 65 (1985) ("At first the Committee consisted largely of the staff and members of the society, but when it called for help, more people volunteered . . . . [A]mong the members . . . were [Jacqueline Onassis], Jimmy Breslin, . . . Congressman Edward Koch, Bess Meyerson, . . . Helen Hayes, Celeste Holm . . . and Gloria Steinem.").
346. 438 U.S. 104, 138 (1978) (upholding New York City's landmark Preservation law, as applied to Grand Central Terminal, by concluding that the law did not constitute a "taking," but rather merely restricted appellant's use).
347. 450 U.S. 621, 633 (1981) (Brennen, J., dissenting) (declining to rule, due to lack of jurisdiction, on available remedies for alleged taking); see also BABCOCK & SIEMON, supra note 330, at 59 ("One may search the tea leaves for an explanation but the hypothesis most favored here is that in the former case, the courts were heavily swayed by the incredible campaign mounted in 1975 by the Committee to Save Grand Central.").
348. See Spiro Kostof, The Skyscraper City, 140 DESIGN Q. 32, 32 (1988) ("San Francisco citizens decided two years ago that they no longer wanted skyscrapers . . . ."); Growth with Grace, BOSTON GLOBE, May 18, 1987, at 18 ("Just as important as the specifics of the plan is the [Boston Redevelopment Authority's] insistence that neighborhood groups share in the planning.").
349. See Spiro Kostof, The Skyscraper City, 140 DESIGN Q. 32, 32 (1988) ("San Francisco citizens decided two years ago that they no longer wanted skyscrapers . . . ."); Growth with Grace, BOSTON GLOBE, May 18, 1987, at 18 ("Just as important as the specifics of the plan is the [Boston Redevelopment Authority's] insistence that neighborhood groups share in the planning.").
350. See Kostof, supra note 333, at 46 ("The city government [of San Francisco] through its planning department and the public through referendums have become the controlling forces in determining what happens in downtown San Francisco."); Growth with Grace, supra note 333, at 18 ("[The neighborhood groups'] participation has ensured that the regulations are responsive to neighborhood needs . . . .").
351. See Kostof, supra note 333, at 46; Growth with Grace, supra note 333, at 18.
352. See FARBER & FRICKEY, supra note 213, at 14-15.
353. See Gary R. Orren, Beyond Self-Interest, in THE POWER OF PUBLIC IDEAS 13, 13 (Robert B. Reich ed., 1988) ("People do not act simply on the basis of their perceived self-interest, without regard to the aggregate consequences of their actions. They are also motivated by values, purposes, ideas, goals, and commitments that transcend self-interest or group interest."); see also Steven Kelman, Why Public Ideas Matter, in THE POWER OF PUBLIC IDEAS, supra, at 31, 36 ("[I]t would take an observer not only cynical but also blind to fail to see that concern for others also can motivate behavior.").
354. See Kelman, supra note 337, at 36; Orren, supra note 337, at 13.
355. See Kelman, supra note 337, at 36; Orren, supra note 337, at 13.
356. See Orren, supra note 337, at 14 ("[I]ntensely felt opinions are the most powerful forces in political life.").
357. See James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357, 370 (James Q. Wilson ed., 1980) (explaining "entrepreneurial politics" as "a policy . . . that will confer general . . . benefits at a cost to be borne chiefly by a small segment of society," where policy entrepreneurs serve as vicarious representatives who push legislation where incentive to organize is strong for opponents, but weak for beneficiaries).
358. See GIANDOMENICO MAJONE, EVIDENCE, ARGUMENT AND PERSUASION IN THE POLICY PROCESS 149 (1989) ("[E]ven when policy change is best explained by the political and economic power of groups seeking selfish ends, those who attempt to justify those changes must appeal to the merits of particular issues.").
359. See KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES 3, 94-95 (1951) (illustrating Arrow's "Impossibility Theorem," which asserts that individually transitive preferences, when aggregated, cannot guarantee a collectively rational outcome if the pure majoritarian voting is used); see also AMARTHA K. SEN, COLLECTIVE CHOICE AND SOCIAL WELFARE 79-85 (1970) (explaining Pareto Optimality principle of social choice theory and how it is inconsistent with liberal values); David Luban, Social Choice Theory as Juris-prudence, 69 S. CAL. L. REV. 521, 524 (1996) (noting "the disturbing possibility that . . . rights, as well as public law, may be purchased only at the price of social rationality").
360. See KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES 3, 94-95 (1951) (illustrating Arrow's "Impossibility Theorem," which asserts that individually transitive preferences, when aggregated, cannot guarantee a collectively rational outcome if the pure majoritarian voting is used); see also AMARTHA K. SEN, COLLECTIVE CHOICE AND SOCIAL WELFARE 79-85 (1970) (explaining Pareto Optimality principle of social choice theory and how it is inconsistent with liberal values); David Luban, Social Choice Theory as Juris-prudence, 69 S. CAL. L. REV. 521, 524 (1996) (noting "the disturbing possibility that . . . rights, as well as public law, may be purchased only at the price of social rationality").
361. See KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES 3, 94-95 (1951) (illustrating Arrow's "Impossibility Theorem," which asserts that individually transitive preferences, when aggregated, cannot guarantee a collectively rational outcome if the pure majoritarian voting is used); see also AMARTHA K. SEN, COLLECTIVE CHOICE AND SOCIAL WELFARE 79-85 (1970) (explaining Pareto Optimality principle of social choice theory and how it is inconsistent with liberal values); David Luban, Social Choice Theory as Juris-prudence, 69 S. CAL. L. REV. 521, 524 (1996) (noting "the disturbing possibility that . . . rights, as well as public law, may be purchased only at the price of social rationality").
362. Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2124 (1990) (discussing implications of social choice theory on democratic processes). This concept, based on the principle known as "Arrow's Impossibility Theorem," is beyond the scope of this Article. For a detailed discussion of the theorem, for which its author received the Nobel Prize, see id. at 2128-35.
363. Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2124 (1990) (discussing implications of social choice theory on democratic processes). This concept, based on the principle known as "Arrow's Impossibility Theorem," is beyond the scope of this Article. For a detailed discussion of the theorem, for which its author received the Nobel Prize, see id. at 2128-35.
364. See K.K. DuVivier, By Going Wrong All Things Come Right: Using Alternative Initiatives to Improve Citizen Lawmaking, 63 U. CIN. L. REV. 1185, 1185 n.3 (1995) ("Experts make very persuasive arguments about the shortcomings of the initiative process.").
365. See Keith N. Hylton, Efficiency and Labor Law, 87 NW. U. L. REV. 471, 471 (1993) (stating that some in the area of law and economics argue that statutory labor law "is more often than not the product of rent-seeking efforts on the part of special interests groups" (citation omitted)).
366. See Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 VA. L. REV. 1413, 1488 (1991) (stating that critics "claim all group-based remedies will promote intergroup conflict, balkanizing what instead should be a uniform national identity").
367. See MAJONE, supra note 342, at 18 ("[T]he most important thing about popular voting and majority rule is less the actual outcome of the voter choice than the fact that the electoral process compels prior recourse to methods of discussion, consultation, and persuasion, and the resulting modification of views to accommodate the opinion of the minority." (citation omitted)).
368. See id. (emphasizing the importance of group participation in decisionmaking).
369. See Rose, supra note 181, at 342 (discussing the public choice dilemma that "people with relatively narrow but intense interests can capture the political process from those with wide but diffuse interests" (citation omitted)).
370. See MAJONE, supra note 342, at 146 ("All important policies require political and moral choices to be made in a context that is characterized by norms, beliefs, goals, and pressures . . . .").
371. See BREYER, supra note 170, at 6 ("[A]ll regulation is characterized by administration through bureaucracy.").
372. See id. ("[T]he regulatory agency is itself an institutional bureaucracy. Those working within it . . . will act in accordance with their own internal rules . . . .").
373. See Regan, supra note 296, at 1024 (asserting that "bribery may become standard practice when zoning is based solely on aesthetics").
374. See Reich, supra note 235, at 122, 129 ("The postwar transformation of public administration centered on two related but conceptually distinct procedural visions of how public managers should decide what to do.").
375. Id. at 129-31 (discussing the "Interest Group Intermediation" Theory).
376. See id. at 131 (discussing the "Net Benefit Maximization" theory).
377. Id. at 131-32.
378. See id. at 134 ("These two approaches to policy making . . . have understood the 'public interest' as nothing . . . other . . . than the disparate sentiments of diverse groups of people about what they want for themselves, combined with procedural norms for weighing and balancing such interests.").
379. See id. at 155.
380. NELSON, supra note 272, at 117 (quoting Sir Frederick Pollock).
381. See Regan, supra note 296, at 1021 n.59 ("In the balance between citizen and government, increasing the police power [to legitimize governmental regulation of aesthetics] necessarily infringes on the . . . property rights of individual citizens.").
382. This is illustrated by the Court's decision in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 107, 138 (1978) (holding, in part, that a city may place restrictions on development without effecting a "taking" requiring payment of just compensation).
383. See SAMUELS, supra note 172, at 193.
384. See J. Miles Hanisee, An Economic View of Innovation and Property Rights Protection in the Expanded Regulatory State, 21 PEPP. L. REV. 127, 130 (1993).
385. See id.
386. See BRIGHAM, supra note 186, at 110.
387. See LOCKE, supra note 181, §§ 131, 138 (stating that government "is obliged to secure everyone's Property," and that "the preservation of Property [is] the end of Government"); see also Rose, supra note 190, at 720 (maintaining that there is a "distinct class of 'inherently public property' which is fully controlled by neither government nor private agents, but rather is collectively 'owned' and 'managed' by society at large, with claims independent of and indeed superior to the claims of any purported governmental manager").
388. See LOCKE, supra note 181, §§ 131, 138; see also Rose, supra note 181, at 332 (discussing theories of Adam Smith).
389. See CRONON, supra note 181, at 58 ("Saying that A owns B is in fact meaningless until the society in which A lives agrees to allow A a certain bundle of rights over B and imposes sanctions against the violation of those rights by anyone else.").
390. See id. (discussing contextual and definition of property to the colonists and Native Americans). As noted above, lack of appreciation for differences of meaning of ownership led colonists to disregard Native culture and rights and impose a different rights regime, which stripped Native Americans of ongoing interests in real property. See id. For a further discussion of this topic, see id.
391. See First Victoria Nat'l Bank v. United States, 620 F.2d 1096, 1102 (5th Cir. 1980) ("As we begin, we must remind ourselves that 'property' is an expansionist term. Its mooring is contemporary rather than historical.").
392. See CRONON, supra note 181, at 58.
393. See COSTONIS, supra note 10, at 21 (noting that "questions arise whenever we insist that a social impulse be legalized," and asking, "Will liberty or property rights reserved to citizens be infringed?").
394. This concept is different from interest group theory discussed above. Interest groups can influence the outcome of certain legislation. The power of private property rights determines the structure in which interest groups will function. For example, it may be the will of the community that every house on the block plant only daffodils because in spring the block will be quite aesthetically pleasing. Although this may be the will of the community, the ability to implement this will necessarily depend on the ability of the city to enforce such a regulation. The city's ability to enforce the regulation will turn on the parameters of private property rights within that community.
395. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1105 (1972) (setting up a tautology of deciding whether something is valuable because it is protected, or protected because it is valuable); see also SAMUELS, supra note 172, at 158 ("The analytical problem . . . is that government does not protect something as property because it is property, but property is property because it is protected by government.").
396. The classic example is the ongoing debate between loggers and environmentalists. The loggers claim that the environmentalists pay to prevent logging assumes that the loggers have some legally protected right to log that for which they must be compensated. See FARBER & FRICKEY, supra note 214, at 35 (noting that the loggers' argument assumes they have the right to control logging).
397. See Calabresi & Melamed, supra note 376, at 1100 (characterizing these entitlements as "merit goods," and stating that "[w]henever a society wishes to maximize the chances that individuals will have at least a minimum endowment of certain particular goods - education, clothes, bodily integrity - the society is likely to begin by giving the individuals an entitlement to them").
398. See Orren, supra note 337, at 17 ("[I]t is values that create and preserve the very idea of property rights.").
399. BRIGHAM, supra note 186, at 164.
400. This equation assumes an independently identically distributed error term.
401. The symbol Δ represents the change in the values that follow.
402. See Calabresi & Melamed, supra note 376, at 1097-98 (discussing how wealth distribution or economic efficiency can affect entitlement choice).
403. See id. at 1094 (stating that the answers to these questions turn on the quest in economic efficiency for Pareto optimality, and that Pareto optimality is achieved when a decision makes one faction better off without making anyone worse off).
404. See Paul K. Asabere & Forrest E. Huffman, Historic Districts and Land Values, 6 J. REAL EST. RES. 1, 5-6 (1991) (concluding that historical districting produces positive external benefits resulting in a price premium of 131% of residential parcels within the districts).
405. See Calabresi & Melamed, supra note 376, at 1096-97 (describing methods of determining entitlements based on economic efficiency).
406. See Asabere & Huffman, supra note 385, at 6 (noting that the price premium of nonresidential parcels in historic districts is insignificant).
407. See Paul Asabere et al., The Adverse Impact of Local Historic Designation, 8 J. REAL EST. FIN. & ECON. 225, 232 (1994).
408. See Calabresi & Melamed, supra note 376, at 1098 ("Difficult as wealth distribution preferences are to analyze, it should be obvious that they lay a crucial role in the setting of entitlements.").
409. Joseph W. Singer, No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283, 1466 (1996).
410. See Calabresi & Melamed, supra note 376, at 1092 & n.7. 392 See Cass R. Sunstein, Social Norms and Social Values, 96 COLUM. L. REV. 903, 942 (1996) (noting that the initial allocation affects social understanding about presumptive ownership rights); see also Ian Ayres & J.M. Balkin, Legal Entitlements as Auctions: Property Rules, Liability Rules and Beyond, 106 YALE L.J. 703, 749-50 (1996) (arguing that auctions should be considered as a means of ensuring that private property ends up in the hands of those who value it most).
411. See Calabresi & Melamed, supra note 376, at 1092 & n.7. 392 See Cass R. Sunstein, Social Norms and Social Values, 96 COLUM. L. REV. 903, 942 (1996) (noting that the initial allocation affects social understanding about presumptive ownership rights); see also Ian Ayres & J.M. Balkin, Legal Entitlements as Auctions: Property Rules, Liability Rules and Beyond, 106 YALE L.J. 703, 749-50 (1996) (arguing that auctions should be considered as a means of ensuring that private property ends up in the hands of those who value it most).
412. See NELSON, supra note 272, at 55 (discussing the measuring of success by excluding certain development to preserve character).
413. Sunstein, supra note 392, at 941.
414. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 137 (1978) (discussing the availability of transferable development rights).
415. See NELSON, supra note 272, at 71 (suggesting that the solution to discriminatory treatment of property owners may be financial compensation).
416. Alternatively, limiting the community voice to instances where it does not conflict with private property rights.
417. SAMUELS, supra note 172, at 158.
418. Frank I. Michelman, 80 HARV. L. REV. 1165, 1214 (1967) (introducing a quasi-mathematical structure to compensation).
419. Id. (citation omitted).
420. See Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681, 694-96 (1973) (pointing to the bulk controls in New York City "caused major inefficiencies in the interior layouts of these buildings and adversely affected architectural variety in the city in return for at best insignificant improvements in the protection of the city's light and air").
421. Gated communities provide the closest approximation to a free market, because the by-laws of the homeowners association form a unanimous social contract concerning aesthetics. See Robert C. Ellickson, Cities and Homeowner Associations, 130 U. PA. L. REV. 1519, 1526-27 (1982) (comparing documents of a homeowners association with public laws.). However, the salient and crucial difference is that in a gated community one's vote ties inextricably to one's economic stake (one house, one vote). In defining a cityscape, it is important to give voice to all citizens without regard to economic interest.
422. See Stephen A. Gardbaum, Broadcasting, Democracy and the Market, 82 GEO. L.J. 373, 377 (1993) (noting that defenders of broadcasting deregulation argue free speech should be understood in the same way as free trade).
423. See Boyd Kimball Dyer, Economic Analysis, Insider Trading, and Game Markets, 1992 UTAH L. REV. 1, 6 (using game market theory to justify prohibitions on insider trading).
424. See Alain C. Enthoven & Sara J. Singer, A Single-Payer System in Jackson Hole Clothing, 13 HEALTH AFF. 81, 81-82 (1994) (discussing the failure of President Clinton's Health Security Act to harness market forces).
425. See COSTONIS, supra note 10, at 12 ("[A] powerful subsidy, coextensive with lost liberties, results every time the law is enlisted in aid of a social impulse.").
426. For example, parental leave from employment. See Maria L. Ontiveros, The Myths of Market Forces, Mothers and Private Employment: The Parental Leave Veto, 1 CORNELL J.L. & PUB. POL'Y 25, 26 (1992) (stating that the free market will not provide parental leave due to market failures).
427. See ANTHONY DOWNS, INSIDE BUREAUCRACY 32 (1967) ("Some important social functions cannot be performed adequately by market-oriented organizations because they involve external costs or benefits. An external cost or benefit does not reflect itself in market prices, but is felt directly or indirectly outside of markets.").
428. See BREYER, supra note 170, at 192.
429. COSTONIS, supra note 10, at 17.
430. Sidney Shapiro, Keeping the Baby and Throwing Out the Bathwater: Justice Breyer's Critique of Regulation, 8 ADMIN. L.J. AM. U. 721, 733 (1995).
431. See MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION 14 (1965) (setting forth the argument for collective goods).
432. See id. at 15 (noting that the definition of collective good means inherently that those who do not contribute to a collective good cannot be excluded from sharing in the consumption of the good); see also DOWNS, supra note 408, at 33 (stating that private markets' allocations cannot handle the provision of proper amounts of an indivisible benefit). Furthermore, the cost of a collective good remains constant regardless of how many consumers enjoy the good. See Nancy J. Knauer, How Charitable Organization Influence Federal Tax Policy, 1996 WIS. L. REV. 971, 1001 (discussing the free rider problem in setting up a town watch).
433. See id. at 15 (noting that the definition of collective good means inherently that those who do not contribute to a collective good cannot be excluded from sharing in the consumption of the good); see also DOWNS, supra note 408, at 33 (stating that private markets' allocations cannot handle the provision of proper amounts of an indivisible benefit). Furthermore, the cost of a collective good remains constant regardless of how many consumers enjoy the good. See Nancy J. Knauer, How Charitable Organization Influence Federal Tax Policy, 1996 WIS. L. REV. 971, 1001 (discussing the free rider problem in setting up a town watch).
434. See David DeCosse, Beyond Law and Economics: Theological Ethics and the Regulatory Takings Debate, 23 B.C. ENVTL. AFF. L. REV. 829, 844 (1996) (contending that takings legislation poses an anti-democratic threat to federal environmental protection).
435. A traditional view is that state intervention is necessary to produce collective goods. Some scholars, such as Professor Ellickson, argue that private groups can produce collective goods without state intervention. See ROBERT ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES 236-38 (1991) (noting that close-knit hierarchical groups can achieve the same internal order as a state enforcer). But see Eric Posner, Law, Economics, and Inefficient Norms, 144 U. PA. L. REV. 1697, 1743 (1996) (asserting that even in close-knit groups inefficient norms are produced, and that these norms may be less efficient than the rules produced by the state).
436. A traditional view is that state intervention is necessary to produce collective goods. Some scholars, such as Professor Ellickson, argue that private groups can produce collective goods without state intervention. See ROBERT ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES 236-38 (1991) (noting that close-knit hierarchical groups can achieve the same internal order as a state enforcer). But see Eric Posner, Law, Economics, and Inefficient Norms, 144 U. PA. L. REV. 1697, 1743 (1996) (asserting that even in close-knit groups inefficient norms are produced, and that these norms may be less efficient than the rules produced by the state).
437. See Kostof, supra note 86, at 47 (stating urban symbols carry collective meaning because "cities are considered amalgams of the living and the built").
438. See LYNCH, supra note 11, at 46 (observing that group images are necessary if an individual is to operate successfully within his environment and to cooperate with his fellows).
439. Rose, supra note 181, at 365 ("I can do what I please with my property.").
440. See COSTONIS, supra note 10, at 34 (discussing end state versus process values).