Friday, March 19, 2010
Many thanks to Matt and the rest of the editors at the Land Use Prof Blog for inviting me to "guest blog" here about my paper on local growth politics. You can find the abstract and a link to the paper here or here. Let me start out by saying that the folks here at the Land Use Prof Blog have been doing a great job. The site is continuously updated with important and interesting developments in land use law. For me, the site is a must-read every day (especially now that I'm posting!)
In this post, I'll just say a few words about the paper's thesis, then outline where I hope to go in the next few posts. Evidence abounds that local politics are riven by conflict between developers, who push municipalities to pursue growth, and homeowners' groups, aka NIMBYs, who resist growth in or near their neighborhoods. There is substantial disagreement, however, about who "really" runs things in local politics, with developers arguing that they are unable to accomplish anything over the incessant objections of pampered homeowners, and neighborhood groups complaining that their concerns are totally ignored by developer-friendly bureaucrats. The conflict between developers and homeowners -- and confusion about who has the upper hand between them -- is especially acute in regions like southern California, which serves as a case study in my paper. I argue that politics in southern California have been structured in a way that heightens, rather than alleviates, the inherent tension between developers and homeowners. On one hand, most southern California cities use at-large voting systems, which maximize the influence of developers and dilute the influence of neighborhood groups. On the other hand, all California cities retain the right of local initiative, which slow-growth groups have used with increasing effectiveness in recent decades to counteract the pro-growth tendencies of the at-large system.
The juxtaposition of at-large voting and the local initiative thus enhances conflict between developer and homeowners. However, my research reveals that beneath this conflict there is a fundamental continuity between at-large voting and the local initiative (both of which, incidentally, were originally introduced into local politics during the Progressive age as complementary facets of the Progressive movement's efforts to reform local politics.) The structuring of local politics in southern California fosters an artificial dichotomy between pro-growth and anti-growth positions that subverts the possibility of compromise, truncates the municipal political agenda to a narrow conflict between competing middle class elites about whether to privilege the use or exchange value of property, and suppresses a wide range of views about growth and other issues, thus effectively silencing large portions of the metropolitan population whose views are inadequately captured by the pro-growth/no-growth binary. I further argue that the reason courts have rejected most challenges to this distorted political system is because they have placed far too much faith in the vigorous application of judicial review to compensate for the flaws in the political process. I conclude that a superior approach would be for courts to focus on correcting these process defects so as to enable a more robust conversation about growth and other local political issues
In future posts, I plan to address the impetus of the project, its contribution to existing scholarship, the impact of the recent real estate crisis on my thesis, southern California's suitability as a case study of national trends in growth politics, and the strengths and weaknesses of my proposed reforms.
It's my pleasure to introduce Kenneth A. Stahl as a guest-blogger here at the Land Use Prof Blog. Prof. Stahl is on the faculty at Chapman University School of Law, where he teaches Property, Land Use, and Environmental Law.
His new paper, which I just posted about below, is called The Artifice of Local Growth Politics: At-Large Elections, Ballot-Box Zoning and Judicial Review. Ken might give us some more information about this interesting new article . . . and/or whatever other land use issues he wants to blog about. We're excited to have him on board!
Take it away, Ken!
Kenneth Stahl (Chapman) has posted The Artifice of Local Growth Politics: At-Large Elections, Ballot-Box Zoning and Judicial Review. The abstract:
Municipalities throughout the nation are plagued by a seemingly unresolvable conflict between development interests and homeowners’ groups who oppose growth near their neighborhoods. This paper uses southern California as a case study to examine the problem of local growth politics and the judicial response to it. As I argue, local politics in southern California are structured in such a way that fosters an artificial dichotomy between pro-growth and anti-growth positions, subverting the possibility of compromise and suppressing a wide range of views about growth and other issues. On one hand, the prevalence of at-large voting systems in southern California municipalities favors growth interests by facilitating citywide growth while muting neighborhood opposition. On the other hand, neighborhood groups liberally rely on the initiative and referendum to halt unwanted growth. Ironically, the apparent conflict between pro-growth and anti-growth agendas generated by this political structure conceals a fundamental continuity. Both at-large voting and the initiative process function to dilute the influence of minorities and other geographically concentrated groups, entrench the political power of the professional middle classes, prevent disparate interest groups from negotiating toward terms in the contested terrain of municipal politics, and cloak this ideologically loaded process in the rhetoric of a unitary public interest set against parochial selfishness.
This distorted political system has been the subject of many judicial challenges, most of which have focused on the local initiative process. The courts, however, have taken pains to uphold the right of the people to enact land use laws by initiative or referendum. Rejecting arguments that ballot-box zoning entails an excess of politics without necessary apolitical counterweights, the courts have expressed confidence in the judiciary’s own ability to temper the evils of unchecked politics through judicial review. I assert, however, that this faith in judicial review is misplaced, as the judiciary has proven incapable of balancing the complex array of competing interests involved in land use regulation. Thus, I argue that the judiciary should instead focus on correcting defects in the political process so that the balancing of competing interests can occur, as it should, in the legislative arena.
Stay tuned, because we'll be hearing more from Ken very soon!
Wednesday, March 17, 2010
As a quick follow-up to Will's post below, Joel Kotkin also has an optimistic article out now called What America will Look Like in 2050, which presumably touches on some of the themes in his new book, The Next Hundred Million: America in 2050. Kotkin argues that the U.S. will retain its powerful position largely because it continues to have a moderately healthy growth rate (though births and immigration) in contrast to many other countries. Kotkin always has an informed and interesting take on land use and demographic issues.
In "The Decline of Los Angeles," published on Newgeography.com and originally in Forbes, author Joel Kotkin explores what he describes "one of the most rapid--and largely unnecessary--municipal reversals in fortune in American urban history." Thanks to what Kotkin describes as a near-perfect triology--business, climate, and landscape--people from all over the country (and world) moved to Los Angeles over the last century to take part in the development of one of the world's then most innovative cities. By the end of the 1990s, Kotkin writes, Los Angeles could claim the continent's largest port, the world's largest entertainment industry, and a seat amongst the biggest and best garment and industrial manufacturing centers in the country.
Not so in 2010. With unemployment close to 10% and a declining industrial base and infrastructure, Los Angeles has felt the economic downtown harder than many cities. According to Kotkin, people now appear to be leaving the City of Angels in droves, whereas they used to seek it out as a place to visit, if not also to live, mirroring the outward migration patterns of Detroit, Chicago, and New York. Attempts to create more "elegant density" in downtown areas has apparently failed. To the extent Los Angeles recovers from its current malaise, peripheral cities promise to recover first. Why? As Kotkin reports, "'It's extremely difficult to do business in Los Angeles," observes Eastside developer Jose de Jesus Legaspi. 'The regulations are difficult to manage. . . .Everyone has to kiss the rings of [City Hall politicians.]'"
Will Cook, Charleston School of Law
In our relatively short time as co-editors of this blog, we've written several times about the impact of the implosion of the housing market. (Just check out our housing and mortgage crisis categories for many of these posts.) Recently, the local paper here in Athens - the Athens Banner Herald - carried a story about how nearby Jackson County is struggling to pay for the expanded water and sewer service they built to meet the expected demand for new home building. Jackson County is an exurb of Atlanta and before the economy crashed it was experiencing massive growth. Now, as in so many places in the country, subdivided land is little more than "PVC farms" (so called because they are empty except for PVC pipes sticking from the ground where homes are to be built). The Jackson County commission's solution to this is to begin charging a $10 a month maintenance fee on the pipes. However, with many of the builders gone bust, they will have to wait to collect this fee from future developers. Let's hope that works out for them.
Jamie Baker Roskie
Tuesday, March 16, 2010
Well, we've tried to post land use-related observations over most of the holidays over the six months we've been driving the blog: Columbus Day, Veterans' Day, Thanksgiving, Christmas, New Years, Valentine's Day. Now it's time to try and make a land use-related post about St. Patrick's Day.
First of all, the legend of St. Patrick has it that he drove the snakes out of Ireland. If that isn't an awesome land use regulatory feat, then nothing is!
St. Patrick is credited with bringing Christianity to Ireland, and the Church played a major part in land control over the centuries. Later on in Irish history, the Catholic-Protestant struggle had a great deal to do with English land ownership and the relationship of the Irish people to the land. Even until recent years, the symbol of St. Patrick has been part of the controversy over the IRA and Northern Ireland.
St. Patrick's Day has spread throughout the Irish diaspora worldwide. In the U.S., St. Patrick's Day has, of course, served as a semi-official Irish-American holiday. Irish immigrants moved throughout the country, but are particularly known for rising to political power in the cities. Anti-Irish/Catholic prejudice loomed over the Gilded Age ("no Irish need apply") and the Progressive Era (multifamily housing (the "pig in the parlor") associated with immigrants). Irish Catholic churches played a major role in urban affairs and continue to have a presence in First Amendment and RLUIPA issues. After attaining some political power in urban political systems such as Tammany Hall, Irish-Americans have played a central role in city governance for over a century. My undergrad alma mater, Notre Dame, served as a source of pride for Irish-Americans for its competitiveness in that land-use struggle known as football, and later in academics. When John F. Kennedy was elected President, it seemed to many Americans of Irish extraction that they had finally become accepted into the American Dream.
In the last few decades, St. Patrick's Day has continued to influence American land use issues. Major celebrations take place in many U.S. cities, and places like Chicago, most famously, and Savannah dye their rivers green for the occasion. [ancillary question: is being "green" a good thing, in this sense?] In some American cities the St. Patrick's Day parade has become one of the most important political events of the year, which has led in turn to protracted litigation over the question of who gets to decide who marches in privately-organized yet publicly-sanctioned St. Patrick's Day parades. The U.S. Supreme Court weighed in on the matter in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995). Justice Souter's opinion for a unanimous Court upheld the First Amendment associational rights of the parade organizers to exclude an Irish-American GLBT group (would the case come out the same way today?).
St. Patrick's Day has a lot of cultural significance and a little bit of land-use significance too. So hoist a green beer and celebrate.
George P. Smith II (Catholic) and Griffin W. Fernandez have posted The Price of Beauty: An Economic Approach to Aesthetic Nuisance, Harvard Environmental Law Review, Vol. 15, No. 1, p. 1991. The abstract:
This Article advocates a wider judicial recognition of nuisance actions based on aesthetic considerations. Contrary to the majority of legal opinion to the contrary, it is argued that a right to enjoy property should include a right to be free from non-invasive aesthetic or visual nuisances. With modern real estate appraisal methods making it possible to express community aesthetic preferences in monetary terms, courts are now no longer prevented from using these tools in assessing injuries to real estate. Thus, determinations of aesthetic nuisance actions are not any more subjective than the current task of courts in the context of aural and olfactory nuisance disputes. Indeed, the judiciary should resolve conflicts emanating from the unaesthetic uses of land through the Restatement of Torts “objective” balancing test in order to determine what, according to prevailing community standards, is reasonable under the circumstances.
The expanded popularity of aesthetic zoning in many municipalities demonstrates anew the social value of aesthetics and thereby illustrates with clarity a very conscious relationship which exists between economic development and American nuisance law. Judicial recognition of police powers to enforce zoning regulations of this order contradicts - clearly - the heretofore seen reluctance of the Common Law to confront aesthetics in the realm of nuisance and thus invites a more contemporary and enlightened judicial response to this legal issue.
Dave Owen (Maine) has posted Urbanization, Water Quality, and the Regulated Landscape. The abstract:
Watershed scientists frequently describe urbanization as a primary cause of water quality degradation, and recent studies conclude that even in lightly-developed watersheds, urbanization often precludes attainment of water quality standards. This article considers legal responses to this pervasive problem. It explains why traditional legal measures have been ineffective, and it evaluates several recent innovations piloted in the northeastern United States and potentially applicable across the nation. Specifically, the innovations involve using impervious cover TMDLs, residual designation authority, and collective permitting. More generally, the innovations involve transferring regulatory focus from end-of-the-pipe to landscape-based controls. I conclude that the innovations, while raising some new problems, represent a promising shift, and it discuss additional reforms and research needed to better reconcile legal water quality standards and traditional land development patterns.
Melinda Harm Benson (New Mexico) has posted Adaptive Management Approaches by Resource Management Agencies in the United States: Implications for Energy Development in the Interior West, Journal of Energy and Natural Resources Law, Vol. 29, No. 1, pp. 87-118, 2010. The abstract:
Adaptive management is gaining influence among natural resource management decision-makers. In the United States, the Department of the Interior is now encouraging its agencies to utilise adaptive management when ‘appropriate.’ This is a positive step in natural resource management, reflecting a growing recognition of the need to integrate scientific uncertainty more effectively into agency planning and resource development. This new management scheme has potentially significant implications for energy development and its corresponding impacts on water and other resources. The US Department of the Interior’s Bureau of Land Management (BLM) is the primary agency responsible for managing 700 million subsurface acres of mineral estate. This article examines how the BLM might employ adaptive management in the context of oil and gas development to better protect resources in areas such as Wyoming’s Powder River Basin, where extraction of coal-bed methane has created significant controversy.
Monday, March 15, 2010
Uma Outka (Florida State) has posted Facility Siting for Renewable Energy: Florida's Land Use Context. The abstract:
This Article takes up the increasingly important land use question of siting for renewable energy. As concern over climate change grows, new policies are being crafted at all levels of government to support renewable energy as a way of reducing greenhouse gas emissions. These policies are driving the need to site and construct new power plants that will utilize renewable resources. Historically, power plant siting has been the province of state and local governments, so the regulatory context into which renewables are being integrated varies, sometimes significantly, jurisdiction by jurisdiction.
To examine this regulatory context, this Article focuses on Florida – the third largest consumer of electricity in the U.S. with less than two percent generated from renewable resources. The Article first provides an overview of Florida’s power supply sector and sets out the existing regulatory context for terrestrial siting of energy facilities. It then situates Florida’s most promising renewable resources within that context, identifies regulatory barriers that implicate siting, and considers the siting issues unique to each resource. As the Article explains, we now have a window of opportunity in which state and local governments can plan for and guide renewable energy siting – an approach that contrasts with utility-driven planning and siting that has long been standard practice.
Robin Kundis Craig (Florida State) has posted Adapting Water Federalism to Climate Change Impacts: Energy Policy, Food Security, and the Allocation of Water Resources, forthcoming in the Environment & Energy Law & Policy Journal. The abstract:
This Article posits that climate change adaptation also has federalism implications for environmental regulation and natural resources management. In particular, the federal and state governments have always asserted overlapping – and sometimes conflicting – interests in water, and, as a result, water regulation and management have always been subject to an uneasy federalism balancing. For example, water allocation and water rights are generally considered issues of state law – but if the water crosses state lines, or state regulation affects navigation, the federal government asserts a superior and preemptive role. In between these endpoints, the federal Clean Water Act adopted an intricately structured cooperative federalism that imposes certain minimum federal requirements for water quality but allows states to choose water quality goals, while aquatic species protection remains a largely unstructured mishmash of overlapping state and federal interests and authorities.
In light of existing shortages of water and the imminent need to adapt to climate change impacts on water resources, reconsidering the proper federalism balance in water resources management is inevitable, as several congressional bills attest. Specifically, the traditional assumption of state superiority over matters of water allocation has come into question in light of the intimate connections between water availability and national energy policy, national food security, and interstate conflicts. This Article explores the potential for climate change and the increasing need to adapt to its impacts on water to alter traditional notions of water federalism, concluding that an increased federal role in water management is likely but could take many forms, some more attune to the multiple interests in water than others.
Sunday, March 14, 2010
Many of you who read Property Prof Blog have seen Mike Kent's fascinating series of posts about property rights issues in the HBO series Deadwood. Now you can read the full analysis, as Prof. Kent (Atlanta's John Marshall & Stetson) and Lance McMillian (Atlanta's John Marshall) have posted The World of Deadwood: Property Rights and the Search for Human Identity. The abstract:
The year is 1876. Gold has been discovered in the fledgling camp of Deadwood, bringing hordes of new arrivals each day seeking to strike it rich. The allure of wealth is coupled with the allure of complete autonomy. There is no law. Although part of the United States, Deadwood is unaffiliated with any existing territorial government. It is free. Or is it? From this backdrop, HBO’s highly-acclaimed drama Deadwood springs forth. Series creator David Milch is frank about his mission behind the story: to explore how order arises from chaos. The assignment and protection of property rights play central roles in this journey from anarchy to law. In the world of Deadwood, where ownership of land can be worth millions, law’s promise and law’s pitfalls are both on full display. The stakes are high; the lessons are many.
Stories are powerful teaching tools because they marry information and context. Film and television also supply a picture of law in action, marshalling the power of the visual to make law more real, less abstract. Because of its rich complexity and invocation of ancient debates over what property is and who rightly can be deemed to own it, the three-season run of Deadwood provides fertile ground for this type of interdisciplinary study. Deadwood demonstrates that the interrelationship between property and law is complex, with many moving pieces and many valid points and counterpoints. Property has both naturalist and positivist attributes, it both pre-exists and coexists with the state, it is about economic power and personal identity, it supports both an individualist and communitarian mindset. Accounting for all of these strands in a balanced way is a lot to ask of legal institutions, especially inasmuch as the strands often are in competition with one another. Deadwood suggests that, while law is certainly a component piece in the puzzle of human relations, it alone cannot do all that we ask of it. And therein may lie the ultimate lesson: Law can be a blessing, but the human condition requires more.
I saw Mike and Lance present this research at ALPS last weekend, and looks like a very interesting paper. Best of all, now I have a legitimate reason to put more TV shows in my Netflix queue!
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