Friday, October 6, 2017

CFP: Seeking articles for Spring, 2018 edition of Real Estate Review

I am close to putting to bed my first edition of Real Estate Review, which is very exciting!  I am now soliciting articles for the Spring, 2018 edition, which would need to be to me by January 16.  The topics can span the broad array of real estate practice, from land use to environmental issues to finance to project descriptions or analyses.  The tone can be academic or practitioner-focused.  Articles are typically 3,000-5,000 words.  Send me a proposal at millers@uidaho.edu.  With quarterly publication, it is a great way to get an idea out there fast, as the journal is published by Thomson Reuters and archived on Westlaw.

October 6, 2017 | Permalink | Comments (0)

Tuesday, October 3, 2017

New Website about Land Use, Resilience Justice, and More

Dear colleagues:

I'm excited to report that the University of Louisville's interdisciplinary Center for Land Use and Environmental Responsibility has a brand new website, http://louisville.edu/landuse.  In particular, the new website features a relatively new project of the Center: The Resilience Justice Project.  It aims to reform laws, public policies, and government programs and plans to improve the resilience (and decrease the vulnerabilities) of marginalized communities, such as low-income communities of color.  We know that marginalized communities bear disproportionate burdens of disturbances, disasters, and changes, such as recent hurricanes and storms, droughts, wildfire, housing foreclosure crises, climate change generally, and many more.  The Resilience Justice Project uses a new policy assessment tool that I developed last year in my work with The City Project in Los Angeles, while visiting at UCLA Law School, to evaluate policies, plans, and programs for their impacts on the adaptive capacities and vulnerabilities of marginalized communities.  The website also highlights other activities at the Center, including our mission, scholars, publications, associate curriculum and extracurricular opportunities, events, and news.  I welcome you to check it out and share any thoughts or feedback you might have to me at tony.arnold@louisville.edu.  Many thanks!  All the best, Tony Arnold

October 3, 2017 | Permalink | Comments (0)

California Governor Jerry Brown signs into law a landmark suite of 15 bills to address housing affordability

Last Friday, in what may be the single-biggest land use event of the year thus far, California Governor Jerry Brown signed into law 15 bills meant to address a variety of issues in California's housing affordability crisis.  The summary of the bills from the Governor's official press release is reproduced below.  

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Governor Edmund G. Brown Jr. signed into law today 15 bills to help increase the supply and affordability of housing in California. The measures provide funding for affordable housing, reduce regulations, boost construction and strengthen existing housing laws.

"These new laws will help cut red tape and encourage more and affordable housing, including shelter for the growing number of homeless in California," said Governor Brown.

The Governor signed the housing bills at Hunters View, an affordable housing project located in the Bayview Hunters Point neighborhood of San Francisco. The public housing project was recently redeveloped with the help of federal, state and private partners.

"This package has everything from A to Z - affordability to zoning," said Assembly Speaker Anthony Rendon. "It's not a magic wand, but it is going to put a lot of drafting tools, backhoes, hammers, and door keys to work. I'm proud of how the Assembly helped shape this package and of the real results it will deliver for Californians."

"No one should have to work three full-time jobs just to provide a home for their family," said Senate President pro Tempore Kevin de Le�n. "This bipartisan package by the legislature marks an historic step towards our goal of ensuring that every Californian has a place to call home."

"This combination of housing bills developed by the Legislature and Governor Brown address many of the issues that have taken a toll on the construction of housing in California," said State Building and Construction Trades Council of California president Robbie Hunter. "These bills will streamline decision-making and the environmental review process, thereby reducing costs, and they will add billions of dollars for new, much-needed affordable housing."

"The Governor's action marks an important shift in our state's housing policies toward a greater commitment to Californians struggling to keep a roof over their head," said Housing California executive director Lisa Hershey. "SB 2 and SB 3 provide an influx of funds to spur development of affordable homes, and AB 1505 allows localities to create more inclusive, mixed-income communities. Housing California looks forward to continuing the work our lawmakers have begun." 

"These new funds will replenish the state's proven affordable housing programs and jump-start many, many projects that are ready to get started and will make a real impact," said Jack Gardner, president and CEO of The John Stewart Company, which redeveloped the San Francisco Hunters View project. "At the same time, the regulatory changes will help get shovels in the ground and reduce the time and expense of providing critically-needed affordable housing for struggling California families."

The Governor signed the following bills into law today:

SB 2 (Atkins), the Building Homes and Jobs Act, establishes a permanent funding source for affordable housing through a $75 fee on real estate transaction documents. The fee is capped at $225 per transaction and exempts real estate sales. The fees would generate roughly $250 million a year, which would be split among state and local housing programs.

"We know what solves homelessness: homes," said Senator Toni Atkins (D-San Diego). "SB 2 will provide an ongoing infusion of funding that communities all over California need to build affordable housing, so they can help bring people off the streets and into safe homes with supportive services. It will also help provide housing for seniors on low, fixed incomes and struggling families. California's housing crisis is causing pervasive instability for individuals, families and communities. It will take continued hard work to solve the crisis, but our comprehensive, multifaceted package of housing bills is a good start toward restoring stability. I thank my colleagues who have contributed their great ideas, and I thank Governor Brown and our legislative leadership for making housing a top priority in 2017."

SB 3 (Beall) authorizes $4 billion in general obligation bonds for affordable housing programs and a veteran's home ownership program. SB 3 must be approved by voters next November.

"Senate Bill 3 gives California the opportunity to build $15 billion in much-needed affordable housing for working families, seniors, vets, and the homeless," said Senator Jim Beall (D-San Jose). "Together, SB 3 and the housing bills signed today represent a historic step to expand a limited housing supply and counterbalance the skyrocketing market that threatens our future and economy. More Californians will be able to live in the community where they work and spend less time on congested roads.'' 

SB 35 (Wiener) streamlines the approval process for infill developments in local communities that have failed to meet their regional housing needs.

"California just took a huge step forward to address our housing crisis - a crisis that is tearing our communities apart, undermining our environment and economy, and making it harder for families to succeed," said Senator Scott Wiener (D-San Francisco). "No one should be living on our streets, be forced into three or four hour commutes, or have to leave their community as their family grows because they just can't afford housing. These bills to streamline housing creation and fund new affordable housing construction won't solve California's entire housing problem - that will take years of hard work given how deep this crisis is - but today we are establishing a strong foundation for future housing efforts."

SB 166 (Skinner) ensures that cities maintain an ongoing supply of housing construction sites for residents of various income levels.

SB 167 (Skinner) increases the standard of proof required for a local government to justify a denial of low- and moderate-income housing development projects. (SB 167 is identical to AB 678.)

"Our housing permit process should not be a shell game," said Senator Nancy Skinner (D-Berkeley). "My bills, SB 166 and 167, tackle the 'Not in My Backyard' obstacles that too often keep needed housing from being built."

SB 540 (Roth) streamlines the environmental review process for certain local affordable housing projects.

"Access to housing is a basic human need," said Senator Richard D. Roth (D-Riverside). "That's why I am proud to have authored SB 540, which will incentivize and streamline housing construction to meet our state's dire housing shortage. California is home to one of the most expensive housing markets in the nation, with many folks unable to afford to rent or own a home. SB 540 is a commonsense measure that will remove the barriers to housing construction in the areas most in need, helping ensure this crisis does not continue to grow and families do not continue to struggle"

AB 72 (Santiago/Chiu) strengthens the state's ability to enforce laws that require local governments to achieve housing goals. 

"Housing should not be for the privileged few who can afford a place to live," said Assemblymember Miguel Santiago (D-Los Angeles). "Housing should be a right ensuring that any person who tries hard, works hard, and plays by the rules has the ability to sleep with a roof over their head. I'm thrilled that the Governor agrees with my legislative colleagues and I on this issue and I thank him for his leadership during California's current housing emergency." 

AB 73 (Chiu) gives local governments incentives to create housing on infill sites near public transportation.

"California is a large and diverse state, but one thing we all share is that we're living through the worst housing crisis in our state's history," said Assemblymember David Chiu (D-San Francisco). "With this historic package of bills, we begin to take on the affordable housing crisis that threatens our state's economic prosperity, deepens inequality, and increases homelessness. My deep thanks goes to Speaker Anthony Rendon for making housing a top priority, and to my Assembly and Senate colleagues for their tireless partnership. I also appreciate the engaged leadership of Governor Brown and his incredible team. Our work is not done, but we're making a down payment for our children's future, for people struggling to pay the rent or the mortgage or even to have a roof at all, and for our teachers, firefighters and other workers who can't afford a home in the cities they serve."

AB 571 (E. Garcia) makes it easier to develop farmworker housing by easing qualifications for the Farmworker Housing Tax Credit. 

"I truly want to commend Governor Brown, Speaker Rendon and Chairman Chiu for leading the charge to address our state's severe housing crisis," said Assemblymember Eduardo Garcia (D-Coachella). "I was proud to support this comprehensive package of bills, anchored around SB 2 and SB 3, which established a funding mechanism for these critical measures, and play my part advocating on behalf of rural Californian communities, like those in my district that have been historically underserved. AB 571 eases eligibility requirements for a state tax credit for developers to build migrant housing. Farmworker labor fuels our economies, yet these areas lack the necessary investments to spur growth and prosperity. These modifications to the Farmworker Housing Assistance Tax Credit Program, along with other programs established within this historic bill package, will help ensure the essential right to safe, affordable housing for more of our hard working families and veterans across California." 

AB 678 (Bocanegra) increases the standard of proof required for a local government to justify its denial of low- to moderate-income housing development projects. (AB 678 is identical to SB 167.)

"California is in the midst of an unprecedented housing crisis caused by a severe lack of inventory and new housing construction," said Assemblymember Raul Bocanegra (D-Pacoima). "I'm proud to have worked with many of my colleagues in the Legislature as well as with Governor Brown to help create more housing and make owning or renting in California more affordable by providing greater certainty during the project approval process at the local level." 

AB 879 (Grayson) authorizes a study of local fees charged to new residential developments that will also include a proposal to substantially reduce such fees.

"This has been a long time coming, and after a decade of falling behind 100,000 housing units a year we finally exercised the fortitude to move California forward," said Assemblymember Tim Grayson (D-Concord). "Though this package is not a fix all - it contains the first steps in the right direction. I want to thank leadership and the Governor for their work and vision on this issue." 

AB 1397 (Low) makes changes to the definition of land suitable for residential development to increase the number of sites where new multifamily housing can be built.

"No one should be denied a place to call home," said Assemblymember Evan Low (D-Campbell). "This housing package will help make our Golden State shine bright again."

AB 1505 (Bloom/Bradford/Chiu/Gloria) authorizes cities and counties to adopt an inclusionary ordinance for residential rental units in order to create affordable housing.

"The skyrocketing cost of housing is forcing millions of Californians to make stressful financial decisions every month just to keep the eviction notice off their front door," said Assemblymember Richard H. Bloom (D-Santa Monica). "Our housing problem is real and devastating to families, seniors, and young adults in communities throughout this state. Today's signing of AB 1505 ensures that real affordable housing is built so our teachers, grocery clerks, car mechanics, and retired seniors - those who we interact with every day and who make up the fabric of our communities - can also afford to live in our communities." 

"People shouldn't have to the leave the state in order to find affordable housing or achieve the American dream of home ownership," said Senator Steven Bradford (D-Gardena.) 

"Skyrocketing housing costs have squeezed California's working and middle class for too long," said Assemblymember Todd Gloria (D-San Diego). "I am proud to join the Governor and my fellow legislators to pass a historic package of bills that makes specific and tangible progress to give some relief to those struggling to pay their rents and mortgages. We have more work to do on housing affordability and I look forward to building on this year's achievements in the months ahead. Our goal must remain a roof over the head of every Californian at a price they can afford."

AB 1515 (Daly) allows housing projects to be afforded the protections of the Housing Accountability Act if the project is consistent with local planning rules despite local opposition. 

"The Housing Accountability Act fosters and respects responsible local control by providing certainty to all stakeholders in the local approval process, and preventing NIMBYism from pressuring local officials into rejecting or downsizing compliant housing projects," said Assemblymember Tom F. Daly (D-Anaheim). "AB 1515 strengthens the provisions of the HAA and provides courts with clear standards for interpreting the HAA in favor of building housing." 

AB 1521 (Bloom/Chiu) gives experienced housing organizations a first right of refusal to purchase affordable housing developments in order to keep the units affordable. 

For full text of the bills, visit: http://leginfo.legislature.ca.gov.

October 3, 2017 | Permalink | Comments (0)

Monday, October 2, 2017

A tank and an HOA square off in Houston

A lawyer in a wealthy Houston neighborhood bought a tank and put it in front of his house.  Turns out that even in "no zoning" Houston, there can be strict land use rules, most often in the form of private regulations from an HOA.  The HOA wants the tank gone.  Video below.

Fascinating, especially in light of the fact that, at the end, the attorney who owns the tank seems to think the HOA is powerless to make him move the tank.  Um, I haven't read this HOA's CC&Rs, but if they are anything like most others, he might the HOA has some pretty crazy remedies at their hands that cities could only dream of.  

Seems like a great teaching case to me, especially because the attorney keeps noting that there is "no ordinance" that prohibits it.  I'd guess he did not take land use in law school.

 

 

October 2, 2017 | Permalink | Comments (2)

Jonathan Rosenbloom on Teaching about the Comprehensive Land Use Plan: Question 4 in the Contemporary Issues in Teaching Land Use Series

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 2. 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 NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 4:  Teaching about the Comprehensive Land Use Plan

by Jonathan Rosenbloom

Because many law students will represent their clients before plan & zoning commissions and city councils, it is important for students to understand that the “in accordance” requirement—explored in Sections 3 and 4 of our textbook—can translate into a variety of practices on the ground.

For example, Iowa, like Idaho (as vividly described in Stephen’s post) and other states, requires local governments to exercise their zoning powers through decisions “made in accordance with a comprehensive plan and designed . . . to encourage efficient urban development patterns . . . [and] to promote health and the general welfare.” Iowa Code § 414.3.

In Iowa, this does not mean that local governments must have a written plan. Webb v. Giltner, 468 N.W.2d 838, 840 (Iowa App. 1991). Rather, “compliance with the comprehensive plan requirement merely means that zoning authorities have given ‘full consideration to the problem presented, including the needs of the public, changing conditions, and the similarity of other land in the same area.’” Iowa Coal Min. Co. v. Monroe County, 494 N.W.2d 664, 669 (Iowa 1993) (quoting Montgomery v. Bremer Cty. Bd. of Supervisors, 299 N.W.2d 687, 695 (1980)) (emphasis added); see also Residential and Agricultural Advisory Committee, LLC v. Dyersville City Council, 888 N.W.2d 24, 44 (2016) (concerning rezoning of the property from Field of Dreams).

When a zoning action is considered to be in accordance with the comprehensive plan, the Des Moines Plan & Zoning Commission (P&Z) summarily approves with the following language recommended by city staff:

Staff recommends that the Commission find that a rezoning to a [___] District be found in conformance with the Des Moines’ 2020 Community Character Plan [the city’s comprehensive plan until 2016].

See, e.g., City of Des Moines Plan & Zoning Commission, Staff Report and Recommendation, Agenda Item 1A-1C, Feb. 19, 2015. What is more interesting is the pro forma language used by P&Z for projects where the zoning action is not “in accordance” with the comprehensive plan. That language looks like this:

Part A) Staff recommends that the Commission find the proposed rezoning not in conformance with the existing Des Moines' 2020 Community Character Plan.

Part B) Staff recommends approval of the request to amend the Des Moines’ 2020 Community Character Plan to revise the existing future land use designation . . .

Part C) Staff recommends approval of the requested rezoning . . .

See, e.g., City of Des Moines Plan & Zoning Commission, Staff Report and Recommendation, Agenda Item 4A-4C, Mar. 5, 2015.

Before probing deeply into this, it’s interesting to start by asking the students: 1) what is P&Z doing and why, and 2) what do the students think about this as a practice?

We can begin to break it apart and explore it as this ad hoc amendment to the comprehensive plan raises many fascinating issues to discuss. In terms of what is happening, basically, if accepted P&Z finds the applicant’s zoning request to be inconsistent with the comprehensive plan. P&Z, then, quite simply amends the comprehensive plan to fit the proposed zoning. In its final step, it approves the requested rezoning.

Some of the issues for in-class discussion include: 1) how should P&Z show that it has given “full consideration to the problem presented” when re-planning in this way [this being the standard pursuant to Iowa Coal Min. Co. cited above]; 2) whether this type of ad hoc amendment of the comprehensive plan essentially re-orders the planning and zoning processes, where zoning now directs the planning, and what is the import of such a re-ordering; and 3) whether this practice limits the practical significance of the “in accordance” state statutory requirement.

Ironically, the Iowa State Supreme Court has held, “The ‘comprehensive plan’ requirement was imposed to prevent piecemeal and haphazard zoning.” Wolf v. City of Ely, 493 N.W.2d 846, 849 (1992). The plan is “intended to ensure [local governments] . . . act[] rationally rather than arbitrarily in exercising their delegated zoning authority.” Wolf, 493 N.W.2d at 849. I’ve yet to do this, but next semester I think I’ll ask my students whether they believe comprehensive plans in Iowa are fulfilling this goal.

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] 

October 2, 2017 | Permalink | Comments (0)

Wednesday, September 27, 2017

Thurs, Sept 28: Free webinar on Cambodia's New Environmental Code: A Primer on Environmental Governance Issues in the 21st Century

In September, 2017, I was lucky to travel to Cambodia to help work on its new Environmental Code assisting with land use and sustainability issues.  On Thursday, September 28, 2018, there will be a free webinar about the code process.  This was an extraordinary experience for me even in my small capacity. I think folks interested in comparative environmental and land use law would enjoy the webinar, which features several of the major consultants on the project.  Details below from the flyer.

_________________

The ABA Section of State and Local Government Law's International Law Committee and the IMLA's International Committee are proud to sponsor this program: Cambodia's New Environmental Code: A Primer on Environmental Governance Issues in the 21st Century.

Cambodia has embarked upon a startling transformation of its environmental and land use laws. A new generation of political leaders seeks to modernize the country's approach to the entire spectrum of environmental issues from protected areas management to pollution control to land use planning. The proposed new Environment and Natural Resources Code would also provide drastically enhanced transparency and grievance mechanisms.

Cambodia's Ministry of Environment is the key proponent of the new Code and has tasked Vishnu Law Group, a Cambodian public interest law firm, to lead the effort of developing the contents with stakeholder input. Vishnu has in turn reached out to a range of experts over the two year process of creating the Code, including Retired Judge Peter Buchsbaum, member of the ABA's State and Local Government Law Section.

Please join us on September 28 at 6:30 p.m. EDT for a discussion about the process to create the new Code, particularly its sustainable land use planning provisions, the challenges and solutions in creating viable governance mechanisms such as the Code in developing countries, and the opportunities for value added engagement from US-based legal professionals in this ongoing effort and others like it. In addition to Mr. Buchsbaum, we will be joined for this webinar by Megan Quenzer, Project Manager, and Brian Rohan, Advisor, both based in Phnom Penh with Vishnu Law Group.

Registration: https://zoom.us/meeting/register/388352c47b89967366858a512be5123a

September 27, 2017 | Permalink | Comments (0)

Can you name a well-functioning Planning / Zoning Commission or similar board?

I am working on a project and trying to find examples of well-functioning, respected administrative bodies that make decisions on land use permits.  Can you name any?

These bodies could be planning or zoning commissions, land use appeals bodies, boards of adjustment, or whatever your local community calls their land use administrative decisionmakers.  My interest is particularly in those bodies that are appointed by a local government and not staffed by professionals but by volunteers (or modestly paid citizens), but I would also be interested in any other recommendations, too. 

"Well-functioning" is admittedly a broad term, but right now I am looking for examples where these bodies have engendered respect for their work and decisonmaking, regardless of why or how.  I welcome any thoughts. 

E-mail me at millers@uidaho.edu or reply in the comments below.  Thanks!  Stephen

September 27, 2017 | Permalink | Comments (4)

Monday, September 25, 2017

Stephen R. Miller on Teaching about the Comprehensive Land Use Plan: Question 4 in the Contemporary Issues in Teaching Land Use Series

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 2. 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 NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 4:  Teaching about the Comprehensive Land Use Plan

by Stephen R. Miller

Teaching the comprehensive plan is complicated, and my approach probably has more personal history in it than it does for some professors.  I went to law school, planning school, and practiced land use law in California.  There I was taught the principle that the comprehensive plan—known in California as the general plan—is the “constitution of land use.”  See Concerned Citizens of Calaveras Cty. v. Bd. of Supervisors, 166 Cal. App. 3d 90, 97 (Cal. Ct. App. 1985) (“The general plan is atop the hierarchy of local government law regulating land use. It has been aptly analogized to ‘a constitution for all future developments.’”).  As a result, the general plan in California has primary control over the use of land in a local government and the zoning is the implementation of that general plan.  This arises through the consistency requirement, which is the best known and nationally applicable requirement used by several other states.  See id. at 97 (“If a general plan is to fulfill its function as a “constitution” guiding “an effective planning process,” a general plan must be reasonably consistent and integrated on its face.  A document that, on its face, displays substantial contradictions and inconsistencies cannot serve as an effective plan because those subject to the plan cannot tell what it says should happen or not happen.”). But in California, there are additional requirements of the general plan derived from Guidelines and case law that make the plan have teeth.  Perhaps most notably, an environmental impact report (EIR) is required for a general plan, which provides a whole host of environmental considerations, and intellectual honesty, to the process.  As an example, see this EIR for the general plan of Davis.

Where I now teach, in Idaho, the comprehensive plan is more like most states where the plan is considered an advisory document.  There is no requirement of consistency; in other words, a re-zone can flagrantly conflict with a land use map designation in the comprehensive plan.  See Evans v. Teton Cty., 139 Idaho 71, 76, 73 P.3d 84, 89 (2003) (“A comprehensive plan is not a legally controlling zoning law, it serves as a guide to local government agencies charged with making zoning decisions. . . . The “in accordance with” language of I.C. § 67–6511 does not require zoning decisions to strictly conform to the land use designations of the comprehensive plan.”).  Idaho courts have also made a facial challenge to a comprehensive plan almost impossible through heightened standing requirements to challenge the plan.  Indeed, in a recent case, a large family farm in a rapidly urbanizing agricultural county challenged the analysis in an agricultural element of a newly adopted comprehensive plan.  The Idaho Supreme Court held that the farmer did not have standing to challenge the agricultural element of the comprehensive plan, which makes it pretty clear that almost no one can facially challenge a comprehensive plan in Idaho.  See generally Coal. for Agric.'s Future v. Canyon Cty., 160 Idaho 142, 147–48 (2016).  Idaho also does not require any environmental review, which means commissioners and local decisionmakers often have little idea of the environmental effects of their decisions.

While many of my students will stay in Idaho, much of the real estate practice of local firms bleeds over state lines.  The Boise region reaches into Oregon; the northern panhandle of the state is close to Washington and Montana.  The ubiquity of California means many businesses here have operations in the Golden State.  All of the surrounding states—Washington, Oregon, and Montana—have approaches to comprehensive plans that are more like California than they are like Idaho.  As a result, I feel that I must teach both the “constitution of land use” and the “advisory” approaches.  And so, I spend more time on comp plans than most professors probably do. 

In addition, when talking about Idaho and the advisory approach, I also add in one other layer of analysis that foreshadows some of the later discussion of the administrative nature of land use decisionmaking.  I pull out the findings requirements for discretionary permits for the city of Boise, which are almost identical to every major city in the U.S.  In those discretionary permits, we find language that states the necessary findings for a conditional use permit, which are:

  1. the location is compatible to other uses in the general neighborhood;
  2. The proposed use will not place an undue burden on transportation and other public facilities in the vicinity;
  3. The site is large enough to accommodate the proposed use and all yards, open spaces, pathways, walls, fences, parking, loading, landscaping, and such other features as are required by this Code;
  4. The proposed use, if it complies with all conditions imposed, will not adversely affect other property of the vicinity;
  5. The proposed use is in compliance with the Comprehensive Plan;
  6. [several other project specific findings omitted.]

Boise City Code § 11-03-04(6).  In reviewing this language, I point out that here, there is a legally mandated requirement to find that a project is “in compliance with the Comprehensive Plan.”  Indeed, in heated battles over a discretionary permit, a denial of a project almost always relies upon findings that the project is not in compliance with the comprehensive plan.  If the commission or council cannot make these findings, they cannot deny the permit.  They also cannot grant the permit, of course, without making these compliance findings.

Even in states, like Idaho, where the comprehensive plan is advisory and facially hard to challenge, the comprehensive plan retains a special, legal importance in the granting of discretionary permits and the sufficiency of findings for those permits.  In this posture, the findings are legally mandated requirements subject to appeal, and it is in this use that the comprehensive plan becomes especially powerful and has legal value in the “advisory” states.  That this is why, even in states like Idaho, lawyers need to be well-attuned to the comprehensive plan:  the granting of discretionary permits normally turns on the sufficiency of findings about compliance with the comp plan.

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] 

September 25, 2017 | Permalink | Comments (0)

Tuesday, September 19, 2017

John Marshall Law Conference: Sept. 28: Murr v. Wisconsin Produces Murky Results in Regulatory Takings Law

The John Marshall Law School 15th Kratovil Conference on Real Estate Law & Practice
Thursday, September 28, 2017
8:30 a.m.–1 p.m.
Register Online
CLE Credit: 3 Hours (pending)
This event is free to attend; however, registration is required.

Co-presented by the Real Estate Law Students Group

What does the recent U.S. Supreme Court regulatory-takings decision in Murr v. Wisconsin mean for the real estate industry, its attorneys, landowners, and local government? Before the opinion was issued, both sides in the Murr case had sought guidance on how to define the “property” that is the subject of a claimed regulatory taking. Now that the court has spoken, many argue that it continues the muddled analysis of the line of regulatory-takings cases that preceded it, rather than clarifying the tests to be applied.

Hear those who were among the lawyers writing the briefs and arguing before the U.S. Supreme Court on the Advocates Panel. This group of attorneys and scholars will explain the public policy issues and significance of the decision in regulatory takings law.

Our Practitioner/Industry Panel will look at the decision in the context of commercial real estate transactions. What are the lessons from the case? How can real estate owners, with the help of their attorneys, potentially avoid some of the adverse impacts of this case?

Join us as we explore what this opinion will mean for the future of regulatory takings and the property rights of landowners.

Schedule
8:30–8:45 a.m.
Welcome & Introduction
 
Darby Dickerson Dean Darby Dickerson
The John Marshall Law School
Celeste Hammond Professor Celeste M. Hammond
Director, Center for Real Estate Law
The John Marshall Law School
 

 
   
8:45–10:45 a.m.
Advocates Panel
 
Moderator
David L. Callies David L. Callies
Benjamin A. Kudo Professor of Law
University of Hawaii at Mȧnoa
 
Owner's Argument
John Groen John Groen
Executive Vice President/General Counsel
Pacific Legal Foundation
Steven J. Eagle Steven J. Eagle
Professor of Law
George Mason University Antonin Scalia Law School
Government/Community Argument
John Escheverria John Escheverria
Professor of Law
Vermont Law School
 
Michael Allan Wolf Michael Allan Wolf
Professor of Law; Richard E. Nelson Chair in Local Government Law 
University of Florida Levin College of Law
 

 
   
10:45–11 a.m.
Break
 

 
   
11 a.m.–12:45 p.m.
Practitioners/Commentary
 
Janet Johnson Janet M. Johnson
Partner (transactional and development attorney)
Schiff Hardin LLP
 
David Silverman David S. Silverman (’00)
Partner (municipal and land use attorney)
Ancel Glink
Steven M. Elrod Steven M. Elrod
Partner (municipal, land use, and development attorney)
Holland & Knight LLP
 
 

 
   
12:45–1 p.m.
Questions & Answers
 

Sponsored by

Holland & Knight, The Alvin H. Baum Family Fund, Chicago Title Insurance Company, Schiff Hardin, Golan, Christie, Taglia, Ancel Glink | Diamond Bush, DiCianni & Krafthefer

Sponsorships Opportunities Still Available
Law firms and organizations interested in sponsorship options should contact Professor Celeste M. Hammond, Director, Center for Real Estate Law, 
at 7hammond@jmls.edu or 312.427.2737 ext. 366

About the Kratovil Conference on Real Estate Law & Practice
The Kratovil Conference on Real Estate Law & Practice (the “Kratovil”) was established in 1994 to honor the memory of Robert Kratovil, the Dean of the Chicago’s real estate attorneys who served as Chicago Title’s Chief Underwriter before ending his career as a member of The John Marshall Law School’s faculty. The Kratovil Conference has been important in the Center’s mission of research and scholarship about the field, bringing together leading scholars, practitioners, and industry professionals to consider cutting-edge issues important to commercial real estate attorneys, their clients, and our society.
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The John Marshall Law School
Center for Real Estate Law
315 S. Plymouth Court 
Chicago, IL 60604
p. 312.427.2737
http://www.jmls.edu/realestate/
 

September 19, 2017 | Permalink | Comments (0)

Monday, September 18, 2017

John R. Nolon on Contemporary Issues in Teaching Land Use: Question 4:  Teaching about the Comprehensive Land Use Plan

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 2. 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 NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 4:  Teaching about the Comprehensive Land Use Plan

by John R. Nolon

Our chapter on the comprehensive plan contains several answers to the question Patty raises regarding the importance of the comprehensive plan.  First, starting with the basics, students are reminded that the local governments get their power to plan from enabling acts passed by the state legislature. Local sovereignty is derivative. Second, these enabling acts contain substantive standards and procedural requirements. Third, if these standards and requirements are not followed, the plan is void as ultra vires: beyond the power of the local government to enact.  Fourth, plans are advisory, not regulatory and property owners generally lack standing to challenge them for their effect on property values because of the difficulty of proving damages.  Fifth, this difficulty is exacerbated by the fact that properties designated in the plan for particular land uses do not necessarily have to be rezoned for those uses, if the legislative body can explain why, at this time, the articulated use is not appropriate. Relatedly, the difficulty of determining whether a proposed rezoning is in conformance with the plan is explained, in many cases, by the fact that plan provisions are often insufficiently detailed to provide guidance as to what in conformance with means for any given property. 

There is another, perhaps larger, lesson in this Chapter that helps students appreciate the legal significance of the plan. We hold our property subject to reasonable regulations that clearly advance public interests.  When a provision of a comprehensive plan can be referenced to explain a subsequent land use regulation, it is very difficult for a challenger to show that the regulation is unreasonable.  This turns the exercise of drafting plans and compliant zoning into a serious proposition, for it insulates regulation from substantive due process challenges. It also protects regulations from equal protection challenges by providing reasons why certain properties are treated differently from others. 

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] 

September 18, 2017 | Permalink | Comments (1)

Wednesday, September 13, 2017

Rachelle Alterman: Planners' Beacon, Compass and Scale: Linking Planning Theory, Implementation Analysis and Planning Law

Rachelle Alterman (Technion - Israel Inst. of Tech) has recently published a book chapter entitled "Planners' Beacon, Compass and Scale: Linking Planning Theory, Implementation Analysis and Planning Law," which is included in the new book from Routledge edited by Beatrix Haselsberger, Encounters in Planning Thought:  16 Autobiographical Essays from Key Thinkers in Spatial Planning

A pre-publication version of Alterman's chapter is available for download at this link:  Download Alterman - Linking Planning Theory Implementation Analysis and Planning Law

Here is a list of the rest of the chapter's in this book:

 

PART 1 Introduction

1 Encounters in Planning Thought: An Introduction

Beatrix Haselsberger

2 Autobiography as Method of Inquiry

Laura Saija

PART 2 16 Autobiographical Essays from Key Thinkers in Spatial Planning

3 Planning as a Vocation: The Journey So Far

John Friedmann

4 From Utopian and Realistic to Transformative Planning

Peter Marcuse

5 Visions of Contemporary Planning: Stories and Journeys in Britain and America

Peter Hall

6 An Ancient Future

Luigi Mazza

7 Understanding and Improving Planning Processes and Planning Institutions: A Moving Target

Andreas Faludi

8 Finding My Way: A Life of Inquiry into Planning, Urban Development Processes and Place Governance

Patsy Healey

9 Educating Planners: The Dream of a Better Future

Gerhard Schimak

10 From Informing Policy to Collaborating Rationally

Judith E. Innes

11 A Renegade Economist Preaches Good Land-Use Planning

Barrie Needham

12 Strategic Planning as a Catalyst for Transformative Practices

Louis Albrechts

13 Places Matter: Creativity, Culture and Planning

Klaus R. Kunzmann

14 Challenging Institutions That Reproduce Planning Thought and Practice

Cliff Hague

15 A Science of Cities: Prologue to a Science of Planning

Michael Batty

16 Planners' Beacon, Compass and Scale: Linking Planning Theory, Implementation Analysis and Planning Law

Rachelle Alterman

17 On the Evolution of a Critical Pragmatism

John Forester

18 Pragmatism and Plan-Making

Charles Hoch

PART 3 Epilogue

19 Back to the Future: A Personal Portrayal in the Interface of Past Planning and Planning Futures

Beatrix Haselsberger

Encounters in Planning Thought: 16 Autobiographical Essays from Key Thinkers in Spatial Planning (Paperback) book cover

September 13, 2017 | Permalink | Comments (0)

Monday, September 11, 2017

Patricia Salkin on Contemporary Issues in Teaching Land Use: Question 4:  Teaching about the Comprehensive Land Use Plan

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 2. 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 NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 4:  Teaching about the Comprehensive Land Use Plan

by Patricia Salkin

Sections 3 and 4 of Chapter 2 of the casebook introduces the comprehensive land use plan to students. The concept of planning preceding zoning and land use controls is important. After all, zoning enabling acts insist that zoning be in conformance with the comprehensive plan.  This of course forms the basis for land use regulations to withstand challenges of being arbitrary and capricious.  What exactly a comprehensive plan looks like, the process of how it is developed and adopted, and the legal significance of the plan are all important.

It is interesting to note the deliberate separation of plan­ning and regulation in the Herbert Hoover Department of Commerce in the late 1920’s. By writing a separate City Planning Enabling Act and a Standard Zoning Enabling Act, the message that went out to the states was that planning and zoning were two different animals. Consequently, while most states enacted the standard zoning act, fewer states enacted the city planning act. The thinking at the time, perhaps in light of the Euclid case in 1926, was that zoning could stand on its own sturdy feet and need not be viewed as a means to the end of carrying out the comprehensive plan. Many years passed before legislatures in most states were convinced of the need to relate regulation to the foundation of plan­ning, and in some jurisdic­tions the separation of regulation from planning is still the order of the day. Much of the confusion exhibited by courts when con­fronted with con­sis­tency arguments probably stems from this original separa­tion.

Question: What strategies do you employ in class to help develop an appreciation for the comprehensive land plan and its legal significance?  What do you think are the most important teaching takeaways when discussing the comprehensive plan? 

I typically use two teaching strategies.  First I ask students to access a copy of a comprehensive plan for a municipality of their choice. The hope is that they will then use the same municipality for an assignment in Chapter 3 where I ask them to obtain a copy of a zoning ordinance.  In class, I ask them whether they were able to find a written plan for the municipality of their choice.  It is not uncommon for one or two people to say they looked for one from a particular municipality but could not find one.  This is because in some states, the comprehensive plan need not be a written document.  That reality leads to a discussion as to whether plans should be written and what happens when communities change before plans formally change. Next I ask the students to look for the date when the plan was last adopted or updated. Invariably, students will report plans that are very recent, and then plans that are more than ten years old.  The wide variance allows for a discussion about appropriate intervals for plan review. The third major point to explore with the plans is how they are organized, the topics that are covered, and whether students can get a sense from the plan about the desired community sense of place.

Following this, I use the state enabling statute from our host State (NY) and I ask the students to answer the following questions:

  1. With respect to preparation of a comprehensive plan:
  • Who prepares it?
    • Professionals? Members of the public? Existing body/board? A new entity?
  • How is it prepared?
    • How is community input collected? Who makes what decisions and when with respect to content?
  • What is the timeframe for the preparation of a plan?
    • How long should plan preparation take?
  • Is there any required coordination between boards and/or existing plans?
    • What is the role of the planning board, the legislative body, and other boards that might exist? Should other plans such as coastal zone management plans, disaster mitigation plans, and others be part of the comprehensive land use plan or should they be separate? Must they be consistent with each other?

        2. With respect to the process for adoption of the plan:

  • How many hearings are required?
    • Is one enough? Are two enough? How long should the hearings last?
  • Who holds the hearing(s)?
    • Are hearings held by the entity that developed the draft plan? Some other entity?
    • Where should the hearing(s) be held (e.g., accessible locations)?
    • What time of day should hearings occur and what days of the week?
  • What notice is required?
    • How much notice is due (e.g., how much lead time)? Should the draft plan be published in full?  If so, where?
    • What happens when changes are recommended and the plan is altered after the hearing…is another hearing then required? If so, when would the cycle end?
  • Which body is ultimately responsible for adopting the plan?
    • The planning board? The legislative body? Why, what difference does it make?

 

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]

 

September 11, 2017 | Permalink | Comments (0)

Friday, September 8, 2017

Fennell & Keys: Evidence and Innovation in Housing Law and Policy now freely accessible on Cambridge UP website

A new collection of essays, Evidence and Innovation in Housing Law and Policy, edited by Lee Anne Fennell (U Chicago Law) and Benjamin J. Keys (Wharton, U Penn) and published by Cambridge University Press, was just made available through Cambridge UP's open access portal.  The book's contents are freely available here.

Contributors include:  William A. Fischel, David Schleicher, Richard A. Epstein, Ingrid Gould Ellen, Brian J. McCabe, Lior Jacob Strahilevitz, Georgette Chapman Phillips, Matthew Desmond, Stephanie M. Stern, Christopher Mayer, Ian Ayres, Gary Klein, Jeffrey West, Atif Mian, Amir Sufi, Patricia A. McCoy, Susan Wachter, Raphael W. Bostic, Anthony W. Orlando. 

Well worth a look!

 

Evidence and Innovation in Housing Law and Policy

September 8, 2017 | Permalink | Comments (0)

Tuesday, August 29, 2017

Call for Submissions – Journal of Comparative Urban Law and Policy

Call for Submissions – Journal of Comparative Urban Law and Policy

The Center for the Comparative Study of Metropolitan Growth at Georgia State University College of Law seeks submissions for the second edition of the Journal of Comparative Urban Law and Policy.  Submissions that align with the international and comparative focus of the journal in the following areas will be considered:  land use; equitable and sustainable development; taxation and infrastructure finance; social mix, affordable housing, and housing finance; historic preservation; and climate change, environmental law, and greenspace preservation. Research articles, notes on recent developments and book reviews will also be considered.

The Journal of Comparative Urban Law and Policy is a resource for lawyers, planners, policy-makers and scholars working on metropolitan growth issues and interested in learning more about how cities around the world tackle the same issues.  It launched in May 2017 as an open-access, online journal with articles resulting from the Study Space Program offered annually by the Center.  Subscriptions to the journal are free by joining the email list.

Submissions should be made online on the journal’s webpage. A decision will be made within six weeks of submission.

Pre-submission inquiries should be directed to Julian Juergensmeyer, editor in chief, at jjuergensmeyer@gsu.edu or Karen Johnston, managing editor, at kjohnston3@gsu.edu.

August 29, 2017 | Permalink | Comments (0)

Monday, August 28, 2017

Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 3:  Teaching the Economics of Land Use Regulation and Ethics

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 2. 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 NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 3:  Teaching the Economics of Land Use Regulation and Ethics

by Jonathan Rosenbloom

On the question of how to engage students in the debate of balancing economic interests in the planning process, Patty, John, and Stephen set forth many great ideas on focusing classroom discussion. One additional consideration for students to understand is where and when lawyers raise these economic issues.

Throughout the book we discuss the economics of land use regulations in a variety of contexts. The context in Chapter 2 is the planning process. One slightly confounding issue for students—and ultimately for practitioners—is where and when to make economic arguments in the context of comprehensive planning. It is a particularly vexing issue because important parts of the comprehensive plan are often drafted and enacted before a client’s economic interest is actually implicated. For example, it’s not uncommon for a local government to draft a comprehensive plan before overhauling or amending the zoning code, which occurs before amending the zoning map. Whether one’s financial interests are implicated, however, is not clear until the map is proposed.

It’s important for students to realize that the drafting or amending of the comprehensive plan is a critical time to be involved, even though it may be unclear as to how or whether one’s interests are implicated. Each step of the drafting process provides an opportunity to help craft future land use patterns. In addition, each step serves as a foundation for the next step. For example, comprehensive plans’ vision statements establish a foundation with which comprehensive plans are built. Zoning codes are then drafted, amended, and/or interpreted in light of comprehensive plans depending on state law (something we discuss in Chapter 2, Section 3). Thus, even though vision statements may set in motion inevitable economic impacts for a variety of parties, they are often drafted with little fanfare. This is particularly true in jurisdictions that require some economic analysis as part of comprehensive planning.

Des Moines’ comprehensive plan provides a good illustration. Adopted in April 2016, the entire vision statement is progressive in its outlook for Des Moines and I plan to spend a couple of classroom minutes to review it (it is located on page nine of the comprehensive plan). The vision statement makes eleven broad statements, such as “In 2040, Des Moines will have . . . Vibrant, healthy, and walkable neighborhoods with a mixture of housing, recreational opportunities, public spaces, schools, and mixed-use commercial centers.” Those eleven statements clearly guided the entire comprehensive plan. But reading the vision statement and the full plan do not provide a clear indication as to whether one’s economic interest is affected. The Des Moines’ plan is now the basis for the drafting of a new zoning code, which will implicate some citizens’ economic interests that can likely be traced back to the comprehensive plan and its vision statement.

The process of drafting of a comprehensive plan is an invaluable learning experience. Students can see whether and what economic interest are raised and by whom. Students can see those interests arise at a variety of stages, including public presentations, committee meetings, neighborhood meetings, council workshops, council hearings, and others.

Engaging with economics at the comprehensive planning level requires law students and lawyers to have foresight and to understand the economic implications of planning and to be engaged at all levels of the planning process. Of course, economic interests (as well as environmental and social interests) can change over the life of the comprehensive plan, particularly when state law does not require a plan for ten or twenty years. See, e.g., R.I. Gen. Laws 1956 §45-22.2-6(a) (minimum 20 years); 53 P.S. §10301 (c) (minimum 10 years). Further, it requires a forward-thinking client to pay for such services, but the non-pecuniary benefits of being involved and being a part of the planning process can lead to a host of pecuniary and non-pecuniary opportunities.

 

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 ]

August 28, 2017 | Permalink | Comments (0)

Sunday, August 27, 2017

Adaptive Planning for Resilience, Harvey, & the Gulf Coast Region

Recently, on Facebook, I posted about my personal reactions to what's happening in the Houston area and the Gulf Coast Region as it gets deluged by Harvey.  First, and foremost, I'm continuing to pray for my family and friends in Texas and the Gulf Coast region, and -- even more so -- to pray for the most vulnerable and marginalized people in the region, who are most at risk and have the least resources to adapt.  Everyone, be safe!  Second, though, this is a tragic, heart-wrenching example of what I've been teaching, speaking, and writing about for the past several years (all the way back to my time teaching at the University of Houston Law Center in Spring 2010): plan for the unprecedented. This is fundamental to adaptive planning for resilience. The predictions of 30 inches of rain and advice to shelter in place have now been replaced by predictions of up to 50 inches and regret that there wasn't mandatory evacuation. Why can we not seem to learn and apply core lessons from Katrina and so many other climate disasters?  For two years, the University of Louisville offered an online professional development course in Adaptive Planning and Resilience, which I developed and taught with 7 of my former students and which was taken by several dozen planning professionals nationwide and worldwide.  Unfortunately, no one from the South/Coastal Texas area took it.  It's very difficult to get public officials and members of the public to accept and plan for extreme and unprecedented shocks and changes, but, time and again, we face the consequences of minimizing risk and instability in complex multi-system dynamics.  Moreover, why can't we think in terms of Resilience Justice?  Resilience justice is about the structural inequities in adaptive capacities and vulnerabilities of marginalized communities, such as low-income communities of color.  It is about addressing these inequities through policy analysis and reform.  This is the work that my Center and I are doing these days, arising out of last year's collaborative work with The City Project and Robert Garcia in Los Angeles.  The need for policy and planning reform to address the vulnerabilities and capacities of marginalized communities is critical, yet we make so little progress and advance so slowly -- too slowly for events like Harvey. Breaks my heart.  Tony Arnold, University of Louisville

August 27, 2017 | Permalink | Comments (0)

Wednesday, August 23, 2017

Real Estate Review's Winter, 2017 and Spring, 2018 editions seeking articles

I am pleased to announce that I am the new editor-in-chief of West's Real Estate Review, a venerable 47-year old publication aimed at providing cutting-edge information on planning, real estate, and development-related issues to practitioners in the broad array of development-related industries.  

One of my goals as the new editor is to bring some of the best of academics--legal and otherwise--to this practitioner-focused publication.  For instance, perhaps you are holding on to a 70-page law review article that will go into a law review that most practitioners won't read, but maybe you condense the same article into a pithy, short article for RER that becomes something that practitioners can use in practice.  It's a great way to do outreach to the practicing development community while also getting the word out about scholarly research.

Practitioners in the development world--lawyers, planners, finance folks--are also welcome to propose articles.

We are currently seeking articles for the upcoming Winter, 2017 edition, which needs first drafts by October 16; and Spring, 2018 edition, which needs first drafts by January 16.  

Articles are typically short by legal academic standards:  7 to 25 pages double-spaced (about 3,000 - 6,250 words, including citations).  Real Estate Review is available through the general secondary sources searches; authors can get a license to use their publication for non-commercial uses.

If you are interested or have article proposals, please feel free to contact me at millers@uidaho.edu and we can discuss more.

August 23, 2017 | Permalink | Comments (0)

Monday, August 21, 2017

Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 3:  Teaching the Economics of Land Use Regulation and Ethics

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 2. 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 NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 3:  Teaching the Economics of Land Use Regulation and Ethics

by Stephen R. Miller

There is so much to say about economics and land use—and much of it beyond the traditional tropes of law and economics analysis—that it can be hard to know how to introduce the subject without going down the rabbit’s hole.  The casebook provides a rich hypothetical for investigating these concerns.  I believe there are three important lens through which students must begin to see the economic consequences of land use decisions and I focus on these.

 
The project sponsor.  In considering the project sponsor, I try to get students to see two important economic issues.  First, the project sponsor typically engages in development to make money.  This is not always the case; many nonprofits build buildings and their purpose is to have a location that suits their mission.  But most development in the U.S. occurs to either develop property, or otherwise enhance its value. That ability to create value is both limited, and often enhanced, by traditional land use regulation.  Further, sometimes project sponsors impose additional private land use controls, through CC&Rs, to enhance value.  So, while land use controls might initially be seen as limiting value (and they may do so in a broader economic sense), for many project sponsors, sometimes land use controls—public or private—can also increase value.  Second, I think it is important for students to be begin to think about how project finance effects the economics of projects.  Real estate development is among the most money-intensive industries there are, and that means that project sponsors are often constrained in what they can do not just by regulations, but also the requirements of their creditors, many of whom demand significant potential profits—upwards of 20% or more is common—in order to lend.  That puts another type of pressure on the developer that is often hidden from sight.  The system only works if there is profit; while that can be lucrative for the project sponsor, it is also a limitation on what the project sponsor can build that is not just about the sponsor’s individual financial situation.  Project finance often has as much to say about what a project turns out to be as land use controls.  To that end, I encourage students to learn something about project finance if they are interested in representing developers.
 
The neighbors.  Much of the property rights debate right now is awkwardly circumscribed by a contrived focus on just the project sponsor.  It is as if no one else exists in the world in many of these arguments.  But, of course, the people that live around the project sponsor also have property rights of their own, and beyond rights, they have economic interests.  Real estate is often the largest single investment of any family; leases are often the largest single commitment of any company, especially for non-manufacturing companies.  As a result, a failure to think about the economic effects of a project on neighbors is really a bizarre framing that belies how most land use fights play out.  Indeed, the reason so many land use battles become battles is just how much people have at stake economically.  
 
The local government.  I find that most of my students have not had considerable exposure as to how land use development affects the finances of local governments.  The issues involved here are too numerous to be fully expounded in one class, but they can be introduced early.  Notably, a reminder that local governments are uniquely land-based jurisdictions in an era when we live across jurisdictions from where we work, and we purchase from retailers that are states away through the Internet.  Local governments need to balance budgets, and that means they must, to some extent, engage in the “fiscalization of land use.”  Those that don’t pay attention to the economic impacts of land use decisions will almost certainly face financial constraint that could be enduring for decades to come.  But how much should local governments explicitly make choices about land use to maximize the public fisc?  If we know that apartment buildings tend to bring families with children, and those children need schools, is it okay for a city to simply say that it cannot afford apartments because it cannot afford the schools?  What if the local government is in a state that has severely limited the ability to raise money through property taxes and has constitutional limitations on bonds?  What about police, ambulances, and fire?  And if those local governments are circumscribed in their ability to raise funds, is it ethical for them to require HOAs and private land use controls that make individual developments economically liable for improving private roads, placing sidewalks, and replacing the water sewer when it breaks?  
 
By introducing these three lens through which to think about economics, students can then begin to add on additional knowledge and perspectives as they go.  Indeed, as Chapters 3 and 4 will show, economics has even changed the fundamental character of how zoning is done and brought about strange legal beasts like “floating zones,” “planned unit developments,” and “development agreements."
 
Finally, I also try to get students to think about whether economics fully explains the way land use works today.  Of course, the answer is "not entirely."  We prioritize all kinds of non-economic interests through public and private land use controls that matter to us.  Aesthetics, a good place to raise a family, the strange alliance between land use and educating children, historic preservation, the preservation of sensitive environments:  these are just a few.  For all of the importance of economics in land use, how important is maximizing value to how we live and think about the city we want?  These issues will play out over the course of the semester, and introducing them early gives a rich framework to the rest of the course.
 

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 ]

 

August 21, 2017 | Permalink | Comments (2)

Tuesday, August 15, 2017

Rosenbloom: Fifty Shades of Gray Infrastructure: Land Use & the Failure to Create Resilient Cities

Jonathan Rosenbloom (Drake) has just posted Fifty Shades of Gray Infrastructure:  Land Use & the Failure to Create Resilient Cities, on SSRN.  Here in the abstract:

Land use laws, such as comprehensive plans, site plan reviews, zoning, and building codes, greatly affect community resilience to climate change. One often-overlooked area of land use law that is essential to community resilience is the regulation of infrastructure on private property. These regulations set standards for developers’ construction of infrastructure in conjunction with millions of commercial and residential projects. Such infrastructure provides critical services, including potable water and energy distribution. Throughout the fifty states, these land use laws regulating infrastructure on private property encourage or compel “gray infrastructure,” as part of private development. Marked by human-made, engineered solutions, including pipes, culverts, and detention basins, gray infrastructure reflects a desire to control and manipulate ecosystems. Often these ecosystems are already providing critical services. This article assesses how current land use laws focus too heavily on engineered, gray infrastructure and how that infrastructure is reducing community resilience to change. By creatively combining human engineered solutions with ecosystem services already available and by incorporating adaptive governance into the regulation of infrastructure for private development, the article describes how land use laws can enhance community resilience. The article concludes with several examples where land use laws are relied upon to help build cost-effective, adaptive infrastructure to create more resilient communities.

August 15, 2017 | Permalink | Comments (0)

Monday, August 14, 2017

John Nolon on Contemporary Issues in Teaching Land Use: Question 3:  Teaching the Economics of Land Use Regulation and Ethics

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 2. 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 NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 3:  Teaching the Economics of Land Use Regulation and Ethics

by John Nolon

Patty Salkin’s post raises the question of balancing the public welfare with individual property rights and interests.  The query provides an excellent opportunity, early in the semester, to focus students on the governmental entities and processes through which this balancing is done and calling to their attention the impressive number of interests that comprehensive plans have to consider and balance. 

The Chapter is about land use plans, which are not regulatory. Students learn that the plan is to guide subsequent land use regulation, notably zoning, which directly affects property values and protects surrounding areas and promotes larger-scale public interests.  The local legislative body adopts laws, including zoning, and students generally understand how the legislative process works. But, who is engaged in planning?  How is the public involved in planning as opposed to adopting laws and regulating? 

The answers vary from state to state, so we start by looking at a state of interest to our students. Where are the rules for the adoption of a comprehensive plan found?  Is the official adoption of the comprehensive plan the responsibility of the local legislature, the planning commission, or some hybrid body?  How is that board constituted: who makes the appointments and what are the criteria for serving? What are the elements of a typical comprehensive plan?  Are property values and developer economics considered?  What about environmental protection and natural resource conservation?  Does traffic congestion,  transit oriented development, or complete streets get included? What about historic preservation, cultural values, affordable housing, jobs and housing,  community character, agricultural land protection, resiliency, urban agriculture, green buildings and infrastructure, even climate change mitigation? Did students realize that land use law comprises such an exciting menu of societal interests? This should make them want to go home and tell their housemates what an exciting course they are taking.

If the comprehensive plan truly guides the adoption of zoning then how important is it for developers, brokers, business owners, environmentalists, conservationists, preservationists, housing advocates, community groups, and homeowners to become involved?  What is the process by which the local comprehensive plan is adopted? Are public hearings held?  Are less formal meetings held?  When, at what time of day, and in what place?  Are special topic advisory groups created to help?  How effective are they for getting the general public involved?  And what about special interest groups? Once the process is known, then possibilities of advancing public and special interests become clearer.

Speaking of balancing disparate interests, what is the role of the lawyer and the legally-required process in facilitating productive dialogue, building consensus, and looking for pie-expanding solutions rather than zero sum, win/lose results?  How can required public processes involving such a large number of issues be held so that productive discussions can be held?  Returning to Patty’s questions, is there necessarily tension between public and private interests, or can our land use system affirm them both and use them to mutual advantage?

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 ]

August 14, 2017 | Permalink | Comments (0)