Friday, July 3, 2015

The Supreme Court and Parking

Once upon a time, in the land of Arlington, in Virginia, there was a residential neighborhood called Aurora Highlands. This little suburban community had the misfortune to develop a new neighbor, an office complex called Crystal City. Many of the workers in Crystal City drove to their jobs, and they soon noticed that there were many free, vacant parking spaces in Aurora Highlands. So they did what any red-blooded American motorist would do. They parked in the vacant spaces. For free.

Apparently the good citizens of Aurora Highlands were aghast. (The emotional state of common folk was not so minutely recorded in the days before the Internet as it is now.) We do know that the elders of the land felt their constituents' pain, and pretty soon the county had something called Zoning Ordinance 29D (on May 18, 1974, to be exact).

This new law may well have caused great joy in the Highlands of Aurora, for it told the Outsiders of Crystal City to stay Outside. It did this by authorizing the County Manager (it would be so much better if I could call him the High Sheriff) to regulate parking if he found the curbs to be crowded.

Specifically he was commanded to search out places in Arlington County where peak occupancy was 75 percent or higher. (On a lot of blocks in Philly, 75 percent would describe minimum occupancy better than maximum occupancy.)

He soon found such a spot in Aurora Highlands. The section selected included 81 buildings that contained a total of 101 residences. All but two of the single-family dwellings had off-street parking facilities. The zone also contained 192 curbside parking spaces along three streets. Sounds like a very nice little garden city to me.

So how did the County Manager protect this utopian village from the evil motorists of Crystal City? Personally, I was looking for a moat, and a drawbridge -- and maybe even a gate and a portcullis. And maybe earthworks behind the moat.  After all, when you dig a moat you have to throw the dirt somewhere.

But no. The Quest for Exclusion of Outsiders led to parking stickers in the windows of the residents' cars. Less expensive and, frankly, just as effective. (I have no idea if the permits were stickers in windows, or placards on dashboards, or some other device. Research in mouldy newspaper archives would likely shed light on this subject.)

Needless to say, the motorists of Crystal City were enraged. "Stickers? We don't need no stinkin' stickers!" Lacking ramparts to storm, they resorted to the American pastime of a lawsuit, alleging denial of due process of law and equal protection of the laws. (Very roughly -- Nobody asked me! And, If he can have it, so can I!)

Arlington v. Richards (1977)
In 1975 the trial court agreed with the good motorists of Crystal City. But the elders of Arlington were not prepared to leave matters there. No, they were made of sterner stuff, and they appealed to the Supreme Court of Virginia, which in January 1977 handed them the modern equivalent of a drawing and quartering.

According to the Va. Supremes, ownership of property abutting a public street "gives the owner no right to use the street superior to that enjoyed by the public at large." And that was one of their kinder comments.

Having had their heads and various other body parts handed to them, the elders of Arlington trudged across the bridge to Washington, D.C., and laid their case at the feet of the Justices of the U.S. Supreme Court.

In this, their final forum, their last chance, they triumphed. They cut the net off the basket, and they took the goal posts home.

In a decision dated October 11, 1977, the U.S. Supreme Court took note of the Va. Supreme Court's holding "that the ordinance on its face offends the equal protection guarantee of the 14th Amendment." And then it said, "We disagree."

SCOTUS then added that the equal protection clause of the 14th Amendment requires only that distinctions between residents and nonresidents "rationally promote the regulation's objectives."

The court's opinion was quite succinct.  That's because the Va. Supremes failed to deal adequately with fifty years of zoning law, and specifically the U.S. Supreme Court's 1926 decision in Euclid v. Ambler.

The elders of Arlington had tried to get the Va. Supremes interested in the concept of zoning law, but they failed.

As the Virginia Supreme Court put it, "Whatever authority local governments may derive from the zoning statutes to protect the distinctive characteristics of residential neighborhoods, such authority does not include the power to adopt ordinances which grant residents a parking monopoly in the public streets of their neighborhood."

Well, actually, it does. Let us turn now to the foundational document for zoning in the United States, Euclid v. Ambler

Euclid v. Ambler (1926)
The Village of Euclid, Ohio, was a small suburban town near Cleveland. The Ambler Realty Co. owned 68 acres of land in Euclid. On November 13, 1922, the village council adopted a zoning ordinance dividing the village's land into districts that varied in, among other things, their allowable uses. Most of Ambler's land was available for industrial uses, but not all.

Ambler Realty was not happy with this intrusion on its unilateral right to do whatever it damn well pleased with its property, and so it sued, alleging denial of due process and equal protection of the law (that pesky 14th Amendment again).

For decades the Supreme Court had been balancing the requirements of the 14th Amendment (adopted in 1868) against what is called the "police power," which allows government to regulate activity to ensure the public health, safety, morals, or general welfare. 

Mr. Justice Sutherland delivered the opinion of the court. He was a very conservative justice. According to Samuel R. Olken, "At first, Sutherland thought the law was unconstitutional, but after some persuasion by Justice Stone and others, Sutherland requested reargument of the the case and eventually decided to sustain the ordinance as a reasonable exercise of local police powers." ("Justice George Sutherland and Economic Liberty," William and Mary Bill of Rights Journal, Winter 1997, p. 70, fn. 329.) 

If the Va. Supremes had spent an appropriate amount of time with Euclid they'd have known that the Arlington parking regulations could only be declared unconstitutional if they were shown to be, as Justice Sutherland put it, "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare."

They would have known that, in his decision, Justice Sutherland relied on the common law of nuisances. "He reasoned that if the common law permitted the government to abate a nuisance in order to prevent one from using his private property to the detriment of another, then a municipality also should be able to regulate private land use that harmed the public at large." (Olken, p. 79.)

And the Justice deferred to the legislature, writing, "If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control."

Sutherland, who grew up in Utah before it was a state, saw clearly that the world was becoming more crowded and that (here he quotes the Supreme Court of Illinois) there was a need "to limit individual activities to a greater extent than formerly."

For Sutherland, the heart of the case was the creation and maintenance of residential districts. And his goal, as Olken (p. 70) puts it, was to protect "the town's interest in preserving the quiet use and enjoyment of residential property."

Having read Justice Sutherland's opinion in Euclid, I have no doubt how he would have decided Arlington.

Where Do We Go From Here?
I've spent the last year or so thinking about and trying the reimagine Philadelphia's public spaces. (Once There Was a Prison, Uncorking the Bottleneck, Alleys, Parking: Storage v. Access, Parking Permits and Musical Chairs, Measuring the Health of a Parking System.)

We don't always use our public spaces well, and frankly I don't think we have a good excuse for that. Let's just take parking as an example.

- We have technology today that didn't exist ten years ago, let alone back in 1977, when the Supreme Court decided Arlington.

- We have Professor Donald Shoup, the Merlin of Parkery, and his simple idea: Let's shift parking away from the old administrative system of permits and fees and fines, and go to a market economy. All May Park, All Must Pay.

- Finally, the Supreme Court has told us that we have wide latitude when it comes to parking management.

There's an old saying in marketing:  You don't sell the steak, you sell the sizzle. I think, when it comes to parking, the sizzle is the technology -- for instance, the app that lets you re-up on your parking space over your iPhone.

If we don't use this opening to go to variable meter pricing based on demand, we have not lived up  to the opportunity.

Where does the parking permit zone fit in this brave new world? We can keep it if we want to. Even the Va. Supremes said so. The Crystal City motorists had suggested "that the objectives of the ordinance could be better achieved by other parking regulations applied to motorists as a single class." The elders of Arlington responded that they were "not required to select the optimum solution to a public problem." And the Va. Supremes wiggled uncomfortably, but basically sided with the elders of Arlington on this point.  They just felt the elders were trumped by the 14th Amendment.

But if we can do whatever we want, why not do the optimum solution?

Cities have always had an uneasy balance of inclusion and exclusion. Read Christopher Marlowe's Tamburlaine, and you'll have a good idea what city walls were for. On the other hand, cities exist as a place where people can come together face to face and learn things from people who aren't like them. That is the glory of a city.

The doctrine of exclusion that is implicit in the residential parking permit zone troubles me. We have the tools to construct an inclusive system. So why not? 

No comments:

Post a Comment