Friday, November 11, 2011
Roderick M. Hills, Jr. (NYU) and David Schleicher (George Mason) have posted Balancing the 'Zoning Budget', published in Regulation, vol. 34, no. 3 (2011). The abstract:
Local government officials regularly adopt zoning changes that result in fewer potential housing units, despite making public commitments to improve housing supply. The reason these zoning changes are successful is because they are often desired by current voters who want to protect the “character” of their neighborhoods, while most of the beneficiaries of increased housing supply are not current voters in the affected district. This political economy dynamic can cause long-term economic harm to communities by harming housing affordability. This paper recommends that local policymakers adopt an annual “housing budget” to clearly identify the number of potential housing units that they want to exist. With this budget established, changes in zoning that reduce the number of potential housing units must be balanced with other changes that expand housing units.
This shorter piece is a very interesting and accessible read, and I especially recommend it if you haven't had the chance to read the longer version from the Case Western Law Review. This innovative idea has been featured in several media outlets. The always-fascinating Atlantic "Cities" Blog discusses it in The Case for Strengthening Urban Property Rights; Matt Yglesias posted on it at Think Progress; and the ideas are featured in the book The Gated City by The Economist's Ryan Avent.
Matt Festa (South Texas), our blog leader, has posted Academic Research and Writing as Best Practices in a 'Practically Grounded' Land Use Course, 2 Pace Envtl. L. Rev. Online Companion 49 (2011). I am really excited to see the first of several interesting articles (full list here) coming out of the symposium that Matt, Jamie and several other Land Use Prof Blog contributors and readers participated in last Spring at Pace Law School. In it, Matt draws on the latest research in legal education best practices to show how land-use "paper" courses can engage students in rigorous legal inquiry across disciplinary boundaries. Here's the abstract:
Land use is a discipline that involves diverse academic, practical, and social perspectives; it is also an ideal subject for applying nontraditional teaching methods, including those suggested by the “best practices” movement in legal education. In this article - a contribution to the “Practically Grounded” conference on teaching land use and environmental law - I suggest that a scholarly research and writing focus can help students develop their practical and analytical skills and values while achieving “best practices” goals in the context of a doctrinal land use course. In the article I set forth a pedagogical basis for including an academic writing component in a doctrinal land use course; and I discuss the experience of teaching a large land use class with a significant research and writing component. The benefits from an academic writing focus may also apply to teaching in other doctrinal fields.
Thursday, November 10, 2011
Ilya Somin (George Mason) has an op-ed in Daily Caller about the passage of Mississippi Measure 31, a post-Kelo eminent domain reform measure: Referendum Initiatives Prevent Eminent Domain Abuse. The intro:
The Supreme Court’s 2005 decision in Kelo v. City of New London generated a record political backlash. Kelo upheld the condemnation of private property for transfer to other private owners in order to promote “economic development.” The case inspired widespread outrage. Polls show that over 80% of the public opposes economic development takings. As a result, 44 states have enacted eminent domain reform laws that restrict the condemnation of property for the benefit of private interests.
The most recent state to react to Kelo is Mississippi. On Tuesday, Mississippi voters adopted Measure 31 by a decisive 73% to 27% margin. The new law will make taking property for economic development unprofitable by forbidding most transfers of condemned land to a private party for 10 years after condemnation. The measure is a major victory for both property owners and the state’s economy.
Somin has also blogged on the measure at the Volokh Conspiracy here and here. And from the former post, here's a nugget that's relevant to the discussion Ken and I have been having on direct democracy in land use:
As I explain in this article, referendum initiatives like Measure 31 tend to be stronger than reforms adopted by state legislatures because many of them are drafted by activists rather than by politicians. Measure 31 was submitted drafted by the Mississippi Farm Bureau Federation (small farmers are often victims of eminent domain in the state). The vast majority of post–Kelo referenda adopted by voters impose tough restrictions on takings.
More on that to come soon!
Wednesday, November 9, 2011
OK, I'll bite. Matt has laid down the gauntlet with his criticism of the initiative process. This subject is of great importance to land use profs because, at least in many sunbelt states, a good deal of land use policy is made through direct democracy -- so-called "ballot box zoning." In this post, I want to respond to some of Matt's criticisms and offer a very tentative defense of ballot box zoning. For those who are interested, I have defended ballot box zoning at greater length (although I ultimately call for its abolition anyway) in this paper.
I must first concede to Matt that the initiative process has serious deficiencies. He mentions transparency and voter ignorance. The social science literature confirms that these are major problems. I would also add a few more: the initiative process is often captured by special interest groups, as money and organizational resources are often decisive in initiative contests; the initiative tends to favor the affluent and well educated, which is not surprising since the affluent and well educated are more likely to vote on initiatives; voters are easily confused by deceptive wording on initiatives, and initiative advocates often deliberately use deceptive terms to confuse voters; the initiative process reduces complex issues to a simplistic yes/no dichotomy in which hyperbolic sound bytes replace rational discourse. I suppose I could go on, but you get the point.
So what virtues could the initiative process possibly have? I want to focus specifically on the land use initiative, although some of my comments may be generalizable. Although it is often asserted that local politics are controlled by homeowners who seek to limit or manage growth, that is generally true only in smaller municipalities. Sunbelt states like Texas and California, however, have a disproportionate number of medium to large-size municipalities, dubbed "boomburbs" by sociologists Robert Lang and Jennifer LeFurgy. The larger size of these municipalities gives homeowners less political power. At the same time, sunbelt boomburbs have often pursued headlong development as a means of economic growth and to overcome fiscal constraints imposed by constitutional or political limitations on raising tax revenue. Lang and LeFurgy accordingly assert that these municipalities tend to be in thrall to the "growth machine," a matrix of developers and related cohorts who facilitate urban growth. As I further argue in my paper, the fact that many of these boomburbs use at-large voting structures rather than ward voting systems further enhances the power of developers and dilutes the ability of neighborhood groups to fight development.
Obviously, this system is less than ideal for homeowners. And let's face it: while we might hate those NIMBYs, they have some pretty good reasons for opposing new growth. For years it has been national policy to induce Americans to purchase property through a combination of incentives, including low-interest mortgages and municipal zoning ordinances that provide some assurances to homeowners that their property values, and hence their ability to pay off their mortgages, will be protected against unpredictable declines. New growth and the externalities that accompany it are very likely to diminish property values, and hence prejudice the ability of homeowners to finance what is likely to be by far their most significant asset. Existing homeowners are in effect subsidizing new growth through diminished property values, and although city officials claim that everyone benefits from new growth, it is often a concentrated group of homeowners alone who must bear a disproportionate degree of the cost. As I questioned in a previous post, it can even be argued that homeowners have a regulatory takings claim -- but courts have never recognized such a cause of action.
As envisioned by its Progressive-era architects, the initiative is supposed to correct the defects in the ordinary legislative process, particularly the dominance of special interests. And that is exactly what ballot-box zoning appears to do in the sunbelt states -- the very states where boomburbs, at-large voting and the growth machine dominate the political landscape are also the states where ballot-box zoning is most robust. Ballot box zoning has proven to be a powerful weapon with which homeowners can fight back against the growth machine, because prevailing on a local initiative requires only a one-time infusion of cash and a constituency that is easily organized and highly motivated -- ie, a group of neighboring homeowners who are all extremely ticked off about land use changes around their neighborhood. This can counteract the repeat player and other advantages that the developer has in the legislative process. Granted, the initiative process itself invites special interest abuses and all sorts of other problems, but it seems no less messy or dysfunctional than the system of government it is designed to counterbalance.
Tuesday, November 8, 2011
So I sat down to write a post noting some of the land-use related issues that are before Texas voters today as proposed amendments to the state constitution, and then I went off on a rant about why I don't like voting on state constitutional amendments--generally, because they're already too bloated with non-fundamental policy; and specifically, because of the informational problems that make it a terrible democratic mechanism. But anyway, there are ten proposed amendments to the Texas constitution today, so let's see if any involve land use . . .
None of them seem to be that radical this year, and hence haven't gotten any publicity to speak of (unlike last time around (2009), when eminent domain reform and constitutionalizing the Texas Open Beach Act were on the ballot). But as always, a few of them will affect land use--politically, structurally, and fiscally. The 2011 Analysis of Proposed Constitutional Amendments by the Texas Legislative Council is probably the best source out there. So let's take a look at a few. I'll paraphase the ballot language, which in turn only paraphrases the actual text of the amendments that will be come law!
1. Authorizing the legislature to provide a property tax exemption on the residential homestead of a surviving spouse of a 100% disabled veteran;
2. Authorizing the Texas Water Board to issue general obligation bonds up to $6 billion for water projects;
4. Authorize the legislature to allow a county to incur debt "to finance the development or redevelopment of an unproductive, underdeveloped, or blighted area within the county," and to pay for it with increased tax revenues from that area.
Now this one really strikes me as a great example of what I was talking about in my last post. What this is about is tax-increment financing, e.g. TIFs. On the one hand, if you read the background of this proposal, it's not radical; it's simply giving county governments the same power that municipal governments already have. On the other hand, the uses and abuses of TIFs are a big deal, and if it took this land use professor a few minutes of closely reading the ballot language to figure out that that's what were voting on, I can't have much confidence that this vote is in any way informed.
5. Authorize the legislature to allow city and county governments to enter contracts with each other (for, e.g., consolidation or regional projects) without the imposition of a tax or a sinking fund).
6. Allow the General Land Office to distribute revenue from certain dedicated lands for educational purposes.
7. Allow El Paso County to create conservation and reclamation districts to develop parklands.
8. Require the legislature to tax open space land devoted to water stewardship based on its productive capacity rather than its (usually higher) market value.
So there you have it, out of ten proposed state constitutional amendments put before the people of Texas today by the biennial session of the legislature, seven of them by my count have at least something to do with land use, even though they're more about structure and finance than use regulations per se. But of course, some of my students accuse me of "turning everything into a land use issue." But we all know it's true, right?
Anyway, I've got to run out now and go vote!
UPDATE 11/9/11: Seven amendments passed; the three that failed were #4 (county TIFs); #7 (El Paso parks); and #8 (tax assessment for water stewardship). The Secretary of State has the results. But hey, over 5% of the registered voters turned out!
Even though the media is obsessed with the 2012 elections, it is the first Tuesday after the first Monday in November, and as land use folks well know, a lot of important law is made at the state and local level during off-year elections. Today in Texas there are ten state constitutional amendments on the ballot for voter approval, generated by the 2011 legislative session (Texas' legislature still meets only bienially--one of four remaining states to do so, and the only major state).
I'm generally not a fan of constant new constitutional amendments, for two reasons, one structural and one democratic. First, many state constitutions--like Texas'--are already bloated. I printed it out once--all 80,806 words of it (sorry environmental profs)--and I make the point in class by comparing the massive document to a pocket U.S. Constitution. In general, I don't think that most mundane policy issues should be entrenched in fundamental law. On the other hand, this structural critique can be countered somewhat by the argument that while the federal constitution enables the Congress to do a certain range of things, state legislatures already have plenary power, so state constitutions largely exist to limit the legislature--and then they need to be amended often to adjust those limits. But still . . . 80,806 words?
My second beef with the practice of placing a slew of state constitutional amendments is has more to do with the theory of state and local elections, and I don't like it for the same reason I'm skeptical of the overuse of initiative and referendum. What could be more democratic than letting the people vote, you ask? The problem is informational. I usually ask my upper-level state & local government students--a sample of pretty well educated and informed voters--which way they voted on certain amendments or referenda from prior years. Almost universally I get two responses; either (a) no recollection whatsoever; or, occasionally, (b) they voted with their gut based on a cursory reading of the ballot text in the voting booth. And if they remember which way they voted, it was usually "yes" because the text sounded like "good things," or "no" because the text sounded like "spending more money."
There in turn at least two reasons why even smart voters end up voting with their gut on these important measures. First, the ballot language is usually vague and fuzzy, and often is quite different from the actual text of the law that will go on the books. I don't think this is usually done to confuse the voters, I think it's the opposite intent--but regardless, the ballot language in my experience is usually so general that it fails to communicate what the proposal is really about. Another major reason, of course, is that with a few exceptions, these items don't get very much media exposure. So most Texans probably know a lot more about, e.g., the latest in sexual harrassment allegations against national candidates, than they do about the 10 items they are probably going to add to the state constitution today. The info is out there, but it's up to the individual voter to burn some calories and go find and read information such as the analysis by the Texas Legislative Council.
Now in class, we talk about whatever amendments and referenda are on the ballot, and it's a lot of fun. Students do class presentations, we have guest speakers, and so on. And it often turns out that a lot of these state constitutional amendments (and local referenda) are substantively about land use--from eminent domain to land sales, zoning, conservation, and more (which was going to be the original point of this post, before I got off on my rant). So I do my part to create a group of 40 or 50 educated voters.
But if that's what it takes, is democracy really served by putting all this stuff on the ballot, and in such a vague manner? I find more and more that people in general really do care about land use in their communities and their region. A lot. Yet in the cases where they actually have a say in the matter, it gets translated so poorly that most votes actually cast are probably not informed ones. So it's the people behind the scenes in and around legislative bodies that end up making all the rules.
November 8, 2011 in Constitutional Law, Eminent Domain, Environmentalism, History, Local Government, Politics, Property Rights, State Government, Texas, Zoning | Permalink | Comments (0) | TrackBack (0)
Monday, November 7, 2011
John R. Nolon (Pace) has posted Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation. The abstract:
Land use tools and techniques have impressive potential to reduce energy consumption, improve the economy, and mitigate climate change. This article explores the little understood influence of local land use decision-making on energy conservation and sustainable development and how it can mitigate climate change if properly assisted by the federal and state governments. The construction and use of buildings combined with extensive vehicular travel throughout the nation’s human settlements consume large amounts of energy, and much of that consumption is highly inefficient. By enforcing and enhancing energy codes, encouraging the use of combined heat and power and district energy systems, properly orienting and commissioning buildings, incorporating renewable energy resources, and promoting transit and other methods of reducing vehicle miles travelled, local land use law’s potential to achieve energy conservation and sustainable development can be unlocked. These techniques can be organized at the neighborhood level and aggregated by adopting local Energy Conservation Zoning Districts in neighborhoods where significant energy conservation can be achieved. The article proposes federal and state policies, combining features of both the Coastal Zone Management Act and the Enterprise Zone initiative, that can facilitate local land use initiatives that will shape human settlements and control the built environment as a new path toward energy efficiency and climate change mitigation.
In the footnotes, Prof. Nolon notes that this is part of a trilogy:
FN.1. This article is one of three that examine how local land use law that can be used as an effective strategy to mitigate climate change. See John R. Nolon, The Land Use Stabilization Wedge Strategy: Shifting Gound to Mitigate Climate Change, 34 WM. & MARY ENVTL. L. & POL’Y REV. 1 (2009) [hereinafter Land Use Stablization Wedge] and John R. Nolon, Mitigating Climate Change through Biological Sequestration: Open Space Law Redux, 31 STAN. ENVTL. L.J. (forthcoming Winter 2011) [hereinafter Open Space Law Redux].
This is a great set of articles for anyone interested in the subject from one of the leaders in land use and local environmental law.
November 7, 2011 in Climate, Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Green Building, Local Government, Planning, Scholarship, State Government, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)
Robert Ellickson (Yale) has posted a draft of The Costs of Complex Land Titles: Two Examples from China. He presented this paper at last month's Brigham-Kanner Conference, which was held this year in Beijing instead of its usual home at William & Mary. Here's the abstract:
Chinese customs and law have traditionally prevented a land seller from conveying outright title to a buyer. The ancient custom of dian, which persisted until the 1949 Revolution, gave a land seller and his lineage an immutable option to buy back sold land at the original sale price. This little-analyzed custom discouraged soil conservation and land improvements, and, especially after 1600, contributed to China’s inability to keep pace with England.
After calamitous experiences with land collectivization between 1951 and 1981, China’s Communist government began to confer private land-use rights. But, instead of making outright sales, it chose to award contractual rights only for a fixed-term, for example, 50 years in the case of an industrial parcel. For the same reasons dian did, this policy threatens to impair China’s prospects of economic development.
Fun fact: Bob Ellickson placed 70th in the 2010 National Scrabble Championship.
Sunday, November 6, 2011
Further to my post below, the New York City Department of City Planning has recently released another great resource for students of New York City zoning -- this time, it's a collection of documents relating to the adoption of the city's 1961 zoning resolution. Some great bedtime reading for the archivists among us. The publication of these documents is timed to coincide with the 50th anniversary of the resolution, as is this one-day conference on "Zoning the City," set for November 15. I won't be able to attend, as I'll be stuck here in balmy southern California soaking in the sunshine, but it promises to be very interesting, with a great lineup of speakers.
I've been thinking for awhile now about whether and how to write this post, but today it just seems right.
In June 2012 I will be leaving the University of Georgia, and my position as managing attorney of the Land Use Clinic. Due to shifting priorities and budgetary realities, the law school administration has decided not to continue the Clinic after my departure. Several people have asked me whether I'm sad the Clinic won't go on without me, and of course I am. However, the Clinic was not my original brain child - rather, its creators were Laurie Fowler and Alex Scherr of the UGA Ecology and Law faculties respectively. They started the clinic in 2002, in response to tremendous demand from local governments for help dealing with the effects of sprawl on water quality in Georgia's rivers. When they asked me to come to run the clinic, initially on a trial basis, it was a welcome respite from an unhappy work experience at a large corporate firm, and an opportunity to try teaching as a vocation. However, I never meant for it to be my permanent home.
I have been incredibly fortunate to be the first, and only, clinician in the clinic the last 10 years. Certainly the scope and direction of our work has changed, especially in the wake of the financial crisis. We've done our best to keep up with the times, and I believe some of our good work will be carried on by our partners here at UGA, including the Fanning Institute and the College of Environment and Design.
But my own priorities have changed. Many, many factors have lead to this, including losing several people close to me. Nothing sharpens your focus as much as the death of a parent or close friend. As regular followers of the blog also know, I am increasingly interested in contemplative practice, including mindfulness and yoga, and how they can make us better, and healthier, lawyers and people. Therefore, after my departure from UGA I plan to dedicate a year to travel and study, including attending yoga teacher training, and pursuing teacher certification through the Center for Mindfulness at University of Massachusetts Medical School.
This does not mean I plan to give up being a lawyer and a law teacher. I still believe I have much to offer clients and students, and I hope that ultimately I can integrate all these elements into a cohesive practice of some sort.
Obviously, I've still got months to go before I make the change. Matt Festa has generously offered to let me keep blogging as long as I like, and from time to time I'll probably post some reflections on the transition. The other land use clinicians and I also hope to write an article together on what land use clinics offer to law schools, client communities, and students.
UGA Law is not only my longtime place of work, it is also my alma mater. I feel proud to have been of service here, even though it's not entirely obvious what my legacy will be. As part of my research for the article I have been surveying my alums, and several of them report that being in the Clinic defined and strengthened them as lawyers and people. Also, being a co-editor of this blog has been one of the funnest aspects of this job, and I appreciate the collegiality and intellectual stimulation I've received from my fellow bloggers. Matt Festa and I met while he was visiting here at UGA, a happy coincidence and an example of the kismet that has kept me going for so long in this job.
So, for now, many thanks to Matt, my co-bloggers (including Will Cook, Ngai Pindell, and Chad Emerson of the original crew). You are all fabulous, and I plan to keep hanging out with you as long as I can.
Now, back to our regularly scheduled programming.
Jamie Baker Roskie