Friday, January 11, 2008

Democracy and the making of land use law …

   If the presidential election season doesn’t completely make one cynical about the workings of democratic elections, one can consider the significant role of “democracy” in the making of land use law.  For the most part, courts have applauded laws that require public approval of zoning changes (despite the obvious tendency that this gives to NIMBY and to ignore property “rights”) and courts often construe laws so as to maximize democratic participation.

Sierranevada   An example of this tendency was handed down this week by a California appellate court.  The Third District Court of Appeal held that a state law requiring a public hearing in front of a legislative body that is considering a zoning amendment must be noticed only AFTER the recommendation of the planning commission.  Accordingly, the Court held unlawful Sierra’s County’s practice of giving notice of the hearing before the planning commission made its recommendation.  The statute did not explicitly require such timing; rather, the interpretation “furthers the state’s policy and Legislature’s intent that the public be involved in the planning process and are ‘afforded the opportunity to respond to clearly defined alternative objectives, polices, and actions.’”  (Id. at 10, citing Cal. Gov Code sec. 65033.)  By requiring this timing, interested citizens have more time to prepare their responses to the planning commission’s recommendations.  (The case is Envtl. Defense Project of Sierra County v. County of Sierra, No. C055448 (Cal. Ct. App. 3d Dist., Jan. 9, 2008)). 

  Let’s hope that the public in Sierra County (population about 3600) takes advantage of this right and pays better attention to important public issues than the general American electorate shows in some of our presidential contests …

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January 11, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 8, 2008

The new power of religion over land use …

Religions    Most of land use law is determined by local authorities, of course.  But the federal government, which has taken over large areas of environmental and employment law (which used to be reserved mostly to the states), is playing a more active role in shaping land use.  At the law professor conference in New York last week, one of the most interesting talks was given by Prof. Patricia Salkin (also a blogger) on the power of the Religious Land Use and Institutionalized Persons Act.  (Here's a DOJ website, then one of a private organization that challenges land use laws, and a previous post of mine about the act.)  By empowering a religious group to challenge in federal court a local land use law decision, and by granting to the group an amorphous set of rights, the statute offer a temptation for projects that bear only a tenuous relation to religion to try to avoid land use regulation.  And by providing for attorneys fees to winning challengers -- fees that have to be paid by local governments -- the act places upon localities a pressure to settle even marginally colorable cases, in order to avid the risk of a huge fee award.  It's unfortunate that the burdens of the federal law fall largely on localities.  (Is this an unfounded mandate of sorts?)  Will we soon see local governments seeking out RLUIPA insurance?

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January 8, 2008 | Permalink | Comments (2) | TrackBack (0)

Monday, January 7, 2008

The past and future in New York …

Condenastbldg     Before I get to a more serious land use comment, please indulge a little architectural criticism from a complete amateur, just back from New York. 
    As styles of commercial buildings continue to change radically from one generation to the next, we can assess whether certain "in" styles survive the test of time.  In my opinion, two landmarks of '50s and '60s -- generally considered banal times for commercial architecture -- have held up superbly.  The Lever House (1952) on Park Avenue, which was the first great glass box, still looks elegant, in large part because of its humane size and detail.  Meanwhile, the dramatic atrium garden of the Ford Foundation (1967) still plays off well against the rugged rusted metal of the interior (and helped by the fact that building sparkles like new).      
   By contrast, two east midtown skyscrapers of the 1980s that were acclaimed for breaking the model of the "box" -- the Sony (nee AT&T) and Altria (once Philip Morris) Buildings -- now seem uninspired.  The Chippendale top of the former seems silly, and the appliqué stone panels on both facades have become streaked and downright ugly. (Can a 25-year-old building be cleaned?) Without a sense of detail, the faux "historicism" of the 1980s now looks tacky. 
    Today's trend is a return to glass, but in odd shapes that today look intriguing.  But will the whimsical twists and turns of the Conde Nast (see photo) and Bank of America Buildings (plus Ernst & Young and Reuters) around Times Square still look as exciting a generation from now?

    Now back to something more within my bailiwick.  New York is often admired for retaining its own distinctive culture, resistant to the homogenization of America -- a homogenization against which land use law sometimes tries to act.  But generic America continues to make inroads, even in New York.  I had to stop by quite a few promising looking "delis" in midtown Manhattan before finding one that could make me an "egg cream" (seltzer, chocolate syrup, and milk) instead of a generic hot chocolate.  And the free-standing pretzel stand in claustrophobic Penn Station is … an "Auntie Annie's"!  If New York can't nurture distinct local businesses (and yes, I concede that the situation is probably less generic in the outer boroughs), how can it elsewhere in America? 

January 7, 2008 | Permalink | Comments (0) | TrackBack (0)