LULU 
By Martin Harris

There are two definitions for "lulu" in the Webster’s Dictionary: one is the Civil-War-era meaning  of "any remarkable or outstanding person or thing" and the other is the Depression-era meaning of "a fixed allowance paid to a legislator in lieu of reimbursement for actual expenses". There should be a third: in the current planning and zoning context it means a Locally Unwanted Land Use. Recent LULU’s have been a Home Depot in Montpelier, a Staples in Middlebury, and a McDonald’s in Ferrisburgh. There are occasionally LALU’s and DULU’s for which the prime example is the Yankee nuclear plant in Vernon, welcomed at the time of construction by the locals, but more recently the object of get-it-outta-there efforts in the State Capitol. "Admired" and "Distantly" are the relevant verb and (somewhat contrived) adverb.

Typically, a LULU situation arises when a land-owner proposes a specific use for which his property has been zoned, only to have a highly-vocal opposition demand that "we don’t care what the land is zoned for, we don’t want it". Thus, in Manchester a few years back, opposition to a motel proposal (on land zoned for motels) arose because the specific applicant has a number in its trade-name and was therefore considered insufficiently up-scale by the opposition. In Randolph last year, single-family-home-owners in an area zoned for multi-family since the early ‘80’s (all of them had knowingly bought in under the present zoning) rose in protest against an actual multi-family proposal, which, they argued, would down-scale the neighborhood and damage the views. In both cases, the opposition succeeded, even though their success violated the previously-taken-for-granted zoning-as-of-right principle, wherein a proposal meeting all the published requirements for a given zone can’t be denied a permit. Not any more. Heck, even the State planning bureaucracy won’t stand up for zoning-as-of-right.

In the semantic world of P & Z language, before there were LULU’s there were "Windfalls and Wipe-outs". That was  back when planners and zoners actually worried about drawing zoning lines –between residential and commercial, for example—which would create an instant land-value gain on one side of the line and an equally instant value loss on the other side, and there were lots of studies on theories for capturing some of the value artificially created on one side and reimbursing to the losers on the other side. That was when zoning was first introduced. Now zoning is almost everywhere, and half of the W & W problem has returned in a new form, the reduction in property value which occurs when a previously-permitted level of development is suddenly no longer permissible, as a result of either a formal up-zoning (think ridge-line protection in, say, Pomfret) or an informal citizen demand (think the current anti-McDonald’s furor in Ferrisburgh).

"If regulation goes too far it will be recognized as a taking", wrote SCOTUS Justice Oliver Wendell Holmes in the 1922 Pennsylvania Coal Co. v. Mahon case, creating a legal basis for the notion that zoning regulations could actually create some indeterminate level of windfalls and wipe-outs without compensation-to-owners. His un-Constitutionally vague pronouncement went pretty much unchallenged until recently, when land-owners began re-reading the Fifth Amendment and demanding that, if zoning changes caused them a value loss, they were entitled to reimbursement by government. Surprisingly, it became reality in blue-State Oregon, where a Measure 7 was approved by voters in 2004 and then rejected by the State Supreme Court, presented again as Measure 37, and is now State law. Earlier, the Federal Supreme Court had come to the same conclusion, deciding in 1987 that even a 6-month delay in construction permit approval was a Fifth Amendment "taking" of the owner’s use of his land, and therefore entitled to compensation. Read it for yourself in "First English Evangelical Church v. Los Angeles County".

So far this recent national trend in judicial precedent has had little effect on local groups in Vermont, usually self-styled as "Friends of…" whatever they want left un-disturbed, who have been typically successful in their strategy of causing an applicant enough difficulty for him to go away. Even so, the folks who want permitting to be decided, not by a voter-approved statute but by their own, presumably superior, case-by-case subjective decision, may need to be cautious. Present opposition to a permissible business use in south Ferrisburgh may end up like the recent opposition to a permissible residential use in north Ferrisburgh, with a court judgment for damages levied against the "Friends".
 

Martin Harris is a former Chairman of Citizens for Property Rights