Saturday, December 16, 2017

Boise and the Battle for a Sense of Place @ CityLab

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

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

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

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

December 16, 2017 | Permalink | Comments (0)

Friday, December 15, 2017

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

From Tim Iglesias:

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

See the details in the pdf below:

Download Revised_2018_writing_competition_guidelines.authcheckdam

December 15, 2017 | Permalink | Comments (0)

Wednesday, December 6, 2017

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

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

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

Post-Paris Contagion

by John R. Nolon Distinguished Professor of Law

 Elisabeth Haub School of Law at Pace University

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

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

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

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

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

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

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

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

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

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

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

Below are links to the previous posts in this series:

Post 1:  Grassroots Mitigation of Climate Change

December 6, 2017 | Permalink | Comments (0)

Monday, December 4, 2017

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

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

Contemporary Issues in Teaching Land Use

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

by Patricia E. Salkin

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

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

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

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

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

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

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

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

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

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

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

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

 

 

 

December 4, 2017 | Permalink | Comments (0)

Wednesday, November 29, 2017

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

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

 

2018 Morrison Prize Contest

Call for Entries – Submit by December 9!

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

Eligibility Requirements:

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

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

Judging Process and Criteria:

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

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

How to Enter:

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

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

The deadline for submitting papers is December 9, 2017.

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

Questions: Contact Lauren Burkhart

Phone: (480) 965-2465

Web: law.asu.edu/SustainabilityLaw

November 29, 2017 | Permalink | Comments (0)

Monday, November 27, 2017

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

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

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

Grassroots Mitigation of Climate Change

by John R. Nolon

Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

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

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

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

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

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

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

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

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

November 27, 2017 | Permalink | Comments (0)

Monday, November 20, 2017

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

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

Contemporary Issues in Teaching Land Use

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

by Jonathan Rosenbloom

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

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

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

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

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

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

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

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

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

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

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

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

 

November 20, 2017 | Permalink | Comments (0)

Friday, November 17, 2017

A framework for how land use decisionmaking misfires?

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


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

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

November 17, 2017 | Permalink | Comments (0)

Monday, November 13, 2017

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

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

Contemporary Issues in Teaching Land Use

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

by Stephen R. Miller

 

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

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

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

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

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

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

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

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

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

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

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

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

November 13, 2017 | Permalink | Comments (1)

Tuesday, November 7, 2017

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

Call for Presentations and Papers

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

The Future of Government and Governance of Disaster in the West

Symposium Date:  Friday, October 19, 2018

Proposal Deadline:  January 1, 2018

Location:  Boise, Idaho

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

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

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

Some questions conference participants may address include the following:

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

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

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

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

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

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

Reasonable travel expenses of presenters will be reimbursed.

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

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

November 7, 2017 | Permalink | Comments (0)

Monday, November 6, 2017

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

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

Contemporary Issues in Teaching Land Use

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

by John R. Nolon

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

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

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

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

 

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

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

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

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

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

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

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

November 6, 2017 | Permalink | Comments (1)

Sunday, November 5, 2017

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

 

ABA Journal of Affordable Housing & Community Development Law

Call for Papers

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

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

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

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

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

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

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

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

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

November 5, 2017 | Permalink | Comments (0)

Wednesday, October 25, 2017

Buchanan v. Warley Centennial Symposium on Race & Zoning

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

 

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

 

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

 

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

 

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

 

Buchanan v. Warley Symposium Agenda

Racial Justice in Zoning: 100 Years after Buchanan

Friday, November 10, 2017

 

8:30 a.m.: Light continental breakfast

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

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

 

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

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

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

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

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

10:30 a.m.: Break

 

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

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

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

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

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

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

12:50 p.m.: Break

 

Session III: Luncheon Keynote

1:00 p.m.: Lunch

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

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

 

Session IV: Bringing It Home

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

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

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

 

Speakers:

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

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

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

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

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

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

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

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

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

* denotes Caudill-Little Distinguished Presenter

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

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)