Thursday, December 18, 2014
As we approach zoning’s centennial in 2016, the Land Use Law Center at Pace Law School is examining what is durable and what is deficient in land use regulation today. As times change, zoning must renew itself by adjusting to changing conditions. Among the many challenges it faces at the dawn of its second century, is the alarming water scarcity experienced by arid Western states with fast-growing economies.
The Center is working with Western Resource Advocates (WRA) to train local land and water planners in the front range of the Rocky Mountains how to coordinate water and land planning, particularly how “zone in,” that is to permit and encourage, water conserving land use patterns, buildings, and landscapes.
Learn more about this project here: https://greenlaw.blogs.law.pace.edu/2014/12/17/zoning-in-water-conservation/.
John R. Nolon
Wednesday, December 17, 2014
NYU Furman Center
Legal Research Fellowship
The Furman Center for Real Estate and Urban Policy at New York University invites applications for a post-graduate legal fellowship. The Furman Center, jointly housed at NYU’s School of Law and its Wagner Graduate School of Public Service, is a leading academic research center devoted to the public policy aspects of land use, real estate development, and housing. The Furman Center’s law fellowships are designed for promising legal scholars with a strong interest in housing, local government, real estate, or land use law. The Fellow’s time is shared equally between independent research on topics of his or her choice and preparation to enter the academic job market, and Furman Center research projects, conducted jointly with faculty members, graduate students, and staff. Recent projects have addressed such topics as the consequences of mortgage foreclosures, the effects of inclusionary zoning, and the impact of housing vouchers on crime. The Fellow also helps produce the Center’s annual State of New York City’s Housing and Neighborhoods report. The Law Fellow is invited to participate in faculty workshops, colloquia, and other scholarly forums at the NYU School of Law, and will have the opportunity to work with NYU law school professors and particularly with those who serve on the Center’s Advisory Committee. The fellowship typically begins summer/fall.
A J.D. degree, superior academic achievement, excellent writing skills, initiative, and a demonstrated interest in and commitment to scholarship are required.
Applicants should submit a cover letter, curriculum vitae, scholarly writing sample, and the names and contact information of 3 references. Applications are preferred by 1/1/2015 but will be given consideration until the position is filled. Review of applications will begin immediately and will be evaluated on a rolling basis. Only candidates of interest will be contacted.
To apply: Application materials and questions should be sent to firstname.lastname@example.org. Please include “Legal Research Fellowship” in the subject line.
New York University is an Equal Opportunity/Affirmative Action Employer.
Friday, December 12, 2014
Lee Fennell (Chicago) has posted Agglomerama, __ BYU L. Rev __ (forthcoming). In it, she examines how cities attract the right mix of residents and businesses to maximize social value. She takes a look at a number of possible ways in which cities might incentivize and manage positive spillover effects, including a proposal by Gideon Parchomovsky and Peter Sieglman to emulate shopping mall developer coordination between anchor and satellite tenants, which proposal can be found in their Cities, Property and Positive Externalities, 54 Wm. & Mary L.Rev. 211 (2012). Here's the abstract for the Fennell piece:
Urbanization presents students of commons dilemmas with a pressing challenge: how to achieve the benefits of proximity among people and land uses while curbing the negative effects of that same proximity. This piece, written for the 2014 BYU Law Review Symposium on the Global Commons, focuses on the role of location decisions. It casts urban interaction space as a commons that presents the threat of overgrazing but that also poses the risk of undercultivation if it fails to attract the right mix of economic actors. Because heterogeneous households and firms asymmetrically generate and absorb agglomeration benefits and congestion costs, cities embed an interesting collective action problem — that of assembling complementary firms and households into groupings that will maximize social value. After examining the nature of this participant assembly problem, I consider a range of approaches to resolving it, from minor modifications of existing approaches to larger revisions of property rights.
Thursday, December 11, 2014
Brent White (Arizona) , Simone Sepe (Arizona) and Saura Masconale (AZ-Gov't & PP) have published Urban Decay, Austerity, and the Rule of Law, 64. Emory L.J. 1 (2014). In the article, the authors offer a "make 'gov', not war" alternative to the Broken Windows Theory (BWT) and its support for order-maintenance policing. Building upon an intuitively compelling social contract theory insight, the article sets out the theoretical and empirical cases for the authors’ contention that sustained investment in highly visible, essential local public goods provides crucial support for rule of law. Focusing on the refusals of the U.S. and Michigan governments to bail out Detroit and avoid the need for it to file for bankruptcy, the authors use their Urban Decay Theory (UDT) to support their proposal that all municipal governments receive at least some level of fiscal insurance to sustain continuous investment in urban infrastructure, which, according to the UDT is predictive of citizen commitment to rule of law.
At the invitation of the editors of the Emory Law Journal, I wrote a response to Urban Decay for the Emory Law Journal Online. In "All Good Things Flow . . .": Rule of Law, Public Goods, and the Divided American Metropolis , 64 Emory L. J. Online 2017 (2014), I welcome the article’s introduction of the rule of law paradigm to domestic urban policy, find fault with its selection of public goods that purportedly influence rule of law, and contend that the UDT has far greater potential than the poor support it can offer the authors’ flawed policy proposal. By conceptualizing the domestic urban policy goal as rule of law rather than order, the authors open measurements of success to go beyond crime rates and majoritarian perceptions of personal safety. Without losing the groundedness necessary for empirical investigation, rule of law can incorporate ideal aspects of lawful order that address sustainability and inclusion of minority perceptions of legitimacy. While the White/Sepe/Masconale article does not succeed in constructing as compelling an understanding of the most salient public goods, an improved analysis of the root causes of the fiscal degradation of America’s legacy cities can unlock a potentially valuable reframing of urban, metropolitan, and regional policy debates.
In focusing their policy proposal on fiscal guarantees for municipal creditors, the authors, from my perspective, have missed the role that the urban-suburban divide has played in the inability of city governments to provide basic public goods. But, their expansion of the public policy goal to rule of law allows us to get a more holistic picture of the foundation of a truly inclusive, flourishing community. All in all, I think that, by altering the paradigm from order maintenance to rule of law, the authors have, in formulating the Urban Decay Theory, offered a useful complement to the Broken Windows Theory rather than a truly competitive alternative to it.
December 11, 2014 in Community Economic Development, Crime, Detroit, Federal Government, Financial Crisis, Local Government, Race, Scholarship, Smart Growth, State Government, Urbanism, Zoning | Permalink | Comments (0)
Tuesday, December 9, 2014
Today I stumbled across a troubling article about how a type of nuisance ordinance I've never heard of - the so called "crime free housing" ordinance - creates some terrible unintended consequences for domestic violence victims. From the article, on the Aljazeera America website:
When Lakisha Briggs’ ex-boyfriend forced his way into her home in June 2012, she faced an impossible dilemma. Although the man had physically assaulted her on several occasions, Briggs knew that if she called the police for help, she and her 3-year-old daughter would likely be thrown out of their subsidized apartment.
Briggs, a 34-year-old mother residing in Norristown, Pennsylvania, found herself in this situation as the result of a city ordinance aimed at reducing “disorderly behavior” in rental housing. The ordinance stipulated that tenants who made three 911 calls in four months could be evicted. Briggs had already received three strikes as the result of emergency calls made during previous attacks by her ex, and the month before the incident, city officials had notified her that further calls would result in her removal from her apartment.
The article details how Briggs suffered a further brutal attack from her ex without calling the police, due to her fear of being evicted. Because a neighbor called 911, ultimately the city of Norristown began eviction proceedings against her. Only the intervention of the ACLU prevented her from losing her home.
The ACLU and the Shriver Center now have the I Am Not a Nuisance campaign to educate local governments about the dangers of these ordinances. And, as a result of Briggs' case, these ordinances are now illegal in Pennsylvania.
Jamie Baker Roskie
Sunday, December 7, 2014
Recent news from the Lincoln Institute:
The annual C. Lowell Harriss Dissertation Fellowship Program of the Lincoln Institute of Land Policy invites applications from doctoral students who are writing dissertations in fields that address these areas of interest:
- Valuation and Taxation
- Planning and Urban Form
This fellowship program provides an important link between the Lincoln Institute’s educational mission and its research objectives by supporting scholars early in their careers. Please distribute or post this information in your academic department. Applications are due by email on or before 6:00 p.m. (EST) February 1, 2015.
The full Dissertation Fellowship Program Application Guidelines are available for download. If after reviewing this material you have further questions, please contact email@example.com.
Thursday, December 4, 2014
You have gotten all the links to the responses to the IPCC reports over the past few weeks, now you can find all your favorite hits together in one great place: SSRN. The essays will be published together in ELR in just a few months, but up on SSRN you can view the near final version. Please let us know if you have any comments/questions on the project or on the Environmental Law Collaborative in general.
Tuesday, December 2, 2014
A “New” Strategy for Climate Change Mitigation and Adaption: Sustainable Human Settlements -- by John R. Nolon
As climate negotiators prepare for their discussions in Lima, they must focus on one of the most neglected strategies for mitigating and adapting to climate change: creating sustainable human settlements. My work for a land use law center embedded in a law school with a prominent environmental law program makes the lack of awareness and embrace of a land use law policy for climate change mitigation and adaptation baffling, at best, and, at worst, inexcusable. Despite decades of research, development, and successful implementation, this strategy is “new” in the eyes of the IPCC. For an explanation, click here.
Oh my goodness! I have fallen quite a bit behind on my posting. After 10 days in Australia (more to follow) 1 day stuck at JFK, 5 snow days, Thanksgiving, serving on a crazy intensive strategic planning committee, and strep throat I am finally emerging and trying to figure out what happened to November. Suddenly dawns on me that I better write my exam too! (anyone with old federal indian law exams lying around?)
So let's jump back into the meat of the matter and catch up on what has been going on with the Environmental Law Collaborative. Earlier in November, I posted a summary of the essays the Collaborative pulled together in the first week of November. These were posted on the Environmental Law Profs blog and final versions will appear in ELR (the Environmental Law Reporter) in January.
Deepa Badrinarayana examines climate change and national security.
Keith Hirokawa approaches climate change through systems thinking.
Alex Klass looks at climate change and cities.
Jonathan Rosenbloom proposes greater urban community collaboration.
Sarah Adams-Schoen takes on the suburbs.
Our own Stephen Miller discusses the bottom-up approach to climate change policy.
I look at the challenge of protecting habitat in a changing world.
David Takacs looks specifically at species extinction threats and REDD+.
Inara Scott argues that national security can be a hook for talking about climate change.
Katy Kuh contemplates agnostic adaptation policies.
Monday, December 1, 2014
It has been a tremendous fall for the blog with a lot of new voices added to the mix. We are hoping to have more guest bloggers this spring, so stay tuned.
In the meantime, one last big thank you to our honor roll of Fall, 2014 guest bloggers:
All are welcome back any time!
Jessica Owley & Stephen R. Miller
On Friday, The Diane Rehm Show spent a whole hour discussing the future of toll roads in the U.S. Here is the link. Here is the blurb:
Toll road mileage is increasing nationwide as cash-strapped states try to relieve traffic congestion without raising taxes. But some transportation officials are facing a political backlash. Diane and her guests discuss the future of toll roads in the U.S.
A nice post on toll roads also over at Property Law Prof Blog.
Stephen R. Miller
Here are links to all of the new land use-related articles posted on SSRN in November (search term "land use," time frame "one month").
| Can Shale Gas Help Accelerate the Transition to Sustainability? Widener Law School Legal Studies Research Paper No. 14-24 John C. Dernbach and James May Widener University - School of Law and Widener University - School of Law
01 Nov 2014
17 Nov 2014Accepted Paper Series 21 Downloads
|2|| Infrastructure's Long-Lived Impact on Urban Development: Theory and Empirics Motu Working Paper No. 14-11 Arthur Grimes , Eyal Apatov , Larissa Lutchman and Anna Robinson Motu Economic and Public Policy Research Trust , Motu Economic and Public Policy Research Trust , Motu Economic and Public Policy Research Trust and Motu Economic and Public Policy Research Trust
01 Nov 2014
12 Nov 2014working papers series 18 Downloads
|3|| Sue to Adapt? Minnesota Law Review, Forthcoming 2015 Jacqueline Peel and Hari M. Osofsky Melbourne Law School and University of Minnesota - Twin Cities - School of Law
14 Nov 2014Accepted Paper Series 18 Downloads
|4|| Temporary Takings, More or Less in CLIMATE CHANGE IMPACTS ON OCEAN AND COASTAL LAW: U.S. AND INTERNATIONAL PERSPECTIVES (Oxford University Press) (2014 Forthcoming) Timothy M. Mulvaney Texas A&M University (TAMU) - School of Law
08 Nov 2014Accepted Paper Series 16 Downloads
|5|| Requiem for Regulation Environmental Law Reporter, Vol. 44, p. 10923, 2014, U of Maryland Legal Studies Research Paper No. 2014-42 Garrett Power University of Maryland Francis King Carey School of Law
06 Nov 2014Accepted Paper Series 15 Downloads
|6|| Housing Consumption and Urbanization World Bank Policy Research Working Paper No. 7112 Nancy Lozano-Gracia and Cheryl Young World Bank and World Bank
16 Nov 2014working papers series 8 Downloads
|7|| Modelling Changing Rural Land Use in New Zealand 1997 to 2008 Using a Multinomial Logit Approach Motu Working Paper No. 14-12 Zachary Dorner and Dean Hyslop Monash University and Victoria University of Wellington
13 Nov 2014working papers series 6 Downloads
|8|| AEP v. Connecticut's Implications for the Future of Climate Change Litigation Yale Law Journal Online, Vol. 121, 2011 Hari M. Osofsky University of Minnesota - Twin Cities - School of Law
05 Nov 2014Accepted Paper Series 5 Downloads
|9|| What the Public Trust Doctrine Can Teach Us About the Police Power, Penn Central, and the Public Interest in Natural Resources: A Tribute to Joe Sax Environmental Law, 2015, Forthcoming Robin Kundis Craig University of Utah S.J. Quinney College of Law
29 Nov 2014Accepted Paper Series 3 Downloads
|10||중국 토지공급체계의변화와 개혁과제 (China's Land Supply System and its Reform) KIEP Research Paper No. Policy References-13-02 Pil Soo Choi and Sungchan Cho Korea Institute for International Economic Policy and Independent
31 Oct 2014working papers series 3 Downloads
|11|| Monocentric City Redux Federal Reserve Bank of Kansas City Working Paper No. 14-09 Jordan Rappaport Federal Reserve Bank of Kansas City
22 Nov 2014working papers series 1 Downloads
Stephen R. Miller
Sunday, November 30, 2014
For my last guest post this month, I want to return to my primary area of research to date: American Indian land tenure. As I’ve written about here already, one of my primary interests is in thinking broadly about the many varied factors that influence landowners’ decision-making about how they use their lands. Our essential land tenure institutions are foundational in this sense and directly impact land use decision-making before anything like zoning or other direct regulation of land use even has a chance to take effect. Nowhere is the influence of the design of foundational property rights more apparent than in the land tenure relationships in the modern American Indian reservation, where significant swaths of Indian-owned lands are currently not used by Indian landowners themselves but instead sit idle or are leased to non-Indian users. In fact, I have a hard time imagining a property system better designed to discourage Indian prosperity on Indian land than the top-down system of property imposed on indigenous people in this country today.
In this post, I want to give at least an overview of some of what I think are the most important and influential aspects of American Indian land tenure and then talk just a bit about why I think further scholarly engagement in this arena would be incredibly valuable in a range of settings.
I. The Indian Land Tenure Challenge
To start, I appreciate that there is a wide spectrum of knowledge regarding the nuances of modern American Indian land tenure. For some of us, it’s just a mystery how land is owned and held within reservation boundaries. For others, the system is so complex that once we start to study it at all, conversations and work regarding indigenous land rights devolve into a level of generality that isn’t as productive as it could be. Thus, a significant part of my current research agenda is trying to do the deep work required to develop a really rigorous understanding of the modern property rights framework within this very complex reservation setting. This post won’t be able to do all of this work justice. Nonetheless, here is a brief overview.
Two of the biggest and most widely recognized challenges for Indian landowners are the federal trust status on many Indian-owned lands and the fractionation (or extreme co-ownership) conditions within many of those same properties.
Many, but not all, Indian-owned lands within federal Indian reservations are held in a special trust status over which the federal government acts as trustee for the benefit of the individual or tribal landowner. This trust status’s history is complex, but the important point for this purpose is that the trust status has been extended indefinitely and, to many eyes, appears to be perpetual.
This federal trust status certainly has some legal advantages—as evidenced, for example, by ongoing efforts by many Indian tribes to have additional lands taken into trust. The primary benefits include cementing a stronger case for exclusive federal/tribal (as opposed to state) jurisdiction over the space and also clarifying that state property taxes may not be imposed on that trust land. (The property tax issue is not quite that black and white. Many tribes still make special payments in lieu of taxes to state and local government in exchange for services and to help eliminate conflicts over fee-to-trust conversions.)
The trust status, however, also has significant disadvantages for Indian landowners. It is restrictive and extremely bureaucratic. The federal government exercises significant land management control, and most Indian-owned trust lands cannot be sold, mortgaged, leased, or otherwise developed or used without a formal approval from the Department of Interior after a cumbersome process of appraisals, oversight, and multi-level review. This trust system very dramatically increases the transaction costs for any land use and is often inefficient and even demoralizing for Indian landowners (not to mention extremely expensive for the federal government to maintain).
The second problem, fractionation, is closely related to the trust status issues. Fractionation refers to the fact that many individually owned Indian trust lands (often called allotments) are now jointly owned by many, many co-owners—sometimes as many as several hundred or more. Fractionation makes any kind of coordinated decision-making among all of these co-owners practically difficult and, as an individual co-owner’s interest size diminishes, reduces the likelihood that the co-owners will so cooperate. This then increases co-owners’ reliance on the federal government’s ongoing trust management role over these lands. All of these tiny interests, in turn, overwhelm the federal trust system, as evidenced by the recent Cobell class action litigation which uncovered the federal government’s gross inability even to account accurately for all of these small interests.
The federal government has explicitly acknowledged that this fractionation problem is a direct consequence of its own failed federal policies on Indian lands. For example, historic prohibitions on will writing for Indian landowners and the modern alienation restraints on Indian trust land have all exacerbated fractionation. Implementing any kind of solution to consolidate these small interests has been exceedingly difficult. This is true both because of the general idea that it’s much harder to reassemble property than it is to disassemble it and because of a host of other political, legal, economic, and even moral issues. Possible solutions do exist, and part of the Cobell settlement funds are currently going to fund a limited buy-back program that will purchase some individual small interests from willing sellers and re-consolidate them in tribal ownership. However, the general trend has been that any such effort at a solution moves so slowly and addresses such a small proportion of the problem that new tiers of fractionation outpace any improvements, with exponentially more small interests continually being created through further subdivision of already small interests over new generations of heirs.
While these two issues—the federal trust status and the fractionated ownership patterns—are complex enough, I don’t think they give a complete picture of all of the issues going on in American Indian land tenure. For example, in a piece called No Sticks in My Bundle: Rethinking the American Indian Land Tenure Problem that I’m currently wrapping up edits on for the Kansas Law Review, I argue that a third significant problem for Indian land use is the gradual elimination over time of any informal use and possession right for co-owners of Indian trust land. Although co-owners in any non-Indian tenancy in common would have a default right to use and possess their own jointly owned land presumptively and informally and without any prior permission from their other co-owners, that is not the case in fractionated Indian lands. Modern federal regulations have recently evolved to require Indian co-owners to get permission or a formal lease from co-owners before taking possession of their own land and also to pay those co-owners rent. I think preserving some route for direct owner’s use of jointly owned land is important and valuable, even in highly fractionated properties, and as noted, I am writing about this more here.
In addition, in another piece I’m currently writing and calling Emulsified Property, I am exploring the problem of uncertain and sometimes overlapping jurisdictional authorities within Indian Country as it relates to land use. This piece explores new dimensions of these property-related jurisdictional issues, but at a high level, the fact is that modern Indian reservation are uniquely plagued by a mind boggling array of unsettled, case-specific, or otherwise unresolved jurisdictional questions. Part of this stems from the fact that most reservations include not only Indian-owned trust lands but also fee lands, which might be owned by non-Indians, Indians of another tribe, tribal citizens, or the governing tribe itself. The state or local government is likely to assert jurisdiction at least over the non-Indian fee properties, but where that state and local jurisdiction ends, and when and if it overlaps with tribal or federal jurisdiction as well, turns on a complex balancing of multiple factors, depending on the type of jurisdiction being asserted. It continually shocks me (and my research assistants) how many unresolved questions there are in terms of who governs what in Indian Country. In my property law class, we often talk about the importance of certainty in property rules. So many of our social and economic institutions rely on having clearly established, easily communicated entitlements and responsibilities with respect to a given thing. In Indian law, there is often very, very little of that certainty.
This just scratches the surface of the American Indian land tenure paradigm, but it is already easy to see why land use is such a challenge in Indian Country. Despite significant reserved lands and natural resources, Indian people suffer some of the worst poverty in the United States.
II. Why It Matters
Now for my plug for why I think more of us should be engaging in this important work around Indian property and land use. Of course, immediately and most importantly, there is the compelling problem of justice and fairness for indigenous people, who suffer the consequences of these failed property systems most directly. The Harvard Project on American Indian Economic Development has found repeatedly that Indian people having the power and the liberty to make their own decisions with respect to their resources and their futures is the best and most effective solution to the persistent problems, including persistent poverty, in Indian Country. In many respects, it is the law that stands most in the way of this, and it will take legal minds to dismantle the current ineffective system. And legal minds who are uniquely interested in the transformative potential of property institutions are especially well suited to begin this task.
On another practical note, the problem of American Indian land tenure also matters economically for all of us. The federal government has acknowledged again and again that it using (wasting) incredible resources continuing to maintain this broken property system.
However, as land use legal scholars, there are other important reasons to work in this rich area. I believe a sustained and careful understanding of these unique Indian property institutions, and the evolution of these property relationships through various federal land reforms over time, can help us address property and land use challenges not only in Indian Country but in other venues as well. Other scholars have sometimes analogized to Indian land tenure issues for this kind of purpose, but that work has sometimes lacked a real detailed and deep understanding of how complex Indian land tenure issues actually are. However, with more careful analysis, there could be very fruitful comparative work. Let me give just two immediate examples, both of which I'm just beginning to work on.
First, the co-ownership institutions in Indian Country are unique, but the fractionation (or heir property) issues are not. Paying attention to the default co-ownership rules for individually owned Indian lands can help us learn about and address co-ownership challenges in other settings—such as the role of default co-tenancy rules in balancing flexible use arrangements with land preservation strategies for at-risk communities. It can also inform property theory and practice on how co-ownership institutions can best be designed to promote coowner cooperation and efficient use of resources more generally, how anticommons properties actually work, and what methods are most useful to re-aggregate overly fractionated property rights.
Second, I am also excited about how learning from indigenous land planning practices across multiple potential stakeholder jurisdictions within a given reservation (i.e., local municipalities and county governments, state governments, federal governments, and the tribe itself) may translate to inform other work on moving land use planning more generally to more regional, cross-jurisdictional models. Cooperation among multiple levels of government is a persistent challenge in efforts to plan more broadly on a regional, resource-based, or ecosystem level, and yet almost any natural resources or planning person would tell us that this is the kind of decision-making we must do. These kinds of jurisdictional conflicts are being addressed at the reservation level on an ongoing basis, and work on indigenous planning may teach us a lot about how we can plan across jurisdictional boundaries in wider settings. (This is not to suggest that there is a broad literature on indigenous planning or land use issues within reservation legal settings that already exists. There is not. However, for anyone looking to start to review the literature, I recently read an interesting dissertation on comprehensive planning on American Indian reservations and on the Oneida reservation in Wisconsin specifically by Dr. Rebecca Webster, a former law school classmate of mine, that provides a nice place to start and can be found here.) The challenges of planning within a reservation are different and, in some ways, arguably even more complex than the challenges of regional planning generally. Notably, within reservation boundaries, jurisdictional uncertainty may increase concerns about any decision that would jeopardize a future case for asserting jurisdiction, and there are long conflicted histories between neighboring sovereigns. Still, it is a comparison I hope to continue to explore.
This long post only barely skims the surface of all the rich and fascinating land use issues at play in American Indian land tenure. Please consider this an invitation to reach out any time for further discussions on this subject. I would love to continue to engage with more colleagues in this critical subject area and to build more critical learning connections across subject areas and disciplines.
Thanks again for the opportunity to discuss this and other issues here this month.
- Jessica A. Shoemaker
November 30, 2014 in Community Economic Development, Comparative Land Use, Comprehensive Plans, Economic Development, Federal Government, History, Local Government, Planning, Property, Property Rights, Property Theory, Race, State Government, Zoning | Permalink | Comments (0)
Tuesday, November 25, 2014
California appellate court strikes down EIR for San Diego's land use-transportation plan under SB 375
In 2008, California enacted the Sustainable Communities and Climate Protection Act, typically referred to as SB 375. SB 375 required regional planning agencies to draft plans that would, in effect, reduce GHG emissions by linking land use and transportation planning. At the time of passage, many wondered whether SB 375 would have any real effect on land use patterns because there was no legal hook in SB 375 to mandate compliance for regions that didn't meet the strictures of the law. The question remained, though, whether California's environmental review statute, the California Environmental Quality Act, might still prove a means of enforcement for SB 375 through its mandated environmental impact report (EIR) process.
Yesterday, in Cleveland Nat'l Forest Found. v. San Diego Ass'n of Governments, No. D063288, 2014 WL 6614394 (Cal. Ct. App. Nov. 24, 2014), the California Court of Appeal held that the EIR for the San Diego region's SB 375 plan was inadequate under CEQA. Although the case will almost certainly head to the California Supreme Court, the decision is huge for the future of SB 375. If the case is appealed and the California Supreme Court upholds the Court of Appeal's decision, CEQA will seemingly provide a legal remedy for failure to comply with SB 375. If that is the case, the country may have its first, enforceable land use law that links land use and transportation planning to reduce GHG emissions. Ultimately, we will have to wait for the inevitable appeal to the California Supreme Court. In the meantime, here is a link to the decision and the court's summary of its decision is below:
The following is a guest post from John R. Nolon, Pace Distinguished Professor and Counsel to the Land Use Law Center at Pace Law School.
One of the clinical activities of the Land Use Law Center at Pace Law School is hosting a bimonthly meeting of the corporation counsel of twelve cities, whose mayors we gather quarterly to discuss and resolve issues pertaining to urban redevelopment. We call the latter the Mayors’ Redevelopment Roundtable and the former the Corporation Counsels’ Roundtable and we serve both as adjunct counsel, along with our students.
At a recent meeting of the Corporation Counsels’ Roundtable, the municipal attorneys asked us to help them think through whether and how to regulate AirBnB rentals. Some of their mayors think it is a good initiative and others were worried about the adverse effect that AirBnB might have on buildings and neighborhoods. The lawyers wanted some guidance, so we wrote the following draft memorandum. It is a work in progress, submitted to the Land Use Law Profs Blog with the hope of generating some additional advice on the options local governments can consider as they encounter problems with AirBnB. I am happy to take such suggestions off-line at firstname.lastname@example.org.
AirBnB, part of the sharing economy, describes itself as a pioneering home rental service that allows homeowners to list their residences for short-term occupancy by visitors who stay for typically short durations. Owners of apartments and condos, even commercial buildings, are allowed to list their space as well. Occupancy is arranged through the internet, fees paid, and the parties connected. So far, AirBnB occupancies have largely escaped local land use regulation.
The occupancy of space for short-term rentals is a land use that is contemplated in bed and breakfast, transitory housing, and hotel and lodging regulations under traditional zoning codes. Such occupancy in single-family homes, condos, apartments, and commercial building raise legal issues. Are they illegal? Should violations be enforced? How? Should they be legalized? If so, how?
Single-family and multi-family dwellings, under zoning, are regulated as permanent housing where each unit is occupied by a single family. Such dwelling units may be rented, but for permanent occupancy by individual households. Zoning, generally, does not concern itself with whether units are occupied by fee owners or renters for a term. It does, however, concern itself with whether occupancy is permanent, and hence more stable, or temporary, which can create adverse impacts in single-family neighborhoods and apartment buildings.
In the definition section of a typical zoning code, a dwelling unit will be defined, setting the stage for regulating occupancy. One code that we work with regularly defines a dwelling unit as a unit “containing complete housekeeping facilities for only one family (emphasis added).” That same definition states, “The rental units/rooms in a boardinghouse, dormitory, motel, inn, nursing home or other similar building shall not be deemed to constitute ‘dwelling units’”. Separately, a “family” is defined “as any number of persons related by blood, marriage or adoption, or any number of persons who are not so related living together as a single nonprofit housekeeping unit, using all rooms and housekeeping facilities in common and having such meals together as they may eat at home….” These definitions point toward permanent occupancy of a dwelling unit by a single family, not the rental of rooms to unrelated persons who come and go over short periods.
In New York, the Multiple Residence Law, which applies to cities under 325,000 in population, makes clear that residential occupancy is divided between permanent and transient occupancy; it divides dwellings between Class A, for permanent residence, and Class B for temporary or transient residence and regulates them accordingly. A recent report from the Attorney General in New York indicates that over 70% of recent AirBnB rentals in New York City involved the rental of an entire home or apartment for less than 30 days in Class A multiple dwellings or in non-residential buildings. These are deemed by the Attorney General as illegal under the Multiple Dwelling Law, applicable to cities over 325,000 in size, and the New York City Administrative Code.
One likely analogue for regulating short-term, transient rentals of the type fostered by AirBnB is how zoning treats bed and breakfast operations. Bed and breakfast lodgings are a land use often permitted by local zoning codes as a conditional use, subject to various standards and fees, which vary greatly depending on the type of community or neighborhood involved. Zoning may require a certain lot size, limit the number of guest rooms allowed, subject operations to periodic inspections, and require that only a certain percentage of a building be used for the B&B operations, among other requirements.
The New Rochelle zoning code defines bed and breakfast operations as follows: “The renting of not more than three rooms in an owner-occupied dwelling for lodging and serving of breakfast to not more than six casual and transient roomers, provided that the renting of such rooms for such purpose is clearly incidental and subordinate to the principal use of the dwelling.”
Since the AirBnB model does not fit easily into this type of definition, municipalities are struggling to figure out new types of regulations that fit. Under proposed rules in Portland, residents who wish to rent one or two rooms of their primary, single-family residences would be required to obtain a two-year permit, pay a fee of $180 and undergo a home inspection and notify adjacent property owners. Short term rentals of apartments, condos, and commercial spaces are not included in this proposal.
San Francisco’s Board of Supervisors recently voted to adopt regulations that require permanent residents to secure a business license from the city, to show that they have occupied their homes for 275 days out of the last year, with a limit of 90 days of occupancy permitted by AirBnB customers. Landlords are prevented from evicting current tenants to create makeshift hotels. The regulations are being challenged in court and do not take effect until February.
The regulation of AirBnB rentals joins wind turbines, various types of solar energy facilities, geothermal heating and cooling, distributed energy systems, urban farming, xeriscaping, and a host of other new technologies that raise zoning issues. Since, in most cases, they were not contemplated when municipal zoning ordinances were adopted, municipal attorneys and those who represent affected stakeholders are being challenged to reconsider, rethink, and redraft the rules that regulate these emerging technologies. Zoning, now nearing its 100th year, while showing its age, is being rejuvenated as these matters are taken up and resolved.
In each case, it is strategic to figure out how to define the innovative land use involved and then to decide how to regulate it as a principal, accessory, specially permitted, secondary, or prohibited use under the code. How should AirBnB rentals be defined? Is an AirBnB rental a single use, subject to a single definition, or does its insinuation into commercial, multifamily, hotel, and other spaces call for multiple definitions and multiple treatments under zoning regulations?
Monday, November 24, 2014
This post is part of a series based upon my experience as a planning commissioner.
Last month, I was reviewing staff reports in preparation for a planning commisson hearing and saw something I'd never seen before: buried in a public comment was a YouTube link that promised a personal tour of the site in question. I clicked on the link, but alas, the commenter apparently had decided to take down the video as it was no longer available. I did not have a chance to view the link, as a result, but that experience got me thinking:
...why don't staff reports have YouTube videos? One of the major issues with staff reports is the unreliability of photos. What is on the other side of the street from the photo? A video would tell a lot more. Most staff reports these days are digital, anyway, and so embedding a YouTube video would not be onerous.
...why don't more public commenters use video to illustrate the site? With the ready availability of iPhone videos and YouTube postings, why haven't videos become more common in public commenting? Or have they?
...might the inclusion of videos in public commenting create interesting administrative record issues? For instance, if there is a link to a video in a public comment, the planning commission relies on that video in its decisionmaking, and then the video disappears off of YouTube controlled by the private entity, who is responsible for making such videos part of the administrative record?
...what other issues might arise with the introduction of video into planning commission meetings?
I'd love to hear experiences from others out there. Is this something that is common at planning commissions now? Have any cities written code or regs governing video evidence or testimony at planning commissions?
Stephen R. Miller
Wednesday, November 19, 2014
It's been about a month and a half since I last posted to the LUPB, but nobody's changed the password on me, so I guess I'm still welcome! For those few of you who might have been following my career since I left UGA, I'm finally about to open my own practice in Northern Colorado. Also, following the path of Fair Shake Environmental Legal Services, about which I have blogged a bit in the past, I hope to open a law firm incubator for young lawyers who want to do land use and environmental practice in the West.
I've started my own blog about what I'm up to nowadays - I hope some of you will check it out. And, from time to time I'll still check in here (as long as ya'll will let me).
Jamie Baker Roskie
Tuesday, November 18, 2014
On this theme of public participation in land use planning and creating community-driven solutions to ecosystem-level challenges, I want to take this post to share a bit more about a particular tool that I have been working on developing called Plainsopoly. Plainsopoly is a land use simulation “game.” Participants engage around a large game board made up of an image of a hypothetical landscape that looks similar to, but is not exactly, a real space within the Great Plains region. We call the hypothetical space of the game the “State of Plains.” The State of Plains is depicted on the board by an amalgamation of aerial images including the edge of a large city, several small towns, both irrigated and dryland farming areas, the foothills of a larger mountain range, sensitive sandhills habitat, a winding river, and a recognized federal Indian reservation. Participants play the game in small, randomly assigned groups of four to six people and are assisted by a table facilitator. Players roll the dice, move the game piece to a correspondingly numbered geographic square on the game board, and then answer and discuss an open-ended question that poses a specific land use challenge for that particular space.
The questions are intentionally wide-ranging. I developed the question set last year with invaluable input and feedback from a great and generous interdisciplinary group of law students, graduate students, professors, and other experts from across the University and beyond. We incorporated a range of disciplines, including law, planning, natural resources, applied ecology, business, and economics, and as a group, we worked hard to make sure the most difficult and provocative current land use challenges in the Great Plains are incorporated into the game. (Two of my students, Jerry Jefferson and Preston Peterson, were particularly instrumental in this process.) In the current question set, there are questions and challenges relating to urban growth; rural depopulation; infrastructure needs; drought and other climate issues; tourism; new energy siting, including fracking, renewables, and transmission line expansion; invasive species control; water quality and quantity; jurisdictional conflicts; and many other topics.
In addition to covering a wide spectrum of substantive issues, the questions are designed to touch on four bigger themes: (1) Values (values choices as reflected in land use), (2) Making Connections (who should make decisions about land use and land use planning and at what level), (3) Ecosystem Services (how public benefits from private land, especially environmental benefits, are valued and accounted for in land use ordering and landowner decision-making), and (4) Temporal Perspectives (which timeframe land use planners and landowners should consider in assessing the consequences of any land use decision). These four themes are not explicitly addressed during game play; however, the questions are designed implicitly to provoke thinking and dialogue around these larger issues.
This Plainsopoly project came about only because of Professor Alister Scott and his group’s original idea for a land use planning, decision-making, and visioning game that they call Rufopoly. Rufopoly is a game focused on the unique landscapes of the rural-urban fringe spaces of Europe, and the themes of our questions grew out of Professor Scott’s work with stakeholders in this context. In developing Plainsopoly, we collaborated closely with Professor Scott of the Birmingham School of the Built Environment in the United Kingdom and Professor Richard Wakeford, who is currently directing the Kazan Centre in Russia and was previously the Chair of the Organization for Economic Cooperation and Development’s Rural Working Party.
As many readers of this blog may know, the use of games or other simulation exercises is an area of increasing scholarly interest in a range of disciplines, including public engagement and political science studies, natural resource management and applied ecology, psychology, business, and behavioral economics. (For a few brief examples, particularly in the natural resources sector, you might look here and even here.) Although our Plainsopoly tool has been used purely for informal discussion facilitating at invited events to date, it may also have broader potential. My sense is that the game could be used to speed participants’ learning about complex land use interactions and may provoke a valuable period of self-reflection regarding resource and planning challenges across the region. As one participant in one of the Plainsopoly games at the Rural Futures Conference last year said, the game forced him to think not only about his “little piece of land” but also about everyone else’s lands around him: “I was forced to give opinions on what somebody else should do with their little piece of land. You have to challenge yourself at that point and say, if it’s good for them, maybe I have to relook at my opinion about others giving opinions about my land. It’s a very interesting way of taking a landowner and suddenly forcing me to reevaluate my position regarding my piece of ground.”
I have also found that the experience of engaging in a shared, civil dialogue around the game table on hypothetical (but still very realistic) topics that are otherwise highly charged and sometimes difficult to discuss (like private property rights, community planning, and actual land use conflicts) may have significant value in and of itself. There is something very provocative about talking about these actual resources issues in the context of just a slightly modified hypothetical game setting that seems to really liberate people to have a much more open and comfortable conversation on these issues. If we could effectively shape and harness this, I think games like Plainsopoly and Rufopoly could have very useful applications in assisting particular groups in solving real-world problems or developing consensus around specific planning challenges, and in an action-research model, these games might be used to help inform future policy making.
I’ve noticed two big themes in the few times we have played Plainsopoly to date. First, overwhelmingly, participants envision a land use future focused on a very long-term view of sustainability and a vast appreciation for the non-economic values of natural resources. At least in this hypothetical space, a vast majority of participants seem to prefer decisions that are not made based on short-term economic gains and that consider not just one square parcel of property but rather look to an entire region’s interlocking resource dynamics. Of course, in this game space, immediate things like grocery bills and retirement savings accounts do not exist, and the transaction costs of considering issues at a regional level are dramatically reduced. But still, how do we, or could we, translate what appear to be relatively broadly shared values like this into more actual community action?
The second major notable point of interest for me, so far, is implicit in how we designed the game, but it also comes up very often in participants’ reactions to the questions. This relates to the extreme breadth of the range of factors that potentially influence an individual landowner’s decision-making about how he or she uses his or her land. Often, we might think more simply of land use planning and zoning as the relevant forces; however, the game reminds us that so many different law and policy instruments influence landowners—including, as just a few examples, our crop insurance structures, property tax systems, and energy markets. A much harder issue is not only how do we develop a shared vision for the future of these shared spaces but, more importantly, how do we execute it? A persistent theme emerging anecdotally from the game play to date is the way in which top-down strategies have a host of unintended and mix-matched interactions that complicate decision-making and implementation at the ground level. How do we better coordinate these influences?
Happily, we have the opportunity to explore the potential of games like Plainsopoly and Rufopoly to address these and other issues in a more concentrated way over the next year or so. We are just embarking on a new partnership with Professor Scott and several others on a Knowledge Exchange Opportunities grant that we just recently learned has been approved from the Economic and Social Research Council (ESRC) in the UK. The goal of the new grant is to learn from the existing models of Rufopoly and Plainsopoly and another sister game in Sweden and think intentionally about all of the possibilities of this kind of planning, visioning, and decision-making tool. One end goal is to try to develop a flexible resource kit that maximizes the potential of these tools to assist in planning processes and that hopefully is adaptable to a range of settings.
As I am entering this new work, I’ve become an eager student of some new areas of scholarship. For example, I’ve been doing some great reading on critical planning theory as it relates to whether we currently include all of the relevant voices in our typical planning processes and how, if we did achieve greater inclusiveness, such careful collective decision-making about the future of our shared spaces may be powerfully transformative. I have also been looking at the work of others on effective and innovative new governance models. This list includes, for example, Professor Beth Noveck and The Governance Lab at NYU; the procedural justice and group engagement work of Professor Tom Tyler; and the thinking on deliberative democracies and the capacity for informed “bottoms up” decision-making by Professor James Fishkin and the Center for Deliberative Democracy at Stanford. It’s all fascinating stuff, which I also read with a healthy and growing awareness of the potential framing influence of the person who poses the questions – as reflected, for example, in the “nudge” work of Professors Cass Sunstein, Richard Thaler, and others.
I would more than welcome any other thoughts, comments, or ideas as we embark on further work on this endeavor. I’m eager to see where it takes us.
(This last picture has nothing to do with the game, per se, but it's my little girls running in a preserved prairie not too far from our house. One of many special places in the Great Plains worthy of some intentional thinking for its future.)
- Jessica A. Shoemaker
The municipal elections concluded in British Columbia on Saturday night. As I watched the results roll in for my region of Greater Victoria where we have 13 municipalities and a large unincorporated rural area I was unconsciously tallying what kind of leadership would be at the table over the next four years (this will be the first four year local government election cycle in B.C.) to champion the adoption and implementation of the new Regional Growth Strategy (RGS). The current regional plan, renamed for the current process as the Regional Sustainability Strategy, has been surprisingly successful over the past decade - over 90 percent of new development has occurred within the awkwardly named Regional Urban Containment and Servicing Area - due to a number of factors that include a relatively low rate of growth (just over 1 percent), a provincial agricultural land protection regime that limits development on farmland, rural areas that want to stay rural, urban areas that agree to densify to an extent, and available land within the urban containment boundary for a variety of new uses. Metro Vancouver's Livable Region Strategic Plan and new plan Metro Vancouver 2040: Shaping Our Future mirrors this success in a much faster growing region that is more significantly geographically constrained by oceans, mountains and the agricultural land reserve.
Part 25 of the Local Government Act, enables the local government growth management regime in B.C., the centrepiece of which are these RGS's. As I describe the purpose and effect of RGS I am sure you have heard if before: a regional board may adopt a RGS to guide decisions on growth, change and development. The purpose of a RGS is to “promote human settlement that is socially, economically, and environmentally healthy and make efficient use of public facilities and services, land and other resources” (section 849). A RGS must cover a twenty-year period and must include a comprehensive statement on the future of the region, including the economic, social, and environmental objectives of the governing board in relation to projected population requirements for housing, transportation, regional district services, parks and natural areas, and economic development. It is an agreement between the local governments (municipal and regional) in a region and should work towards a wish list of smart growth goals: avoiding urban sprawl, ensuring development takes place where adequate facilities exist, settlement patterns that minimize the use of the automobile and encourage walking, bicycling and public transit, protecting environmentally sensitive areas, etc. (s.849). Individual municipalities bring their comprehensive plans, called official community plans (OCP), into conformance with a RGS by including a regional context statement in the OCP stating how it will become consistent with the RGS over time (s.866). The bottom line is that these are voluntary plans that have a circuitous impact on local comprehensive plans, which means they are tenuously binding. [And I will not go into the courts' recent treatment of whether or not bylaws are consistent with local and regional plans in this post. I will save that for my next post on the Death of Community Plans].
However, interestingly last time I looked all RGS' in B.C. have urban growth boundaries. They may not be in the right place from a planning perspective, they may simply follow the lines of our provincial agricultural land protection zone, or they may mirror the jurisdictional boundary between private and Crown land, but it seems that the language of urban containment is alive and well in B.C. A line on the regional map that is adopted into each municipal official community plan is also the best type of policy to have in the RGS because it is clear and there is no discretion in its interpretation. Municipalities agree not to extend water or sewer service beyond that urban containment line except where needed to address public health or fire suppression needs.
In contrast, the relatively recent Ontario regime called "Places to Grow" involves provincially-imposed land use plans that were motivated by untenable increases in infrastructure, primarily road, costs in the Greater Toronto region around Lake Ontario. The foundation is the Places to Grow Act, 2005 that allows for the identification and designation of growth plan areas and the development of strategic growth plans. The Growth Plan for the Greater Golden Horseshoe 2006 establishes the modest goal of 40 percent of all residential development occurring annually within designated built up areas, and meeting intensification targets for density based on predicted growth rates for each municipality. Municipalities must achieve intensification and meet intensification targets through their official plans and other documents. The Minister of Public Infrastructure Renewal has established a built boundary for each municipality, and urban growth centres are identified to take much of the new growth.
The growth management regimes in B.C. and Ontario are an interesting long term study in different legal approaches. In B.C. each RGS is an awkward negotiation between urban and rural municipalities that is facilitated by a regional government. One could argue that such a structure would lead to agreement on the lowest common policies. However, whether unwittingly or not, several of the RGS have proven to be remarkably effective in relation to urban containment. In Ontario the provincial government controversially imposes intensification targets and built boundaries in very large regional plans (the Greater Golden Horseshoe is many hundreds of kilometres deep and wide). Although mandatory and imposed by the provincial government, which raises the ire of local councils, the growth management targets are modest. Perhaps I am spoiled with our 90 percent urban containment rate here in Greater Victoria, but in a North American context intensification of 40 percent is seen as a gold standard as evidenced by the American Planning Association awarding the Daniel Burnham Award for a Comprehensive Plan to the Growth Plan for the Greater Golden Horseshoe (apparently the first time the award has been presented to an organization outside the United States).