In 1938, thunderclouds of black soil were still tumbling across the Southern plains, destroying the crops, structures, and lungs of everything in their path.1 That poor land use decisions could lead to environmental catastrophe was news, not paranoia. Meanwhile, the country was poised in a fragile recovery from the Great Depression, which had strained the local public fisc with property tax delinquencies and other blows to revenue.2 That local governments could not afford to spend public funds unwisely was self-evident. The streams of migrant families displaced from rural areas by both the Dust Bowl and the Depression made a third truth apparent as well: great human suffering attended the settlement of unviable land.3
For some commenters in the Dirty Thirties, diffuse and ill-considered land development seemed culpable in all three of these hard realities. An agricultural economist and attorney named Ralph B. Wertheimer, for instance, penned a 1938 article in the California Law Review (CLR) called the Constitutionality of Rural Zoning, arguing that better land use controls were needed to mitigate the environmental harms of erosion and land waste, the fiscal strain and inefficiencies of serving such areas, and the social harms of isolated and untenable rural homesteads.4 Rural zoning, he argued, could ameliorate these hardships by confining development to existing urban areas and prohibiting new settlement on land with poor or depleted soils.5 Counties would adopt such zoning regimes to govern their unincorporated territory—that is, land outside the boundaries of an incorporated municipality.6
Wertheimer’s ideas tell us something about his times, but more intriguing still are the questions they raise about the decades that came after him. Just seven years after he wrote, on the far side of World War II, America commenced a revolution in land use. Between 1945 and 1960, something on the order of ten million single-family homes were constructed in suburban subdivisions that lay beyond the grid of municipal infrastructure on land that was unincorporated prior to, if not after, its development.7
If counties had heeded Wertheimer’s call for stronger land use controls at the urban fringe and in rural areas, might things have turned out differently? The present Essay uses the occasion of CLR’s one-hundredth anniversary to consider what became of land use planning by counties, and what role that legal development played in the chemistry of twentieth-century urban sprawl. It uses Wertheimer’s article to glimpse early ideas on rural and county land use control and to provide an initial assessment of how far county land use planning has come, or failed to come, in the decades since.
Scant attention has been paid to land use policy by county governments, as either a modern or historical matter. Yet counties matter to land use and local government law—for what they are today, for what they have and have not been in the past, and for what they could become. Counties can influence land use policy in two distinct respects. The first is planning in unincorporated areas, which rely on counties or their subdivisions (i.e., townships) as their only general-purpose local government. The large majority of American states have considerable amounts of unincorporated land,8 and that land is populated by varied households, whether rich, poor, rural, or suburban.9 The second relevant scale of land use controls is county-wide planning—that is, county authority to enact land use plans for its entire territory, including incorporated areas. In recent years, county-wide planning has received greater attention as some policy makers and scholars have sought regional growth control through comprehensive metropolitan planning by county governments.10
The present Essay focuses on county planning in unincorporated areas in order to preserve Wertheimer’s focus on rural areas, while also seeking to understand the dynamics of sprawl and development at the urban and suburban fringe. I focus on unincorporated status immediately prior to or at the time of initial development, even though such land might become part of a municipality through incorporation or annexation at the time of development or at some point thereafter. Sprawl, after all, becomes an accomplished fact after land is first developed even if that property later joins or becomes a city.
Our information about county land use planning is limited, but based on available research, this Essay argues that counties played an important role in passively enabling, if not actively courting, suburban development on greenfield (undeveloped) sites. Counties were, in short, sprawl’s shepherd. Other factors—like housing need, housing costs, consumer preferences, racial discrimination, lending practices, and government subsidization of mortgages and transportation networks—generated suburban development proposals, but the nature of county land use authority and engagement led those projects to seek rural pastures.
Part I of this Essay describes the state of rural zoning and land use controls by counties in the late 1930s through the window of Wertheimer’s article and other historical accounts. Part II considers the development of county land use policy in the decades since and its relationship to suburban sprawl. I argue that weaker systems of planning and enforcement at the unincorporated urban fringe, as well as counties’ fiscal and political incentives, may have drawn subdivision development to this more loosely regulated edge. In conclusion, the Essay frames some questions worth considering in the modern era of county land use controls.
1.See TIMOTHY EGAN, THE WORST HARD TIME: THE UNTOLD STORY OF THOSE WHO SURVIVED THE GREAT AMERICAN DUST BOWL (2006); DONALD WORSTER, DUST BOWL: THE SOUTHERN PLAINS IN THE 1930S (1979).
2.See BECKY M. NICOLAIDES, MY BLUE HEAVEN: LIFE AND POLITICS IN THE WORKING-CLASS SUBURBS OF LOS ANGELES, 1920–1965, at 150–52 (2002) (describing the nationwide escalation in local tax delinquencies, which pushed many American cities to the brink of bankruptcy in the 1930s); RONALD C. TOBEY, TECHNOLOGY AS FREEDOM: THE NEW DEAL AND THE ELECTRICAL MODERNIZATION OF THE AMERICAN HOME 128–29 (1996) (describing soaring rates of tax delinquencies between 1932 and 1935, which led the California legislature to declare a sixty-day moratorium on tax collection in 1933).
3.See JAMES N. GREGORY, AMERICAN EXODUS: THE DUST BOWL MIGRATION AND OKIE CULTURE IN CALIFORNIA (1989); JONATHAN RABAN, BAD LAND: AN AMERICAN ROMANCE (1997); WORSTER, supra note 1.
4.Ralph B. Wertheimer, Constitutionality of Rural Zoning, 26 CALIF. L. REV. 175, 176–81, 185–202 (1938).
5.See id. at 175–76.
6.In most states, nonmunicipal land is “unincorporated”—that is, it lies outside of an incorporated municipality and thus relies on the counties for a single layer of direct, general-purpose local government, including the exercise of police powers and policy making. In a smaller set of states, primarily Midwestern ones, counties are divided into subdivisions called townships or unincorporated towns, which govern all nonmunicipal land and serve as an added general purpose local government, thus giving these residents two tiers of general purpose local government (township and county). See 1 U.S. CENSUS BUREAU, 2002 CENSUS OF GOVERNMENTS, at vi (2002), available at http://www. census.gov/prod/2003pubs/gc021x1.pdf. Counties and county subdivisions (like townships) are impor-tantly similar for purposes of the present account, and thus the term “counties” will stand in for “counties and county subdivisions” in this Essay.
7.ADAM ROME, THE BULLDOZER IN THE COUNTRYSIDE: SUBURBAN SPRAWL AND THE RISE OF AMERICAN ENVIRONMENTALISM 88 (2001).
8.All land in the United States is located within a county. A small minority of counties, however, lack unincorporated land for one of three reasons: (1) the state lacks general purpose, elected county governments or county subdivisions (as in Rhode Island, Connecticut, and most of Massachusetts), (2) the city and county governments are consolidated (as in Hawaii, and in scattered cities like San Francisco, Denver, and Baltimore), or (3) the state has separate, functioning county governments, but it also has one or more incorporated, lower tier, general purpose governments (cities, towns, boroughs, etc.) over all territory within the state (as in New Jersey and Pennsylvania). See generally 1 U.S. CENSUS BUREAU, supra note 6 (cataloguing the structure of American local government nationwide).
9.As I have argued in prior work, to the extent that scholarship acknowledges unincorporated areas, it presumes that they are rural, with the exception of some middle- or upper-class suburban subdivisions near cities. Such assumptions overlook thousands of high-poverty unincorporated communities located just outside city boundaries. For a much more thorough account of the extent of development on unincorporated land at the urban fringe and the understudied importance of county governance of these areas, see Michelle Wilde Anderson, Cities Inside Out: Race, Poverty, and Exclusion at the Urban Fringe, 55 UCLA L. REV. 1095, 1100–12, 1133–58 (2008) [hereinafter Anderson, Cities Inside Out]; Michelle Wilde Anderson, Mapped Out of Local Democracy, 62 STAN. L.REV. 931, 935–40, 979–95 (2010).
10.See, e.g., Anderson, Mapped Out of Local Democracy, supra note 9, at 979–95; Andrew Auchincloss Lundgren, Beyond Zoning: Dynamic Land Use Planning in the Age of Sprawl, 11 BUFF. ENVTL. L.J. 101 (2004); David J. Harmon, Comment, Problems and Opportunities for Progressive Comprehensive Land Use Planning in Richland County, South Carolina After McClanahan v. Richland County Council, 54 S.C. L. REV. 837 (2003); Jeff LeJava, Comment, The Role of County Government in the New York State Land Use System, 18 PACE L. REV. 311 (1998). Several states have mandated or authorized comprehensive planning at the county level. See Harmon, supra, at 845–47; LeJava, supra, at 324–25. States are increasingly guiding county governments to assume a regional coordination role, but strictly limiting their authority to enforce the comprehensive plans that result against constituent municipalities. LeJava, supra, at 328–29; see Lundgren, supra, at 144 (noting that Pennsylvania’s delegation of authority to counties is advisory only); see also Brian Goldberg, New Reactions to Old Growth: Land Use Law Reform in Florida, 34 COLUM. J. ENVTL. L. 191, 200 (2009) (noting that although Florida does require local compliance with its comprehensive land use plans, local governments can amend the plans as necessary to cater to development proposals).