Wednesday, January 17, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 4: Shaping Human Settlements: A Series by John R. Nolon

[This post is the fourth in a series that will appear over the coming months.]  

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

Shaping Human Settlements

by John R. Nolon Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

The concept that municipal governments can physically shape their development is not well understood. The uniform, single-use land use pattern originally created by zoning designed communities to accomplish discrete objectives such as protecting child health and safety, controlling traffic congestion, and providing housing and commercial space to meet market demands.  As time progressed, the environmental and economic harm caused by the resultant urban patterns led many local governments to reshape their settlements.

The 1972 Petaluma Plan discussed in the previous post rebalanced the future housing stock of the City through zoning reform that required an even mix of single-family and multi-family housing. The local legislature changed its land use law to achieve more environmentally friendly design, protect open space, create a greenbelt around the community, provide for a variety of housing choices, evenly distribute housing between the east and west sides of the City, and to service growth efficiently.  Only in retrospect do we recognize these strategies as mitigation measures that reduce per capita energy consumption and protect the sequestering environment. 

Petaluma’s reforms were not novel, even in 1972. In 1937, for example, the local legislature in Bridgeport, Connecticut amended its zoning ordinance to allow small commercial developments along major arterials in single-family neighborhoods in order to reduce downtown traffic congestion. As the population increased in Bridgeport’s single-family zones, more and more residents drove to the central business district to shop for goods and services. The commercial uses allowed in these new small districts included hardware, grocery, and drug stores, bake shops, and beauty parlors.  Permitting these developments reduced downtown congestion but also vehicle trips and vehicle miles travelled, one of the largest contributors to CO2 emissions.  This climate change mitigation effect was not on the minds of Bridgeport’s legislators at the time, but the zoning technique they created can be used today to reduce carbon emissions from vehicle travel.

A decade after Bridgeport’s innovation, the Village of Tarrytown, New York, adopted a floating zone to provide affordable garden apartments to attract workers needed for employers whose businesses were essential to stabilize the Village’s real property tax base.  The 1947 zoning ordinance created a floating garden apartment zone, but it did not specify where the dwelling units would be permitted. This was left to private-market developers who could petition the Village legislature for a zoning map amendment, allowing them to build garden apartments. Significant landscaping was required to buffer the effect of multi-family housing in single-family neighborhoods where the new housing type was permitted. By zoning for workforce housing close to jobs and requiring significant landscaping, the Village created a mechanism that communities today can use to mitigate climate change.

In the 1970s, the Town of Ramapo adopted an impressive number of land use tools to control its growth, significantly adding to the land use tool box. Among these were a moratorium on development, a short- and long-term capital budget, a point system linking development with the provision of infrastructure (including open public spaces), the use of special use permits in lieu of as-of-right development, novel land use definitions, permits for small-scale development, and hardship exemptions to prevent regulatory taking claims.  All of these were embodied in a new land use plan designed to allow this suburban community to absorb efficiently the population growth emanating from nearby New York City.

In the 1980s, Omaha reconfigured its urban form by adopting a planned unit development zoning ordinance. This legislative reform permitted the developer to create a large, mixed-use neighborhood, while preserving much of the rezoned acreage as open space. The City entered into a multi-phase agreement with the developer that specified the many details of the development – techniques designed to allow the developer to meet new market needs for mixed-use development and protect the downstream riparian owners from flooding. Indirectly, climate change was mitigated and community resilience promoted by the creation of a walkable neighborhood and the preservation of sequestering open space.

There are many who doubt that parochial local governments can respond in any significant way to the challenge of global climate change. There are, however, many local land use tools available to them that clearly reduce or sequester carbon emissions. The local climate change mitigation tool box has been stocking up for decades. Techniques created for a different purpose are now being used by localities for a highly challenging purpose.  As the first responders to climate-caused disasters and damage, local leaders are highly motivated to act. The wisdom of the IPCC in including shaping human settlements as a critical mitigation strategy in its Fourth Assessment Report is increasingly evident as local governments quicken the pace of adopting such tools to respond to the perturbations of climate change.

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

January 17, 2018 | Permalink | Comments (0)

Tuesday, January 16, 2018

Want a livable city? Move to Australia or Canada

For the seventh year in a row, The Economist has ranked Melbourne the most livable city in the world.  Having just returned from a month in Australia and a week in the world's most livable city, I have to admit that they are doing something right.  I plan to blog about what I saw in Melbourne, and the rest of Australia, over the coming weeks.  Here is the rest of the list, which is dominated by mid-sized global cities in Australia and Canada:

 

Screen Shot 2018-01-15 at 12.19.46 PM

January 16, 2018 | Permalink | Comments (0)

Monday, January 15, 2018

Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 6:  Introducing the Common Law and the Power of the Pen

[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 6:  How do you introduce students to the common law and the “power of the pen?”

by Stephen R. Miller

Patty Salkin’s first post raises a number of interesting and lively issues on subjects—non-conforming uses and home occupations—that many professors (myself included, in some years) might feel they could easily skip.  I wanted to add on to her comments in two ways.

First, as a substantive matter, there are several ways that resources in other parts of the casebook could be combined with this section that could perhaps justify utilizing this material more.  First, signs.  Signs are maybe the hardest non-conforming use to address because their nature is more transient than a building, but they can be lucrative and an important revenue source for many building owners.  Addressing the non-conforming nature of signs in locations that have sign regulations creating non-conformity is a great way into the subject that I think is also intellectually challenging to students.  A discussion of signs and non-conformity could also be paired with the constitutional questions raised by sign regulation that are discussed beginning on page 602.  In addition, home occupation discussions could also be paired with a discussion of short-term rentals and the sharing economy, which is included in the new edition beginning on page 577.  The short-term rental debate rounds out and helps students to re-coneptualize the idea of how hard it can be to classify a “home occupation.”  In both cases, these would be thematic explorations that link non-conformity/home occupations to other legal principles that could justify the time in a tightly-packed syllabus that would otherwise forego them.
 
Second, I thought Patty’s discussion of using non-conformity and drafting was brilliant and something I might try in the future.  Right now, when I teach signs, I use an example in Boise that illustrates precisely the point Patty made, though I only use it in class discussion.  With Boise booming, its size has crossed over the threshold where major national companies are starting to come into the city.  Among them is the sign company Lamar, which is purchasing old, non-conforming “panel” billboards and digitizing them.  The city code has no provision that expressly governs whether replacement of a panel (the old wood-style boards) with a new digital board is a “new sign” thus requiring a new permit.  As a result, the city takes the position that this replacement is a “change of copy.”  I happen to believe this is a misreading of the code.  I know of no other city that takes the position that replacement of a panel with a digital board is a “change of copy,” a term-of-art that usually refers to the swapping out of one ad for another.  Nonetheless, sloppy drafting—or perhaps dated drafting that did not keep up with technological advances—has created a legal conundrum both for the city and the neighborhoods.  I typically raise this example in class because there are several digital billboards now installed near the law school that students generally despise that have been put up without new permits precisely because of this ambiguity in the code.  It is a visceral lesson in how poorly drafting text, or text that does not stay up-to-date with industry changes, can place the city in a difficult situation.

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]

January 15, 2018 | Permalink | Comments (0)

Thursday, January 11, 2018

Study Space XI:  City Redevelopment, Infrastructure, and Heritage in the Era of Climate Change

We are now accepting applications for Study Space XI:  City Redevelopment, Infrastructure, and Heritage in the Era of Climate Change in Singapore from June 17-22, 2018.  This weeklong workshop is being organized by the Center for the Comparative Study of Metropolitan Growth at Georgia State University College of Law in conjunction with ICOMOS Singapore and the Konrad Adenauer Stiftung Foundation. 

Through daily lectures from leading experts and guided site visits, topics discussed throughout the week will include:

  • Balancing economic goals with natural resources and land limitations
  • Land-use law, urban planning, housing, and equitable and sustainable development
  • Smart city movement, infrastructure finance, and taxation
  • Cultural heritage and historic preservation
  • Land reclamation, environmental law, greenspace preservation, and climate change.

Additionally, through the support of the Konrad Adenauer Stiftung Foundation, this program has been expanded to include a broader, comparative perspective of these issues focusing not only on Singapore but Hong Kong and other Asia Pacific countries.

The cost of the program is $1200 and includes scheduled group meals (see schedule online), speaker honoraria and site visits.  Hotel (estimated at $1200 for the week with breakfast daily), airfare, and airport transportation must be purchased separately. 

You may find more information online at:  http://law.gsu.edu/centers/metro-growth/study-space-xi-singapore/

Applications are due April 6, 2018 but early application is encouraged and space is limited.  No payments are required at the time of application.  Apply online at: https://insidelaw.gsu.edu/study-space/

Download Study Space Singapore Brochure

January 11, 2018 | Permalink | Comments (0)

Wednesday, January 10, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 3: Carbon Emissions: The Land Use Connection: A Series by John R. Nolon

[This post is the third in a series that will appear over the coming months.]  

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

Carbon Emissions: The Land Use Connection

by John R. Nolon Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

Local land use law can permit McMansions: super-large homes that consume outsized quantities of fossil fuel for heating and cooling.  The law that causes the resulting emissions can be changed. Larger houses can be required to be more fuel efficient and home sizes can be capped.  In Marin County, California, for example, a land use regulation requires that the larger the house, the more energy efficient it must be. Houses exceeding 6,500 square feet must be net zero energy users. What architects and engineers can do, the law can embrace. This modest example focuses on the critical fact that residential and commercial buildings contribute nearly 40% of national CO2 emissions.

Alternatively, houses can simply be required to be smaller: to have less space to heat and cool. In Petaluma, California, where zoning initially favored single-family construction, the City rebalanced the future housing stock by adopting the Petaluma Plan to accommodate sudden growth pressures in the 1970s. The plan -- and zoning that implemented it -- limited growth to 500 dwelling units per year. Using an intricate point system, it rewarded builders who proposed projects that conformed to the plan and its environmental design standards. The land use regulations required that housing be evenly divided between single-family and multi-family dwelling units, a consequence of which was less energy consumption and fewer emissions per-capita.

The per capita result is critical. The population of the U.S. is growing and that growth is significant. It matters where and how people live. According to the 2015 New York City Inventory of Greenhouse Gases, the average City dweller emits 6.1 metric tons annually. In Bedford, a sprawling suburb of the City, the average is 25 per capita; in the northern Atlanta suburbs it bulges to 35. Nationally, the per capita average emission metric is 24.5 tons.

Similarly, land use regulations can reduce vehicle miles travelled. The movement of personal vehicles through the built environment contributes over 20% of CO2 nationally. Cars travel to convey their occupants from where they live to where they work, play, shop, and learn. The more distance between these destinations, the more miles travelled and the more emissions. By creating mixed-use, higher density zones around transit stations, local governments can significantly lower carbon emissions. When density is increased for both residential and commercial uses, the distance between origin and destination is shorter, and walking, bicycling, and mass transit services are more feasible. Studies have shown that mixed-use zoning and increased population density decrease automobile ownership and the number of vehicle miles travelled.  

Centering growth has a corollary benefit.  It focuses needed development on urban places and moves it away from more remote open spaces.  In those places, ecological services on which life and prosperity depend are preserved as a consequence. One of those services is the biological sequestration of CO2. Up to 15% of CO2 is sequestered by the natural environment, more if that sequestered by undisturbed soils is counted.  

As sprawling development consumed increasing amounts of open lands during the last quarter of the 20th century and into the 21st, local land use law responded. Its tool box is now full of sequestration-enhancing implements: clustering development, planned unit ordinances, and neighborhood tree canopy enhancement standards, for example. Sustainable neighborhood design standards include green roofs, rain gardens, vegetated swales, xeriscaped lawns, biologically-rich site design, and connected green landscapes. All of these land use laws protect and enhance the biologically sequestering environment and reduce the climate changing emissions from all sources.

The connections between land use law and emissions are demand-side strategies. They either reduce the demand for fossil fuels by lowering energy use in buildings and the emissions attributable to vehicle miles travelled, or they capture the resulting emissions through the natural environment. All told, these strategies address over 70% of emissions.  

These strategies operate in different policy sphere from more traditional GHG mitigation initiatives such as a carbon tax, cap and trade mechanisms, or clean power regulations affecting coal-fired generation. At the national level, these supply-centered strategies are mostly on hold for the duration of the current administration.  The opposite is true of strategies employing land use tools on the demand-side. As demonstrated in the previous post, the Paris Accord embraced these strategies as valued Nationally Determined Contributions to mitigation.

As this story plays out in the U.S., other countries, still committed to top-down, supply- side strategies, can benefit by embracing such grassroots efforts. This combination provides hope that the Paris Accord can effectively counter the worsening evidence of climate change.

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

January 10, 2018 | Permalink | Comments (0)

Tuesday, January 9, 2018

New eminent domain podcast series by attorneys at Locke Lord

The attorneys at Locke Lord have put together a nice collection of podcasts on eminent domain.  You can catch a couple familiar faces in these episodes:

In Episode 13, Professor Jamila Jefferson-Jones joins us to discuss the sharing economy, regulations on short-term rentals, and how such regulations might rise to the level of a unconstitutional taking. 

In Episode 11, Professor Molly Brady from the University of Virginia joins us to discuss damaging clauses and her recent law review article. She has done some great research and is an enthusiastic and informative guest.

In Episode 7, Professor Vanessa Casado Perez of the Texas A&M School of Law in Fort Worth, Texas joins us to discuss water law and how it intersects with the eminent domain world.  We discuss the differing legal systems applicable to water in U.S., the Owens Valley California Water Wars, the Tulare Lake Basin Water Storage District case, the Casitas Municipal Water District Case, and the Edwards Aquifer Authority v. Day case. 

In Episode 4, we are joined by Professor Ilya Somin of the George Mason School of Law. Professor Somin is one of the leading thinkers and writers in the eminent domain community. Professor Somin joins us to talk about Murr v. Wisconsin, but also we veer off into other topics, including property rights in China.

January 9, 2018 | Permalink | Comments (0)

Monday, January 8, 2018

Patricia E. Salkin on Contemporary Issues in Teaching Land Use: Question 6:  Introducing the Common Law and the Power of the Pen

[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 6:  How do you introduce students to the common law and the “power of the pen?”

by Patricia E. Salkin

Although the common law is introduced briefly in Chapter 1 with a 1L property/torts review of the law of nuisance, Chapter 3 offers a nice combination of continuing the conversation of state enabling statutes with the subject of variances, and it segues into areas of the law where we tend not to see much statutory guidance (e.g., nonconforming uses and home occupations) providing a wonderful teaching moment on the tremendous power possessed by the drafters of local land use ordinances.  How do you teach students about local legislative responses to common law when the state does not speak? How can we get students to appreciate and practice drafting skills required for local government lawyers?

The topics of nonconforming uses and home occupations don’t always get the minutes they deserve in land use courses due to the difficulties we all have in allocating the small amount of time in a typical 3-credit class format.  A small handful of states, such as Connecticut, have statutory language acknowledging the existence of nonconforming uses, but the overwhelming majority of states neither define nor uniformly regulate these legally pre-existing uses.  The common law is rich with issues presented by the dilemma of the nonconforming use --- on one hand the use is grandfathered and allowed to continue, but on the other hand, the early pioneers of land use regulation believed that eventually the nonconforming uses would cease and new conforming uses would occupy the land.

Classroom discussions can become passionate over debates of fairness related to property rights in general when it comes to eliminating nonconforming uses and today the debate sharpens within the context of the right (or not) to rebuild and/or repair nonconforming uses following hurricanes, flooding, wildfires and other acts of god (or mother nature).  However, what is “fair” is in the eye of the beholder, and communities, through developed shared values, are able to arrive at articulated “ground rules” in dealing with the nonconforming use challenges. The cases in the book draw attention to key drafting opportunities when it comes to expanding, discontinuing, and amortizing nonconforming uses as well as dealing with uses that have been destroyed through no fault of the property owner.  I again ask the students to refer back to the local zoning ordinance they selected for review in class and we compare and contrast the provisions in the local laws on nonconforming uses.  Students read aloud their ordinance’s approach to abandonment – we discover together through critical reading and analysis of the language that intent is most often not required; that uses may be abandoned after 6 months, 12 months, 18 months or even 24 months depending on the words in the local law; that sometimes the period of abandonment needs to have occurred in consecutive days and other times now.  This leads to the realization that the local legislative body, as the drafter and approver of the local zoning ordinance, has tremendous power in addressing how the municipality will deal with the subject of nonconforming uses.

Another technique to demonstrate the responsibility that comes with the drafter’s “power of the pen” is to give students a short assessment assignment where a client has a pre-existing nonconforming use and due to either a potential discontinuance/abandonment or due to damage/destruction the zoning enforcement officer has determined that the use no longer exists. Give the students a passage from an actual zoning ordinance where the language is either vague or neglects to specifically address the situation at hand. Have the students write a memo to the zoning board of appeals advising them on how to interpret and apply the specific zoning code language to the matter before the board.  This will enable the students to synthesize the common law with local law, and refresh their recollection on rules for statutory construction and drafting introduced in 1L legal process courses.

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]

January 8, 2018 | Permalink | Comments (0)

Saturday, December 16, 2017

Boise and the Battle for a Sense of Place @ CityLab

The Atlantic’s CityLab published a nice article on Friday about the growth in Boise, especially how it has crescendoed around a proposed CVS that wants to tear down 20-some affordable housing units, three historic-eligible homes, and build an entire block of surface parking in the urban center.  

It is a remarkable story of how this small city is realizing it is growing up, and really fast.  It has choices to make, and the clunky CVS proposal here put those choices in stark relief.  How many times previously have there been over 500 commenters on one project in Boise?  I think never.

I have spent considerable time over my sabbatical advising the community groups—some established, some that seemed to come out of nowhere—to oppose this project.  Sometimes I have wondered if this type of civic activism is making the most of my time on sabbatical (and as a professor), but I do believe that helping growing communities learn the tools to make better places is part of what being a professor is all about.  Sometimes those lessons coalesce around the strangest of projects—here, a banal chain store—but we seize the opportunities as they are presented to us.  

I do hope this is a turning point where Boiseans start to imagine a future beyond what Phoenix, or Las Vegas, or many other Mountain West towns now regret they built for themselves and are trying to undo.  By developing late, Boise has a chance to learn from the mistakes of other places.  But it has to want the better place, and it will have to fight for it.  

December 16, 2017 | Permalink | Comments (0)

Friday, December 15, 2017

CFP: ABA Journal of Affordable Housing & Community Development Law Student Writing Competition

From Tim Iglesias:

The ABA Journal of Affordable Housing & Community Development Law sponsors an annual student writing competition. I'm attaching the competition guidelines to this email. The deadline for submissions is ‪March 3, 2018‬. The winner gets: (1) the article published in the Journal; (2) a $1,000 cash prize; and (3) up to $1,000 reimbursement for hotel (Mandarin Oriental Hotel) and transportation expenses (not to exceed $500) to attend the Forum's Annual Conference occurring ‪May 23-25, 2018‬, in Washington, D.C. where the winner is honored in front of all conference attendees.

See the details in the pdf below:

Download Revised_2018_writing_competition_guidelines.authcheckdam

December 15, 2017 | Permalink | Comments (0)

Wednesday, December 6, 2017

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 2: Post-Paris Contagion: A Series by John R. Nolon

[This post is the second in a series that will appear over the coming months.] 

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

Post-Paris Contagion

by John R. Nolon Distinguished Professor of Law

 Elisabeth Haub School of Law at Pace University

 Low carbon land use is a logical subject to be included in the periodic assessment reports of the Intergovernmental Panel on Climate Change (IPCC).  The IPCC was formed by the World Meteorological Organization and the United Nations Environment Programme in 1988. It began issuing climate change assessment reports in 1990 warning, from the outset, that business as usual will result in unprecedented warming of the planet. The first three assessment reports ignored the potential of shaping human settlements to mitigate climate change.

There was a tip of the hat to that strategy in the Fourth Assessment report, issued in 2007. While the report noted that climate change can be managed by controlling sprawl, promoting compact, mixed-use development, and modern land use planning, the IPCC was reluctant to go further and include a full chapter on the details because there was insufficient evidence in the literature documenting that strategy. 

I attended an Expert Meeting on Human Settlement and Infrastructure organized by the IPCC in Calcutta in 2011.  The correspondence that I received stated that “[o]ne motivation for this meeting is the significant percentage of global greenhouse gases attributable to human settlements and their infrastructure.”  We knew then that land use patterns can be shaped by land use law to mitigate climate change. Our task was to demonstrate that there was ample research to support a chapter on human settlement in the next assessment report.

We prepared for this Expert Meeting with a report on the literature that was published in 2011. A Report to the IPCC on Research Connecting Human Settlements, Infrastructure, and Climate Change Our report demonstrated what many of the assembled experts knew: that the techniques mentioned in the Fourth Assessment Report, and many more like them, can be employed to reduce carbon emissions at the local level. The input of this group of experts was instrumental in convincing the IPCC to add a full chapter on the subject in the Fifth Assessment Report, which was published in 2014. Chapter 12: Human Settlements, Infrastructure and Spatial Planning ...

Chapter 12 addresses the effects of urban growth on climate change. It focusses heavily on urban form, infrastructure, and land use mix. The chapter 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 GHGs by creating efficient use of energy and reducing vehicle miles travelled and auto emissions.  Strategies that cities can use to mitigate climate change are noted including use restrictions, density regulations, urban containment instruments, building codes, parking regulations, design regulations, and affordable housing mandates. The chapter discusses land acquisition and management through transfer of development rights and increasing green space and urban carbon sinks.

This Assessment Report was published before the gathering of the Conference of the Parties in Paris. The keen interest of local governments in managing climate change was evident in their response to the agreement of the parties in Paris, which invited their participation in mitigating global climate change. Bottom-up mitigation strategies were memorialized as NDCs: Nationally Determined Contributions. This approach broadened international climate policy by including state and local government actors and inviting them to demonstrate how they can contribute to climate change mitigation.

The outpouring of support for state and local actions to manage climate change following adoption of the Paris Climate Accord demonstrates that commitment. ­1,300 non-party stakeholders, for example, signed the “Paris Pledge for Action” to demonstrate their commitment to the Accord’s goals.  It was not intended to replicate the “good work being done by local governments” but to demonstrate “the breadth of support and scale of momentum for a transition to a low-emission and climate resilient economy.

“The Under2 MOU” was created in 2015 and signed by 205 jurisdictions representing 43 countries on six continents, 17% of the global population, and nearly 40 percent of the global economy. Among the signatories were numerous large cities in the U.S. including Pittsburgh, Portland, New York City, Sacramento, and San Francisco.

Earlier this year, 385 “US Climate Mayors” committed to “adopt, honor, and uphold Paris Climate Agreement goals. This commitment followed President Trump’s decision to withdraw the U.S. from the Paris Accord.  Their statement was clear: “We will increase our efforts to cut greenhouse gas emissions, create a clean energy economy, and stand for environmental justice. In withdrawing, the President noted “I was elected to represent the citizens of Pittsburgh, not Paris.” Shortly thereafter Pittsburgh city leaders pledged to implement their own climate action plans.

These mayors know what the IPCC learned: that the legal system we use to control development touches on approximately two-thirds of the sources of carbon emission.  This connection between land use law and carbon emissions is the topic of the next blog in this series.

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, Arkansas Law Review.

Below are links to the previous posts in this series:

Post 1:  Grassroots Mitigation of Climate Change

December 6, 2017 | Permalink | Comments (0)

Monday, December 4, 2017

Patricia E. Salkin on Contemporary Issues in Teaching Land Use: Question 5:  How to Create a Practical Context for Learning?

[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 5:  How to Create a Practical Context for Learning?

by Patricia E. Salkin

Chapter 3 in our casebook is probably my favorite chapter to teach and the chapter I dedicate the most class hours.  This is the “nuts and bolts” chapter and the information discussed is where most land use lawyers earn their “bread and butter” with routine zoning cases.  I agree with my colleagues who all posted about having students visit zoning and/or planning board meetings, and more importantly reflecting on these meetings from social and political sciences and from legal perspectives.  This is also the first chapter in the book where most students in the classroom can personally relate to the material.  For example, they can understand about the desire of neighbors to sometimes want pools, decks or additions to their homes and the challenges when setbacks fall just shy of those required by zoning.   I like to spend time discussing the legal strategies and the division of decision making authority when it comes to use variances versus rezoning and how this ties back to the material in Chapter 2 on the comprehensive plan and conformance with the plan.

Like Stephen Miller and our other colleagues, one of my goals in Chapter 3 is to make sure that the students are comfortable with reading and navigating through a zoning ordinance. These laws are not on Westlaw and Lexis and while they may be relatively easy to find on-line today (assuming we can access the most up-to-date version), before this course most students have never works with a local law.   In my July 24, 2017 post I discussed how I use the local zoning ordinances/laws to draw comparisons with the Standard Zoning Enabling Act in Chapter 1.  When we get to Chapter 3 I am focused on using the ordinance in practice to best advise and represent clients.  We start with the definition section.  Each person in the class selects a different zoning law of their choice and to start class I begin by asking the students how select words are defined in their zoning ordinances.  The class quickly realizes that words and phrases are defined differently in each local law and that in some zoning laws some of the words are not defined at all.  This best exemplifies what it means to work with local laws that lack the uniformity of statewide statutes.  It brings home the point that they can’t assume that what works in one town, city or village will be the same as a neighboring jurisdiction.  More so than looking up legal terms of art in Black’s Law Dictionary, good zoning lawyers have to look up the meaning of every word in the ordinance since it can make a difference for their client.  We also discuss what happens when certain words are not defined and yet a zoning decision hinges on the interpretation of that undefined word.  Statutory construction from first year legal process/lawyering springs into action and students who have been exposed to legislative drafting now hone in on statutory interpretation and consequences for vague and/or provisions.

Another way in which I use zoning ordinances is for in class team problem solving.  I use the zoning ordinance for our host community, the Town of Islip, NY.  I organize the class into three teams of associates of my law firm, and I assign each team to a new client of our firm who desires to site a particular use in a particular area of the Town.  Of course some of the uses are not defined in the definition section but they or related uses are allowed in certain districts.  Some uses have restrictions, some decisions are made by the legislative body and others have been delegated to the planning board or to the zoning board.  They must work with the zoning ordinance navigating through various sections in order to arrive at reasonable advice for our clients and be able to articulate the challenges and opportunities.  One of my favorite “client cases” involves someone who wishes to site a pet cemetery in the town in a district where cemeteries are allowed by special use permit.  Of course the word “cemetery” is not found in the definition section – so is a pet cemetery the same as a cemetery for the burial of human remains?    This is a fun but very real simulation.

While on the subject of simulation, some semesters I balance the visit to the zoning board meeting with a mock zoning board in class.  This works particularly well with classes of 15-20 students. For this exercise I assign some students the roles of members of the zoning board (3 to 5 students), I designate a chair of the zoning board, and appoint a counsel to the board.  I divide the rest of the class into three groups and I give each individual person in the group an envelope with instructions inside as to what they are to say to the zoning board of appeals on the pending matter before the board that is of interest to their group.  One person is designated as the applicant, and one to two people are designated as neighbors/community members opposed to the application.  Each of the made-up fact patterns resembles one of the variance cases in the textbook (obviating the need to specifically review by rote the cases, but rather bringing them to life through the simulation).  I ask the Board Chair to begin the meeting and to call each matter one at a time, and to allow for presentation, speakers and questions, if any, from the Board.  When the meeting is concluded, I ask each person in the class to vote on how the application should be decided and we discuss why (this also involves application of our State enabling statutes which contain statutory tests for the granting of use and area variances). When we debrief after the mock meeting, we have a lot to discuss from the running of public meetings, the pros and cons of board member questions, the role of Board counsel, the length of time applicants and opponents can and should speak, and then the substance of the decision.

Both of these simulations are very well received by the students and they are additional tools to bring the practical side of zoning and land use controls to the forefront for our students.  I am happy to share my materials (although they are ordinance and state specific) with readers.  Feel free to send me an email at psalkin@tourolaw.edu. I am also interested in learning about your team-based problems in this chapter and with your permission (and attribution) would be happy to share with 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] 

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

 

 

 

December 4, 2017 | Permalink | Comments (0)

Wednesday, November 29, 2017

CFPs for ASU's Sustainability Conference of American Legal Educators / 2018 Morrison Prize Contest

To view this email as a web page, go here.
Sustainability Conference of American Legal Educators
 
 
 
 
 
 

 

2018 Morrison Prize Contest

Call for Entries – Submit by December 9!

The Morrison Prize is a $10,000 award that is presented annually to the author(s) of the most impactful sustainability-related legal academic paper published in North America during the previous year. The prize winner(s) will present the winning paper in a plenary session at the fourth annual Sustainability Conference of American Legal Educators on May 11, 2018, which will be held at the Beus Center for Law and Society located on the ASU Downtown Phoenix campus.​

Eligibility Requirements:

The Morrison Prize contest is open to full-time law professors who have published environmental sustainability-related papers in printed U.S. or Canadian legal academic journals during the contest period. The contest is not open to students. 

All papers appearing in a qualifying journal's final 2016 issue or in an issue printed and circulated prior to November 15, 2017, fall within the contest period. Works-in-progress and papers that are not published in print form before the deadline are not eligible. Papers focused on topics in environmental law, water law, energy law, natural resources law, land use law, disaster law, climate change law, or agricultural law meet the subject matter requirements for eligibility.

Judging Process and Criteria:

The Morrison Prize seeks to recognize the paper published within the eligibility period that is likely to have the most significant positive long-term impact on the advancement of the environmental sustainability movement. All eligible papers entered into the prize contest will undergo independent review and scoring by a diverse group of full-time law professors who teach in environmental sustainability-related areas at four different accredited North American law schools.
 
The contest scoring system focuses primarily on a paper's quality and originality of analysis (20%) and potential for real-world impact on policy developments directly related to environmental sustainability goals (80%).

ASU Law will announce the 2018 Morrison Prize winner in February. The winner must present the winning paper at the May 2018 Sustainability Conference of American Legal Educators to claim the cash prize.

How to Enter:

To enter, mail a cover letter and five (5) offprints of your qualifying paper to:

Lauren Burkhart
Sandra Day O’Connor College of Law
Arizona State University
111 E. Taylor Street Phoenix, AZ 85004-4467

The deadline for submitting papers is December 9, 2017.

Entries postmarked by the deadline will be accepted. Nominations of colleagues' or peers' articles are welcome but must include five (5) offprints.
 
Submit Now

Questions: Contact Lauren Burkhart

Phone: (480) 965-2465

Web: law.asu.edu/SustainabilityLaw

November 29, 2017 | Permalink | Comments (0)

Monday, November 27, 2017

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

 [This post is the first in a series that will appear over the coming months.]

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

Grassroots Mitigation of Climate Change

by John R. Nolon

Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

Last year, we published a series of blogs that described the evolution of local zoning codes into a dynamic legal system for sustainable development.  The final post demonstrated the relevance of this system of law to climate change, noting its embrace by the IPCC’s Fifth Assessment Report in 2014 and the Accord achieved at the Paris Conference of the Parties in 2015.  Our new series explores how local governments, using power already delegated to them by their states, can mitigate climate change.   It will describe local legal authority to shape human settlements, show how that authority touches over two-thirds of the sources of carbon dioxide emissions, provide detailed examples of the techniques municipalities use to control the size and shape of settlements, present five strategic solutions, show how local problem solving is particularly effective, and demonstrate how local action can be used to reduce or capture emissions and help fulfill the Paris Accord to which many cities remain fully committed.

The effects of climate change manifest themselves at the local level, where people are killed or injured, property is destroyed, businesses are shuttered, ecosystems are fouled, and where our democratic system is most vibrant. Upon our discovery of the advent of local environmental law twenty years ago, we investigated why particular localities adopted these new laws.  Through interviews with local leaders, we found they were profoundly perturbed by drinking water pollution, species disappearance, riverbank erosion, wetlands damage, and the loss of historic viewsheds, to name a few. These influences motivated a grassroots solution to their problem: adopting and enforcing local environmental law. See In Praise of Parochialism: The Advent of Local Environmental Law.

We suggested that this perturbation effect should be used to target the investment of public resources to communities where on-the-ground damage is evident or imminent, knowing that local leaders will embrace sound solutions. Suggesting to state and federal agencies that they work from the ground up, however, is at odds with the norms of our decades-old environmental legal system, which works from the top down. We expect that federal agencies will establish standards, penalize violators, and clean up point-sources of pollution. That system has done its job effectively.  Nevertheless, grounding environmental action at the local level has numerous advantages of its own. 

It is there that citizen engagement can create lasting social change.  Perturbed citizens, if not immunized from the influence of big oil and big coal, are less likely to be captured by them. And, it is at the grassroots of our legal system that the power to control land use is found.  It is there that non-point source pollution, the biggest cause of water quality deterioration, can be addressed. It is there too that our legal system can reduce the demand for fossil fuels by creating energy efficient buildings and sustainable neighborhoods. Only there can solutions crafted at the federal and state level be adapted to local circumstances, which vary widely among the 40,000 municipalities in America.

The primary authority to determine what happens to our settled and undeveloped landscapes is in the hands of local officials who are elected or rejected by perturbed local voters. Regional and state agencies, taking advantage of these grassroots perturbations, can provide funding, technical assistance, data about regional and state-wide needs and, by so doing, create a linked system of strategies to address parochial needs and nest them in broader regional and state-wide contexts.  

Our positive experience with the grassroots perturbation effect is explained by studies in ecology, sociology, and urban planning.  Scholars who study the process of change, a field of sociology called the diffusion of innovation, observe how change happens in social systems and document the processes by which successful change occurs. Their focus is on connectivity.  They observe that outside change agents are most successful when they place new tools in the hands of respected local leaders. When those leaders adopt an innovative solution, others pay attention. As successful change occurs, the rest of the community catches on, a tipping point is reached, and the innovation becomes permanent. Successful change in these peer communities spread to nearby places confronting similar problems.  In the study of urban planning, researchers describe how local and regional planning networks can be created to link local responses to address common, transboundary problems.

Local stakeholders represent the components of the municipal complex adaptive system. See Champions of Change: Reinventing Democracy Through Land Law Reform. By being engaged in public processes, they can achieve consensus about how to respond to flooding, drought, mud slides, wildfires, sea level rise, and storm surges – effects associated with climate change.  In response to these on-the-ground perturbations, they are motivated to learn how to mitigate the forces of climate change by reducing vehicle miles travelled, creating energy efficient buildings, permitting and encouraging renewables and distributed energy generation facilities, and preserving natural systems that sequester carbon. As the local evidence of climate change becomes more and more evident, opinions often change as local leaders engage in solving the problems that threaten their environment and economy. They become committed to effective action and react aggressively to opportunity and threats.  The outpouring of support for state and local actions to manage climate change following the withdrawal of the U.S. of the Paris Climate Accord demonstrates that commitment. ­

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, Arkansas Law Review.

November 27, 2017 | Permalink | Comments (0)

Monday, November 20, 2017

Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 5:  How to Create a Practical Context for Learning?

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 5:  How to Create a Practical Context for Learning?

by Jonathan Rosenbloom

 Chapter 3 starts with classic flexible zoning techniques, such as zoning amendments, special use permits, and variances, that help communities and individual lot owners address changes as they occur. As John and Stephen stated, attending a plan and zoning commission or a board of adjustment hearing and discussing the hearing before and after are valuable experiences in learning how these techniques are implemented.

As part of understanding the practical application of these techniques, it is equally important for students to question whether the techniques are adequately addressing the broad range of critical changes facing communities. Hurricanes Maria, Harvey, and Irma, wildfires in Colorado, Montana, Oregon, and Washington, and other disasters have shown that we are in a time of uncertain ecological change. Communities face a barrage of unknown challenges that may occur in different and, at times, divergent ways. California’s five-year drought, for example, ended with one of the wettest winter/spring periods on record, which was followed by catastrophic and on-going fires this fall. These events “are reminders that we live in an era of standardized disasters.” Amy Davidson Sorkin, In the Dark. In addition to ecological changes, students should be aware that communities face emerging social and social-ecological changes, such as autonomous vehicles and changes in e-commerce and housing like tiny houses, that will influence land use patterns.

Students should consider these challenges in light of classic flexible zoning techniques. Before attending a hearing, students can discuss whether the existing flexible zoning techniques are adequate to prepare communities for an uncertain future. This may include exploring the kinds of challenges confronting communities and how those challenges affect land use patterns. After the hearing, it may be helpful to explore whether those challenges were raised at the hearing and, if not, why. One likely answer is that the techniques were not designed and are not adequate to address major social-ecological or ecological changes. They are mostly focused on use, height, and bulk.

It is important to point out, however, that these techniques remain the primary methods of incorporating flexibility into many zoning codes. Further, that focus may be misplaced in today’s changing climate. This may lead to a discussion of long-range [resilience] planning (discussed in Chapter 2) and whether that kind of stagnant long-range planning is adequate given the rate of changes. Further, what, if anything, would be helpful to accommodate the types of changes we are seeing and can expect to see. This may be a good point to foreshadow some of the techniques in Chapter 4 (such as, development agreements) and introduce adaptive governance as a means to help identify and track changes and to make policy adjustments in a more nimble, deliberate fashion.

At Drake Law School, we will delve often into Des Moines new proposed zoning code (for the most recent version of the code at the time of this post). That code, which incorporates several post-Euclidean strategies, such as form-based zoning and sustainable development, does not mention autonomous vehicles, e-commerce, or fundamental ecological changes. Maybe it doesn’t need to, but I think it is important for students to realize that most zoning codes are stagnant pieces of legislation. Unless more aggressive means of understanding and tracking changes and altering policies based on those changes is incorporated throughout core parts of zoning laws, communities will continue to be ill-prepared for a rapidly changing future.

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]

 

November 20, 2017 | Permalink | Comments (0)

Friday, November 17, 2017

A framework for how land use decisionmaking misfires?

In a forthcoming article, Cass R. Sunstein and Adrian Vermeule take a look at what they call "The Morality of Administrative Law."  They frame their article around eight ways Lon Fuller noted “that the attempt to create and maintain a system of legal rules may misfire.” These are:


(1) a failure to make rules in the first place, ensuring that all issues are decided on a case-by-case basis;
(2) a failure of transparency, in the sense that affected parties are not made aware of the rules with which they must comply;
(3) an abuse of retroactivity, in the sense that people cannot rely on current rules, and are under threat of change;
(4) a failure to make rules understandable;
(5) issuance of rules that contradict each other;
(6) rules that require people to do things that they lack the power to do;
(7) frequent changes in rules, so that people cannot orient their action in accordance with
them; and
(8) a mismatch between rules as announced and rules as administered.

It struck me that many of these concerns are also a useful framework for thinking about the way land use hearings often go awry.

November 17, 2017 | Permalink | Comments (0)

Monday, November 13, 2017

Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 5:  How to Create a Practical Context for Learning?

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 5:  How to Create a Practical Context for Learning?

by Stephen R. Miller

 

It is a little daunting following John Nolon in discussing the practical context for teaching land use law because he, along with Patty Salkin (who will finish up this round of essays), are really synonymous with this topic and have done so much to guide my generation in practical learning over the years.  Here, though, are some thoughts about what I think I do right, and where I am still seeking to do better, on this important topic.

When we started writing this latest edition of the casebook, one of the major discussions we had was how to teach both the basics of zoning, while also recognizing that most major development plays by different rules, such as a planned unit development or a development agreement.  The end result is that Chapter 3 largely addresses the basics, while Chapter 4 is largely re-envisioned to address subdivisions, PUDs, DAs, and all of the tools now sometimes referred to as the "contract reformation in land use."

To create a practical context for learning in these chapters, I have students attend a hearing of the Boise planning and zoning commission, which conveniently is located just two blocks from the law school.  I choose the hearing date for students based upon its agenda.  I also tell the students which agenda items I want them to follow and have them read the packet in advance.  I typically pick a conditional use permit, which assists with Chapter 3, and a planned unit development, which assists with Chapter 4.  Because Boise is booming, almost every commission hearing has both of these permits on the agenda, but I realize that may not be true in some other jurisdictions.  I also ask students to write a one page single-spaced response paper.  I tell them they don't have to focus on the law in the paper; instead, they can write about the effectiveness of the community speakers, the nature of the process, what they thought about the role of the city attorney, the tone of the commission, how they would have voted, and so on.  I find that this works pretty well for the basic pedagogical purposes of Chapters 3 and 4. 

I do, however, have several issues that I continue to wrestle with as I try to think about a stronger practical component to this course.  First, a major problem I have is how to teach good land use process if local practice falls below that standard to which you want students to aspire.  This is a major problem in Idaho.  In Idaho, city attorneys start as criminal lawyers and then, if they are lucky, about a decade later, they are promoted to the civil side.  That means that most of the city attorneys in Boise, much less the rest of the state, have very little exposure or knowledge of the procedural aspects of land use law.  As I wrote in another post over the summer, this can lead to some highly unusual proceedings, such as a recent case where the planning department rationalized its actions on appeal according to criminal law, rather than the applicable administrative law, standards.  How do you explain that to students?  What I say to students is that, if you are representing a developer or a community group, you should recognize the failure of process as an opportunity for appeal and litigation.  If students end up working for the city, I tell them they should make a point to try to improve these procedural matters.  Nonetheless, the difference between the ideals I teach in class and the realities of what happens in a boom-town like Boise--and, I suspect, in many other boom-towns of the Mountain West and South--is something that I still reckon with when I teach this class.

A related concern, which is a much broader dilemma that I wrestle with, deals with how to teach in the context of a mismatch between rapid growth of urban areas and the region's expertise to handle growth.  The Mountain West and the South continue to be the two fastest growing regions in the country, but they are also the two regions, I would argue, where there is less emphasis on effective land use controls.  This mismatch between growth and expertise in managing it, I believe, is a worldwide phenomenon.  As the IPCC's latest report noted, in the climate change context, “[o]vercoming the lack of political will, restricted technical capacities, and ineffective institutions for regulating or planning land use will be central to attaining low-carbon development at a city-scale.”  2014 IPCC Mitigation Report §12.6.  If I did not live in Boise, which is almost always on the list of the 20 fastest growing metro regions by percentage, I would probably have passed this sentence by without notice.  But living where I do, it expressed a great concern I have about the future of land use law, as well as how we train future land use lawyers.  Every day, I see tremendous growth in this region, and yet, I know that whether Boise addresses its growth in a meaningful way is determined by political will, technical capacity, and effective institutions.  Like most fast growth regions in the U.S. and the world, Boise struggles with all three.  I would like to believe that my class could be the beginning of addressing all three of those deficiencies.  That is a daunting lift, but a broader aspect of the practical learning that I hope to incorporate better into my classroom in future 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]

November 13, 2017 | Permalink | Comments (1)

Tuesday, November 7, 2017

CFP: Law, Planning and Wildfire in the Wildland-Urban Interface: The Future of Government and Governance of Disaster in the West

Call for Presentations and Papers

Law, Planning and Wildfire in the Wildland-Urban Interface:

The Future of Government and Governance of Disaster in the West

Symposium Date:  Friday, October 19, 2018

Proposal Deadline:  January 1, 2018

Location:  Boise, Idaho

The Idaho Law Review invites proposals for presentations and papers for its symposium, “Law, Planning and Wildfire in the Wildland-Urban Interface:  The Future of Government and Governance of Disaster in the West.” 

In 1995, fire suppression made up 16 percent of the U.S. Forest Service’s annual appropriated budget; in 2015, wildfire consumed more than 50 percent of the agency’s budget. 

As suppression costs mount, attention is increasingly focused on development patterns that place more people in wildfire’s way, often resulting in higher losses of life, greater property value damage, and higher suppression costs.  This is especially true at the urban fringe, often referred to as the “Wildland-Urban Interface,” or WUI.  Six of the 10 most expensive fires in the past 100 years were WUI fires, despite the fact that WUI fires account for just a small fraction of overall fires fought in any given year.  According to one widely used WUI definition, only 14 percent of the WUI is developed. If current development patterns continue, development in the WUI will almost certainly grow substantially, resulting in even further increases in wildfire protection costs. With the West perennially ranking as a fast-growth region, WUI development is certain to grow over time. 

Some questions conference participants may address include the following:

  • How should the West plan for, and govern for, wildfire in the WUI?
  • What legal and policy tools are needed to plan for wildfire in the WUI?
  • How should wildfire be implemented into the planning process?
  • What is the role of government in planning for WUI wildfires?
  • What is the role of markets, non-governmental entities, such as HOAs, and insurance in planning for WUI wildfires?
  • How should the secondary effects of wildfire—often aesthetic, flooding, and landslides—be worked into WUI development planning?

We invite discussion of other topics related to WUI wildfire governance and planning, as well.

The conference invites a wide variety of potential contributions from those in federal and state agencies; local governments; planning professionals and academics; as well as legal professionals and academics working on the topic of wildfire in the WUI.  We seek a national representation of panelists, though the conversation will largely focus on western WUI wildfire planning.

We are accepting proposals for presentations with papers and also presentations without papers.

Papers for the symposium will be published in the Idaho Law Review’s peer-reviewed Natural Resources and Environmental Law edition.  To facilitate peer review, first drafts must be submitted no later than August 1, 2018.  Final drafts will be due December 1, 2018.  Publication will occur in Spring, 2019.  Symposium edition articles are typically 3,000 – 6,000 words in length, but may be up to 10,000 words in length.  For those familiar with writing for legal publications, student editors will provide assistance with citations. 

Please submit proposals no later than January 1, 2018 to Prof. Stephen R. Miller at millers@uidaho.edu.

Reasonable travel expenses of presenters will be reimbursed.

Current sponsors of the symposium include:  the Idaho Law Review; the University of Idaho College of Law; the University of Idaho Bioregional Planning + Community Design; and the Boise State University School of Public Service.

Funding for the symposium includes a grant from the U.S. Forest Service and the Idaho Department of Lands.

November 7, 2017 | Permalink | Comments (0)

Monday, November 6, 2017

John R. Nolon on Contemporary Issues in Teaching Land Use: Question 5:  How to Create a Practical Context for Learning?

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 5:  How to Create a Practical Context for Learning?

by John R. Nolon

One problem that Chapter 3, The Basics of Zoning, presents is how to create a practical context for the students so they can understand the real life application of amending zoning, securing variances, handling nonconforming uses, and the pop-up novel land uses permitted by accessory use and home occupation provisions of zoning ordinances.  It helps for students to have and review an actual zoning ordinance and use it to find the sections that pertain to these basic techniques, which are the lifeblood of land use practice. Some of us use a single prototype and others encourage students to find one from a community they know or have an interest in. The cases in this chapter make it clear that this is a study of local law and that the language contained in specific codes is critical.  Learning to read what the local law says exactly is a critical skill that can be taught by tracking the student's code as they read and brief each of the cases in the chapter.

Another terrific approach is to require students to attend, and write a report on, a local zoning or planning board meeting.  They inevitably come back with observations about a variance proceeding, or a matter that involved a nonconforming use or home occupation.  This puts the material in the chapter into a real life context that is essential to learning the basics. 

The chapter also provides an opportunity to explore the similarities and differences between state laws and local practice in different states.  Consider the Larsen v. Pittsburgh Zoning Board of Adjustment as compared to Sasso v. Osgood involving the Town of Henderson in New York.  The common DNA of variances across boundaries is obvious, but so too are the local differences: the nuances that practitioners must grasp to carry their burden of proof, if they have one, to meet state statutory standards, or to get the evidence on the record needed to support the board's decision in court if challenged.

The Toys "R" Us v. Silva case is loaded with entertainment value as well as real learning.  It involves the complex administrative machinery of the New York City Zoning Resolution and the minions and agencies involved in its administration.  What can be more exciting that a dispute between residents of brownstones on 80th street and a large retailer fronting on Third Avenue?  The case involves a five-month-long public hearing, piles of evidence including warehouse logs, an upper east side site visit, the Board of Standards and Appeals, a reference to the City's Charter, a coalition of neighborhood associations dubbed "Neighbors-R-Us," opinions and operations of the DOB (Department of Buildings), shenanigans involving Chase Manhattan Bank, and, of course, the lesson that the words found in the local law, once again, matter.

 

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]

November 6, 2017 | Permalink | Comments (1)

Sunday, November 5, 2017

CFP: ABA Journal of Affordable Housing & Community Development Law: Managing the Tensions and Conflicts Among Affordable Housing, Community Development and Fair Housing Law

 

ABA Journal of Affordable Housing & Community Development Law

Call for Papers

Managing the Tensions and Conflicts Among Affordable Housing, Community Development and Fair Housing Law

The Journal of Affordable Housing & Community Development Law (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.

For its next issue the Journal invites articles and essays on the theme Managing the Tensions and Conflicts Among Affordable Housing, Community Development and Fair Housing Law

April 2018 will mark the 50th anniversary of the passage of Title VIII of the 1968 Civil Rights Act, the federal Fair Housing Act. Doubtless, there will be numerous publications celebrating it and evaluating its effectiveness.  This issue of the Journal will focus on another equally significant dimension worthy of reflection. Title VIII was enacted to address both governmental and private actions that discriminate or that promote segregation either intentionally or by neutral rules.  Historians have documented a long history of governmental discrimination that promoted racial segregation by excluding people of color and others from communities of prosperity and opportunity as well as intentional practices of neglect and disinvestment that contained people of color and others protected by civil rights laws.

Given this legacy, there are numerous important and recurring tensions between fair housing law, the development of affordable housing, and community development that arise out of efforts to pursue Title VIII’s worthy objectives. Some examples of fair housing rules and policies that have caused complications include: (1) siting practices that are affected by the duty to affirmatively further fair housing and site and neighborhood standards; (2) the right of persons with disabilities to live in integrated, community-based settings where they can also receive long-term supportive services that address their individual needs; (3) the obligation to carry out affirmative fair housing marketing while also implementing admission and selection practices to create specialized housing for families with needs that often impair the ability to gain access to housing; (4) the responsibility to effectuate architectural access in a regulatory environment with complex building codes implemented by regulators and builders in inconsistent ways; and, (5) the importance of promoting equal access to housing by immigrants through language assistance policies in a political atmosphere where immigration itself is a contentious topic. 

Often these tensions are expressed as an either-or proposition.  Developers, sponsors, government officials and others are concerned about regulatory imperatives that are confusing or contradictory, interfere with their mission, cause inefficiencies, encourage unnecessary legal fees and litigation, create distortions in the developments and programs that lead to limits on the number of affordable units, or that undermine projects altogether. Fair housing advocates argue that some affordable development activities perpetuate or exacerbate conditions of segregation and containment affecting people of color and people with disabilities, and that in the absence of regulation and vigorous enforcement, bias, prejudice and exclusion will continue to plague the nation’s housing and finance systems.  Some community advocates question fair housing goals that disfavor investment in low-income communities and communities of color, as well as when application of Title VIII appears to impede efforts to resist gentrification and community displacement. Advocates for special needs populations do not all agree whether integration into the larger community or formation of special communities are more advantageous.

The Journal seeks articles that will explain and analyze these types of issues and suggest strategies (including legal and policy recommendations) to deal with them. The focus is not on those trying to evade fair housing requirements but on the complexities of complying with legal rules by people of good will who support fair housing goals. Articles can either focus on a particular rule or policy (e.g. site and neighborhood standards) or address a broader theme (e.g. how the tensions affect the location of housing or how they exemplify issues of identity and difference).

The Journal welcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words) on the theme. 

Interested authors should send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at iglesias@usfca.edu by November 20, 2017. Submissions of final articles and essays are due by January 3, 2018. The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

November 5, 2017 | Permalink | Comments (0)

Wednesday, October 25, 2017

Buchanan v. Warley Centennial Symposium on Race & Zoning

On November 5, 1917, the U.S. Supreme Court struck down Louisville’s race-based zoning ordinance in a landmark case, Buchanan v. Warley. The centennial of this famous case will be marked on Friday, November 10, 2017, at the University of Louisville Brandeis School of Law with a national symposium on Racial Justice in Zoning: 100 Years after Buchanan. The symposium will explore current racial injustices in land use, housing, and environmental conditions, as well as the history of race and zoning in the U.S. and Louisville. It will feature presentations on eight nationally renowned scholars, as well as a presentation on redlining in Louisville.

 

The symposium begins at 8:30 a.m. and ends at 2:30 p.m. on Friday, November 10, and will be held in Room 275 of Wyatt Hall, which is the Brandeis School of Law on the University of Louisville’s Belknap campus, 2301 S. Third Street. The symposium is free and open to the public, and includes a free light continental breakfast at approximately 8:30 a.m., and a free lunch at approximately 1:00 p.m., both on a first-come, first-serve basis until food runs out. Please do not confirm your attendance; just come. If you have questions, please contact Tracie Cole at tracie.cole@louisville.edu or 502-852-1230. Individuals requiring accommodations should also contact her as soon as possible.

 

All attendees will be responsible for finding and paying for their own parking. Visitor parking passes are available for purchase through the U of L Parking website.  On this page, you are able to pay for and print your visitor permit that you will place on the dash board of your car while you are parked on campus.  You are also able to view maps and directions to campus.  To obtain your visitor pass, click on “Printable Visitor Permits”, under “Permits” click on “Get permits” and under “Customer Authentication, click on “create a guest account”.  From here, you will create an account, and be able to select the $5 per day printable visitor permit.  You are able to park in the Green Lot on 3rd Street across from the Reynolds Lofts. The UofL Parking website also contains information about other visitor parking options, such as the lot at 4th and Cardinal or the Floyd Street Garage, which charge based on the length of time you park. Also, the Speed Museum (not the University) operates a parking garage next to the Speed Museum on Third Street, which charges by the hour.

 

The symposium is sponsored by the University of Louisville Brandeis School of Law, with support from the Caudill-Little Speakers Fund, and co-sponsored by the Anne Braden Institute for Social Justice Research at the University of Louisville.

 

The details of the symposium schedule and speaker information are provided below:

 

Buchanan v. Warley Symposium Agenda

Racial Justice in Zoning: 100 Years after Buchanan

Friday, November 10, 2017

 

8:30 a.m.: Light continental breakfast

8:40 a.m.: Dean's Welcome: Lars Smith, Interim Dean

8:50 a.m.: Organizers' Welcome: Tony Arnold, Symposium Chair

 

Session I: The History of Race, Zoning, and Buchanan Case

9:00 a.m.: Cate Fosl, The Buchanan Case and the Long Movement for Civil Rights in Louisville

9:20 a.m.: Laura Rothstein, What Would Louis Do?  The “Brandeis Brief” on Zoning and Its Present Impact on Racial Segregation

9:40 a.m.: Michael Wolf, Caudill-Little Distinguished Presenter, There’s Something Happening Here: Affordable Housing as a Nonstarter in the U.S. Supreme Court

10:20 a.m.: Q&A for Session I

10:30 a.m.: Break

 

Session II: Contemporary Perspectives on the Persistence of Racial Inequality in Land Use

10:40 a.m.: Cedric Merlin Powell, Race Displaced: Buchanan v. Warley and the Neutral Rhetoric of Due Process

11:00 a.m.: Michael Lens, Caudill-Little Distinguished Presenter, Why Segregation Matters: The Inequality of Opportunity

11:40 a.m.: Audrey McFarlane, Caudill-Little Distinguished Presenter, The Properties of Integration: Managing Discrimination Through Mixed Income Housing

12:20 p.m.: Tony Arnold, From Zoning Injustice to Environmental Injustice to Resilience Injustice

12:40 p.m.: Q&A for Session II

12:50 p.m.: Break

 

Session III: Luncheon Keynote

1:00 p.m.: Lunch

1:10 p.m.: Keynote by Sheryll Cashin, Caudill-Little Distinguished, Integration as a Means of Restoring Democracy and Opportunity

1:50 p.m.: Q&A for Keynote

 

Session IV: Bringing It Home

2:00 p.m.: Jeana Dunlap, Redlining Louisville: The History of Race, Class and Real Estate

2:15 p.m.: Final Remarks by Organizers and Conclusion

2:30 p.m.: Symposium Ends; Book-Signing by Sheryll Cashin

 

Speakers:

Craig Anthony (Tony) Arnold, J.D. is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility.

Sheryll Cashin*, M.A., J.D., is Professor of Law at Georgetown University, and an active member of the Poverty and Race Research Action Council.

Jeana E. Dunlap, M.P.A., M.S., is the Director of Redevelopment Strategies, Louisville Forward.

Catherine Fosl, Ph.D., is Professor of Women's and Gender Studies at the University of Louisville, where she also teaches in the History Department and directs the Anne Braden Institute for Social Justice Research.

Michael Lens*, Ph.D., is Associate Professor of Urban Planning at the UCLA Luskin School of Public Affairs, where he is the Associate Faculty Director of the UCLA Lewis Center for Regional Policy Studies.

Audrey McFarlane*, J.D., is the Dean Julius Isaacson Professor of Law at the University of Baltimore.

Cedric Merlin Powell, J.D., is Professor of Law at the University of Louisville Brandeis School of Law, where he is the Interim Associate Dean for Academic Affairs.

Laura Rothstein, J.D., is a Distinguished University Scholar and Professor of Law at the University of Louisville Brandeis School of Law.

Michael Allan Wolf*, J.D., Ph.D., is the Richard E. Nelson Chair in Local Government Law and Professor of Law at the University of Florida Levin College of Law.

* denotes Caudill-Little Distinguished Presenter

October 25, 2017 in Conferences, Constitutional Law, Environmental Justice, History, Housing, Race, Scholarship, Zoning | Permalink | Comments (0)