Co-Location, Co-Location, Co-Location: Land Use and Housing Priorities Reimagined
Lee Anne Fennell
It is a great honor to deliver the Norman Williams lecture, and I appreciate you all choosing to co-locate yourselves here with me this evening. Everyone knows the three most important factors in choosing a home: location, location, location. In my talk today, I hope to convince you that’s not quite right. What matters most when it comes to housing is not location, in the sense of a geographic map point, but rather co-location, or a home’s position relative to other land uses and land users. This elaboration might seem obvious and trivial, but it turns out to matter a great deal, and in ways that have not been fully recognized. Taking co-location seriously changes the way we think about land use possibilities and priorities. And it can transform our thinking about housing.
This talk comes in three steps. First, I want to explain what I mean by co-location, and why it matters—not just in dense urban centers but also in small towns, rural and agricultural areas, and even in places of great natural beauty like Vermont. Next, I will articulate some land use principles that follow from recognizing the primacy of co-location. Finally, I will offer some specific policy approaches that can leverage the power of co-location.
I. What is Co-Location and Why Do We Care?
Let’s start with a thought experiment. Picture your house or apartment or condo. Think about the boundaries of your property holding, the edges of what the law says you own. Now imagine someone with a giant eraser comes along and removes every man-made element within a fifty-mile radius of your home’s property boundaries. Everything that used to be there—schools, restaurants, auto dealerships, ski resorts, your neighbors’ houses, this building, the roads, the sidewalks, the parking lots, all of it—is now gone. This eraser also subtracts the populations that go with all those land uses. Something very profound has happened to your home, even though nothing within the boundaries of your property has been touched, and your house remains rooted in the same physical location.
The point is simple: The structure and parcel is not your home, in an important sense. Your home encompasses a profusion of elements that surround the property itself and affect its value. Location only has meaning to the extent that we make assumptions about what is happening in the adjacent areas. This seems obviously true in urban centers like Chicago. Economists speak of agglomeration benefits that come from getting lots of people and ideas and products and services and employment opportunities all together in one place. We thus tend to associate the benefits of colocation with the energy and excitement of a dense big city, but the point is a much more general one.
Consider a place like Vermont, with beautiful natural features. It might seem that a home’s value in such a place is mostly about geographic location relative to natural features like mountain ranges. To put it in my terms, you might say that the only co-location that matters is co-location with the mountains, and the mountains aren’t going anywhere. But think again about the value that is added by mountains, such as scenic vistas and recreational opportunities. The ability to enjoy the mountains depends on the right mix of access to them and protection of them—and the way that mix is managed comes down to who and what is nearby. Are there ski resorts? How intensively developed? How about the neighbors? How many are there? Occupying what structures? Are they here year-round or seasonally? What restaurants and shops are nearby? Who works in them, and where do they live? And what about transportation infrastructure, the roads that get you up and down and through the mountains?
So regardless of what kind of setting we’re talking about, land use is highly interdependent, and co-location is the primary concern. Each use generates its own mix of benefits and detriments for the surrounding area, and—as long as it’s there—blocks innumerable other possible uses of the same land, for better or worse. The law is always intensely involved in mediating, channeling, and controlling co-location, even if it is not doing so explicitly. Can it do better?
Historically, land use law has focused on addressing land use conflicts. Land use conflicts are fundamentally co-location problems. Consider Sturges v. Bridgman, a classic co-location fail that was explored by Ronald Coase in his groundbreaking paper, The Problem of Social Cost. Dr. Sturges decided to add a consulting room to the back of his property. Bridgman was a confectioner whose candy-making operations created vibrations that disturbed Sturges’s practice. Either use would be fine on its own, or combined with innumerable other uses, but this specific combination was problematic. The court ruled for the doctor, finding the confectioner’s operations were a nuisance. Even though those operations would not be a nuisance in all times and places, they became one here, given the added ingredient of the physician’s office. The idea of problematic combinations is a recurring theme in land use law. Justice Sutherland, writing for the Supreme Court in Village of Euclid v. Ambler Realty, the case upholding the constitutionality of zoning, put it this way: “A nuisance may be merely a right thing in the wrong place,—like a pig in the parlor instead of the barnyard.” There’s nothing wrong with the pig in the abstract or the parlor in the abstract, it’s the combination, the co-location, that causes trouble.
Co-location is not always about conflict, even though that’s where the law has usually focused its attention. It is true that breaking apart incompatible uses can increase value. But so too can putting together uses that complement and benefit each other. Indeed, co-location is what gives housing most of its value. Fostering patterns of complementary uses that produce positive synergies is as an important a project for the law as keeping apart uses that conflict with each other. That’s true whether we are talking about creating lively urban districts or preserving habitats or sustainably developing natural or rural areas. These two projects— separating conflicts and putting together complements—blend into each other: A use can be in the wrong place not only when it has negative spillovers for its neighbors, but also when it impedes putting together a cluster or chunk of uses that will together generate more value.10 The “pig in the parlor” might be a road that breaks up a wildlife corridor or a vacant lot in the middle of an area that is striving for vibrancy.
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