Friday, September 9, 2016

Sharing Economy Friday, Post 3: TUESDAY: FREE ABA Professor's Corner webinar with Miller and Jefferson-Jones on sharing economy

This Tuesday, I am doing a webinar with Jamila Jefferson-Jones (UMKC) on hot topics on regulating short-term rentals.  It is free and sponsored by the ABA Real Property Trusts and Estates Section.  Thanks to Chris Odinet (Southern) for the invite.

Professors' Corner
Emerging Legal Issues in the Sharing Economy:
Regulating Short-Term Rentals

Tuesday, September 13, 2016
12:30-1:30 pm ET (11:30 am CT, 10:30 am MT, 9:30 am PT)

Speakers:

  • Jamila Jefferson-Jones, Associate Professor, University of Missouri-Kansas City School of  Law
  • Stephen R. Miller, Associate Professor, University of Idaho College of Law

Moderator:

  • Christopher Odinet, Horatio C. Thompson Endowed Assistant Professor, Southern University Law Center

Like network transportation companies and employment matching sites, sharing economy short-term rental (STR) companies are rapidly restructuring the American experience. That these sharing economy STR companies — which are typified by entities such as Airbnb and VBRO — have such impact and market share at a time during which much of their business model remains, at best under-regulated and at worst illegal, makes it one of the most important emerging areas in American law.

Our panelists will discuss recent cases and emerging issues that examine the tension inherent in regulating sharing economy STRs as cities and states grapple with issues such as: whether STRs cause gentrification and escalation of rents in highly-coveted neighborhoods; whether or how these companies should be subject to the payment of transient occupancy taxes, as well as impact fees and exactions associated with STRs; day limits on STR market use; use definitions that define STRs; licensing and permitting; forced information sharing; the application of anti-discrimination laws; takings and inverse condemnation litigation; rent control and subletting provisions in leases, as well as other litigation that will certainly arise and develop in the near future. Professors Miller and Jefferson-Jones are the authors of The State & Local Government Sharing Economy Manual:Strategies for Regulating and Managing On-Demand Services, an ABA publication forthcoming in 2017.

Professors' Corner is a monthly teleconference featuring law professors discussing recent cases or issues of interest to real estate practitioners and scholars.

September 9, 2016 | Permalink | Comments (0)

Sharing Economy Friday, Post 2: Jamila Jefferson-Jones on Airbnb's anti-discrimination policy

Yesterday, Airbnb offered a new anti-discrimination policy. NPR, NYT, WSJ.

Jamila Jefferson-Jones (UMKC), who has written about the subject (see here), commented at The Guardian and New York Times and offered some nice insights.

September 9, 2016 | Permalink | Comments (0)

Sharing Economy Friday, Post 1: Donald Kochan on what it means to "share" property

Donald Kochan (Chapman) has a new article on the sharing economy, "I Share, Therefore It's Mine," now available on SSRN.  Here is the abstract:

Uniquely interconnecting lessons from law, psychology, and economics, this Article aims to provide a more enriched understanding of what it means to “share” property in the sharing economy. It explains that there is an “ownership prerequisite” to sharing of property, drawing in part from the findings of research in the psychology of child development to show when and why children start to share. They do so only after developing what psychologists call “ownership understanding.” What the psychological research reveals then is that the property system is well-suited to create recognizable and enforceable ownership norms that include the rights to acquire and retain ownership of property (parting with it only on terms defined by the owner), thereby also providing necessary economic incentives to share. Along the way, this article bridges the psychology research with Hohfeld’s description of the nature of rights, explaining the corresponding rights characterizations appropriate to describe each step in a child’s development of ownership understanding.

When we have a well-developed ownership regime—with a high reliability of enforcing ownership norms—we create the confidence in ownership that “ownership understanding” reveals is necessary for individuals to feel secure in sharing. So too does the development of the right to exclude and the corresponding right to include in property law track the underlying psychology to create the prerequisites in law to effect what might be called a “legal ownership understanding” that feeds the sharing economy, with sharing being simply an exercise of the right to include. The Article concludes with an ownership-sensitive definition of sharing that should prove useful to courts, regulators, and scholars alike, while remaining largely agnostic on the scope of desirable regulation of the sharing economy.

September 9, 2016 | Permalink | Comments (0)

TODAY: Free RLUIPA update webinar from ABA State & Local Gov Section

From Jessica Bacher, Chair of the Chair, Land Use Committee, ABA Section of State and Local Government Law:

Please join us today for our September Committee online meeting. The meeting will begin with a short discussion of committee business -- offering opportunities for all of our members to participate in CLE programs, book projects, speaking opportunities and periodical publications -- followed by a substantive program that you will not want to miss.

Today's FREE Webinar Sponsored by the Land Use Committee is scheduled for 2:00 pm EST, and will feature as our speaker Daniel P. Dalton, Esq., of Dalton & Tomich PLC, presenting a RLUIPA Update.

Joining us from a computer? Simply click https://zoom.us/j/6317617137<https://webmail.tourolaw.edu/owa/UrlBlockedError.aspx<https://zoom.us/j/6317617137%3chttps:/webmail.tourolaw.edu/owa/UrlBlockedError.aspx>>.

Joining us from a mobile device? Download the Zoom app and then click https://zoom.us/j/6317617137<https://webmail.tourolaw.edu/owa/UrlBlockedError.aspx<https://zoom.us/j/6317617137%3chttps:/webmail.tourolaw.edu/owa/UrlBlockedError.aspx>>.

Joining us by phone? Call either

+1 415 762 9988 (US Toll) or +1 646 568 7788 (US Toll)

and enter Meeting ID: 631 761 7137

Please also save-the-date for our upcoming online meetings:

     *   October 14, 2016--featuring Wendie Kellington on Drones

     *   December 9, 2016--featuring Jess Phelps on National Historic Landmarks

     *   January 13, 2017--featuring Robert Thomas on Regulatory Takings: Emerging Issues

     *   March 10, 2017--featuring Alexander Judd on Telecomm Law

     *   May 12, 2017--featuring Andy Gowder on Exactions & Impact Fees

     *   June 9, 2017--Speaker TBD

     *   July 14, 2017--Speaker TBD

September 9, 2016 | Permalink | Comments (0)

Monday, September 5, 2016

Zoning's Next Century, Part 3: Why the Quiet Revolution Failed, A Series by John R. Nolon

Zoning’s Next Century

Why the Quiet Revolution Failed

John R. Nolon, Distinguished Professor

Elisabeth Haub School of Law, Pace University

 

New York’s historical failure to wrest land use control from local governments demonstrates why they remain in charge of land use planning and regulation. This may explain, as well, why federal and state efforts to assist localities and guide their policies succeed, while top down mandates so often fail.   This post is taken from forthcoming article on the evolution of land use law in New York and is based on the author’s own experience.[1]

My personal journey with New York’s land use law began over 25 years ago as we searched for strategies to achieve what was then a new concept: sustainable development. In 1993, I founded the Land Use Law Center for Sustainable Development at Pace University School of Law, now called the Elisabeth Haub School of Law. At the request of President Clinton’s Council on Sustainable Development, we began our analysis by assembling an Advisory Committee on Sustainable Development in the Hudson River Valley…. The Council asked us to project current land use trends 50 years forward, to determine whether they were sustainable and, if not, to identify the key obstacles to sustainability and the most effective strategies to remove those obstacles….

            We did several studies, including one on what we called pacelization – the rate at which large parcels of land were being subdivided into smaller parcels for development. Projecting the current rate  forward revealed that the amount of open land in the region would decline from 60% then to around 30% in the year 2045, that there would be a 400% increase in what transportation planners call vehicle hours of delay, and that for every one percent of population added we would urbanize seven percent more land.  [This trend was clearly not sustainable.] …

            The President’s Council had asked us to identify the most formidable obstacle to the sustainable development of the Hudson River Valley and the best strategy to remove that obstacle.  To answer this question, we had to review the history of these matters in New York.  The state’s story involves a tug of war regarding localism, regionalism, and state control of land use decisions.  Every New York governor since the Great Depression has made some statement about the importance of having cogent state policies on land use to guide local decisions with little effect….       

            We reflected on the national experience as well.  Environmental and land use study commissions, courts, and commentators long bemoaned the parochial effect of local land use decisions and their tendency to exclude affordable housing and to shift environmental and economic impacts to nearby communities.  These concerns gave rise to what became known as the “quiet revolution in land use control” which was advocated by a 1971 report of the U.S. Council on Environmental Quality.  The “revolution” envisioned state legislative efforts to adopt growth management legislation, establish regional land use planning agencies, and tether local decisions to state-adopted land use principles or plans. In 1968, the Douglas Commission, appointed by President Johnson, issued its Report on Urban Problems, Building the American City.  The Commission recommended that each state create a state agency for land use planning and prepare state and regional land use plans. [Our search for effective state and local planning in other states was not fruitful.] For a time, New York led the nation in this direction….

            The success of the Adirondack Park Agency [with its regional control of land use planning] and the hortatory language of the Douglas Commission and the Council on Environmental Quality led state planners in New York to think more ambitiously.  In early 1970s, the New York legislature was presented with the Statewide Comprehensive Planning Act, which provided for the creation of state, regional, county, and local plans – all cross certified and consistent.  At the time, this was the nation’s most far-reaching attempt to guide and constrain local land use decision-making.  The perceived threat to local control was clear, and the political reaction was predictable, swift, and definitive.  The bill was withdrawn and the New York Office of Planning Coordination – the agency that proposed it – was voted out of existence by the state legislature….

            Strong regionalism has not prevailed in New York for the same reason it has not prevailed in most states. Former Speaker of the House Thomas P. O’Neill Jr., once quipped that “all politics is local.”  All reform efforts aimed at constraining local control must overcome this political reality.  The danger in advocating top-down, statewide land use solutions is that it identifies local control as the problem to be solved, rather than the base on which to build an intermunicipal process, responsive to regional and state needs.  The challenge for advocates of a regional approach to land use planning and control is to identify effective regional processes that respect the critical role that local governments play in land use decision-making.  To be politically palpable, these solutions must be perceived not as methods of imposing a state or regional body’s will on local governments but as means of communicating effectively about regional and local needs, balancing those interests, and arriving at mutually beneficial decisions over time…..

            This was our experience by the time the President’s Council asked us its provocative question: What is the best strategy for removing the most formidable obstacle to the sustainable development of the Hudson River Valley?  The 250 representatives of various groups interested in land development and conservation who testified at our final hearing on the matter kept reminding us of the political reality of land use: local leaders are the gatekeepers of the system.  In the continuing absence of national or state-mandated solutions, attention should be paid, they said, to strengthening the system at its foundation. 

            Our response to the Council was that, if such significant control was to remain with local governments and if the local decision-making system is driven primarily by local leaders, most of whom are volunteers with little experience in the field, then we would recommend an aggressive program to train these critical participants in the development of plans and regulations for the future of the Hudson River Valley. [This program has demonstrated considerable success in fostering sustainable land use plans and regulations and, even, generating several intermunicipal land use councils. These few successes fall short of creating effective regional or state control.]

            That said, this experiment in New York does suggest a strategic path.  If local power is so resilient, then perhaps embracing local governments and urging them to collaborate with a national, state, and regional strategy that is designed to honor their concerns and is based on their participation would be a quicker route to more a comprehensive, less cacophonous approach to land use control. As Thomas Jefferson said: “I know of no safe depository of the ultimate power of society but the people themselves, and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.”

[1] Zoning’s Centennial (1916-2016) – The Evolution of Land Use Law in New York, forthcoming New York Zoning Law and Practice Report (Sept/Oct 2016).

Previous posts in the Zoning's Next Century are listed below:

Part 1:  An Agenda for the Next Century

Part 2:  Foundations from the 17th Century

September 5, 2016 | Permalink | Comments (0)

Tuesday, August 30, 2016

Florida Law Events Celebrate 100 Years of Zoning

Michael Allan Wolf (Florida) sends news of events this fall at Florida Law celebrating 100 years of zoning.  Details below.

Florda Events

 

August 30, 2016 | Permalink | Comments (0)

Uber-ing the last mile home: New approaches to public transit in low density suburbs

KQED, the local San Francisco NPR affiliate, had a story last week about an East Bay suburban community, Dublin, that is trying out Uber-like companies (collectively typically called transportation network companies) to service the "last mile" from home to BART.  Here is part of the story:

The transit agency that operates in Dublin is preparing to partner with ride-hailing services Lyft and Uber, as well as taxicab companies, to help commuters find rides in areas of the suburbs where public transportation is sparse or nonexistent.

The Livermore Amador Valley Transit Authority has committed $100,000 for the pilot program in Dublin and has submitted an application for a $100,000 grant from the Alameda County Transportation Commission, said Christy Wegener, director of planning and communications for LAVTA.

Dublin will join other cities testing out the partnerships as a way to connect people to larger public transportation systems like BART.

Rest of the story here.  I think these test runs of using TNCs instead of public buses in low-density suburban areas has a lot of promise.  The devil, as always, will be in the details.  The results of this and other studies are going to be fascinating to watch.

David Schleicher (here and here) and I (here), among others, have written about this trend for those interested.

 

August 30, 2016 | Permalink | Comments (0)

Idaho Law's Citizens Planning Academy to feature James Corless of Transportation for America on Sept. 7

For those local in Boise, please join us at Idaho Law for the next Citizens Planning Academy, which will feature James Corless of Transportation for America:

James Corless, Director of Transportation for America, will speak about Acting Locally to Gain Funding for Transit and How to Use State and Federal Policy to Support Local Change at the September Citizens Planning Academy session on Wednesday, September 7th, from 6 – 7:30 PM (last half hour for discussion). The session will be held at the University of Idaho College of Law’s Boise location in the Idaho Law Learning Center (514 W. Jefferson Street, Room 325). Please use the eastern entrance. Parking is available behind the building on the eastern side in the spots marked “visitor.”

Thank you to COMPASS for this opportunity. If you cannot attend this session or wish to hear Mr. Corless speak on other related topics, he will be speaking Tuesday, September 6th at COMPASS on Innovations in Public Transportation.

The Citizens Planning Academy is a collaboration of Idaho Smart Growth and the University of Idaho College of Law in Boise.  We generally hold monthly sessions on the first Wednesday of each month at the Idaho Law & Justice Learning Center from 6:00 – 7:30 pm. The purpose of the Academy is to help citizens interested in participating in planning efforts throughout the Treasure Valley—from regional to the neighborhood—to understand how to become effective advocates on land use, transportation and other planning topics. Each session will cover one topic. We will bring in staff or other knowledgeable presenters for each session and discussion will be encouraged. The sessions are free and open to all.

August 30, 2016 | Permalink | Comments (0)

Monday, August 29, 2016

Zoning's Next Century, Part 2: Foundations from the 17th Century, A Series by John R. Nolon

Zoning’s Next Century

Foundations from the 17th Century

John R. Nolon, Distinguished Professor

Elisabeth Haub School of Law, Pace University

 

This excerpt from a forthcoming article demonstrates that the earliest foundations of land use control were local and that local circumstances dictate how land use should be controlled.[1]

Although comprehensive zoning restrictions, adopted by municipal governments, were new in 1916 when the first New York City Zoning Resolution was adopted, the idea that neighborhoods should be carefully planned and regulated dates back in New York to at least April 22, 1625. On that date, the Directors of the Dutch West India Company adopted use and bulk regulations for the settlement of lower Manhattan.[2] These were adopted as special instructions to the Commissary and Councilors, “according to which they are to regulate themselves when they have found a suitable place in which to establish a settlement….” Like the first New York City Zoning Resolution, these regulations were based on an underlying plan that distributed land uses and building types in a logical pattern.[3]  Many of the regulation’s planning concepts and building standards are precedents for modern zoning and planning strategies.

First, the Dutch West India Company’s document instructs the official surveyor to stake out a quadrangle, with one side lying open to the water. The document provided dimensions to be followed, with further instructions for exits and bridges connecting the settlement to the lands beyond its walls. Here is a parallel to modern urban growth boundaries and capital plans for infrastructure.  Next, land was to be reserved for dwellings, some particularly for farmers, pastors, doctors, single individuals, and commanders, with vacant land designated for residential development in the future, similar to today’s residential zoning prescriptions. Other lands were designated for storage of supplies and goods, a hospital, and a market square, beginning the definition of the public realm. Provisions were made for street widths of varying dimensions similar to those found in today’s subdivision regulations. Other lands were set aside for vineyards and gardens, similar to rural zoning for farming, or, more recently, to urban farming provisions. Additional details included building heights and the widths and depths of lots: familiar provisions in today’s bulk and area standards. Even elements of building code standards were present, including the size and shape of kitchens and the thickness of beams.

This is perhaps the first land use regulation in the New World. For nearly 400 years, local governments in New York have been regulating land use and buildings, with each generation using it to address new and evolving opportunities and problems. In 1625 the issue was how to design a settlement in hostile territory.  Today’s challenges include how to respond to an increasingly hostile environment by designing resilient and sustainable communities. 

Nolon1

[1] Zoning’s Centennial (1916-2016) – The Evolution of Land Use Law in New York, forthcoming New York Zoning Law and Practice Report (Sept/Oct 2016).

[2] Document on file with the author.

[3] Note that this is public land use planning. In 1621, the Dutch West India Company was chartered by the Dutch Republic, much like the State of New York’s later authorization of the charter of New York City. The Company’s Manhattan territory was designated the provincial capital of the lands under its jurisdiction.

Previous posts in the Zoning's Next Century are listed below:

Part 1:  An Agenda for the Next Century

 

August 29, 2016 | Permalink | Comments (0)

Sunday, August 28, 2016

Conference Announcement: Pace's Annual Land Use and Sustainable Development Conference

15th Annual Alfred B. DelBello Land Use and Sustainable Development Conference

The 2016 Land Use and Sustainable Development Conference will be held at Pace Law School on December 8, 2016. This year's theme will be The Economics and Equity of Sustainable Development.  For more information or to become a sponsor please visit the conference page.

August 28, 2016 | Permalink | Comments (0)

Friday, August 26, 2016

Mandelker on Zoning Barriers to Manufactured Housing

 

Daniel R. Mandelker (Washington U. Law) has just published "Zoning Barriers to Manufactured Housing" in The Urban Lawyer.  Here is the abstract:

Manufactured housing is a major affordable housing resource for millions of people. Restrictive zoning barriers limit its availability, even though studies have discredited myths, such as objections to its safety and quality. A national statute, the National Manufactured Housing Construction and Safety Standards Act, authorizes building code standards that address all aspects of safety, durability and quality, and that preempt state and local codes that deal with this problem. The Act does not preempt restrictive zoning, and Congress should amend the law to cover zoning restrictions. Judicial control of zoning barriers to manufactured housing is unsatisfactory and requires statutory change. Courts accept unequal treatment that applies restrictive zoning only to manufactured housing, though some statutes prohibit discrimination. The cases uphold exclusions from residential districts if manufactured housing is allowed elsewhere. Some statutes prohibit exclusion by requiring manufactured housing as a permitted use in all residential districts, or allow a community to decide what residential districts must accept manufactured housing. Courts uphold aesthetic standards, such as roofing and siding requirements, and some statutes authorize them, though limitations are needed to protect manufactured housing from exclusionary treatment. Communities often require approval of manufactured housing as a conditional use, and approval as a conditional use is often denied. Courts have upheld conditional use denials, and statutory protective standards are needed that will prevent abuse of the conditional use requirement.

August 26, 2016 | Permalink | Comments (0)

Wednesday, August 24, 2016

Will broadband make West Virginia communities more walkable? Or, more realistically, will broadband make West Virginia hollers the Wall Street of document review?

I received the following press release from EPA today noting that the Obama administration plans to "revitalize downtowns through broadband service."  While broadband service in rural areas is certainly a major issue, I am intrigued--and maybe a bit dubious--that access to broadband will "improve the environment and public health in Appalachian communities."

It seems more likely to me that broadband in rural communities presents a different kind of opportunity:  the outsourcing of monotonous data-heavy work like, say, document review.  Orrick, the major San Francisco law firm, already started a crazy-successful document review center in Wheeling, West Virginia.  While I am dubious that broadband will make West Virginia communities more walkable, access to broadband does make such rural places very competitive for big-city jobs that are over-priced for their market.  

If I were any of these communities getting the broadband grants, I would scrap the plans below.  In their stead, I would invest in a really good barrista, a really good farm-to-table restaurant, rehab a beautiful old mill building to Class A specs with LEED Platinum credentials, then go fishing in New York City for BigLaw firms seeking to follow the Orrick model.

Obama Administration to Help Appalachian Communities Revitalize Downtowns through Broadband Service


WASHINGTON –Today, the U.S. Environmental Protection Agency (EPA), the U.S. Department of Agriculture (USDA) and the Appalachian Regional Commission (ARC) announced the selection of 10 communities in six states that will participate in the Cool & Connected planning assistance program, an innovative initiative to help people use broadband service for downtown revitalization and economic development.

“Cool & Connected will help create vibrant, thriving places to live, work, and play,” said EPA Administrator Gina McCarthy. “We’re excited to be working with these local leaders and use broadband service as a creative strategy to improve the environment and public health in Appalachian communities.”

Through Cool & Connected, partner communities will receive direct technical assistance from a team of experts to develop strategies and an action plan for using expected or existing broadband service to create connected, economically vibrant main streets and small-town neighborhoods. By combining broadband service with other local assets, such as cultural and recreational amenities, communities can attract and retain investment and people, revitalize downtowns and diversify local economies. Cool & Connected also protects the environment by encouraging the reuse of existing infrastructure and by improving walkability. For example, strategies that help communities reinvest in established areas can help preserve open spaces and farmlands and protect air and water quality.

EPA support for Cool & Connected is provided through the Office of Sustainable Communities, which helps communities develop in ways that protect public health and the natural environment by creating walkable, livable, economically vibrant communities, and supporting reinvestment in existing neighborhoods.

USDA support is provided by the Rural Utilities Service, which provides funding for critical infrastructure including electricity generation and transmission, water and waste water facilities and telecommunications for rural America.

The Appalachian Regional Commission support is through the Obama Administration’s Partnership for Opportunity and Workforce and Economic Revitalization initiative (POWER), a multi-agency effort to invest federal resources in communities and regions that have relied on the coal industry and are impacted by the changing energy landscape.

Cool & Connected Partner Communities:

 

•           Haleyville, Ala: To pursue a downtown broadband strategy that promotes business recruitment and development, diversifies the economy, and connects the library and City Hall to people through digital archives and e-government initiatives.

•           Portsmouth, Ohio: To help the Southern Ohio Port Authority use their historic and commercial districts’ broadband and public Wi-Fi capabilities to increase the number of people who walk and open businesses. The plan will also connect downtown amenities to recreation areas by using information kiosks and QR Code/smart phone technology.

•           Zanesville, Ohio: To increase new employment opportunities, support an emerging arts scene, and develop an app for visitors to explore their walkable downtown.

•           Clarion, Penn.: To increase their local communications capacity to market nature-based tourism, motivate people to invest along the historic Main Street, and create an incentive for students at Clarion University to stay in the community.

•           Curwensville, Penn.: To support the Curwensville Regional Development Corporation in creating a downtown co-working space for professionals, students, or entrepreneurs to use as an alternative to working from home or commuting long distances.

•           Erwin, Tenn.: To help the city and Erwin Utilities develop a comprehensive marketing plan for their downtown broadband connection, with the goal of attracting young professionals, visitors, and investors.

•           Jonesville and Pennington Gap, Va.: To market and develop Wi-Fi zones, extend broadband service, and promote main street development by attracting potential anchor tenants.

•           Bluefield, W. Va.: To develop a plan for their downtown area to take advantage of the available broadband and market their businesses through the best outlets.

•           Weirton, W. Va: To help the Mary H. Weir Public Library and community partners develop a plan to increase and expand broadband services and Wi-Fi zones, in order to bring visitors, new families, and businesses to the downtown area.

•           Williamson, W. Va.: To support the Williamson Health and Wellness Center in leveraging broadband access and Wi-Fi zones downtown and at educational institutions to cultivate a skilled workforce, help people open businesses, and enhance the use of heath care technology.

August 24, 2016 | Permalink | Comments (0)

Seeking guest bloggers for 2016-2017 academic year

After a several month hiatus, I am pleased to be back blogging at Land Use Prof Blog where I have blogged since 2012.  

As I have done in previous years, I am sending out a general call for bloggers to join me on the blog during the 2016-2017 academic year.  Our requirements for guest bloggers are quite reasonable--1 or 2 posts a week for a month--adding up to 4 to 8 posts a month.  You can write about your own work, events of the day, or, you know, anything else land use law-related.  During the academic year, the blog receives about 10,000 - 15,000 page views a month and, I have found, is an invaluable way to get the word out about your work.

The only restriction on guest bloggers is that, given the platform, a blogger must either be a "prof" of some sort--adjuncts and VAPs welcome--or an aspiring prof going on the market this year. 

If you are interested, send me an e-mail at millers <at> uidaho.edu and we can work out details. 

August 24, 2016 | Permalink | Comments (0)

Tuesday, August 23, 2016

Ferguson, Land Use and the Voting Rights Act

Yesterday, a district court in the Eastern District of Missouri held that political processes for electing Board members in the Ferguson-Florissant School District deprive African American voters of an equal opportunity to elect representatives of their choice in violation of § 2 of the Voting Rights Act.  As the court noted in a detailed decision, "[d]etermining whether a § 2 violation exists is a complex, fact-intensive task that requires inquiry into sensitive and often difficult subjects."  In making its evaluation, the court took the time to evaluate detailed testimony about how land use regulation had affected the African-American community in the St. Louis area.  I found these excerpts particularly of interest:

B. The Historical and Ongoing Effects of Discrimination in the State, St. Louis Metro Area, and FFSD (Senate Factors 1 and 5)

Senate Factor 1 examines “the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process.” Bone Shirt, 461 F.3d at 1021. Senate Factor 5 asks whether African Americans “bear the effects of discrimination in such areas as education, employment and health.” Id.
 
The parties have stipulated to the history of official discrimination in the State of Missouri and in the St. Louis Metropolitan Region. Joint Stip. ¶¶ 226-230. The District, however, argues that Plaintiffs have failed to establish the history of discrimination and its effect in the District itself, and have therefore failed to prove Senate Factors 1 and 5. I find that both of these factors weigh heavily in favor of Plaintiffs.
 
1. Official discrimination
 
Throughout the 19th and 20th centuries, many Missouri statutes and constitutional provisions permitted—or required—discrimination against Black Missourians. See Joint Stip. ¶¶ 226-230, 241, 251, 253; Dred Scott v. Sandford, 60 U.S. 393, 398 (1856); Mo. Const. of 1865, art. II, § 18 (restricting franchise to white males); U.S. Const. amend. XV; Mo. Const. of 1865, art. V, § 2 (requiring that the governor be a white man), art. V, § 12 (requiring that the lieutenant governor be a white man), art. IV, § 3 (requiring that members of the Missouri house of representatives be white men), art. IV, § 5 (requiring that state senators be white men), art. III, § 6 (requiring that all voters be white men); RSMo. ch. “Negroes and Mulattoes,” § 2, at 600 (1825) (barring Black Missourians from bearing witness in court); RSMo. ch. 146, § 2-2, at 797 (1870) (barring Black Missourians from serving as jurors); Mo. Const. of 1875, art. XI, § 3 (amended to require, rather than permit, racially segregated schools); Missouri v. Jenkins, 515 U.S. 70, 76 (1995) (Ginsburg, J., dissenting).
*46 Jurisdictions within FFSD, including the municipalities of Ferguson and Berkeley, also historically engaged in purposeful discrimination against African Americans in education, housing, and other areas. See Joint Stip. ¶¶ 254-60; United States v. Missouri, 388 F. Supp. 1058 (E.D. Mo. 1975), aff'd, 515 F.2d 1365 (8th Cir. 1975); Gordon Testimony, Trial Tr. vol. 1, 119:17–121:1; PLTF-40, Gordon Rep., at 16; Trial Tr. vol. 2, 12:4–13:15, 42:1-17 (Henson explaining that his mother, an African American resident of what was a smaller FFSD in the 1930s and 1940s was prohibited from attending school there because of her race, so she was forced to endure long commutes to Black schools in other districts); Trial Tr. vol. 2, 64:24–65:10 (Graham testifying that she attended a segregated one-room schoolhouse in another part of St. Louis County, and some of her classmates were bused from Kinloch); id. 68:3–69:15.
 
As Dr. Gordon testified, historical policies, including not only educational segregation and the racially-motivated use of incorporation but also the way houses, streets, and public infrastructure were physically built, were “intended and designed to create starkly segregated and separate [school] districts.” Trial Tr. vol. 1, 121:2-24; see also PLTF-40, Gordon Decl., pp. 16, 21-23.
 
The three school districts that now comprise the present-day FFSD—the overwhelmingly-white former Ferguson-Florissant and Berkeley school districts and the predominantly-Black Kinloch school district—demonstrate how political and physical discrimination created and perpetuated a racially dual system of school districts. See PLTF-40, Gordon Rep., at 16, 21-22; Gordon Testimony, Trial Tr. vol. 1, 119:17–121:1; see also Trial Tr. vol. 2, 12:4–13:15, 42:1-17 (Henson testimony); Trial Tr. vol. 2, 64:24–65:10, 68:3–69:15 (Graham testimony); Missouri, 515 F.2d at 1367 (noting that Kinloch had been forced to cobble together schools “markedly inferior to the opportunities offered in the adjoining Berkeley and Ferguson districts”). The former Ferguson-Florissant and Berkeley school districts displayed commitment to unlawfully maintaining Kinloch as a segregated district. For two decades after the Supreme Court's decision in Brown v. Board of Education, 347 U.S. 483 (1954), this dual system persisted despite school reorganization study recommendations and requests from the school district itself that Kinloch be consolidated with other school districts, see Missouri, 515 F.2d at 1367, flouting the constitutional obligation to “take such affirmative measures as are necessary to deestablish that dual system and to eliminate the continuing vestiges of that system.” United States v. Missouri, 363 F. Supp. 739, 745, 747 (E.D. Mo. 1973). It ultimately took a lawsuit brought by the United States Department of Justice and a federal court order to force the overwhelmingly white school districts to consolidate with their predominantly Black neighbor. See Missouri, 515 F.2d at 1366-67; Missouri, 388 F. Supp. at 1060; PLTF-40, Gordon Decl., pp. 16, 22-23; Trial Tr. vol. 1, 119:14–121:24.
FFSD is part of St. Louis County, the larger St. Louis metropolitan area, and the state of Missouri, each of which has also historically engaged in official discrimination. Dr. Gordon testified that the processes of segregation and discrimination of those jurisdictions affected and fundamentally continues to affect the lives of FFSD residents in “particularly powerful” ways. Trial Tr. vol. 1, 115:13–116:13; 100:4–101:1 (noting that “it's particularly important to have a broader focus for a metropolitan area like St. Louis because the municipal fragments, the corporate fragments, including municipalities and the school districts, are very small and in some respects very artificial political divisions”); id. at 101:14–20; id. at 102:13–103:12 (explaining that official laws and policies restricting land use and regarding urban development, urban redevelopment, zoning, and mortgage finance continue to have “enormous consequences” on populations' opportunities to purchase house and accumulate housing equity, which in turn affected the quality of schools available to a population and has sustained a “racialized gap in wealth” that “persist[s] to the present day”).
 
*47 Up until at least the mid-1960s, while official policies in the St. Louis metropolitan area intended to create and perpetuate racial segregation were “at times blocked by the courts,” they nonetheless continually “shift[ed] in form” to achieve the same goal of segregation. See, e.g., Gordon Testimony, Trial Tr. vol. 1, 104:5-20; see also id., 105:17–107:18 (discriminatory real estate practices in the area, including realty licensing requirements and race-restrictive deed covenants); Trial Tr. vol. 1, 107:19–111:9 (noting that, when restrictive covenants were effectively blocked by Shelley v. Kraemer, 334 U.S. 1 (1948), realtors and developers “quite publicly mobilized to accomplish the same thing by other means,” including strengthening their professional code of ethics to require residential segregation and denying home showings and sales to African Americans, and their efforts were reinforced by official federal mortgage lending policy and redlining, as well as “a flurry of” municipal incorporation for the “quite explicit” purpose of exclusionary zoning); see also id. at 110:17-22; Joint Stip. ¶¶ 235-36; PLTF-40, Gordon Rep., at 7-16; PLTF-48, Kimball Rep., at 8-10.
 
Providing multiple salient examples from the St. Louis metropolitan area, including in North St. Louis County and FFSD itself, Dr. Gordon testified that, although official policies of urban renewal and redevelopment in the mid- and late-20th century were ostensibly intended to “address some of the damage...of segregation and the collapse of central cities,” they “actually sharpen[ed] and deepen[ed] segregation both in St. Louis and St. Louis County” by using federal money and the power of eminent domain to “target[ ] neighborhoods of mixed use and largely African-American occupancy for removal or destruction so the land could be used for a higher use.” See Trial Tr. vol. 1, 112:4–115:6 (also describing how, between 1950 and 1970, about 75,000 people were displaced in the metro area by government renewal or development, the “vast majority” without any relocation assistance, 84% of whom were African American, and when they moved from downtown to suburban neighborhoods, were then “targeted for renewal or code enforcement or other attention”); see also Joint Stip. ¶ 242; see PLTF-40, Gordon Rep., at 26-27.
2. Continuing effects of past discrimination on political participation African Americans in FFSD continue to bear the effects of past discrimination. As Dr.
Gordon testified, one can still see once-formalized policies of racial segregation and housing discrimination “inscribed on [the regional] landscape” and that the formalized pattern of segregation by deed covenant had been “written into land use zoning,” which is “still very much the way in which we organize property and housing opportunity in a metro area,” causing officially sanctioned race discrimination and segregation to “persist to the present day.” Trial Tr. vol. 1, 111:15–112:3.
 
According to Dr. Gordon's testimony, because of this persistent physical segregation, when the federal court desegregation order tied together the overwhelmingly white Berkeley and former Ferguson-Florissant and predominantly-Black Kinloch school districts, it created a present-day FFSD that has “trade [d] segregation between districts for segregation within a district.” Trial Tr. vol. 1, 121:2-24. This racial segregation has settled along a north-south divide within FFSD that persists today and is reflected in socioeconomic, educational, and other disparities. See Gordon Testimony, Trial Tr. vol. 1, 122:1–123:14, 126:7–127:5, 127:17–128:1, 128:9–129:11; Trial Tr. vol. 3, 81:1–82:12 (Green testimony); Trial Tr. vol. 4, 166:19 (Thurman testimony); see also PLTF-40, Gordon Rep., at 2-4, 27-28, Map 10 (p. 29); see also PLTF-44, Cooper Decl., ¶ 34, Fig. 7 (p. 14), Ex. C (p. 39).
 
Housing equity is the principal form of wealth for most families, so barriers to equal opportunity to home ownership that African Americans in St. Louis County have faced for decades have had and continue to have a substantial negative impact on a family's opportunity to accrue and retain wealth, to get favorable loan terms, to access public services and high-performing schools, and to benefit from increasing property values. See Gordon Testimony, Trial Tr. vol. 1, 115:25–118:19; PLTF-40, Gordon Rep., at 20-21, 23-24, 27-28, 32; see also PLTF-41, Gordon Resp., at 3-4; Joint Stip. ¶¶ 244-46; Gordon Testimony, Trial Tr. vol. 1, 116:9-13 (“the best way to characterize it is that white families in the St. Louis area were able to get on a sort of escalator-of-wealth creation in the 1930s and 1940s that African Americans were largely barred from for at least a generation”). As Dr. Gordon also testified, the wealth gap has increased recently “as a result of the last housing bubble and bust.” Trial Tr. vol. 1, 116:24– 117:1; see also generally Gordon Testimony, Trial Tr. vol. 1, 99:4–119:7. The wealth gap is one chief driver of continuing (and in some cases widening) disparities between African Americans and whites in FFSD in areas such as educational achievement, level of poverty, employment, and health care. PLTF-48, Kimball Rep., at 10; PLTF-40, Gordon Rep., at 21.
 
*48 These continuing effects of past discrimination impact the ability of the African American community in FFSD to participate in the electoral system. Dr. Kimball testified that political scientists who study voting behavior commonly use the “calculus of voting” as a cost-benefit framework for determining whether and why individuals, as well as groups of people, do and do not vote. See Kimball Testimony, Trial Tr. vol. 2, 114:8–115:4. The calculus takes into account the probability that one's vote will determine the outcome of an election, the benefits of seeing one's preferred candidate win an election and potentially implement preferred policies, and the costs of voting, including: informing oneself about candidates, completing the administrative process of registering to vote, locating one's polling place, and getting time off work. Id.
 
Dr. Kimball testified that this cost-benefit framework “indicates that for many people the decision of whether to vote or not can be a close call, and that...relatively small changes in either the benefits or the cost side of the equation can substantially increase or decrease the likelihood of voting in an election.” Trial Tr. vol. 2, 115:5-11. A small change in benefit or cost has a more pronounced effect on voters with less education and/or less income, and/or who are “less habitual” voters, because for them “it's a little more difficult to overcome the cost that is associated with registering and turning out to vote, learning about candidates and so forth.” Kimball Testimony, Trial Tr. vol. 2, 115:12-25; see also PLTF-48, Kimball Rep., at 11-12; Gordon Testimony, Trial Tr. vol. 1, 130:15–131:1 (“the scholarly consensus is very clear that when a population is disadvantaged economically, when they're disadvantaged in terms of job opportunities, educational opportunities, or residential opportunities, that these [disadvantages] affect civic participation”). Consistent with Dr. Kimball's “calculus of voting” framework, Dr. Gordon testified that based on his survey of historical discrimination and segregation, African Americans in FFSD bear the effects of past discrimination in ways that affect their ability to participate in the political process. Gordon Testimony, Trial Tr. vol. 1, 145:10-24; see also Kimball Testimony, Trial Tr. vol. 2, 144:2–147:24, 148:18–149:1; Trial Tr. vol. 3, 20:11-17.
 
There is ample evidence that the costs of voting are higher and the benefits lower for African American residents of FFSD as compared to white residents. There continue to be undisputed disparities between Black and white residents of FFSD on almost every socioeconomic indicator, including employment, wealth, homeownership, access to health care, and other factors underlying basic economic security. Joint Stip. ¶¶ 248, 269-71; PLTF-40, Gordon Rep., at 2-4, 27-28, Map 10 (p. 29); PLTF-41, Gordon Resp., at 3-4; Paulette-Thurman Dep., 63:8-13; PLTF-48, Kimball Rep., at 9-10, 12; PLTF-44, Cooper Decl., ¶¶ 36-37; PLTF-45, Cooper Suppl. Decl., ¶¶ 17-20; Gordon Testimony, Trial Tr. vol. 1, 126:10–127:5 (rates of poverty are higher in majority-Black block groups in the District); Trial Tr. vol. 1, 128:2–129:11 (same for “neighborhood stress” indexes, which measure block groups' engagement with the labor market and poverty index); Cooper Testimony, Trial Tr. vol. 1, 200:10-14 (in FFSD, “[o]n almost every metric, African Americans lag behind non-Hispanic whites”); Kimball Testimony, Trial Tr. vol. 2, 151:3-19; Rodden Testimony, Trial Tr. vol. 5, 75:20-22.
 
There are also undisputed disparities between African American and white FFSD students in educational achievement (including enrollment in advanced classes, the FFSD gifted and talented program, enrichment programs, extracurricular activities) and the application of discipline (including in-school suspensions, out-of-school suspensions, referrals to law enforcement, and corporal punishment). Joint Stip. ¶¶ 261-62, 265-67; PLTF-93, FFSD Data Reported to Office of Civil Rights – Course Enrollment by Race (Ex. 17 to Dep. of Brian Scott Ebert, June 16, 2015), at 1-3, 16, 18; PLTF-84, FFSD Data on Office of Civil Rights Website – LEA Summary of Selected Facts (Ex. 5 to Dep. of Paul Morris, June 15, 2015), at 1-5; PLTF-85,

MISSOURI STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs, v. FERGUSON-FLORISSANT SCHOOL DISTRICT, et al., Defendants., No. 4:14 CV 2077 RWS, 2016 WL 4429695, at *45–48 (E.D. Mo. Aug. 22, 2016).

August 23, 2016 | Permalink | Comments (0)

Call for Applications: Community Planning Assistance for Wildfire (CPAW) Program

I have been working with the leaders of CPAW as part of my wildfire research the past year and have been very impressed by this group.  They are now inviting new communities into the CPAW program.  For any western community looking to use land use planning to address wildfire risks, participating in CPAW might be the best first step.  Feel free to contact me if you would like to learn more about why I think CPAW is a great program.  Here is the announcement on CPAW:

The Community Planning Assistance for Wildfire program (CPAW) provides technical consulting services in the form of land use planning, forestry expertise, mapping and risk assessment.The CPAW team is excited to inform you that the 2016-2017 CPAW application process is now open. Applications can be accessed via the website: planningforwildfire., and will be accepted until September 23, 2016, 5pm MT.

During the 2016-2017 cycle, five communities will be selected based on a competitive application process. Selected communities are not responsible for any direct costs associated with CPAW services provided, but staff time to participate is required. All advice and assistance given to the community will be limited to services that are intended to reduce the risk from wildfires. Local governments will retain sole authority for implementation of any land use planning recommendations provided through CPAW. Any community in the U.S. can apply, and eligible jurisdictions include towns, cities, or counties having authority over local land use and zoning decisions (unincorporated communities require county application). Only applications demonstrating support from both the community’s planning and fire departments will be considered.

Attached is an informational flyer to share with your colleagues.

If you have questions about the program or the application process, please contact me at ben@wildfireplanning.com or directly at 847-754-8745. The CPAW team is eager to begin working with our next round of communities, and we hope that you apply!

Download CPAW_Application_Flyer_2016-2017

CPAW

August 23, 2016 | Permalink | Comments (0)

Tuesday, August 16, 2016

Zoning's Centennial blog series by John R. Nolon now available in a collection

A note from John R. Nolon (Pace):

Earlier this year, under the title of "Zoning's Centennial," I posted 21 blogs tracking the birth, maturation, and contemporary relevance of zoning: aka land use law. I have compiled them into a single document for interested professors and students, particularly those studying land use law.  If you email me off line, I will be happy to send it along.  E-mail Prof. Nolon at jnolon@law.pace.edu.

Relatedly, Patty Salkin (Touro) and I are pleased to announce that Stephen R. Miller (Idaho) and Jonathan Rosenbloom (Drake) have joined us as authors of our Land Use and Sustainable Development Law casebook, the ninth edition of which will be available next year.

August 16, 2016 | Permalink | Comments (0)

Is a Negative Declaration Property? How about Rescission of One?

 An interesting takings case from New York came past my desk this morning.

Developers in Union Vale, New York owned a bunch of land in an area known as East Mountain. In 1986, the developers petitioned to have the land designated an open development area and the Town of Union Vale did so. That enabled subdivision of the land into individual lots serviced by private roads. The first phase of the project (simply labeled East Mountain) was approved in 1987 and went through the state environmental review process (New York's State Environmental Quality Review Act or SEQRA). Finding that the project would result in no significant adverse environmental impacts, the 1987 Town Board issued a Negative Declaration ("Neg Dec").

In 2009, the developers were ready to move on to phase two of their project, development of East Mountain North. Still seeking subdivision into individual lots with private roads. Developers assert that the plan is consistent with the town's master plans and all town codes. The developers and the town then negotiated about the main access road (originally reaching an agreement, but then having the Board change the requirement for curves, unclear if the parties reached a subsequent agreement). In March 2012, the Board then rejected the Developers' application for East Mountain North. The Board passed a resolution rescinding the 1987 Neg Dec. 

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August 16, 2016 | Permalink | Comments (0)

Monday, August 15, 2016

Interpreting Conservation Easements in New York

A recent conservation easement case from New York has a lot of land trusts worried. The Appellate Division of the Supreme Court (the first level of appeals in the New York state court system) recently found for a landowner on a case of conservation easement interpretation: Orange County Land Trust v. Tamira Amelia Farm, 34 N.Y.S.3d 618 (2016).

Background Facts: In 2004, the Orange County Land Trust (OCLT) entered into a conservation easement with Tamira Amelia Farm.  The stated purpose of the conservation easement was to  was “to conserve productive agricultural and forestry lands and natural resources associated with the Property for the benefit of the public and for future generations, and also to conserve the scenic character of the Property for the benefit of the public and for future generations.” In 2005, Tamira Amelia Farm sold the burdened property to Clemente Farms. OCLT originally alleged 27 violations of the conservation easement. There seems to be no dispute that the landowner violated specific terms of the conservation easement by failing to obtain prior approval for building a barn. The landowner was supposed to bring all such activities before the land trust for its approval. Acknowledging its mistake, the landowner sought after the fact approval for the construction, but OCLT would not grant it. Additionally, the land trust challenged the building of an access road which was done both without seeking permission and allegedly with construction debris. The land trust sued in for conservation easement violations in 2010 and a bench trial followed in 2012. The trial court found in favor of the landowner and the appellate court agreed, acknowledging the misstep in procedure by the landowner but holding that it was wrong of OCLT to withhold consent for the barn construction. The court also held that the conservation easement did not require pre-approval for a road and there was insufficient evidence to show the road building material was improper. 

More beyond the fold

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August 15, 2016 | Permalink | Comments (0)

Wednesday, August 10, 2016

Federal district court in Alabama holds a sex offender law is zoning for purposes of RLUIPA

A recent federal district court has held that an Alabama statute that prohibits individuals whose names are listed on the Alabama sex offender list from living together in the same home, and further provides that offenders cannot live on the same property as another offender unless the homes are at least 300 feet apart, is a zoning law under RLUIPA.  The whole case, Martin v. Houston, is worth a read and is available here.  One section I found especially of interest is the part where the court openly struggles to define "zoning."  Here is an excerpt of that section:

Martin’s allegations are sufficient, however, to support the finding that the Act qualifies as a zoning law. It first bears noting that the precise definition of “zoning” is difficult to delineate. Fortress Bible Church v. Feiner, 694 F.3d 208, 216 (2d Cir. 2012). In general terms, zoning refers to the “legislative division of a region, esp[ecially] a municipality, into separate districts with different regulations within the districts for land use, building size, and the like.” Zoning, BLACK’S LAW DICTIONARY (10th ed. 2014); cf. Ala. Code § 11-52-70 (authorizing municipal corporations within Alabama to divide territory for different uses). The Act makes territorial divisions in the same way. It divides the state of Alabama into two districts: one where adult sex offenders may not live within 300 feet of each other, and one where they may. The former includes the entirety of Chilton County, and the latter comprises all other counties within the state. Rather than imposing in personam restrictions on adult sex offenders themselves, the legislature opted to limit the acceptable uses of property within the Chilton County zone. In this sense, for purposes of applying the individualized assessments prerequisite, the Act qualifies as a zoning law, and thus constitutes a land use regulation. The allegations in the amended complaint are sufficient to support this element of the individualized assessments inquiry.

August 10, 2016 | Permalink | Comments (0)

Tuesday, August 9, 2016

[UPDATED] Call for Papers: State & Local Government Law Works-in-Progress Conference

The University of Houston Law Center will be hosting the 5th Annual State & Local Government Law Works-in-Progress Conference on Friday, October 7, 2016 and Saturday, October 8, 2016.  Scholars and practitioners writing in areas related to state and local government law are invited to attend and/or present works in progress. Participants can register and obtain hotel information here.

Please register for the conference by September 9, 2016.  Participants will have the option of either presenting a full draft or an early work-in-progress/abstract.  Drafts/abstracts will be due September 26, 2015.  Questions should be directed to Kellen Zale at kbzale@central.uh.edu.

August 9, 2016 | Permalink | Comments (0)