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)

CUNY Law's Climate Change, Environmental Justice, and Urban Resilience symposium: Proceedings of Panel 4: Lessons Learned and the Path Forward

[This is the last in a series of four blog posts detailing the proceedings of CUNY Law's recent symposium.  Previous posts in this series are available here:  Post 1 | Post 2 | Post 3]

Recently City University of New York (CUNY) School of Law and its Center for Urban Environmental Reform (CUER) hosted a conference, Climate Change, Environmental Justice, and Urban Resilience: Incorporating Community Voices, to reflect on the impact of Superstorm Sandy, which struck New York and other parts of the Northeast five years ago, and to confront the increasingly severe impact of more recent climate-related weather along the Gulf Coast, Puerto Rico, and the Caribbean. CUNY Land Use Law Professor Andrea McArdle, who organized the conference with CUNY colleague, Rebecca Bratspies, director of CUER, shares some post-conference thoughts:

My colleague Rebecca Bratspies and I organized the program with the hope that we could engage a range of voices and perspectives on the challenges of governance for climate risk in densely populated urban areas.  We began with an appreciation that government policymakers and the research and science sector have embraced the concept of resilience as a policy response to the catastrophic consequences of climate-related weather disasters.

We set out to analyze and unpack that term, and consider how resilience is implicated in governance in such strategies as rebuilding, restoring, and retreat from the waterfront.  Although these strategies have sometimes been framed as alternatives, even as mutually exclusive, we hoped the conference discussions would illuminate ways in which, we believed, these aspects of resilience could be compatible and complementary.

We also wanted to examine how policy making on climate resilience could access community-based knowledge, and incorporate community voices. We invited conference participants to approach climate resilience governance through an equity lens that accounted for impacts on climate-burdened communities. We considered “climate-burdened” to include those living in the floodplain in at-risk housing, from wood frame bungalows to high-rise public housing, and those whose life circumstances in relation to race, poverty, disability, or social isolation compound vulnerability to the effects of severe weather.

Further, we asked panelists to consider the intersections between climate-burdened communities and environmental justice communities, united by their shared location on the urban periphery, where land values traditionally have been lower, municipal services and amenities less accessible, and environmentally noxious uses more prevalent.

With a mix of speakers drawn from government, community-based organizations, and academe, the program comprised four panel discussions and a conversation with New York City’s Chief Resilience Officer.

Panel # 4, on Lessons Learned and the Path Forward, offered a spectrum of perspectives and strategies for addressing climate change and highlighted links between climate change, environmental justice, and energy reform. Moderated by conference co-organizer Rebecca Bratspies, the panel was encouraged to consider developments from which we might draw some hope.

Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, discussed three U.S. lawsuits advancing theories of climate-based-rights: (1) Juliana v. United States, a probably doomed Oregon federal district court ruling recognizing standing to compel the government to reduce carbon emissions on constitutional and public trust theories; (2) law suits brought by California cities and counties on a common law state public nuisance theory to hold manufacturers of fossil fuel products accountable for sea level rise and resulting costs for climate change adaptation; and (3) a district court ruling that Conservation Law Foundation has standing to pursue statutory claims against oil companies for inadequate planning for climate change impacts with respect to imminent but not remote-in-time risks of sea level rise and surges. Recognizing that litigation is not a panacea, Michael concluded that it is a way to “hold the line” against efforts to chip away at legal protections.

Shalanda Baker, Professor of Law, Public Policy, and Urban Affairs, Northeastern University, and an affiliate faculty member in Northeastern’s Global Resilience Institute, discussed Mexico’s planned transition to clean energy, and current inequitable impacts of the planned reform on Mexico’s indigenous population. Using the lens of an energy justice framework, grounded in principles of environmental justice and remediation, climate justice, energy democracy, and economic justice, she predicted the framework would structurally transform global energy consumption and equitably distribute the benefits of clean energy.

Peggy Shepard, Executive Director and co-founder of WE ACT for Environmental Justice, further developed the connections between climate change, environmental justice, and energy reform. She argued that the climate justice and environmental justice movements are mutually implicated and must act on a shared advocacy platform. Reviewing some key moments in the coming together of these advocacy movements, she highlighted WE ACT’s role in the Environmental Justice Leadership Forum on Climate Change, concerned with reducing greenhouse gas emissions without amplifying the disproportionate environmental burden on communities of color and low-income people.

The panel culminated in presentations by two representatives of GlobalKids, a nonprofit youth leadership organization that empowers underserved youth across New York City. Highlighting the needs, aspirations, and capabilities of young people to address the risks posed by climate change, both eloquently addressed the capacity of youth to speak for themselves and to participate in shaping public policy.

Munsura Tanha, a high school junior, described her early years growing up in Bangladesh and her concern at witnessing the effects of extreme weather on that country from her vantage point in the U.S. She spoke of the importance of gaining knowledge through involvement in social justice projects, and argued that youth should represent youth because “we are the ones we are waiting for.”  

Annie Willis, a junior at Baruch College (CUNY), and a graduate of GlobalKids’ Youth Leadership program, shared her experience of homelessness after Superstorm Sandy extensively flooded her family home in the Rockaways. Seeking to overcome the trauma of that experience, Annie joined GlobalKids, and has since participated in two climate marches, added her story to the Congressional National Archive, and testified before the New York City Council. Because she believes in the ability of youth to influence public policy, youth “need to be included in the conversation.”                                                                                    

After a day of searching and invigorating discussion for which we thank our deeply engaged panelists and audience, we did conclude on a note of hope, buoyed by the energy and insights of our youth representatives. We pledged to keep up the connections we’d made during the course of the conference, pursue collaborations, and continue the work that needed to be done on an issue of critical urgency for all of us.

October 25, 2017 | Permalink | Comments (0)

Tuesday, October 24, 2017

Landis on why growth management seldom works, and what to do about it

John Landis, a planning professor at UPenn Design (and a former professor of mine when I was a student at Berkeley and he was teaching there) has a really important new paper that is worth a read.  For those that don't know Landis, he is one of the leading spatial planners in the country and has done some of the most sophisticated work on measuring sprawl over the last several decades.  His new paper is:

        John D. Landis (2017) The End of Sprawl? Not so Fast, Housing Policy Debate, 27:5, 659-697, DOI: 10.1080/10511482.2017.1296014 (behind paywall)

In the paper, Landis reviews most of the major studies of sprawl over the last few decades as well as new data.  In so doing, he comes away with several really important take-aways for the legal world.  I'll summarize them in my own words, then allow Landis to speak for himself. 

First, growth management tools can work at controlling sprawl, but they seldom do.  The reason why is that few cities have the administrative expertise and political will to implement them.  This is an important finding because it tells us that if growth management is going to work, there needs to be a robust legal culture that implements it.  While this exists in places like Portland, it doesn't exist in most other places, which means the growth management tools don't work effectively.  This is important to the legal world to contemplate because its the technical side of implementation that appears lacking in many locations trying a regulatory approach.

Second, Landis finds that strong land use controls that lock in existing low density development often cause sprawl.  Ironically, areas that have no land use controls, such as Houston, and most Texas cities, have few land use controls,  have permitted some very dense developments within Texas cities that wouldn't be permissible under typical land use controls in most American cities.  The lesson here is that sometimes the market can actually create more dense development patterns than legacy land use controls that lock in low density development.

Here is an excerpt of Landis' more technical statement of the findings:

These results have four big implications for local land-use planning and policy. The first is that formal land-use policies and regulatory frameworks have far less impact on metropolitan development patterns than is usually thought. What matters is how those policies and regulations are administered at the local level, and how well those administering them send consistent signals to property owners and developers about favored or out-of-favor densities and development forms.

A second implication is that demographics and markets matter more than policy. The U.S. metropolitan areas in which average densities and core-area populations increased most between 2000 and 2010 were those with younger populations and more immigrants. Densities and core-area populations also increased more in metro areas where easy-to-develop land was in scarce supply, leading developers to try to accommodate more people on less land. Planners seeking to promote higher densities and more compact and walkable development forms would be wise to act as intermediaries connecting like-minded consumers and developers.

Third, sometimes less is more. For those who like to bash Texas for its laissez-faire approach to planning and development regulation, the finding that core-area neighborhoods in Texas have grown faster than elsewhere should give pause. Regulations typically function to freeze the status quo, and for most of urban America, the status quo has long meant single-family subdivisions, townhomes and garden apartments, and auto-oriented strip centers. As a newer generation of Americans seeks more diverse development forms, planners, taking a page from Texas, should look for ways to loosen overly prescriptive land-use regulations.

Fourth and finally, perhaps it is time for planners to redirect their efforts away from weakly containing suburban growth and toward incentivizing developers to identify profitable and replicable models of moderate-density development that function in suburban communities as well as core-area neighborhoods. The absence of any metropolitan-level correlation between the presence of anti-sprawl programs and reduced sprawl suggests that urban containment programs have not worked. By contrast, sprawl has been reduced where development regulations make it possible for young and diverse households to satisfy their various housing preferences in walkable and mixed-use neighborhoods and transit corridors.

Id. at 686-87.  Well worth a look and many implications for the structuring of effective land use controls.  It seems this paper also has much to say about the current debate over the affordability of housing in major urban areas. 

 

 

 

 

October 24, 2017 | Permalink | Comments (0)

Monday, October 23, 2017

CUNY Law's Climate Change, Environmental Justice, and Urban Resilience symposium: Proceedings of Panel 3: Resilience as Rebuilding

[This is the third in a series of four blog posts detailing the proceedings of CUNY Law's recent symposium.  Previous posts in this series are available here:  Post 1 | Post 2]

Recently City University of New York (CUNY) School of Law and its Center for Urban Environmental Reform (CUER) hosted a conference, Climate Change, Environmental Justice, and Urban Resilience: Incorporating Community Voices, to reflect on the impact of Superstorm Sandy, which struck New York and other parts of the Northeast five years ago, and to confront the increasingly severe impact of more recent climate-related weather along the Gulf Coast, Puerto Rico, and the Caribbean. CUNY Land Use Law Professor Andrea McArdle, who organized the conference with CUNY colleague, Rebecca Bratspies, director of CUER, shares some post-conference thoughts:

My colleague Rebecca Bratspies and I organized the program with the hope that we could engage a range of voices and perspectives on the challenges of governance for climate risk in densely populated urban areas.  We began with an appreciation that government policymakers and the research and science sector have embraced the concept of resilience as a policy response to the catastrophic consequences of climate-related weather disasters.

We set out to analyze and unpack that term, and consider how resilience is implicated in governance in such strategies as rebuilding, restoring, and retreat from the waterfront.  Although these strategies have sometimes been framed as alternatives, even as mutually exclusive, we hoped the conference discussions would illuminate ways in which, we believed, these aspects of resilience could be compatible and complementary.

We also wanted to examine how policy making on climate resilience could access community-based knowledge, and incorporate community voices. We invited conference participants to approach climate resilience governance through an equity lens that accounted for impacts on climate-burdened communities. We considered “climate-burdened” to include those living in the floodplain in at-risk housing, from wood frame bungalows to high-rise public housing, and those whose life circumstances in relation to race, poverty, disability, or social isolation compound vulnerability to the effects of severe weather.

Further, we asked panelists to consider the intersections between climate-burdened communities and environmental justice communities, united by their shared location on the urban periphery, where land values traditionally have been lower, municipal services and amenities less accessible, and environmentally noxious uses more prevalent.

With a mix of speakers drawn from government, community-based organizations, and academe, the program comprised four panel discussions and a conversation with New York City’s Chief Resilience Officer.

Panel # 3, “Resilience as Rebuilding,” offered academic and practitioner perspectives on the centrality of the idea of rebuilding to resilience planning, including some alternative framings of the climate resilience project. Moderated by Priya Shrinivasan, Director of Standards, Policy and Legal Affairs at the NYC Mayor's Office of Technology and Innovation, the discussion considered challenges to achieving equitable, community-informed outcomes in pursuing resilient rebuilding as a policy goal.

Joseph Sant, Director of Homeowner Services at the Center for New York City Neighborhoods, discussed his work designing and launching coastal resiliency programs such as the FloodHelpNY Home Resiliency Audit program, that support low- and moderate-income NYC homeowners’ recovery from storm damage while working toward resiliency against future storms. He drew on the Center's report, Rising Tides, Rising Costs, documenting the high concentration of lower-cost housing in the City’s more isolated waterfront areas, and the potential consequences of the twin threats of rising sea levels and rising flood insurance costs, including displacement, declining property values, and loss of homes to mortgage foreclosure.

Leigh Graham, Assistant Professor in the Department of Public Management at John Jay College of Criminal Justice (CUNY), and in Environmental Psychology at the CUNY Graduate Center, discussed her research comparing the resilience-practice capacity of two low-income, Sandy-affected communities in neighborhoods undergoing different development trajectories, specifically, how New York City’s Lower East Side, with its history of housing activism and awareness of gentrification threats, engaged in climate resilience organizing in contrast with isolated neighborhoods on the Rockaway peninsula that conceptualize resilience as a response to socioeconomic vulnerability. She also considered whether resilience measures actually accelerate the pace of gentrification, or whether resilience improvements become possible because the forces of gentrification have already been unleashed.

Denise Hoffman Brandt, Registered Landscape Architect, Principal of Hoffman Brandt Projects, LLC, and Director of Landscape Architecture and Associate Professor in the Bernard and Anne Spitzer School of Architecture at the City College of New York (CUNY), grounded her presentation in an understanding of urban landscape as ecological infrastructure — the “social, cultural and environmental systems that generate urban form and sustain urban life.” She invited a reframing of resilience as a “capacity to negotiate change across a system,” emphasized that the impact of climate change is not limited to coastal areas, and challenged as a false dichotomy the distinction between simple retreat to higher ground and the pledge to protect and never to retreat from the waterfront.

October 23, 2017 | Permalink | Comments (0)

Friday, October 20, 2017

CUNY Law's Climate Change, Environmental Justice, and Urban Resilience symposium: Proceedings of Panel 2: Waterfront Resilience: Coastal Protection, Restoration, and Retreat

[This is the second in a series of four blog posts detailing the proceedings of CUNY Law's recent symposium.  Previous posts in this series are available here:  Post 1]

Recently City University of New York (CUNY) School of Law and its Center for Urban Environmental Reform (CUER) hosted a conference, Climate Change, Environmental Justice, and Urban Resilience: Incorporating Community Voices, to reflect on the impact of Superstorm Sandy, which struck New York and other parts of the Northeast five years ago, and to confront the increasingly severe impact of more recent climate-related weather along the Gulf Coast, Puerto Rico, and the Caribbean. CUNY Land Use Law Professor Andrea McArdle, who organized the conference with CUNY colleague, Rebecca Bratspies, director of CUER, shares some post-conference thoughts:

My colleague Rebecca Bratspies and I organized the program with the hope that we could engage a range of voices and perspectives on the challenges of governance for climate risk in densely populated urban areas.  We began with an appreciation that government policymakers and the research and science sector have embraced the concept of resilience as a policy response to the catastrophic consequences of climate-related weather disasters.

We set out to analyze and unpack that term, and consider how resilience is implicated in governance in such strategies as rebuilding, restoring, and retreat from the waterfront.  Although these strategies have sometimes been framed as alternatives, even as mutually exclusive, we hoped the conference discussions would illuminate ways in which, we believed, these aspects of resilience could be compatible and complementary.

We also wanted to examine how policy making on climate resilience could access community-based knowledge, and incorporate community voices. We invited conference participants to approach climate resilience governance through an equity lens that accounted for impacts on climate-burdened communities. We considered “climate-burdened” to include those living in the floodplain in at-risk housing, from wood frame bungalows to high-rise public housing, and those whose life circumstances in relation to race, poverty, disability, or social isolation compound vulnerability to the effects of severe weather.

Further, we asked panelists to consider the intersections between climate-burdened communities and environmental justice communities, united by their shared location on the urban periphery, where land values traditionally have been lower, municipal services and amenities less accessible, and environmentally noxious uses more prevalent.

With a mix of speakers drawn from government, community-based organizations, and academe, the program comprised four panel discussions and a conversation with New York City’s Chief Resilience Officer.

Panel # 2, on Waterfront Resilience: Coastal Protection, Restoration, and Retreat, moderated by CUNY School of Law associate professor Sarah Lamdan, addressed legal services and community-based organizations’ advocacy strategies for improving coastal resilience and increasing public participation in resilience planning.

Margaret Becker, Director of Disaster Recovery and Community Development for Legal Services of New York City, addressed equity concerns and information gaps in the uneven implementation of three post-Sandy programs: New York Rising Community Reconstruction Program, which allocated funds for some community–proposed projects; Build It Back, which offered to elevate utilities and in some circumstances building foundations for qualifying properties; and buyout programs, which, at the state level offered a few communities the option for buyouts followed with nature-based strategies (wetlands, parkland) and, at the city level, buyouts with the idea of redevelopment.

Beryl Thurman, president of the North Shore Waterfront Conservancy of Staten Island, spoke of the advocacy efforts of North Shore, Staten Island residents and small businesses, in an environmental justice community burdened by unremediated contamination from industrial uses, to protect the tidal and fresh water wetlands against further development that threatens the area’s ecological balance and stormwater management.

Pamela Soto, research analyst for the New York City Environmental Justice Alliance (EJA), a nonprofit citywide membership network connecting grassroots organizations from low-income neighborhoods and communities of color, discussed her organization’s efforts to protect New York’s industrial waterfront, by reducing the concentration of environmental hazards in the City’s Significant Maritime and Industrial Areas, and its community engagement with the Hunts Point Resiliency project in the South Bronx, focusing on the needs of the City’s major food distribution center. She outlined key areas of focus in the EJA’s recently released NYC Climate Justice Agenda, including urban heat island mitigation, food system resilience, renewable energy, coastal resilience, and community engagement.

Between panels, we featured a conversation with Daniel Zarrilli, the Senior Director of Climate Policy and Programs and the Chief Resilience Officer for the City of New York.  I focused the exchange on the structural role of this position in climate governance, which came into being after Superstorm Sandy.  We discussed the Chief Resilience Officer’s oversight of the City ’s coordinated action on climate change mitigation and adaptation, under the City’s OneNYC program, and the City’s advocacy with FEMA to revise the City’s flood insurance maps to preserve some affordable insurance options for homeowners based on current levels of risk data.

October 20, 2017 | Permalink | Comments (0)

Wednesday, October 18, 2017

CUNY Law's Climate Change, Environmental Justice, and Urban Resilience symposium: Proceedings of Panel 1: Governance for Resilience

[This is the first in a series of four blog posts detailing the proceedings of CUNY Law's recent symposium.]

Recently City University of New York (CUNY) School of Law and its Center for Urban Environmental Reform (CUER) hosted a conference, Climate Change, Environmental Justice, and Urban Resilience: Incorporating Community Voices, to reflect on the impact of Superstorm Sandy, which struck New York and other parts of the Northeast five years ago, and to confront the increasingly severe impact of more recent climate-related weather along the Gulf Coast, Puerto Rico, and the Caribbean. CUNY Land Use Law Professor Andrea McArdle, who organized the conference with CUNY colleague, Rebecca Bratspies, director of CUER, shares some post-conference thoughts:

My colleague Rebecca Bratspies and I organized the program with the hope that we could engage a range of voices and perspectives on the challenges of governance for climate risk in densely populated urban areas.  We began with an appreciation that government policymakers and the research and science sector have embraced the concept of resilience as a policy response to the catastrophic consequences of climate-related weather disasters.

We set out to analyze and unpack that term, and consider how resilience is implicated in governance in such strategies as rebuilding, restoring, and retreat from the waterfront.  Although these strategies have sometimes been framed as alternatives, even as mutually exclusive, we hoped the conference discussions would illuminate ways in which, we believed, these aspects of resilience could be compatible and complementary.

We also wanted to examine how policy making on climate resilience could access community-based knowledge, and incorporate community voices. We invited conference participants to approach climate resilience governance through an equity lens that accounted for impacts on climate-burdened communities. We considered “climate-burdened” to include those living in the floodplain in at-risk housing, from wood frame bungalows to high-rise public housing, and those whose life circumstances in relation to race, poverty, disability, or social isolation compound vulnerability to the effects of severe weather.

Further, we asked panelists to consider the intersections between climate-burdened communities and environmental justice communities, united by their shared location on the urban periphery, where land values traditionally have been lower, municipal services and amenities less accessible, and environmentally noxious uses more prevalent.

With a mix of speakers drawn from government, community-based organizations, and academe, the program comprised four panel discussions and a conversation with New York City’s Chief Resilience Officer.

The first panel, on Governance for Resilience, which I moderated, addressed what resilience governance encompasses. From their distinct perspectives, the panelists considered the roles of various levels of government and public institutional structures, the research sector, and relevant communities in governance initiatives.

Sam Capasso, a Hazard Mitigation Specialist for FEMA and a lead technical reviewer for Hazard Mitigation Grant Program projects at the New York Sandy Recovery Office, examined the agency’s pre-disaster functions and post-disaster approaches to resilience, including recovery and mitigation. His presentation drew on the National Mitigation Framework, with its goals of achieving community resilience, communicating with the public, and reducing vulnerability to risk. He highlighted examples of flexibility in the tools FEMA can employ in the post-disaster context, and explained how FEMA’s reinterpretation of its own regulations has led to larger expenditures under its mitigation assistance authority.

Holly Leicht, currently Vice President for Real Estate for Empire State Development, discussed her experience serving in the Obama administration as the Regional Administrator for the U.S. Department of Housing and Urban Development (HUD) in New York and New Jersey where she oversaw Superstorm Sandy recovery funds and implementation of resilience competition projects.  Her presentation drew from her comprehensive report, “Rebuild the Plane Now: Recommendations for Improving Government’s Approach to Disaster Recovery and Preparedness,” highlighting report recommendations for improving equitable recovery strategies for disadvantaged populations, such as renters, in the current recovery framework and for increasing coordination at the federal level with more support for state and local grantees.

Adam Parris, executive director of the Science and Resilience Institute at Jamaica Bay in New York City, discussed this unique partnership between governmental, research, and community-based organizations established to improve resilience in the region’s coastal waters. His presentation examined a variety of governance models, highlighting that governance, rooted in relationships, should support climate adaptation, and capacity building, and necessarily evolves and adapts with changing climate projections. He also discussed how language choices facilitate or undermine effective governance, noting the negative responses that policymakers’ use of freighted terms such as climate, risk, and retreat can elicit within climate-affected communities. This issue of framing proved a fruitful basis for discussion across the panels.

Laxmi Ramasubramanian, Associate Professor of Urban Planning and Policy at Hunter College (CUNY), doctoral faculty member in the Geography and Environmental Psychology programs at The CUNY Graduate Center, and Deputy Director of CUNY’s Institute for Sustainable Cities, spoke about her post-Sandy research on communities living in the Jamaica Bay watershed. She documented a range of community relationships with Jamaica Bay, the importance of informal channels of communication, and the value of popular education approaches to encourage community participation in climate governance. Both Laxmi and Adam drew on chapters they authored in Prospects for Resilience: Insights from New York City’s Jamaica Bay (Island Press 2016), which Adam coedited.

October 18, 2017 | Permalink | Comments (0)

Friday, October 6, 2017

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

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

October 6, 2017 | Permalink | Comments (0)

Tuesday, October 3, 2017

New Website about Land Use, Resilience Justice, and More

Dear colleagues:

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

October 3, 2017 | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

The Governor signed the following bills into law today:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 3, 2017 | Permalink | Comments (0)

Monday, October 2, 2017

A tank and an HOA square off in Houston

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

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

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

 

 

October 2, 2017 | Permalink | Comments (2)

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

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 2. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 4:  Teaching about the Comprehensive Land Use Plan

by Jonathan Rosenbloom

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

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

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

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

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

October 2, 2017 | Permalink | Comments (0)

Wednesday, September 27, 2017

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

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

_________________

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

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

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

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

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

September 27, 2017 | Permalink | Comments (0)

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

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

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

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

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

September 27, 2017 | Permalink | Comments (4)

Monday, September 25, 2017

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

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 2. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 4:  Teaching about the Comprehensive Land Use Plan

by Stephen R. Miller

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

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

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

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

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

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

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

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

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

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

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

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

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

September 25, 2017 | Permalink | Comments (0)