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Virginia land use law: Marc Scribner from CEI responds

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After I put up the post this weekend about a Virginia Tea Party group’s opposition to a state law forcing counties to upzone enough land for medium-density development, I sent an email to Marc Scribner at the Competitive Enterprise Institute, a libertarian group, asking his opinion on the law. He was kind enough to give us his thoughts, and here they are:

While I would like to see a lot more upzoning and would support state-wide legislation that would limit local exclusionary zoning (or ideally prohibit it!), subsection (1)(B) provision (6) seems problematic. Basically, legislatures should restrict exclusion, rather than force inclusion by establishing UDAs and specifying design and form aspects, if they are to pursue land-use liberalization at the state level.

Also, the lack of a provision limiting property condemnations within UDAs could spur more eminent domain abuse, which has been a nasty side effect of poorly structured upzoning that results in things such as access to transit and new sanitation capacity being prioritized over property rights. David Alpert might not agree, but I consider the government robbing private property owners of their land to be a far greater offense than prohibiting multi-unit housing or mixed-use development, as much as I dislike these regulatory takings. (Although I believe Virginia has an interesting requirement that jurors in an eminent domain case be property owners.)

The reason why one might see more ED abuse within upzoned areas is that going from less intense development to more intense generally calls for more public infrastructure investment (or worse, grandiose PPP projects). This is particularly true in more residential areas, as commercial and industrial zones typically have near-adequate or overbuilt sanitation facilities, etc., that can accommodate more growth. Not saying that dev is bad, but any time comprehensive redevelopment becomes more likely, people need to be more vigilant about takings.

I’m not sure if this cure is significantly worse than the disease in terms of reinforcing smart-growth planning ideology and giving a leg-up to rent-seeking developers at the expense of awful Euclidian zoning regimes, but at least they didn’t mention on-street bike lanes.

So, there you have it. I personally think the Virginia law looks great, but as you can see, not all libertarians are so sanguine about it. And for the record, here is the provision that he talks about in the first paragraph:

The comprehensive plan shall incorporate principles of traditional neighborhood design in the urban development area, which may include but need not be limited to (i) pedestrian-friendly road design, (ii) interconnection of new local streets with existing local streets and roads, (iii) connectivity of road and pedestrian networks, (iv) preservation of natural areas, (v) mixed-use neighborhoods, including mixed housing types, with affordable housing to meet the projected family income distributions of future residential growth, (vi) reduction of front and side yard building setbacks, and (vii) reduction of subdivision street widths and turning radii at subdivision street intersections.

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  • Jim

    I wonder what his problem with on-street bike lanes is. Are they an unacceptable restriction on the freedom of motorists to drive into cyclists?

  • Daniel

    It’s worth noting that the UDAs have less teeth than anyone here or at GGW has mentioned. They are required components of the Comp Plan, but they are not requirements for the zoning code. Counties are supposed to base their codes on the Comp Plan, but there is pretty wide discretion in how they can go about doing this. I think what’s happening here is that the state is positioning itself to target statewide resources and tailor statewide regulations toward UDAs in the future (for example loosening stormwater reqs for UDAs), which will be the primary engine for moving counties in this direction, but that is somewhat speculative.

    Another important point not mentioned is that the UDAs are only required for “high-growth counties,” so all of this scare over quaint rural areas being forced by the state to densify is overblown. Truly rural counties, and those expected to remain as such, are not a part of this at all (unless something has changed recently. My experience with UDAs goes back about nine months). If you to GGW and search for UDA, you’ll find my summary of the law from last year.

    Of course, these details make the the force-us-out-of-our-suburban-homes hysteria even more incredible.

  • Yeah, that was a strange thing for him to throw in at the end there. Everything I’ve read seems to indicate that bicycle lanes are much safer for bicyclists, and, at worst, do not affect the driving experience for car users – road diets in particular, despite the controversy they always stir up before implementation. I think it’s just fashionable to take every possible cheap shot at bicyclists, unfortunately, but that’s slowly changing.

  • Anonymous

    I’m not quite clear on why upzoning “results in things such as access to transit and new sanitation capacity being prioritized over property rights”. Does he mean that property will be taken for new train stations or tram lines? Why would sanitation capacity require (significant) takings?

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