Monday, July 16, 2018

Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 8:  Hot Topics in Takings

by Jonathan Rosenbloom

Continuing Stephen’s line of inquiry, another hot topic in takings jurisprudence is whether a takings claim may be recognized against a local government for failing to adapt to climate change. Once the students review most of Chapter 5, I might ask them whether attorneys representing local governments should counsel those governments on potential takings claims based on the failure to adapt to climate change. While yet decided, these claims may have the capacity to result in massive damage awards and to encourage local action.

In Incentivizing Municipalities to Adapt to Climate Change: Takings Liability and FEMA Reform as Possible Solutions, 43 B.C. Envtl. Aff. L. Rev. 281 (2016), Professor David Dana (Northwestern) identified the following four potential takings claims against local governments based on the failure to adapt to climate change:

  • Inaction Claims: Takings claims against governments for failing to take action to adapt to climate change.
  • Ineffective Action: Takings claims against governments for taking adaptive actions that were insufficient to prevent property loss.
  • Counterproductive Action: Takings claims against governments for taking action that not only was ineffective in preventing property loss, but also caused greater losses than otherwise would have occurred.
  • Improper Diversion: Takings claims against governments for diverting the effects of climate change, such as flooding or fire, from one area/community to another, such that the latter area/community incurred greater property losses than it otherwise would have incurred, although the former area/community incurred less loss then it otherwise would have.

Id. at 285-86 (relying heavily on another excellent article, Christopher Serkin, Passive Takings: The State's Affirmative Duty to Protect Property, 113 Mich. L. Rev. 345 (2014) (Serkin argued that “passive takings” liability should be recognized whether a government acts or fails to act when it asserts regulatory control such that it is responsible for harm in the face of ecological change)).

Dana’s four potential takings claims set up a nice intellectual exercise for the students to explore the contours of the takings clause and whether it could fit a claim based on adaptation (Dana is skeptical of whether local action will change in the face of such a takings finding, see Dana, supra, at Section II). Compared to recent successes under federal substantive due process and public trust, see Juliana v. U.S., 217 F.Supp.3d 1224 (2016) (denying defendants’ and intervenors’ motions to dismiss), denying mandamus,In re U.S. v. U.S. Dist. Ct. for the Dist. Of Oregon, 884 F.3d 830 (2018), plaintiffs still, I think, have a way to go before not only finding success under the takings clause, but also encouraging or compelling local action on climate adaptation. Nonetheless, it is a developing area of takings jurisprudence and offers a good opportunity for students to explore the application of takings to new circumstances.

As a callous and inept federal administration fails to protect communities from a rapidly changing environment, local communities continue to suffer (see one of many federal administrative actions abandoning communities battling climate change, see, e.g. Christopher Flavelle, U.S. Disbands Group That Prepared Cities for Climate Shocks, Bloomberg (Dec. 4, 2017)). If local governments fail to address more-and-more foreseeable uncertain disasters, citizens will look for a remedy. And local governments just may be in the crosshairs.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin

Question 8:  Hot Topics in Takings [Miller | Rosenbloom | Nolon | Salkin]

July 16, 2018 | Permalink | Comments (0)

Tuesday, July 10, 2018

Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 8:  Hot Topics in Takings

by Stephen R. Miller

 

We are back from a summer break and continuing our series on contemporary issues in teaching land use, which follows the general arc of our new casebook.  In this set of questions, we dive into takings, which is also the basis of Chapter 5 of the book.  

In many ways, takings is probably the one thing students know will be covered in a land use law class.  Professors can choose how much they want to emphasize the subject, however.  A bread-and-butter approach would focus on the general categories of takings that you could find in any land use law book.

Our casebook also offers several opportunities to go further in depth in ways that also relate to several hot topics in takings.  I'll mention two.  First, we include Williamson County, which is still the primary case about ripeness of a takings claim.  However, this Fall, 2018 term, the U.S. Supreme Court will hear Knick v. Township of Scott, Pennsylvania, which presents the following question:

(1) Whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims; and (2) whether Williamson County’s ripeness doctrine bars review of takings claims that assert that a law causes an unconstitutional taking on its face, as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits hold, or whether facial claims are exempt from Williamson County, as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits hold.

While land use profs might have glossed over Williamson County in the past, they might choose to assign it this year in light of Knick.

In addition, an underlying issue in takings jurisprudence, which will likely rear its head again in coming years, is whether an agency action under review was legislative or administrative (adjudicative) in function.  To bring this hot topic to the fore, we include in our casebook a portion of Justice Thomas' statement in the Court's decision deny cert in the case of California Bldg. Indus. Ass’n v. City of San Jose, Calif., 136 S. Ct. 928, 928–29, 194 L. Ed. 2d 239 (2016) where he wrote as follows:

. . . Our precedents in Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), would have governed San Jose’s actions had it imposed those conditions through administrative action. . . .

For at least two decades, however, lower courts have divided over whether the Nollan/Dolan test applies in cases where the alleged taking arises from a legislatively imposed condition rather than an administrative one. See Parking Assn. of Georgia, Inc. v. Atlanta, 515 U.S. 1116, 1117, 115 S.Ct. 2268, 132 L.Ed.2d 273 (1995) (THOMAS, J., dissenting from denial of certiorari). That division shows no signs of abating. The decision below, for example, reiterated the California Supreme Court’s position that a legislative land-use measure is not a taking and survives a constitutional challenge so long as the measure bears “a reasonable relationship to the public welfare.” 61 Cal.4th, at 456–459, and n. 11, 189 Cal.Rptr.3d 475, 351 P.3d, at 987–990, n. 11; compare ibid. with, e.g., Home Builders Assn. of Dayton and Miami Valley v. Beavercreek, 89 Ohio St.3d 121, 128, 729 N.E.2d 349, 356 (2000) (applying the Nollan/Dolan test to legislative exaction).

I continue to doubt that “the existence of a taking should turn on the type of governmental entity responsible for the taking.” Parking Assn. of Georgia, supra, at 1117–1118, 115 S.Ct. 2268.

Given that the Court may well have a more conservative future, it will be interesting to see if this question about the character of governmental action should matter in takings analysis comes back in the coming years.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin

July 10, 2018 | Permalink | Comments (0)

Monday, June 18, 2018

CFP: Chapman Law Review 2019 issue on "The Commerce Clause and the Global Economy"

 

Invitation to Submit Articles for

Chapman Law Review's 2019 Issue provisionally entitled

“The Commerce Clause and the Global Economy

Chapman Law Review is pleased to invite article submissions on the theme: “The Commerce Clause and theGlobal Economy.” Publications will appear in a symposium edition, and authors will receive an honorarium.

With the growth of online retailers and the rise of the global marketplace, federal and state governments have beencharged with the task of navigating the waters of the global economy and its inevitable collision with the CommerceClause. In June, the United States Supreme Court is expected to render a decision in South Dakota v. Wayfair, Inc., inwhich South Dakota has asked the Court to reconsider its ruling in Quill Corp. v. North Dakota and allow states to requireout-of-state retailers that do not have a physical presence in the state to collect local sales taxes from their customers.Regardless of the outcome, this case has opened up a series of questions about the scope of the Commerce Clause in anincreasingly global economy—specifically the ability of state and local governments to regulate global economic actorsin order to protect communities against the adverse effects of globalization.

Article submissions may cover topics about aspects of the Commerce Clause and the Global Market, including (but notlimited to):

  • South Dakota v. Wayfair, and its overarching implications,
  • Quill Corp. v. North Dakota, and its survival or demise,
  • State and local government’s ability to regulate global economic actors, for example:
    • Should cities be able to ban big-box stores to protect local retailers?
    • Should cities be able to give hiring preferences to local residents?
    • Should states be able to ban the importation of products that will compete with locally produced goods?

Chapman Law Review has dedicated its written symposium issue to these timely questions. We are open to submissionswith other perspectives as well, related to this general topic. Chapman Law Review would be honored to publish yourwork.

Submission Information:

We are looking for papers at a minimum of 20 pages (with a suggested length of 25 pages). If you would like to apply toparticipate in the Symposium, please submit an abstract of no more than 500 words by June 30, 2018, to Carlos Bacio.A flexible deadline for the completed paper will be on August 27, 2018. The Chapman Law Review will be offering anhonorarium to authors who choose to write for the 2018 journal.

Although there is not a live symposium attached to this themed Issue, papers can resemble what one might submit for asymposium, and the Issue will be identified as a themed issue so that you may also designate it as such, if you wouldlike. Papers selected for this issue will be published in a special issue of the Chapman Law Review in approximatelyMarch 2019.

Thank you and we look forward to receiving your submission.

If you have questions, please contact Carlos Bacio, Senior Articles Editor, at bacio101@mail.chapman.edu.

June 18, 2018 | Permalink | Comments (0)

Thursday, June 14, 2018

Annual housing report shows divergence in wages and housing rents across the country

The National Low Income Housing Coalition's annual report, Out of Reach, presents some staggering data about how housing rental prices are diverging radically from wages, not just in big coastal cities, but all across the country.  Here is a part of the intro:

The 2018 national Housing Wage is $22.10 for a modest two-bedroom rental home and $17.90 for a modest one-bedroom rental home. Among the 50 states and the District of Columbia, the two-bedroom Housing Wage ranges from $13.84 in Arkansas to $36.13 in Hawaii. The five metropolitan areas with the highest two-bedroom Housing Wages are Stamford-Norwalk, CT ($38.19), Honolulu, HI ($39.06), Oakland-Fremont, CA ($44.79), San Jose-Sunnyvale-Santa Clara, CA ($48.50), and San Francisco, CA ($60.02).

A full-time worker earning the federal minimum wage of $7.25 needs to work approximately 122 hours per week for all 52 weeks of the year, or approximately three full-time jobs, to afford a two-bedroom rental home at the national average fair market rent. The same worker needs to work 99 hours per week for all 52 weeks of the year, or approximately two and a half full-time jobs, to afford a one- bedroom home at the national average fair market rent.

In no state, metropolitan area, or county can a worker earning the federal minimum wage or prevailing state minimum wage afford a two-bedroom rental home at fair market rent by working a standard 40-hour week. In only 22 counties out of more than 3,000 counties nationwide can a full-time minimum- wage worker afford a one-bedroom rental home at fair market rent. These 22 counties are all located in states with a minimum wage higher than $7.25. Higher minimum wages are important, but they are not the silver-bullet solution for housing affordability. Thirty-eight local jurisdictions have their own minimum wages higher than the state or federal minimum-wage, but all fall short of the local one-bedroom Housing Wage

June 14, 2018 | Permalink | Comments (0)

Tuesday, June 5, 2018

CFP: ABA Journal of Affordable Housing & Community Development Law seeking articles

From Tim Iglesias...

ABA Journal of Affordable Housing & Community Development Law 

Call for Papers

Abstracts due August 1, 2018

Drafts due October 1, 2018

The Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays exploring any of the Journal’s traditional themes: affordable housing, fair housing and community/economic development. Topics could include important developments in the field; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies. Articles and essays could analyze new issues, tell success stories and draw lessons, or explore problems and propose legal and policy recommendations. The Journal welcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words). 

The Journal is the nation’s only law journal dedicated to affordable housing and community development law.  The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at iglesias@usfca.edu by August 1, 2018. Submissions of final articles and essays are due by October 1, 2018.The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

June 5, 2018 | Permalink | Comments (0)

Monday, May 14, 2018

Save the date! Feb 18-23, 2019: Texas A&M: Preparing for Climate Change in the Planned and Unplanned City

This save the date from Tim Mulvaney at Texas A&M Law:

 

PLPR Conference @ TAMU-1 proof

May 14, 2018 | Permalink | Comments (0)

CFP: Georgia State Urban Studies Institute: Comparative Urbanism: Global Perspectives conference | March 7-8, 2019

CALL FOR CONFERENCE PAPERS

 

Urban Studies Institute | Georgia State University

Comparative Urbanism: Global Perspectives

 

Date and Location

March 7-8, 2019

Georgia State University, Atlanta, GA, USA

Theme

The purpose of the conference on Comparative Urbanism: Global Perspectives is to advance empirical and conceptual thinking on comparative urban research across the Global North, South, and East. Reflecting near a decade of tentative theorization and intense debate, the field of urban studies is awash with calls for more explicit comparative research that adopts a global perspective. Post-colonial critiques of North American and Euro-centric urban conceptualizations have done much to problematize the purportedly ‘universal’ experiences of the Global North and bring ‘ordinary cities’ and subaltern urbanisms in the Global South to light. However, disputes around the portability of theory between different urban worlds and attempts to theorize the ‘complete urbanization of society’ appear to have reached a stand-off, often with ideological overtones.

The Global East as Third Dimension

The conference aims to shake up this stalemate by introducing a third dimension: urbanisms of the Global East (especially the experiences of China, Japan, and South Korea), which are not easily reconciled with the histories or political economies of either North or South. Approaching urban studies through a comparative lens honed to cities in the Global North, South, and East is an increasingly important orientation because it shifts urban comparative gestures beyond comparisons within these (albeit complex heterogeneous) contexts towards rigorous analysis of urbanization between them. Reloading 'global urban studies' across these three worlds offers new empirical grounds for theory generation and presents a provocative intervention that can disrupt the ideologically polarized camps that characterize field at the present juncture.

Theory, Empirics, Methods, Policy

The conference will incorporate perspectives on urban development from the global urban North, South, and East in deliberations across a variety of sessions. These may take the form of theoretically-informed empirical comparison, conceptual reflections on the North-South-East construct itself, methodological challenges, or other critical approaches to a truly global comparative urbanism. The critical practice of comparison as a method for theory-building will form a substantive component of the conference, in addition to the insights realized through comparative research findings and policy analysis. This highly interdisciplinary event will encourage critical, open, and reflexive debate and lead to concrete outputs that will help define the future agenda for global comparative urbanism.

The Event

The 2-day conference will feature a variety of sessions from traditional research presentations and keynote addresses to moderated panel discussions and interactive workshops. Sessions will be structured to enable extensive time for discussion and debate, with special attention paid to facilitating on-going and near-future collaborative research, focused around target concrete outputs, including articles, special issues, and research symposia in international urban journals, as well as external grant funding proposals.

Keynote Speakers
We are delighted to announce our 3 keynote speakers:

  • Professor George Lin, Hong Kong University
  • Professor Ananya Roy, UCLA
  • Professor Kevin Ward, University of Manchester

 

Call for Proposals

To promote interdisciplinary discussion and debate, the conference will focus on three core prisms: Urban Development and Resiliency; Equity and Social Inclusion; and Sustainable Urban Environments. We welcome paper proposals on the challenges of global comparative urbanism from a variety of disciplinary backgrounds, especially those incorporating perspectives from the Global North, South, and East. Topics include, but may not be limited to:

  • Theoretical and methodological approaches to comparative urban research
  • The (global) urban commons
  • Urbanization and development
  • Inclusive housing policy
  • Urban social movements
  • Urban environments and public health disparities
  • Gentrification and neighborhood transformation
  • Global suburbanization
  • Comparative urban policy and law
  • Networked urbanism (e.g., global urban security, terrorism, health, food, etc.)
  • Policy mobilities
  • Climate change, sustainability, and urban resilience
  • Globalization, migration, and labor markets
  • Infrastructure governance, policy, and planning

Interested authors are requested to submit 500-600-word abstracts to urban@gsu.edu by August 1, 2018. Papers will be selected based on their fit with the conference theme and sessions. Participants will be asked to submit a first draft of their papers by February 15, 2019.

Accommodation Information:

The Urban Studies Institute has arranged for a block of rooms at the discount rate of $139/night from March 6- March 9 at Home2Suites. Home2Suites is located at 87 Walton St, in downtown Atlanta, close to public transit and Georgia State University, and a 10-minute walk to the conference venue. More information can be found at: http://home2suites3.hilton.com/en/index.html

++++++++++++++++++++

The Urban Studies Institute at Georgia State University conducts top-level urban research from a variety of disciplinary and interdisciplinary perspectives; offers an innovative and specialized interdisciplinary curriculum; and engages with stakeholders in metropolitan Atlanta and in other cities around the world. The Institute’s research agenda ranges from local to global, from urban theory to policy research, and is particularly geared to comparative urban approaches. Research themes emphasize urban economic resilience, inclusive development, and urban sustainability. The Institute is housed in the Andrew Young School of Policy Studies. For more information, visit  http://urbaninstitute.gsu.edu/

May 14, 2018 | Permalink | Comments (0)

Monday, April 2, 2018

Patricia Salkin on Contemporary Issues in Teaching Land Use: Question 7: How Do You Teach the Contract Transformation in Land Use Regulation?

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 7:  How Do You Teach the Contract Transformation in Land Use Regulation?

by Patricia Salkin

Rounding out new ideas in approaching the material in Chapter 4 as previously posted by my co-authors Stephen, John and Jonathan, one way to look at the chapter is from the perspective that everything is negotiable.  Yes, municipal land use regulations may include subdivision regulations that must be followed, but at the end of the day, developers and applicants are looking to get to yes on their projects.  Everything in this chapter ties back to the discussion in Chapter 2 and my August 2017 post about the economics of land use regulation. The bottom line is that applicants want their projects to be approved and the community wants certain protections from quality of life (tax burden, jobs, public infrastructure, affordable housing, etc) to the environment. 

Taken in this context, we can ask our students about conditions the government places on subdivision approvals.  Some are grounded in statutory authority and some are evolved from the common law.  For example, from statute we see the room for design flexibility and negotiation in conservation and/or cluster subdivisions.  In some states, like New Jersey, the applicant may choose to propose the cluster to help accomplish a community goal, and in other states like New York, the locality may require the submission of a cluster plat as part of the process. Discussing the economic and conservation benefits of subdivision design helps students to better grasp the benefits of more compact development as opposed to sprawl since it comes at a financial savings in infrastructure costs (e.g., less asphalt for one thing) and community amenities in terms of land left undisturbed (e.g., not physically built) for the aesthetic and environmental benefits.

The chapter then moves to a discussion of development agreements and community benefits agreements (CBAs).  This creative combination of statutory authority (minority of states have development agreement statutes) and common law (CBAs are based in private contract law) offers an opportunity for much policy discussion and small group skill development around negotiation and drafting of agreements. In prior years I tended to focus on the promise of development agreements as there seemed to be a trend towards statutory authorization.  However, it is still not the majority view.  More recently, I have emphasized the value of the CBAs.  One key difference between the two is that the government is a party to a development agreement, but the government is not typically a party to a CBA, which is a private contract between the project sponsor and the community stakeholders.  The government need not recognize or give credence to a CBA.  For students who might not yet have taken classes in negotiation and/or mediation, the CBA introduces students to the concepts of finding out what each party wants or needs in order to get to yes.  It also provides a good opportunity to review 1L contracts issues (e.g., what is the bargained for consideration since the final project approval rests with the government who is not a party to the CBA; who has authority to enter into a binding contract for the neighborhood; who can enforce the contract; and what remedies are available for breach). 

There is a wealth of information about CBAs developed in the last decade on the Community Benefits Blog, and although it has not been updated in a while, the information is still valuable.  I understand plans are underway to provide more current content. A more recent index was prepared by The Public Law Center at Tulane and it can be accessed here

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin] 

April 2, 2018 | Permalink | Comments (0)

Thursday, March 29, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 10: Theoretical Underpinnings of the Paris Agreement and Corollary Benefits: A Series by John R. Nolon

This post is the final issue in a series. See below for links to previous issues.

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.

Theoretical Underpinnings of the Paris Agreement and Corollary Benefits

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

 

The Conference of the Parties in Paris called for Nationally Determined Contributions to climate change mitigation, embracing bottom-up state and local mitigation strategies. Surprising to some, this move is supported by sound theory emanating from many sources and disciplines.  These include, inter alia, the United Nations Environmental Programme (UNEP), the Intergovernmental Panel on Climate Change (IPCC), two Nobel Laureates (one in Physics, the other in Economics), two prominent law professors, and a sociologist. This blog series ends with a restatement of the theoretical underpinnings of Low Carbon l=Land Use and its corollary benefits, which transcend climate change and further demonstrate the wisdom of relying on local land use power.

The UNEP calls for the adoption of national framework laws for environmental protection. Such laws begin with a statement of goals and policies and create logical institutional arrangements among levels of government.  They create nested hierarchies of governmental agencies that coordinate responsibilities based on the competencies of each level of government.

The IPCC added a chapter on the relationship between the shape of human settlements and climate change mitigation in its Fifth Assessment Report, published in 2014, a year prior to the Paris Conference of the Parties. The chapter addresses the effects of urban growth on climate change, focusing on urban form, infrastructure, and land use mix. It notes that “areas with a high mix of land uses encourage a mix of residential and retail activity and that mixed land uses reduce the amount of Greenhouse Gasses by creating efficient use of energy and reducing vehicle miles travelled and auto emissions.” It recognizes that local governments are critical actors who shape these kinds of neighborhoods.

Yale law professor Robert C. Ellickson warns against the “Yale disease,” which he calls the propensity of his students to look entirely to federal laws and federal courts for solutions. He refers to the “principle of subsidiarity,” which holds that responsibility for dealing with a problem should be delegated to the most decentralized institution capable of handling that problem.   His instinct is supported by Nobel Laureate in Economics, Dr. Elinor Claire Ostrom. Her view of governmental strategies is that they should be “polycentric”. She warns against the “panacea effect,” which is akin to the Yale disease. She too would assign key decision responsibility to those who are as close to the scene of relevant events and to the actors involved. 

Law professor I. Michael Heyman, with whom we met when we founded the Land Use Law Center 25 years ago, headed the Smithsonian Institution at the time and was known to us as a former Professor of Law and of City and Regional Planning at Berkeley and former Chancellor of the University of California. We had just completed a study of the sustainability of the Hudson Valley Region and were deeply concerned about the damage to natural resources caused by sprawl: the result of land use plans adopted by over 200 constituent local governments. He suggested that, to foster sustainable human settlements, we build interconnected networks of local land use leaders, as he and others had done with the several communities that share land use jurisdiction in the Bay Area in San Francisco.

Nobel Laureate in Physics, Dr. Murray Gell-Mann, attended our meeting with Professor Heyman. He had just been dubbed the “man who knows everything” by the New York Times. Dr. Gell-Mann helped to establish the Santa Fe Institute, was on the board of the MacArthur Foundation, and had just published his book on sustainability, The Quark and the Jaguar. As a physicist, he based much of his thinking on the function of “complex adaptive systems” in nature and human communities.  His writings focused on how ecological systems and human communities adapt to stress and crises. He discovered that healthy systems are divided into components that communicate regularly and rapidly to sense impending threats and to determine how to respond effectively. Both he and Professor Heyman pointed out that the land use boards within the typical local government are not communicating effectively and need to be trained to do so. Similarly, local governments that share challenges regionally do not plan together, and thus have difficulty perceiving the threats of sprawl and developing strategies for responding.

All change related to land use manifests at the local level and it is there that land use plans and regulations need to be changed to reorder human settlements. Sociologists study how change happens. One term for what they observe is the “diffusion of innovation,” popularized by Dr. Everett Rogers. Diffusion, he notes, includes the planned and spontaneous spread of new ideas, such as methods of containing sprawl, or implementing measures to mitigate climate change. We adopted his notions in establishing the Land Use Alliance Leadership Training Program and selected local “champions of change,” as Rogers labels them, to attend our training program. We learned from Rogers that change happens when local champions reach out beyond their jurisdictions to peers and respected change agents to solve local problems, so we brought these resources into our training programs. When my Yale students explored why communities adopted exemplary local environmental laws they found out that most resulted from the work of community leaders reacting to damage to the local environment and they named these perturbations and called this the “perturbation effect.”

Shortly after we met with Professor Heyman and Dr. Gell-Mann, we started working with the City of Yonkers on the Hudson Park development, where we learned about the corollary benefits to the environment of transit-oriented development, a key climate change mitigation method. We knew that capturing the expanding population of the region in well-planned urban developments would counter sprawl, but we did not recognize the numerous other benefits of such projects.  Hudson Park is a compact, mixed-use development at the Yonkers train station: an express stop on the MetroNorth commuter rail line. The project was built at a density of 130 du/acre to create the ridership needed by the railroad. Compared to sprawling subdivision developments, Hudson Park reduces average per household impervious coverage by 96%, lowers per capita water use by 60%, and avoids disrupting wetland and watercourse environments needed for adaptation to climate change. At 90% coverage, Hudson Park paved over 36,000 sq. ft. per acre and at 130 du/acre that amounts to 275 sq. ft. coverage per household. The average suburban single-family home on a half-acre, in contrast, will create 8,000 sq. ft. of impervious coverage per household.

The conclusion here is that working at the local level on developments that mitigate climate change leverages many other environmental benefits. These include stormwater management, water conservation and quality, public health, and natural resource conservation. Paris and the IPCC adopted mitigation strategies supported by sound theoretical underpinnings and turned the attention of policy makers and critical actors to the local scene. Basing climate change management strategies on a sound local footing leverages a range of other needed changes. It takes advantage of that level of government’s significant legal authority, which is in the hands of champions of change who will not abide other environmental perturbations.

See Champions of Change:  Reinventing Democracy Through Land Law Reform

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

Post 7:  The Land Use Stabilization Wedge:  Sequestration

Post 8:  Distributed Energy

Post 9:  Community Power and Renewable Energy

 

 

March 29, 2018 | Permalink | Comments (0)

Wednesday, March 21, 2018

CFP: ABA Journal of Affordable Housing & Community Development Law: The Interconnections between Health and Housing

ABA Journal of Affordable Housing & Community Development Law

Call for Papers

The Interconnections between Health and Housing

For its next issue the Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays exploring the interconnections between health and the Journal’s traditional themes: affordable housing, fair housing and community/economic development. Topics could include creative housing developments; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies. Articles and essays could analyze new developments, tell success stories, or explore problems relating to issue such as affordable independent/assisted living, aging in place, or in-home care, and propose legal and policy recommendations.The Journal welcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words) on the theme. 

The Journal is the nation’s only law journal dedicated to affordable housing and community development law.  The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at iglesias@usfca.edu by April 15, 2018. Submissions of final articles and essays are due by May 1, 2018. The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

March 21, 2018 | Permalink | Comments (0)

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 9: Community Power and Renewable Energy: A Series by John R. Nolon

 

This post is the penultimate issue in a series. See below for links to previous issues.

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.

Community Power and Renewable Energy

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

 

Community power is an emerging tool for implementing renewable energy technology. It is also a metaphor for the power of local governments to further or frustrate that resource.  Historically, land use regulations were more of a hindrance than a help. In some communities, the soft costs of renewable energy facilities, including the expense of securing local approval for wind and solar energy systems, remained high while the cost of the systems declined. In others, these facilities were simply zoned out. This is changing and the pace of change is rapid. 

The Pittsburgh Zoning Code defines distributed energy systems to include “a range of smaller-scale technologies designed to provide electricity and thermal energy closer to consumers,” including renewable energy facilities. The source of power for Microgrids, which is incentivized by this zoning law, can be small-scale renewable energy systems, such as community solar systems and small- to mid-sized individual or clustered wind turbines or on-site solar panels.

Communities, like Pittsburgh, using their land use power, are mitigating climate change by defining the types of emerging sources of renewable power, permitting those sources in zoning districts, and some are requiring property owners to accommodate these sources or   creatively incentivizing them in a variety of ways.   The facilities supported by local land use laws can be called community power systems.

Distributed energy facilities are increasingly studied as part of land use planning, being called for in comprehensive plans, defined by zoning codes, and permitted in certain districts, either as-of-right, as accessory or secondary uses, or as special permitted uses. Larger, higher intensity systems can be permitted by zoning, but subject to protective standards. 

A few state legislatures have preempted local authority to regulate renewable energy systems, particularly large-scale projects that are subject to state agency regulation and licensing. But most mid-sized and smaller systems remain subject to local regulation under the plenary authority delegated to local government to control private development. This is understandable; the risks and impacts of energy systems are experienced first-hand locally by the residents of these communities.

When, for example, wind power companies first approach a community with a proposal to develop towers over 200 feet high, with blades nearly as long as a football field, neighbors naturally oppose them until their risks are understood and mitigated by regulation. Less dramatically, a proposal to cluster a few smaller towers to serve on-site needs or even a single wind turbine on a residential roof will meet opposition initially. Residents, particularly adjacent neighbors, are concerned about the noise, visual interruption, ice throws, the strobe effect, change of neighborhood character, and the consequent diminution of their property values. Since land use laws are based on intense democratic participation by the public, these risks have to be examined and, where they are well founded, reduced or eliminated.

Local governments typically begin the regulatory process by doing studies of wind generation systems, exploring both the risks and benefits, and memorializing their findings in a comprehensive land use plan amendment or adopting a land use policy.  They then define various types and sizes of wind energy systems and prohibit them in inappropriate locations and permit them in others, with needed safeguards.  These laws create spacing and set back requirements, limit or buffer noises, require aesthetic controls, and impose regulations on noise levels, viewshed interruptions, heights, location, size, lighting, color, or design. Some laws require local licenses and even provide for decommissioning.

Zoning for solar energy facilities proceeds in the same way. When the Land Use Law Center was retained to draft a model solar energy law for communities in New York, we started by working with industry representatives to understand the various types, shapes, intensities, and other characteristics of these facilities. We realized that building integrated systems are part of the structure itself and exempted them from land use regulation. Small scale roof-top and ground mounted systems were permitted as-of-right or as accessory uses, and larger scale systems were subject to special permits and site plan regulations.  

Most states have adopted the International Codes Council’s Energy Conservation Code as a baseline to conserve energy in new and substantially rehabilitated buildings.  State law in some states allows local governments to adopt enhancements to the state energy code that achieve even greater conservation. The New York State energy agency, NYSERDA, has circulated a draft “stretch code” that localities may adopt to strengthen energy conservation requirements locally.  Among its provisions is this: “New buildings shall comply with one of five standards including the use of on-site renewable energy with a total minimum rating of, for example, “not less than 1.71 Btu/hr/ft2…or 0.50 w/ft2 of conditioned floor area….”

NYSERDA has also promulgated the Unified Solar Permit (USP) to reduce costs for solar projects by streamlining municipal permitting processes. Local governments in the state may, and many have, adopted the USP. It applies to solar systems with a capacity of 12 kW or less that are not subject to architectural or historical review board approval, do not require a zoning variance or a special use permit, and that are roof-mounted, compliant with building and related codes, and meet mounting and weight distribution requirements.

Without assured access to the rays of the sun, property owners may be discouraged from installing solar panels because the cost of the systems may not be recouped over time if sunlight is diminished by development on adjacent parcels.  In most states solar easements or nuisance actions for blocking the sun’s energy are not recognized by common law. However, they can be created by local government regulation. Typically, these regulations require written and recorded solar easements that define easement dimensions, how the easement will terminate, and compensation for easement maintenance or interference, among other provisions. This is an especially viable technique when applied through subdivision regulations to new developments.

Some localities are requiring developers to install solar energy systems or, short of that, to make buildings solar ready. Other communities incentivize, rather than require, these solar facilities, typically by providing density bonuses for solar panels, solar readiness, and solar access easements.

Local governments have not yet fully transitioned from Zoned-Out to Zoned-In and fully facilitated community renewable systems, but the trend is definitely moving in that direction.

For solar power regulation, see Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation  

For wind power regulation, see Wind Power: An Exploration of Regulations and Litigation, https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1665&context=lawfaculty

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

Post 7:  The Land Use Stabilization Wedge:  Sequestration

Post 8:  Distributed Energy

March 21, 2018 | Permalink | Comments (0)

Wednesday, March 14, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 8: Distributed Energy: A Series by John R. Nolon

This post is the eighth in a series. See below for links to previous issues.

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.

Distributed Energy - Lost in Transmission

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

When President Trump announced his epic decision to withdraw the U.S. from the Paris Accord, he quipped that he was elected to represent the residents of Pittsburgh, not Paris. His clever alliteration was hugely ironic.  Pittsburgh has long been a leader in mitigating climate change, using its local land use power and democratic processes to reduce energy consumption and fossil fuel emissions.  The City’s zoning code, in fact, aggressively facilitates one of the most promising mitigation measures, that of promoting distributed, or on-site, power generation.

In a previous blog, we reported that the most recent EPA Greenhouse Gas Inventory estimates that residential and commercial buildings emit nearly 40% of domestic CO2, consume over 70% of the electricity produced in the U.S., and are responsible for over 40% of total energy used.  Shockingly, two-thirds of the fuel used to generate electrical power in the U.S. is lost as escaped heat at the point of generation and in transmission. Many of our electrical generation plants are located at sites far removed from where the power is needed: where people live and work and industry operates.  Much of the energy lost to generate electricity for the conventional power grid can be saved by on-site or distributed energy generation.

Pittsburgh, apparently unbeknownst to President Trump, is a model smart city. In response to the U.S. Department of Transportation’s Smart City challenge in 2015, the City developed a plan to create innovative, interconnected infrastructure that responds efficiently and affordably to the transportation and energy needs of local residents. It implemented SmartPGH: a plan to integrate multiple interconnected systems including a “grid of micro-girds” that generate electricity on-site, greatly reducing the energy lost in remote generation and transmission.  

The Department of Energy’s R&D Program defines a microgrid as “a group of interconnected loads and distributed energy resources within clearly defined electrical boundaries that acts as a single controllable entity with respect to the grid. A microgrid can connect and disconnect from the grid to enable it to operate in both grid-connected or island-mode.” Microgrids can capture the heat used to generate power by converting it to energy needed to cool and heat connected buildings. This is called Combined Heat and Power (CHP). 

Microgrids usually operate at the scale of multiple buildings, a city block, or a larger neighborhood and are, therefore, ideally subject to local planning and regulation. They can be prevented or furthered by land use standards. At the local level, on-site generation and CHP facilities cannot be developed if not permitted by local zoning. Pittsburgh used its delegated power to adopt zoning and land use regulations to enable microgrids to develop. The City Council amended its municipal code to add a Performance Point System that incentivizes sustainable development. It awards developers density bonuses for points that they accumulate by developing sustainably, including the development of distributed energy systems such as microgrids.

For zoning to permit or promote a land use, it must define that use and specify where it may be located and how it is to be regulated or facilitated.  In one of the first such definitions of its kind, the Pittsburgh Zoning Code says: “Distributed Energy Systems shall mean a range of smaller-scale technologies designed to provide electricity and thermal energy closer to consumers. These approaches include fossil and renewable energy technologies, micro-grids, on-site energy storage, and combined heat and power systems.” See Pittsburgh Zoning Code, Article VI Chapter 915, section  915.07C (7)

Pittsburgh enacted into law what the USGBC encourages developers to do to qualify for certification under the LEED-ND program.  That program points out that zoning can allow for district heating and cooling facilities, as well as solar and wind systems, to be installed in certain buildings or their sites; land use review protocols can be used to encourage owners to provide them, and density bonuses can be granted to provide a financial incentive for them.

As demonstrated here, many energy technologies and facilities cannot be built if they are not permitted at the local level by zoning.  Localities, like Pittsburgh, have the ability to incentivize energy conserving development through density bonuses and partnerships involving funds from local capital budgets.  Innovations in energy technology can be furthered and assimilated by an informed public that understands the seriousness of current problems and the feasibility of new solutions. Since zoning is required to be in conformance with a comprehensive land use plan developed with robust citizen participation, land use planning provides a valuable opportunity to engage and inform the public.

See Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

Post 7:  The Land Use Stabilization Wedge:  Sequestration

March 14, 2018 | Permalink | Comments (0)

Tuesday, March 13, 2018

Pace Law seeks graduate fellow / LLM applications for Land Use Law Center

The Land Use Law Center at Elizabeth Haub School of Law at Pace University in White Plains, NY is seeking a graduate fellow for next academic year. During the fall and spring semesters, the Fellow will work half-time with the Center on its cutting edge projects, while completing requirements for an LLM in Land Use and Sustainable Development Law.  Compensation for this position includes the full waiver of tuition and a modest stipend.  The School is ranked as one of the top three law schools in Environmental Law. The Land Use Law Center celebrates its 25th anniversary this year as one of the most active and well-known legal centers of its kind.  The Center has helped create frameworks for sustainable development, local environmental, and low carbon land use law and conducts research and field work in nearly all aspects of sustainable development, with current projects in public health, resilience, urban revitalization, gentrification, distressed property remediation, agricultural land preservation, renewable energy, watershed conservation, green infrastructure, green buildings, the sharing economy, and transit oriented development.

Please encourage interested 3Ls to consult the program’s requirements. 

Land Use and Sustainable Development LLM Graduate Fellow: https://careers.pace.edu/postings/4656

March 13, 2018 | Permalink | Comments (0)

Wednesday, March 7, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 7: The Land Use Stabilization Wedge: Sequestration: A Series by John R. Nolon

[This post is the seventh in a series. See below for links to previous issues.]

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.

The Land Use Stabilization Wedge: Sequestration

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

The green edge of the land use stabilization wedge is the biological sequestration of CO2.  It occurs within the vegetated environment: resources such as forests, pastures, meadows, crop lands, urban trees, and green infrastructure. These landscapes naturally absorb and store approximately 15% of domestic CO2 emissions. Perpetuating and expanding the sequestering environment is fundamentally a land use issue, one that is well within the capacity of land use law to address.  

The previous blog on transportation described how shaping human settlements to promote walkable, livable communities directly mitigates climate change by reducing vehicle miles travelled and energy consumed in buildings. Compact, mixed-use and sustainable neighborhood development promoted by land use regulations are, therefore, essential strategies for lowering emissions. Fortunately, they also promote biological sequestration. Such development attracts population growth to urban places by creating healthy neighborhoods for living, working, and recreating, which preserves existing open space in outlying areas.  One estimate calculates that doubling urban density alone would accommodate the entire projected population increase by mid-century, thereby saving an area the size of Connecticut – and all of its sequestering resources -- from development.

Strategies that create green infrastructure in developing and developed places, while adding marginally to sequestration, are necessary if urban communities are to attract additional residents and workers.  They are essential adaptive techniques as well. In developed cities, for example, tree canopies can be increased; green infrastructure added; urban gardens promoted; and buildings oriented to cool living environments, lessen the heat island effect, make cities attractive places to live, and soften the effects of higher densities

If urban places do not accommodate population growth, outlying lands become targets for residential and commercial development.  In these places, land-use law can be particularly effective in designating and protecting lands that sequester carbon. As suburban subdivisions are developed, they can be better situated into the existing vegetated landscape through thoughtful land use regulations. Furthermore, local governments can shape suburban and ex-urban land development to reduce land coverage and impervious surfaces, limit flooding, retain and add vegetation, protect community character, and prevent ground and surface water pollution. Together, such strategies limit development densities and tend to push population growth back toward developed centers and corridors.

Municipal governments in suburban and ex-urban areas have a long history of concern for the loss of open space and eco-system services to encroaching development.  Decades-old local open space preservation laws and programs yield a number of strategies that can now be employed as sequestration techniques These include standards regarding environmentally sensitive area designation, erosion and sedimentation control, grading, filling, drainage, soil disturbance, removal of vegetation, floodplains control, natural resource management, watershed, groundwater, watercourse, and wetland protection, landscaping requirements, ridgeline, steep slope, scenic resources, shoreline regulation, stormwater management, timber harvesting regulations, tree protection and canopy expansion, and the transfer of development rights from lands to be preserved to developable areas.

Most local environmental laws and natural resource protections of this type are enacted because of perturbations at the community level: the loss of a treasured viewshed, the gradual decline of visible open space, surface water or groundwater contamination, increased flooding, or the disappearance of treasured wildlife, among others. These disturbing influences motivate local stakeholders, and their elected officials to act to address their causes.  As a result, local governments are becoming increasingly reliable partners in the global effort to manage climate change. 

This comes at a critical time.  Local legal strategies that preserve and enhance the sequestering environment now have a place on the global stage due to the advent of Nationally Determined Conditions (NDCs) in the Paris Agreement of the 21st Conference of the Parties. NDCs include contributions to climate change mitigation adopted by local governments that can be counted toward participating countries’ efforts to achieve international climate mitigation goals.

See Managing Climate Change Through Biological Sequestration: Open Space Law Redux

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

March 7, 2018 | Permalink | Comments (0)

Tuesday, March 6, 2018

Mulvaney: Non-Enforcement Takings

Tim Mulvaney (Texas A&M) has a new article, "Non-Enforcement Takings," now available on SSRN.  Here is the abstract:

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution’s Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same “fairness and justice” grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly entitled to the Takings Clause’s constitutional remedy. Rather, it simply suggests that courts should resist the temptation to formulaically and categorically prohibit non-enforcement takings claims in favor of assessing those claims on the merits.

March 6, 2018 | Permalink | Comments (0)

Monday, March 5, 2018

The best law review article on California's housing crisis too few people are reading

If you want to read just one article that will explain to you the most significant problem for building housing in California, it should be Jennifer Hernandez's article, "California Environmental Quality Act Lawsuits and California's Housing Crisis," which was published in the Winter, 2018 edition of the Hastings Environmental Law Journal.  Hernandez is among a handful of leading CEQA lawyers in the state.  Her empirical article reviews all CEQA lawsuits in the State and offers a compelling conclusion:

[I]n recent years most CEQA lawsuits filed in California seek to block infill housing and transit-oriented land use plans, as well as public service and infrastructure projects in existing California communities. Most of the challenged projects are precisely the types of projects and plans that today’s environmental and climate policies seek to promote.  The most frequent targets of CEQA lawsuits typically are required to undergo a rigorous environmental analysis and public review process that takes 18 to 36 months or longer. This process involves an Environmental Impact Report and at least three rounds of public notice and comment before being eligible for approval by public votes of elected officials. Projects without the ample economic resources required to pay all costs (including technical and legal experts) are never eligible for an approval, and thus cannot be sued under CEQA. Even the types of infill projects most commonly sued under CEQA that are not ultimately sued must undergo three rounds of costly administrative proceedings: (1) local agency staff, (2) appointed planning commissions, and (3) elected city councils or boards of supervisors; planning commission and elected council or board approvals require majority votes from officials who are themselves elected and appointed based on majority votes from elections.

In other words, while CEQA remains an important and vital environmental tool, it has also become a tool abused to make urban housing projects--the kind needed to address the housing crisis--expensive and time-consuming to entitle even when no lawsuit is filed.  Several important charts from Hernandez's article are reproduced below, and tell a remarkable story.

 Most CEQA lawsuits are aimed at infill projects.

Screen Shot 2018-03-05 at 11.45.23 AM

 The greatest target of CEQA lawsuits are not typically environmental in nature; rather, they attack multi-family and condo projects.

Screen Shot 2018-03-05 at 11.45.33 AM

In LA, which is the region that has California's highest percentage of CEQA lawsuits, a staggering 70% of CEQA lawsuits target TOD / high density housing.

Screen Shot 2018-03-05 at 11.45.47 AM

 

CEQA lawsuits also have a racial and class component to them, as well.

Screen Shot 2018-03-05 at 11.46.00 AM

 

Screen Shot 2018-03-05 at 11.46.13 AM

All in all, if you want to understand the housing affordability crisis in California, you should drop everything and read Hernandez's article now.  As a former California land use and environmental lawyer myself, I can saw that Hernandez's article is the only thing I've read about the housing crisis in the Golden State that makes sense.  It provides a way to address key structural problems without doing harm to much of the innovative land use regulation that makes the state a place where people want to live. 

 

 

 

March 5, 2018 | Permalink | Comments (0)

Wednesday, February 28, 2018

APA issues principles for autonomous vehicle policy

Earlier this year, the American Planning Association released its list of principles for autonomous vehicle policy.  They are available here.   I though they were a valuable starting point for thinking about how this new source of transportation will affect land use decisions.  I have copied the list of principles below. 

Principles for Autonomous Vehicle Policy

Autonomous vehicles are a disruptive, society-changing technology, not just for and placemaking, but for employment; social engagement; mobility; and a range of physical, social, and economic factors. APA recognizes that the benefits are many, but smart public policies and effective local planning are necessary.

AV Policy Principles

APA has developed a set of policy principles designed to make it easier for decision makers to integrate AVs within the fabric of their communities through planning, design, placemaking, and infrastructure investments.

Key Principle

Principle 1: APA believes autonomous vehicle (AV) technologies hold the potential to offer a range of critical benefits for communities. To reap these positive benefits, it is essential to pursue strategies based on a shared mobility model. AV policies should promote and facilitate a shared mobility approach. This principle should guide planning and design approaches for AVs.

Policy makers must work to ensure appropriate regulatory and financial structures are in place to adequately support the effective deployment and of this technology and related infrastructure decisions.

Guiding Strategies

Legislative and regulatory policies aimed at advancing AVs through planning must be grounded in the following guiding strategies:

Mobility, Connectivity, Access

Principle 2: APA supports development and provision of mass transit or transportation utilizing automated and autonomous vehicle technologies, especially in managing first-mile and last-mile issues while improving safety, reliability and economic performance.

Principle 3: APA supports local planning efforts to reclaim public rights-of-way from the expected reduced space needed for AV travel (e.g. less parking, narrower lanes) for purposes within the public realm to provide public benefits. Specific attention should be given to re-introducing bicycle and pedestrian-only public rights-of-way and spaces as a way of improving both placemaking opportunities and AV performance.

Principle 4: APA supports efforts to eliminate or sharply reduce municipal and off-street parking requirements with the growing incorporation of AVs into the national transportation system and permit the re-use of parking structures as active land uses.

Principle 5: APA calls on the professional design industry in concert with local communities to ensure the future built environment, including streetscapes, accounts for automated vehicles (less/reusable parking areas, more curb space for pickup/drop-off, self-activated charging stations, etc.).

Principle 6: APA supports the further use of ride-sharing, given the joint use of vehicles reduces environmental impacts including noise, emissions, impervious surfaces for streets and parking, etc.

Social and Environmental Equity

Principle 7: APA supports efforts to share autonomous mobility as a service rather than encourage ownership of each vehicle individually such that universal mobility is brought closer to reality and the potential for zero occupant vehicle miles is reduced.

Principle 8: APA supports the ongoing evolution and use of automated vehicle technology for passenger vehicles and freight, given the technology has the potential to improve economic welfare and safety and maintain or improve environmental conditions.

Principle 9: APA supports efforts to research and address equity issues created by AVs; equity concerns include the rural-urban divide and the increasing suburbanization of poverty and how these will be impacted or exacerbated by AV adoption.

Principle 10: APA supports the development of green technology (vehicle-to-infrastructure or V2I) for automated vehicle infrastructure, given the infrastructure is consistent with environmental protection and has minimal or no new impact on nearby development.

Principle 11: APA recognizes that significant adoption of automated and autonomous vehicles will occur over a time frame measured in decades and that adoption rate will be unevenly distributed geographically. However, the technologies and systems necessary to support such vehicles must be universally available as early as possible to support pioneers and early adopters.

Principle 12: APA recognizes that most urban transit agencies are operating in a failing — or failed — business model which needs to be dramatically revised because mass mobility remains the key to equity and access for substantial portions of the population, especially in urban and suburban areas.

Energy, Sustainability, and Research and Development

Principle 13: APA supports the development of automated and autonomous vehicles with a strong preference for using alternative energy and sustainable tire technology and materials such that there is an overall reduction in energy consumption even if projections positing an increase in Vehicle Miles Traveled are accurate.

Principle 14: APA supports the development of vehicle-to-infrastructure (V2I) technology for passenger and freight modes as well as the facilitated transfer of goods between modes for improved security, reduced costs, and other benefits.

Principle 15: APA supports research and development efforts focused on creating a more sustainable transportation network resulting from the possibility of more compact development, reduced pavement requirements, improved vehicle performance, modified roadway maintenance schedules and equipment, and any other factors that contribute to an overall more sustainable transportation system.

Safety and Security

Principle 16: APA supports the Vision Zero construct and encourages the development of policies and technologies, including Vehicle to Pedestrian (V2P) technologies, to reduce or eliminate fatal vehicle crashes for all users of the transportation systems, but especially pedestrians/cyclists.

Principle 17: APA supports efforts to secure infrastructure (technology and roadways) to ensure the safety of users as well as the reliability of systems. To this end, APA encourages the use of open source, non-proprietary technologies.

Principle 18: APA supports the further development of vehicle-to-vehicle and vehicle-to-infrastructure technology to improve safety; however, information technology for security of personal identification information (PII) must be prioritized within the data security of vehicle operating systems.

Data and Decision Making

Principle 19: APA is supportive of strategies that create a policy environment friendly to innovation, while maintaining local control of public spaces and land use planning.

Principle 20: APA believes that having good and current data is crucial to decision-making by federal, state and local planning and transportation officials and encourages the development of a central data repository available to all.

Principle 21: APA supports a vibrant economy in part stimulated by research and technology and maintenance and operation of automated vehicle technology. Demand-responsive transportation networks are an example where "Big Data" can be used to promote personal mobility.

Principle 22: APA encourages the use of public-private partnerships (P3) for co-funding of technology and infrastructure to benefit the surface transportation system globally in ways that reduce or do not exacerbate the equity and affordability issues occasionally associated with P3.

Economics and Fiscal Planning

Principle 23: APA recommends that a thorough analysis of the fiscal mechanisms used currently to finance vehicle-related infrastructure investments which may be impacted by widespread adoption of AVs — parking structures, high-occupancy toll lanes, congestion-pricing, gasoline taxes, and similar strategies — to ascertain both long-term effectiveness as well as whether changes will affect the ability to repay current revenue-based borrowing.

Principle 24: APA encourages governmental entities at all levels to consider the effect of loss of current revenues derived from vehicle sales, service, ownership, fines and forfeitures, fees, and similar sources will have on budgets and begin to plan now for that eventuality. 

Principle 25: APA believes that AVs will create an ever-greater emphasis on the mobile economy where goods and services are delivered directly to the customer at the customer's place of choosing as well as while the customer is also mobile.

Principle 26: APA supports rethinking the role of public rights-of-way and considering them not so much as public space, but as a public utility which is priced accordingly.

Policy Recommendations

APA recommends the following near-term actions:

CREATE A STANDARDS ENTITY COMPOSED OF CROSS-SECTOR PARTNERS

Create a standards entity composed of industry, technology, university, and government partners to develop standards for interoperability and secure data communication.

INVEST FURTHER IN MASS TRANSPORTATION AND TRANSIT INFRASTRUCTURE

Invest further in mass transportation and transit infrastructure to support a mobility-sharing economy potentially centered on AV technology that provides access to all with respect to income, gender, race, and other unforeseen discriminators while reducing historically inequitable transportation decisions.

ADOPT LOCAL ORDINANCES THAT GIVE COMMUNITIES FLEXIBILITY TO RESPOND TO AVS

Adopt local ordinances that enable communities to be responsive to autonomous vehicles while providing flexibility to reclaim abandoned infrastructure for public use. APA, working with partners, should consider developing a model ordinance for states and localities.

CREATE MODEL STATE ENABLING LEGISLATION

Emphasis should be placed on creating model state enabling legislation to authorize localities to control public infrastructure for public benefits and fully implement sustainable land use policies that fully exploit the opportunities presented by the shared mobility model of AV adoption.

ADVOCATE FOR MAINTAINING LOCAL CONTROL OF PUBLIC SPACES AND PLANNING PROCESSES

Actively advocate for maintaining local control over public spaces and planning processes, especially those public spaces that may no longer be dedicated to vehicular travel and parking.

DEVELOP DESIGN GUIDANCE STANDARDS WITH PARTNERS

Work with partner organizations to develop a common set of guidance for the design of future buildings, public spaces, facilities, roads, highways, bridges, and other infrastructure.

DEVELOP FLEXIBLE PARKING POLICIES

Develop flexible parking policies that can allow for the reduction or elimination of certain parking requirements as AV market penetration increases.

ADVANCE POLICIES THAT ENCOURAGE SHARED MOBILITY STRATEGIES

Continue as a profession to further policies that encourage ridesharing and shared mobility strategies that address first- and last-mile issues.

DEVELOP AV-SPECIFIC LEGISLATIVE POLICIES WITH STAKEHOLDERS THAT ADDRESS VARIOUS LEGAL ISSUES

Engage with all stakeholders to develop for adoption legislative policies for AVs related to certification, licensing, training, and tort liability.

SUPPORT FUNDING FROM ACADEMIC INSTITUTIONS THAT ADVANCES AV RESEARCH

Support funding from public and private sectors as well as universities for ongoing research and analysis of the implications of AVs for urban placemaking and mobility planning.

CONSIDER AND PROMOTE AV SYSTEM STANDARDS

Convene an expert panel to consider and promulgate standards applicable to AV systems and networks that protect the privacy of all AV users.

STUDY THE FISCAL IMPLICATION OF AVS AT FEDERAL, STATE, AND LOCAL LEVELS

Study the fiscal implication to governments at all levels from the large-scale implementation of AV technology as it relates to the impacts on income streams currently derived from transportation taxes and fees; personal property taxation; parking fees and fines; and traffic violation fines, fees, and forfeitures to ensure that the public services and infrastructure currently funded by such revenues can continue to be funded consistent with the needs and opportunities of AV mobility.

These principles were approved by the APA Board of Directors on January 26, 2018.

February 28, 2018 | Permalink | Comments (0)

Monday, February 26, 2018

Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 7: How Do You Teach the Contract Transformation in Land Use Regulation?

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 7:  How Do You Teach the Contract Transformation in Land Use Regulation?

by Jonathan Rosenbloom

Stephen and John present two ways to approach the materials in Chapter 4 and the spectrum of potential coverage. The following falls in-line with either approach and can help illustrate what “contract transformation” can mean for developers, development, and communities.

On some level, Chapter 4 should baffle students. In that, by Chapter 4 students are familiar with and able to navigate zoning codes and what it means to build “as-of-right.” However, the tools set forth in Chapter 4 are, at times, an opportunity for staff, council, and developers to re-visit as-of-right zoning and question what would otherwise be a project built to code.

Students may find this mystifying. How can a city, for example, stop, alter, or a delay a developer from doing something as-of-right? Indeed, maybe it cannot. But how does a developer determine if a city acted ultra vires? Aside from resource-heavy litigation, there are not many ways. This, I think, begins to illustrate the importance and prominence of the tools in Chapter 4.

To illustrate this point, I might give my students a non-hypothetical, hypothetical in which a mixed-use building is constructed in the C-3 commercial district located in the “College Hill Neighborhood Overlay District” (see zoning map and code provisions, section 29-160) in Cedar Falls, IA (a quaint city of about 40,000 and home to University of Northern Iowa). As proposed the project includes commercial uses on the first floor and 83 residential units on the upper floors. The project is proposed without parking. The question is whether the parking meets the code.

Given the materials covered in the first three chapters, students should be able to figure out that pursuant to section 29-160(g)(2) of the code, C-3 districts in the overlay district do not require parking. Thus, parking for the project should satisfy the code.

Now, we can start to explore the importance of private contractual arrangements. Notwithstanding compliance with the zoning, this particular project was re-negotiated by city staff until the developer included 65 parking slots. The revised parking was approved by the planning and zoning commission.

Newspaper articles discussing the Council hearing report many fascinating quotes from those present. One, however, from the developer’s attorney is particularly on-point:

The fact is the code allows this project to occur without any parking. The applicant has tried to work with staff and tried to address some of the concerns of neighbors and this commission and has added 65 spaces to the project.

Council, however, denied the project finding the parking was still unsuitable. Overall, I think this problem provides a good opportunity to discuss the importance of the variety of tools in Chapter 4 that allow local governments and developers to negotiate to meet specific needs and concerns beyond the zoning code requirements. Further, it illustrates the dual tracks of zoning and the land use tools and the importance of negotiating in a system of “contract transformation.”

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin] 

February 26, 2018 | Permalink | Comments (0)

Tuesday, February 20, 2018

California CivicSpark program seeking applications

 

 
Presented by the Local Government Commission
 
Become A CivicSpark Partner!
 
CivicSpark, a Governor's Initiative AmeriCorps program, is now accepting project applications for the 2018-19 Service Year! The program is offering three thematic tracks: Climate (50 openings), Water (20 openings), and a new Opportunity Access track (20 openings) that will focus on affordable housing, alternative transportation, and rural broadband. 
 
Applications will be accepted in waves:
 
March 16th - First priority deadline
May 1st - Second priority deadline
 
Fellows will begin serving on projects mid-September 2018
 
If you are a local or state public agency, school or university, or a nonprofit and are interested in learning more about the program and having a Fellow support your agency’s work, register for one of our upcoming informational webinars. You can find more program details, including pricing and timing, on our website
 
"CivicSpark is a win-win-win! The Fellow receives experience and serves the community in a highly targeted way, and the Agency receives talented, energetic, and vetted young professionals. The community and many stakeholders benefit directly from this synergy.” - Sonoma County Water Agency Staff
 
Register for a Webinar to Learn More!
 
 Wed 2/28: 10am-11am
Fri 3/9: 9am-10am
Wed 3/14: 9:30am-10:30am 
 
CivicSpark is administered by the Local Government Commission in partnership with the Governor's Office of Planning and Research.  
 
Local Government Commission
 
980 9th Street, Suite 1700, Sacramento, CA 95814
Phone: 916-448-1198 • Fax: 916-448-8246

 

 

February 20, 2018 | Permalink | Comments (0)

Monday, February 19, 2018

John Nolon on Contemporary Issues in Teaching Land Use: Question 7: How Do You Teach the Contract Transformation in Land Use Regulation?

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 7:  How Do You Teach the Contract Transformation in Land Use Regulation?

by John Nolon

I cover portions of Chapter 4 in five sessions, and struggle, like Stephen, to teach the basics as well as how they build on one another. The crescendo that he creates is extraordinarily exciting, fun to teach, and a great challenge for his students.  I am considering travelling his steeper path the next time I teach, rather than the narrower one that my practice-oriented approach has followed. My “crescendos,” as it were, are much smaller in scale and less dramatic in scope than his.  There is some merit, however, in the gentler rise and fall of the road my students and I travel. One point of these blogs regarding our Land Use casebook is to present these choices for you to consider.

The traditional practice-related topics covered in Chapter 4 include the subdivision of land, site plan approval, cluster development, innovative techniques such as clustering and planned unit developments, exactions, impact fees, access to infrastructure, vested rights, and developer agreements.  In New York, all of the land use board actions that these techniques involve require environmental impact review, with its separate forms and regulations.

One small crescendo in my approach is to explore how the different land use boards relate to each other when multiple approvals are required.  Another is the relationship between land use approval and local capital budgets, state and federal transportation funding, and water and sewer districts.  Yet another is the relationship between the subdivision and site plan regulatory standards that local boards enforce as administrative agencies and the separate and specific mandate of the State Environmental Quality Review Act, which makes such boards the stewards of the environment and requires them to master and enforce 35 pages of regulations issued by the Commissioner of Environmental Conservation of the State.  Still another is the interplay between the forms required by the State for environmental review and the local forms crafted to solicit information needed for site plan or subdivision approval.

Traversing these small hills and keeping track of where we have been and are going has occupied my approach to Chapter 4 for many years.  I see a steeper trajectory and potentially better view from the top in Stephen’s.  He presents a valuable framework for assembling and understanding the aggregated techniques that go into large-scale urban projects. This has significant appeal. His dramatic crescendo and my smaller assents represent just one of the dozens of teaching dilemmas presented by so relevant, complex, varied, and textured a subject as Land Use Law.

 

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin] 

February 19, 2018 | Permalink | Comments (0)