July 28, 2012
Chick-fil-A, Gay Marriage, Constitutional Law, and Land Use
Even the culture wars often end up in a land use controversy. Over the past few days, public officials in Boston and Chicago made statements that Chick-fil-A restaurants would not be welcome in their jurisdictions because of the anti-gay-marriage opinions expressed by the company's CEO. According to the Wall Street Journal's Jack Nicas, one Chicago alderman went so far as to state that he would personally deny a permit solely on that basis. From First Amendment Trumps Critics of Chick-fil-A:
Chicago Alderman Proco Moreno wrote in the Chicago Tribune Thursday, "Because of [Mr. Cathy's] ignorance, I will deny Chick-fil-A a permit to open a restaurant in my ward."
I don't agree with the CEO's statements either, but it's pretty clear that, under the Constitution, his opinions can't legitimately be the basis for granting or denying land use permission. Cleveland State law prof Alan Weinstein put it best:
Alan Weinstein, a professor of law at Cleveland State University who specializes on the intersection of land-use law and constitutional issues, said he has seen officials try to use zoning laws to block adult stores or religious institutions, but never a commercial enterprise because of political views. He said that beyond the First Amendment, "in the land-use sphere, the government has no legitimate interest" in the political views of an applicant.
That last observation is key. Most of the commentary on this issue has revolved around the CEO's First Amendment rights. And it's true that free speech is one of the only areas where the courts will apply strict scrutiny to overturn government land use decisions. But as Prof. Weinstein notes, this question isn't even really about regulating actual speech on land; it's about the rational basis for land use regulation itself under the police powers.
From a pragmatic perspective, it's pretty easy to imagine a counterfactual scenario where an unpopular political opinion on the other side of the spectrum could likewise result in negative land use decisions under such a precedent. It appears that this constitutional reality is setting in, and the public officials are backtracking. Here's a video interview with the WSJ reporter:
I was one of the other "land use experts" who talked to the reporter, but Prof. Weinstein definitely said it best.
So to sum up: Many of us disagree with the Chick-fil-A CEO's opinions, but everyone seems to agree that it would be unconsitituional to prohibit the company's land use on that basis.
July 27, 2012
Streamlining Land Use Regulation and Development Review
As reported on Planetizen, Seattle's City Council approved a series of changes to the city's land use regulations on Monday that, it is claimed, "will create jobs and encourage flexibility and creativity in new development." These changes include an easing of parking requirements for new projects, a higher threshold for the size of projects subject to environmental review, and the elimination of a requirement of ground-floor retail space in certain areas. Last month, New York City initiated a program aimed at speeding up the land use review process and reducing associated costs for developers. New York is also considering reductions, in certain areas, of off-street parking requirements for new developments. (See a Furman Center report on the impact of minimum parking requirements on housing affordability.) Similarly, Los Angeles recently approved five years of funding for its Planning Department to revise the city's zoning code, part of a broader initiative to streamline development approvals.
These programs are championed for their benefits in spurring development and increasing predictability. But for critics they threaten to reduce public input and the careful consideration of neighborhood concerns. It will be interesting to see whether these changes represent a trend, partly motivated by the current economic climate, towards major reforms in city land use regulations and review processes. If readers know of similar efforts underway elsewhere, please share.
July 26, 2012
Stone, Vargo & Habeeb on Climate Action Plans
There has been a lot of interest in climate change strategies at the local level. In fact, I have heard many voice the opinion lately that climate change can only successfully be addressed by starting local. These three authors look at climate action plans in 50 cities and don’t seem to hopeful about their success.
Managing climate change in cities: Will climate action plans work? By Brian Stone, Jason Vargo, Dana Habeeb in Landscape and Urban Planning (2012).
Since the mid-20th century, most large cities of the United States have been warming at more than twice the rate of the planet as a whole. While many municipal and state governments have developed climate action plans designed to reduce emissions of greenhouse gases, rising concentrations of greenhouse gases typically are not the strongest driver of warming in cities. Our purpose is to evaluate the likely effectiveness of municipal and state level climate action plans in slowing the pace of warming in the most populous U.S. cities over the near-to-medium term. We employ time-series temperature trend analyses to differentiate global from local-scale climate change mechanisms in large U.S. cities between 1961 and 2010. We then review all climate action plans developed at the municipal or state level in the 50 most populous metropolitan regions to identify the various emissions control and heat management strategies incorporated into these plans. The results of our assessment suggest that the climate change management policies adopted through municipal and state climate action plans may fail to adequately protect human health and welfare from rapidly rising temperatures. Based on our review, we recommend that municipal and state governments broaden climate action plans to include heat management strategies in addition to greenhouse gas emissions controls.
The London Olympics & Land Use--The Atlantic Cities' Coverage
As Jessie noted in her post on the Olympic Villages, there are many land use issues involved when a city hosts the Olympic Games. For a fantastic overview of these issues, with numerous in-depth stories, there's no better place to start than The Atlantic Cities' "Special Report" Olympics 2012: London Gets Ready for the Summer Games. Feargus O'Sullivan has been reporting from London for months, and in the past couple of weeks many of their other writers have contributed excellent stories on a slew of land-use-related Olympic issues. Here are just a few examples of the wide range of topics they've addressed:
Whether hosting the Olypmic "boondoggle" is good or bad for your city; homelessness and tourism; security issues; public attitudes--politicians telling "whingers" to "put a sock in it"; transportation concerns; architecture; planning for post-Games facilities use; affordable housing; the always-controversial of building new stadiums (stadia?); and many, many other important issues that come up when a big city offers to play host to the world.
The British media, of course, have lots of excellent coverage. But for a more specific focus on land use, local government, and urban planning issues, I highly recommend starting with The Atlantic Cities' Olympics 2012 page. They're posting several new stories each day.
In the meantime, I hope you all enjoy watching that important land use event known as the Olympic Games!
July 26, 2012 in Affordable Housing, Architecture, Comparative Land Use, History, Housing, Local Government, Planning, Politics, Redevelopment, Transportation, Urbanism | Permalink | Comments (0) | TrackBack
DeGennaro & Li on Business Formation in the Wake of State Responses to Kelo
Ramon P. DeGennaro (Tennessee--Finance) and Tianning Li (Hood College) have posted Business Formation in the Wake of States' Responses to Kelo. The abstract:
On June 23, 2005, the U.S. Supreme Court ruled in Kelo v. City of New London, 505 U.S. 469 (2005) that the Public Use Clause allows governments to take private property for transfer to new private owners for the purpose of promoting “economic development.” Our theoretical model identifies the circumstances under which Kelo and subsequent state laws affect business formation. We show that business creation can be encouraged, unaffected, or discouraged as the probability of takings increases, depending on the level of compensation for the takings and the magnitude of the owners’ public use benefits. We also show that utility-maximizing entrepreneurs’ choices of investment depend on the probability of takings and the level of government compensation for the taking. Our empirical results yield three insights. First, states and municipalities can pass laws protecting property rights without fear of retarding business formation. Second, we identify explanations why Kelo and these laws do not measurably affect business formation in our empirical work. Specifically, we believe that either government entities correctly compensate entrepreneurs for the disruption in their businesses through eminent domain legislation, or that the change in the probability of such takings is very small, so that any effect on business formation is too small to measure. Third, takings open the possibility for political corruption and distortions in the economy by encouraging overpayment or underpayment for takings. Under this interpretation, local laws against takings are not pro-business laws or anti-business laws. Rather, they are anti-corruption laws.
July 25, 2012
Sharing the Streets
A few things I have come across in the last month have led me to think more about the role of the street in land use planning and the increasing demands on this most public of places. Foremost among these was the Museum of the City of New York’s exhibit on New York’s street grid, which just closed and which Ken Stahl blogged about here a few months ago. The exhibit drove home the role of the street grid in shaping the city’s development patterns (and the incredible uniformity it imposed upon that development). A recent post at Better! Cities & Towns, What is a block?, shared interesting thoughts on the interaction between public streets and private property, the legal and physical implications of the boundary line, and the definition of a block.
Last month, a “Complete Streets” provision included in the Senate transportation bill was struck from the final version during the conference process. The provision would have required that federally-funded street projects include certain measures to more safely accommodate all road users, including pedestrians, cyclists, and public transportation users. The coming years are likely to see more heated battles over the use of streets, for pedestrians, bicyclists, and bus rapid transit (in New Delhi, India a BRT corridor is being attacked as unconstitutional). Looking ahead, an opinion piece in the Wall Street Journal last week argued for better highway planning and design to accommodate future development of “driverless” cars.
Decisions regarding how roads will be designed (or redesigned) and what uses will be favored have a profound impact on future development patterns, energy use and climate change, and broader issues of community identity. The use and design of streets has figured prominently among planners, but seems to have a less central role in land use law. Like a number of land use issues, these decisions have both local and national importance. They also affect the land uses of private property owners, who may object to changed road uses and their impact on commercial traffic, deliveries, and other interests. It will be interesting to see what unique contributions land use scholars will make to these debates.
- John Infranca
Piekielek and Hansen on Land Use Near National Parks
The authors study land use near national parks and how those land uses affect biodiversity in the parks. The article is helpful for its results but also the methodology of studying and comparing land uses.
Extent of fragmentation of coarse-scale habitats in and around U.S. National Parks by Nathan B. Piekielek, Andrew J. Hansen -- Biological Conservation, Volume 155 (2012)
U.S. National Park Service land managers face a variety of challenges to preserving the biodiversity in their parks. A principle challenge is to minimize the impacts of surrounding land use on park condition and biodiversity. In the absence of ideal sets of data and models, the present study develops methods and results that demonstrate a coarse-filter approach to understanding the effects of land use change on habitat types for four pilot study-areas. The area of analysis for each park is defined by a protected-area-centered-ecosystem. Habitat types were defined by biophysical factors assumed to represent the distribution of vegetation communities as they may have existed prior to European settlement.
Present-day land use was overlaid on historical habitat and change in area and pattern was quantified for private and public lands separately. Results suggest that patterns of development are affecting study-areas differently. Therefore, the conservation challenges faced by each study-area are distinct to their landscape contexts. For some parks, the primary challenge is to work towards maintaining ecosystem condition in its present or near-present state while paying particular attention to habitats that are underrepresented on public lands. For other parks, the challenge is to address spatially aggregated land use that is affecting only a few habitat types. For still other parks, the challenge is to maintain connectivity with a regional network of protected lands and to undertake restoration projects where feasible. The present methods and results help to focus conservation attention on habitats that have been most impacted by land use change.
July 24, 2012
Butsic et al on Landscape Management for Species Conservation
These authors create a model to figure out which land uses optimize species protection while maximizing economic output.
Analytical Solutions to Trade-Offs between Size of Protected Areas and Land-Use Intensity from Conservation Biology by Van Butsic, Volker C. Radeloff, Tobias Kuemmerle, and Anna M. Pidgeon
Land-use change is affecting Earth's capacity to support both wild species and a growing human population. The question is how best to manage landscapes for both species conservation and economic output. If large areas are protected to conserve species richness, then the unprotected areas must be used more intensively. Likewise, low-intensity use leaves less area protected but may allow wild species to persist in areas that are used for market purposes. This dilemma is present in policy debates on agriculture, housing, and forestry. Our goal was to develop a theoretical model to evaluate which land-use strategy maximizes economic output while maintaining species richness. Our theoretical model extends previous analytical models by allowing land-use intensity on unprotected land to influence species richness in protected areas. We devised general models in which species richness (with modified species-area curves) and economic output (a Cobb–Douglas production function) are a function of land-use intensity and the proportion of land protected. Economic output increased as land-use intensity and extent increased, and species richness responded to increased intensity either negatively or following the intermediate disturbance hypothesis. We solved the model analytically to identify the combination of land-use intensity and protected area that provided the maximum amount of economic output, given a target level of species richness. The land-use strategy that maximized economic output while maintaining species richness depended jointly on the response of species richness to land-use intensity and protection and the effect of land use outside protected areas on species richness within protected areas. Regardless of the land-use strategy, species richness tended to respond to changing land-use intensity and extent in a highly nonlinear fashion.
Call For Papers - 2013 Idaho Law Review Symposium on Fracking in the West
I am excited to be the faculty advisor for the Idaho Law Review's spring symposium, which will be held in Boise on March 29, 2013 and focus on hydraulic fracturing ("fracking") in the western United States. As I noted in an earlier post, this issue is just beginning to heat up here in Idaho as it has in other places. We already have a great line-up of academics and practitioners joining us, but we are looking for more! If you're interested in joining us, please see the call for papers below. I'd love to have more land use folks at the symposium.
CALL FOR PAPERS
* * *
2013 University of Idaho Law Review Symposium
The Idaho Law Review invites you to participate in its 2013 Symposium to be held in Boise, Idaho on March 29, 2013. The Symposium presents an opportunity for discussion and debate about the legal implications and issues associated with hydraulic fracturing for natural gas (i.e., “fracking”) and especially its use in the western United States. To complement the Symposium, the spring volume of the Law Review will be devoted to high-quality legal scholarship focusing on hydraulic fracturing. The Symposium has already attracted several leading scholars and practitioners, and we look forward to accepting more exceptional participants.
The Idaho Law Review seeks submissions of papers for oral presentation at the Symposium and for publication in its Spring 2013 volume. We invite contributions in the form of articles, essays, and presentations addressing any aspect of law related to the regulation and development of hydraulic fracturing. Topics may include, but are not limited to: the interplay of federal, state, and local regulation of hydraulic fracturing; environmental impacts of hydraulic fracturing; groundwater contamination/quality issues; land-use impacts of hydraulic fracturing; administrative concerns; and emerging issues related to hydraulic fracturing. Although traditional, full-length papers are welcome, we are especially interested in shorter essays (roughly 8,000 to 15,000 words, including references) that will stimulate discussion at the Symposium.
Draft abstracts of no more than one page, proposed topics, and queries may be addressed to Marc Bybee, Chief Symposium Editor, at firstname.lastname@example.org, no later than August 31, 2012. Please accompany submissions with a curriculum vitae or resume, and indicate your willingness and availability to travel to Boise, Idaho to participate in the Symposium on March 29, 2013. Assistance with travel costs may be available, funds permitting.
Stephen R. Miller
Land Use Profs Present at Harvard/Stanford/Yale Junior Faculty Forum
Over at Property Prof, Steve Clowney gave well-deserved kudos to two property professors who were selected to present their papers at the prestigious Harvard/Stanford/Yale Junior Faculty Forum this summer.
I should add, though, that these two rising stars are not just property profs, but land use profs in their teaching and research. Our own Land Use Prof blogger Ken Stahl (Chapman) presented his very interesting paper Local Government, One Person/One Vote, and the Jewish Question, and Ashira Ostrow (Hofstra) presented her forthcoming article Land Law Federalism.
Congrats to both, and way to represent those of us in the property and land use junior ranks!
Salkin on Zoning Ordinance Variances
Patricia Salkin (Albany) has posted Zoning Ordinance Variances, published in the American Planning Association's PAS Quicknotes, no. 38 (2012). The abstract:
This short piece designed for planners describes the purpose of variances, both use and area variances, conditions on variances and alternatives to variances.
It is an excellent short introduction to the legal concept of variances. There is a lot of confusion out there on the differences between variances, special exceptions, nonconforming uses, and zoning amendments as methods for altering the rules. In addition to planners, I think it would also be a great piece to share with clients, community members, . . . and land use law students.
July 23, 2012
Disputes over Westchester Housing Settlement Continue
Westchester County's protracted battle with HUD over the implementation of a 2009 lawsuit continues. By way of background, the case, United States ex rel Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, was brought as a qui tam action under the False Claims Act, alleging that the county, through certifications made to HUD to receive Community Development Block Grant funds, falsely certified that it fulfilled its obligation to "affirmatively further fair housing." The Anti-Discrimination Center (ADC), which brought the case, claimed that Westchester failed to consider race-based impediments to housing choice and failed to identify and take steps to overcome these impediments, as required by law. The DOJ intervened and negotiated a settlement on behalf of HUD. The settlement requires Westchester to, among other things, spend $51.6 million to develop, primarily in municipalities with overwhelmingly white populations, at least 750 affordable housing units that affirmatively further fair housing. The County also must affirmatively market the housing in surrounding areas with significant non-white populations. The court appointed a monitor to oversee and facilitate implementation of the settlement. (In the interest of disclosure, through my work at the Furman Center, I provided technical assistance to the Monitor's team earlier in the process).
The County argues that it is complying with the settlement and is ahead of schedule in constructing the units. However, the ADC has asserted, that the locations of these units so far, which are often isolated from the surrounding community, fail to further the settlement's underlying goal of desegregating housing patterns. The County has responded that the cost and availability of land restrict the options available. The County Executive, who was elected after the settlement was reached (and has repeatedly said he would not have signed it), contends that HUD is overreaching, requiring the County to take actions beyond the terms of the settlement. In May, the District Court ruled against the County, finding that it failed to comply with the settlement's requirements that it promote legislation prohibiting source-of-income discrimination.
The most recent contentions focus on zoning issues and the County's compliance with a requirement that it conduct an "Analysis of Impediments" (AI), which examines barriers to fair housing choice. HUD has withheld funding from the County, declaring the AIs it has filed fail to properly consider the impact of race on housing choice and whether local zoning regulation is exclusionary. The County's AI concluded that no exclusionary housing existed in its municipalities. Rather than revise that submission in response to the Monitor's list of deficiencies, the County refiled the same AI, accompanied by a legal analysis by the Land Use Law Center at Pace Law School, supporting its approach.
The County argues that its review of local zoning followed the analysis of exclusionary zoning put forth by the NY Court of Appeals in Berenson v. New Castle, which requires that local zoning ordinances consider regional housing needs in developing a "properly balanced and well-ordered plan." It concludes that all of the local ordinances consider regional needs and allow the development of multi-family housing and a range of uses and consequently are not exclusionary. Therefore the County need not take any further steps to comply with the settlement's requirement that it use "all available means," including taking legal action, to address a municipality's action or inaction in promoting the settlement.
HUD's response, and the next steps in this dispute, will raise interesting questions regarding the relationship between a County and its municipalities, the definition of exclusionary zoning and scope of judicial review of local zoning, and the courses of action available to HUD in challenging local zoning.
Gade on Olympic Villages
Check out this interesting article and fascinating slide show on Olympic Villages over the years. As Matt always tells us, everything can be a land use issue and the Olympics are no exception. Many buildings and facilities are erected for each Olympics, and one necessary element is a place to house all the visiting athletes. This slide show of what the housing as looked like over the year (and in some cases what those properties look like still today).
July 22, 2012
Pham et al on Vegetation Distribution
There has been a lot of talk lately about distribution of vegetation in urban areas. The changes are so stark that we can identify low income communities from satellite photos just on the basis of tree cover. This new study illustrates this phenomenon examining Montreal.
Spatial distribution of vegetation in Montreal: An uneven distribution or environmental inequity? By Thi-Thanh-Hien Pham, Philippe Apparicio, Anne-Marie Séguin, Shawn Landry, Martin Gagnon in Landscape and Urban Planning (2012)
Growing evidence is showing that across North American cities, underprivileged populations and racial and/or visible groups have disproportionally less access to vegetation than affluent groups, raising concerns of environmental inequity. This study aims to verify whether in Montreal (Canada) there is environmental inequity resulting from variations in urban vegetation for low-income people and visible minorities. More specifically, various vegetation indicators were extracted from very-high-resolution satellite images, including the proportion of city blocks, streets, alleys and backyards covered by total vegetation and trees/shrubs. Socio-demographic variables were obtained from 2006 Canada Census and rescaled to the city block level, by using a population-based weighing method. Statistical analysis indicates that there are disparities in the distribution of vegetation in Montreal which disfavour low-income people and, to a lesser extent, visible minorities. Disparities are also more pronounced on public land (streets, alleys) than on private land (backyards). Income is a major factor but cannot fully explain inequities among visible minorities. Notwithstanding the weak extent of such disparities, those vulnerable communities might need a better access to ecological services provided by vegetation, notably such as heat island mitigation. Compensatory equity needs to be addressed and our findings call for authorities to reconsider greening budgetary allocation and practices, especially in the most deprived neighbourhoods of the city.