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Planning magazine — April 1981 Siting LULUs By Frank J. Popper I would argue that federal, state, and local governments, along with private companies, have faced this apparently awesome problem many times before and have for the most part found effective ways of coping with it. Hazardous waste facilities are just one instance of development projects that are needed regionally or nationally but are objectionable to the people who must live near them. Such projects share a common characteristic: They are what I call Locally Unwanted Land Uses, or LULUs. The concept of LULUs LULUs abound. Some of the most obvious are low-income housing projects, power plants, airports, prisons, halfway houses, and sewage treatment plants. Then there are strip mines, power lines, highways, dams, oil refineries, rail lines, military installations, junkyards, cemeteries, amusement parks, taverns, and sex businesses. Strip development generally is a LULU, as are many of its components — gas stations, car dealerships, repair shops, parking lots and garages, rental outlets, carwashes, motels, and drive-in restaurants. In many cases public parks, factories, stadiums, hotels, hospitals, marinas, office buildings, and residential developments (especially high-rises, suburban apartment buildings, and trailer parks) may qualify. The most prominent LULUs are large, built by the public sector rather than private enterprise, and sited primarily by local governments. Why they're unpopular Few people want to live near a LULU, much less in one. A LULU is noisy (highways), dangerous (airports), ugly (power plants), polluting (all of the above), or otherwise unwelcome to those who must live close by (halfway houses). A LULU, or the threat of a LULU, frequently lowers property values, especially residential ones. A large LULU is generally unpleasant during construction and inconvenient if it causes a large influx of new people — construction workers, residents, customers, or employees. Areas whose land uses are primarily LULUs — slums, industrial neighborhoods, energy boomtowns, red-light districts, skid rows — are considered undesirable places to live. Personal preferences about living near LULUs vary considerably, of course. Parents and children usually want to live close to a school, if not necessarily next to it; the childless, on the other hand, may want to live far from it. Similarly, people who don't drive may have a special aversion to living near commercial strips. The worst LULUs But there seems to be general consensus on which LULUs are most unwanted. A 1980 Council on Environmental Quality poll found that only about 10 percent of the population would voluntarily live within a mile of a nuclear power plant or hazardous waste disposal site. Twenty-five percent would live that near a coal-fired power plant or large factory, and 60 percent that near a 10-story office building. Since a LULU always threatens its surroundings, its neighbors usually resist its siting. They may do so far in advance of a siting decision or in an attempt to forestall an imminent one — for instance, a middle- or upper-income community may enact an exclusionary zoning ordinance to keep out low-income housing, apartments, high-rises, trailers, factories, or strip development. Yet by definition a LULU meets a strong, usually regional
public need or private demand and offers (or appears to offer) large regional
or national benefits. The problem is that its economic and environmental costs
fall mainly on its locality or neighborhood. Land-use strategies Governments and the private sector use four land-use strategies in siting LULUs. Concentration. A community's LULUs may be crowded into a few areas. For instance, a community may deliberately decide to concentrate new LULUs in an undeveloped or industrial area. Zoning for some kinds of factories, industries, and residences, as well as for strip development, often operates this way; so, too, may zoning specifically for fast-food and drive-in restaurants. On a larger scale, this approach recurs in proposals for declaring parts of the West "national sacrifice areas" where intensive energy development can proceed with a minimum of environmental restrictions. In other cases concentrations of LULUs arise naturally and then are confirmed by the community's land-use controls. A good deal of zoning consists of reacting to the presence of existing LULUs. For example, Boston's decision to confine its sex businesses to a seven-acre "combat zone" seems to have been motivated partly by the fact that nearly all the city's sex shops and porno movies were already there. In still other cases the actions of one community may indirectly push LULUs elsewhere. Exclusionary zoning in the suburbs typically has the effect of restricting low-income housing, apartments, and high-rises to the inner city and of relegating strip development and trailers to less affluent suburbs or rural areas. Similarly, local or neighborhood sentiment against halfway houses may force such facilities to concentrate in areas that are relatively willing to accept them. The concentration strategy will work best when the areas of concentration have natural or manmade features that make them especially suitable for the LULUs in question — for instance, environmental resiliency or pre-existing factories, strip development, or combat zones. Yet the strategy may unfairly force LULUs into the places least able to resist them — poor or minority communities, politically underrepresented neighborhoods, unincorporated or thinly populated areas. Dispersal. Another strategy is to spread out a community's LULUs. So, for example, zoning in many cities requires new taverns or liquor stores to be located a certain minimum distance from existing ones. Detroit, in contrast to Boston, requires each new sex business to be located at least 1,000 feet from existing sex businesses, hotels, motels, pawnshops, pool halls, and dance halls. The dispersal strategy is being used when "scattered-site" housing is spread throughout a metropolitan region as an antidote to confining low-income people to the inner city. The Miami Valley region around Dayton, Ohio, requires each city to take on a "fair share" of the region's low-income housing. Orange County, California, part of the Los Angeles metropolitan area, requires most new projects with five or more dwelling units to price one of every 10 units low enough so that households making 80 percent or less of the county's median income can afford them. The dispersal strategy will work best when its LULUs are likely to lower the intensity of the land use at issue because they are small and widely separated from each other: "vest-pocket" low-income housing projects, small strip mines, lightly traveled rural and suburban highways, spread-out strip development, and the like. Yet, the strategy sometimes fails to provide serious guarantees that disadvantaged communities will not be saddled with an unfairly large share of LULUs. The strategy may also create urban sprawl. And it tends to ignore the valid environmental, economic, and social reasons for not locating particular LULUs in certain areas. Randomization. A third strategy is to deliberately site LULUs in a seemingly haphazard way. This strategy in effect renounces any ordered governmental land-use or spatial rationale for siting LULUs. It frequently amounts to a decision to leave siting to the private market. A government may choose to locate its LULUs at random because strong home-rule or neighborhood sentiment precludes a communitywide approach, or because it wishes to avoid specific responsibility for siting unpopular land uses. The LULUs most likely to be sited at random are ones that can be divided into small pieces and then scattered by the happenstance of local economics and politics. The prime examples are the components of strip development, but parks, factories, halfway houses, and many kinds of residential development also can be sited at random. The randomization strategy eliminates the costs of government intervention in siting and is often responsive to local needs and desires. It can be highly efficient in purely economic terms. On the other hand, it produces an erratic siting process with unpredictable environmental or social results. Moreover, it may ignore the overall requirements and wishes of the larger region. On-site mitigation. The final strategy tries to minimize a LULU's adverse effects on its immediate vicinity, while accepting its placement as a given. The strategy either leaves the LULU where it is or makes only minor adjustments in its location. But the mitigation measures undertaken can be substantial. Stringent antipollution regulations, zoning and subdivision ordinances, and public health and building codes can diminish a LULU's environmental impacts. A community also may mitigate a LULU's economic impacts; for example, by insisting that developers make concessions or improve public services — by donating land for a school site, generating their own electric power, or making a beach more accessible to the public. On-site mitigation may lower a LULU's social costs and ensure that they are borne mainly by those who receive benefits from it (usually because they built or operate it). The primary drawback of mitigation measures is that they may not deliver on their promise. Public acceptance is not certain, the LULU's developer may not pursue the measures in good faith, and they may not work in practice. Political tactics A range of political tactics for siting LULUs is also available. The tactics appear below roughly in order of assertiveness, with ownership at the most aggressive end of the scale. Planning. LULUs usually figure prominently in a community's long-term planning. Most proposals for LULUs also require specific planning devices — zoning classifications, capital budgets, maps, environmental impact statements, long-range forecasts. But planning is not by itself legally binding, and later development decisions may not be consistent with it. For that reason, governments or industries seeking strong control over the siting of LULUs rarely confine their efforts to planning. Persuasion. There may be an effort to convince the residents of the area where the LULU is to be located that every reasonable step is being taken to minimize its harm. Persuasion takes a variety of forms: public hearings, presentations by the LULU's sponsor, debates, establishing local advisory boards, bringing in outside experts, enlisting the support of allied local industries, establishing grievance committees. As a general rule, this tactic will work only if it shows good faith. It must provide for genuine citizen participation, clear presentation of arguments for and against the LULU, and a willingness to alter the location or design of the LULU if the opposition finds large flaws. Conflict resolution. A slightly more assertive tactic uses a variety of techniques drawn from labor relations and the social sciences. A go-between sets up negotiations between the parties to the siting decision. The go-between may be a mediator who simply structures the negotiations so that the parties can resolve the conflict themselves or an arbitrator who actually decides the conflict. The techniques used may range from opinion surveys and simulation exercises to public workshops and marathon private meetings. To work well, the techniques must deal with such issues as the legitimacy of the go-between, the representativeness of the negotiators, and the varying constraints and values of the parties to the negotiations. Economic incentives. There may be an attempt to pay a LULU's neighbors for the difficulties it causes them. In some cases, a LULU indirectly provides its own payment, as when a large energy development gives a poor rural area its only hope for a solid economic base. But in most cases, the payment must be provided directly in the form of state or federal subsidies. The "impact assistance" grants that federal agencies offer to communities with a large number of federal installations, many of them LULUs, are one example. So are the grants, loans, and bond guarantees the Commerce Department's Coastal Energy Impact Fund gives the states to help coastal communities affected by rapid energy development. Legal approaches. Another tactic brings to bear the power of the courts. For example, under the eminent domain power, governments or such quasi-public corporations as utilities may condemn private property, pay its owner a fair price, and take it for public use, thus solving the siting problem directly. For some LULUs, especially low-income housing, indirect legal approaches have worked. Minority organizations, developers, and aggrieved individuals have successfully sued suburban communities to force them to undo their exclusionary zoning and allow low-income projects. Recently, the Justice Department has filed similar suits against suburbs of Detroit, Cleveland, and Buffalo. Regulation. Through its police power, a government has the power to approve, reject, or put conditions on a proposed LULU before it is built. Regulatory devices range from local zoning and subdivision ordinances to a growing number of state and regional land-use and pollution controls. The Massachusetts Housing Appeals Law, for instance, established a state regulatory board to review cases in which publicly subsidized low- or middle-income housing is denied a rezoning or other locally required approval; the board may reverse a local ruling if it harms the larger region. State boards that regulate land use in Maine, Vermont, Florida, and Hawaii and statewide coastal management, strip-mining, and public utilities agencies have comparable powers to site large LULUs. Ownership. With this tactic, government assumes total responsibility for siting, building, operating, and maintaining the LULU. Many large LULUs — highways, airports, schools, public parks, prisons, sewage treatment plants, and mass transit stations — are sited this way. Sometimes governments deliberately avoid ownership. For philosophical, operational, or pork barrel reasons, they allow private contractors to build or maintain publicly owned LULUs (highways or airports) or to operate them (low-income housing projects and mass transit systems). Implications for siting This review of strategies and tactics for siting LULUs suggests that the EPA's despairing conclusion regarding hazardous waste facilities is not justified. The political, administrative, and technical difficulties of particular siting cases may be formidable. But at least in principle, the facilities can be sited. They are being sited in practice as well. Chicago has concentrated its three facilities in or near the heavily industrial neighborhood of Pullman. Maryland and Michigan have turned to regulation in establishing state hazardous waste boards that can override local vetoes on proposed facilities. Planning and persuasion tactics are used nearly everywhere. Among the political tactics, economic incentives seem most promising. They can take an unusual number of forms — grants, loans, bond guarantees, taxation devices, cash payments, in-kind contributions, improvements in public services, perhaps even auction bidding or property tax reductions — that with imagination can be adapted to suit almost any site, government, developer, political climate, or local opposition. In general, a necessary LULU probably will get sited eventually, but the siting procedures are becoming longer and more expensive, bureaucratic, acrimonious, and prone to stalemate. In recent years some LULUs have been nearly stymied. Since 1970, at least 12 attempts to site an oil refinery on the East Coast have resulted in only one successful proposal (in Hampton Roads, Virginia), and that one is still being litigated. No new nuclear power plant has been undertaken in nearly three years, no metropolitan airport in 10. In many states, even projects as relatively innocuous as marinas are now almost impossible to site. Put another way, the number of locally wanted land uses is dropping fast. Perhaps the only land uses left that are universally acceptable to their immediate neighborhoods are open space and research parks, which are not live options in most cases. The public has, understandably, become extremely sensitive to the environmental and economic effects of LULUs and other projects. Yet a large number of seemingly necessary new LULUs — hazardous waste facilities, nuclear disposal sites, synthetic fuels plants, the MX missile system — loom in the near future. At a minimum, we ought to be trying to find ways to speed siting that allow for the public's new environmental and economic awareness. Frank J. Popper, an environmental consultant in Bethesda, Maryland, is the author of The Politics of Land-Use Reform (University of Wisconsin Press, 1981), reviewed in this issue. Another version of this article will appear as a chapter in a forthcoming Environmental Law Institute report to the EPA on managing the risks posed by hazardous waste facilities.
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