Saturday, August 4, 2012

Summer at the Movies: The Pruitt-Igoe Myth

I recently watched a 2011 documentary, The Pruitt-Igoe Myth, which I would strongly recommend.  Pruitt-igoe mythThe documentary uses the now infamous Pruitt-Igoe projects in St. Louis, which were demolished live on television only a few decades after they were built, as a lens to explore a wide variety of topics relevant to housing, land use, and local government policy in the mid-twentieth century.

Like many places where public housing projects were built, the documentary notes that the section of St. Louis where Pruitt-Igoe stood once suffered from brutal poverty, caused in part by slumlords who reaped tremendous profits by overcrowding tenements with newcomers to the city.  To Pruitt-Igoe's first tenants, the fresh and clean apartments felt like "penthouses," as one former tenant described it.  But troubles mounted.  The post-World War II planners presumed that St. Louis would keep growing exponentially, as it had previously.  In fact, St. Louis' industry slowed after the war, and the city's white population left for the suburbs.  More than segregating the city, this reduced population in St. Louis proper eliminated the need for the projects because there was plenty of cheap housing available otherwise.  The combination of failure to maintain the expensive, modernist high-rise structures and these demographic trends doomed the project.  A great mix of former tenants, academics, and local politicians tell the story. 

Well worth a watch.

Stephen R. Miller 

August 4, 2012 | Permalink | Comments (1) | TrackBack (0)

Anaheim Police Shooting and At-Large Elections: Is there a link?

A major news item here in Orange County has been the rash of protests in the county's largest and most well-known city, Anaheim, sparked by a pair of police shootings of two suspected Latino gang members.  Activists and the media have drawn a link between the shootings and Anaheim's system for electing city councilmembers.  In Anaheim, as in most cities in California, all five members of the city council (technically four members plus the mayor, but the mayor is really just a fifth councilmember who gets to hold the gavel at meetings) are elected at-large, meaning the city as a whole is a single electoral district and candidates can reside anywhere in the city.  It has been alleged by the ACLU that the at-large system dilutes Latino voting power because it diminishes the ability of geographically concentrated groups (which often include minority communities) to elect representatives from their own neighborhoods, and places a premium on the ability to gather a huge war-chest, which advantages candidates with support from the more affluent constituencies.  In Anaheim, indeed, there is not a single Latino member of the city council despite Latinos representing more than 50% of the city's population, and four of the five councilmembers live in Anaheim's wealthy, largely white "Anaheim hills" area.  Thus, the argument goes, it is because the city government is out of touch with the concerns of its major constituency that incidents like these police shootings are able to happen.

This story hits home to me because I wrote an article a few years ago that made a very similar argument, although it was more focused on land use: The at-large electoral system deployed in most California cities means that neighborhoods have little voice on land use matters, which tends to favor the interests of the pro-development "growth machine."  I further argued that this system tended to dilute minority voices on land use issues (especially eminent domain, of blessed memory).  In my article, however, I argued that neighborhood interests did not simply fade away but necessarily expressed themselves outside the political system, either in the form of the initiative process or in the form of urban riots.  Indeed, the famous anti-tax initiative Proposition 13 has been referred to (although I could not definitively verify the original quote) as "the Watts riot of the middle class."   In the paper, I called for the jettisonning of the at-large system and the implementation of district or ward systems, which is precisely what the activists in Anaheim are calling for. 

It appears in Anaheim we may be seeing "the Proposition 13 of the disenfranchised."  Stay tuned.

Hat tip to my colleague Ernesto Hernandez-Lopez for some of these links and for alerting me to some of the details of the story.

Ken Stahl

August 4, 2012 in California, Local Government, Politics, Race, Sun Belt | Permalink | Comments (0) | TrackBack (0)

Police Powers, Free Speech, and the Chick-fil-A Land Use Controversy

The Chick-fil-A land use controversy has mostly focused on freedom of speech, but I think there is a larger point about the police-power basis of land use regulation that has been overlooked.  In the wake of the Chick-fil-A CEO's comments on gay marriage, and the subsequent statements of public officials in Chicago and Boston indicating their opposition to building new Chick-fil-A franchises in their jurisdictions, there seems to be a general agreement that it would be illegal to deny building rights on the basis of the CEO's speech.  Ken Stahl and Stephen Miller have offered additional insights on the political, tax, and other potential motivations behind this controversy, with which I completely agree.  In this post, I want to expand on Ken's point about a potential Fourteenth Amendment violation of basing a land use decision on "animus" against the owner, and to peel back the onion a little bit and consider what might be the primary legal basis to a challenge to such a land use denial.

The general agreement seems to focus on the First Amendment free speech issue.  Eugene Volokh seems to have the definitive analysis that, whether or not one agrees with the CEO's opinions, it would be a First Amendment violation to deny a building permit on that basis (h/t Property Prof).  Viewed through the general prism of free speech and the Bill of Rights, this is entirely correct, and is probably sufficient for the public understanding of the issue.  As Prof. Volokh's caselaw indicates, there can be a First Amendment violation in denying a permit based on the property owner's speech.  But I think that's actually a secondary issue when it comes down to hypothetical litigation here.  What's really the primary issue, as I see it, is whether or not such a denial would be a violation of the police power itself.

The Chick-fil-A hypothetical permit denial does not on its face regulate speech: neither the CEO's personal remarks, nor the official speech of the corporation are being suppressed.  While there is a colorable as-applied claim of retaliation through the land use process in this hypo, the way I see it is that the primary cause of action would be that the permit denial was a violation of the statutory zoning/regulatory power itself.  In other words, Chick-fil-A would start by arguing that the city's denial of permission to build is not legitimately related to the purposes for which the state legislature granted the power to regulate.

The power of local governments to engage in planning, zoning, and building regulations comes from the police powers--the state legislature's plenary authority to regulate.  The Standard State Zoning Enabling Act, promulgated by Secretary Hoover's Commerce Department in 1926, starts with the standard description of the police-power font of authority for all modern land use regulation, which is "[f]or the purpose of promoting health, safety, morals, or the general welfare of the community . . . ."  This means that in theory, as long as there is a legitimate reason for regulating on those broad bases, a local government can be empowered to regulate land use in its political discretion.  Therefore there is a "presumption of constitutionality" granted to land use regulations (see Mandelker & Tarlock 1992 for a nuanced analysis of the presumption in judicial review).  Judicial review--again, in theory--has generally centered on whether the regulation itself (whether a use restriction, site requirement, etc.) is legitimately related to one of the police-power purposes.  A classic Euclidean example would be restriction of industrial uses from a residential area, for health and safety purposes.  

While the courts have given broad interpretation to the police power justifications of land use regulations, the outer limit is supposed to be--again, in theory--that the nature of the restriction is itself somehow related to the objective.  What it can't be is an arbitrary and capricious restriction based on considerations outside the police power. It's very similar to the "rational basis" standard of scrutinty that all lawyers learn about in consitutional law.

The reason this is important is because the presumption of constitutionality usually holds, the police powers usually win, and "arbitrary and capricious" challenges to land use decisions are hard to prove and usually lose.  Steve Clowney noted Matt Yglesias' insight that almost any seemingly-legitimate content-neutral reason could give a police-power justification to regulate despte ulterior motives (though I think his example of a Sunday-opening requirement isn't the best one--just about anything involving traffic, for example, would be much easier to justify), and this is obviously a longstanding issue in land use law.  But if I were trying to prove that a negative land use decision was outside the bounds of the police power basis of government regulation, I couldn't ask for a better piece of evidence than a published statement by a City Alderman like this:

"Because of this man's ignorance, I will now be denying Chick-fil-A's permit to open a restaurant in the 1st Ward."

(emphasis added).  In other words, the primary reason for the negative land use decision does not have anything to do with the actual use of the land itself, but instead is based primarily on the government official's opinion about the property owner's opinions about topics extraneous to the land use (again, the decision is not based on any discriminatory practice, or on speech taking place on the site).  This may in fact be a decision that is not rationally related to the police power basis for regulation, and could be struck down for that reason alone.  This is important because while the First Amendment angle that had dominated the discussion of the issue could apply "strict scrutiny" to the decision, this situation could be the much rarer case where a court could find a government decision to be arbitrary and capricous, and therefore to flunk the rational basis test itself.   Which means that this is potentially much more than just a case of an individual right trumping the regulatory power; it means that the city didn't have the power to do it in the first place.

This way of looking at the controversy allows us to consider the larger issue of what are the outer bounds of legitimate land use regulation, in a way that we don't often get to see in the real world.  I'm still no fan of the substance of the CEO's remarks on gay marriage, but as a land use specialist, I'm also very disturbed by what Ken identified as an attitude of "entitlement" to near-absolute discretion over land use decisions by government officials in informal systems such as Chicago's traditional "aldermanic privilege," which is apparently so ingrained that it can lead an elected official to say things like:

"You have the right to say what you want to say, but zoning is not a right."

Well, maybe not, but the latter certainly can't depend on what a government official thinks of the former.  Zoning still has to comport with the rule of law.

Matt Festa

August 4, 2012 in Chicago, Constitutional Law, First Amendment, History, Judicial Review, Local Government, Politics, Property Rights, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, August 2, 2012

Is Smaller Always Better?

As I mentioned in my first post, I want to use some of my time as a guest-blogger here to introduce a few projects I am current working on through the Furman Center.  Today I want to talk about a fairly new project examining regulatory barriers to the construction of smaller housing units.

There has been significant discussion recently of the benefits of allowing the construction of very small apartments.  In Boston, Mayor Menino has advocated the development of micro-units, smaller than those permitted by current regulations, targeted at young professionals.  As reported on the PropertyProf Blog, San Francisco is exploring ways to reduce existing unit size minimums from 290 square feet to 220 square feet.  In New York, Mayor Bloomberg announced a request for proposals to build an apartment building with units measuring between 275 and 300 square feet (currently units must be at least 400 square feet).  The associated request for proposals for the project has already been downloaded over 1,000 times by interested parties throughout the world. 

Parallel with this discussion of micro-units, a number of municipalities, both large and small, are rethinking regulations governing the construction of accessory dwelling units (ADUs) in single family neighborhoods.  Some communities, such as Santa Cruz, California, have gone further and actively encourage the construction of accessory dwelling units by providing technical assistance to prospective landlords, pre-approved designs, low-interest loan programs, and other resources.  These units, which may be located over a garage or in a basement, offer opportunities for encouraging denser development and urban infill.  They also are seen by some as a way to help seniors maintain their homes or “age in place.”  

Efforts to encourage construction of smaller housing are motivated in part by the recognition that changing demographics and household composition have created a mismatch between demand and existing housing supply.  A recent book, Going Solo:  The Extraordinary Rise and Surprising Appeal of Living Alone, explored the increasing prevalence of single urban dwellers.  New York City’s Citizens Housing Planning Council raised attention to this issue through a recent project called “Making Room,” which enlisted a set of architects to propose different designs for innovative housing types that would meet these changing needs, but would demand regulatory changes in order to be built.  The project recognized that many individuals, who cannot find housing that meets their needs, currently live in unregulated apartments within an underground housing market.  These illegal conversions and other sources of affordable housing can create dangerous living conditions for occupants. 

Smaller units – both in the form of micro-units in a multifamily development and accessory dwelling units in a single-family residential area – hold promise for serving a variety of needs:  providing affordable housing, fostering greater density and more sustainable development patterns, increasing demand for mass transit in an area, and, as championed in Boston and New York, making expensive cities more attractive to young professionals who spend little time at home. 

One supporter of the micro-unit proposal in New York was quoted in the Wall Street Journal as saying that “the city should ‘not be charged with regulating people’s preferences.’”  This is, of course, the deeper question raised by changing the regulatory landscape to permit smaller housing units.  Are these changes simply a matter of removing a (perhaps, to some, anachronistic or paternalistic) constraint on individual preferences?  Or do the laws restricting this housing continue to serve an essential public purpose related to the health, safety, and welfare of residents?  Commentators have noted that the zoning regulations that will be waived to allow the micro-unit prototypes in New York City were instituted in the early 20th Century to provide more humane living conditions, particularly through greater access to light and air.  But modern construction methods and technology may provide news means to address these same health and safety issues, without returning to dreary and dangerous tenement living.

The discussion about changing regulations to allow smaller housing units is really just one piece of a broader question:  do changes in living patterns, family composition, and technology demand a radical rethinking of the legal framework that governs urban life?  Should the presence of vast amounts of currently illegal housing be seen as an indication that existing regulation is too strict and prevents the market from meeting demand?  Are some regulations championed as serving goals related to health, safety and welfare, really more about the aesthetic or other preferences of existing residents?

To address the narrower regulatory questions raised by compact housing units, the Furman Center has begun a project, in partnership with CHPC, looking at a number of cities throughout the United States and examining regulatory barriers to smaller housing units, as well as efforts currently underway to change regulations or build these forms of housing.  We are planning to study New York; Washington, DC; Austin; Denver; and Seattle, a mix of cities with varying degrees of interest and progress related to these issues.  We will be examining a broad range of existing regulations, including zoning, building codes, accessibility laws, and occupancy regulations, that might prohibit or stymie the construction of these types of housing.  Our goal is to outline the regulatory barriers that policy makers would need to address if they wished to allow more compact housing and to frame the questions that would need to be considered in conducting a more sophisticated cost-benefit analysis of the potential tradeoffs of changing these regulations, some of which may still serve a vital role in making cities more safe and livable. 

John Infranca

August 2, 2012 in Affordable Housing, Development, Housing, New York, Zoning | Permalink | Comments (0) | TrackBack (0)

Call for Papers - Property Rights and Planning in a Changing Economy

Here's a CFP I think would interest this group.

Stephen R. Miller

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Call for Papers

Property Rights and Planning in a Changing Economy, International Academic Association on Planning, Law and Property Rights


February 13-15, 2013, Portland, Oregon, USA

Registration Deadline: January 11, 2013

Submission Deadline: August 31, 2012

Papers are now invited for the 7th International conference of the International Academic Association on Planning, Law, and Property Rights, which will be held from the 13th through the 15th of February at Portland State University in Portland, Oregon, USA. The conference brings together scholars
from around the world to present innovative research and engage in interdisciplinary exchange related to the theme of the Association - the study of the connections, in the broadest sense, between land and natural resource use, planning, and legal systems.

THEME: The 2013 conference theme is property rights and planning during a period of global economic restructuring. Secondary, place-specific themes include the American property rights movement and a retrospective and prospective look at Oregon's landmark statewide land-use planning program, which celebrates its 40th anniversary in 2013.

TOPICS: We invite papers on all topics related to law and planning, including all legal aspects of urban, regional, and rural planning; land use regulation; growth management/agricultural land protection, property rights, expropriation and compensation; housing; and public-private partnerships. We encourage submissions from researchers working in such areas as planning policy and practice, land economics, environmental justice, climate change, and urbanization and land access in the global south. Early career scholars and PhD students are particularly welcome! We invite papers on all topics related to law and planning, including, but not limited to the following:

- Legal aspects of urban, regional, and rural planning

- Land use controls and market alternatives

- Property rights, expropriation and compensation

- Housing, gentrification and social equity

- Land policy and growth management in comparative perspective

- Heritage/environmental protection

- Planning and property rights in the Pacific Rim

- Planning for climate change, resilient cities, and littoral and island
nations

- Changing institutional and organizational forms in planning (e.g., neoliberal land tenure reforms; impacts of economic restructuring on the spatial scales of planning)

- Planning and property regimes for ocean and coastal areas


ABSTRACT SUBMISSION PROCEDURE: Abstracts should be submitted by email no later than August 15, 2012, by Email: PLPR2013@pdx.edu. Abstracts will be reviewed and notification sent by email to the person or persons submitting.

The Abstract submission should contain the following information:

1. Name, professional affiliation, mailing address, telephone number, fax number, and e-mail address for the presenter and all co-authors. Doctoral or other graduate students should identify themselves and their supervisors, as we are organizing an additional PhD-meeting during the conference.

2. Title of paper

3. Abstract paragraphs - maximum of 600 words.

4. Keywords - up to a maximum of 4 words or short terms (e.g., property
rights).


FURTHER INFORMATION: For further information, contact: Professor Ellen Bassett,
bassette@pdx.edu

August 2, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 31, 2012

More on gay rights and land use: Will Chick-fil-A follow Target's about-face?

I've enjoyed Matt and Ken's posts on public officials in Boston and Chicago making 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. 

I thought that there were several factual, land-use related considerations worth noting, especially in light of Ken's argument.  First, Chick-fil-A is a largely suburban business.  Even though it is a company with $4.1 billion in annual sales, Chick-fil-A's restaurant locator shows no stores in Boston, one store in Chicago, one store in San Francisco, one store in New York City, and a similar choice to focus on suburban locations nationwide.  As such, big city mayors have little to fear by challenging Chick-fil-A:  the business brings in insignificant tax revenue for big cities, and Chick-fil-A appears to have no great interest in entering such locations.  This makes me second Ken's notion that this is largely about politics and "scoring one for the team" of gay rights.  This is largely an invented issue because it is not like Chick-fil-A is seeking to pepper these cities with their stores.

By comparison, consider the reparations Target has paid to gay communities in major markets in recompense for its $150,000 donation in 2010 to Minnesota Forward, an independent expenditure committee at the time backing an anti-gay candidate for governor in Minnesota.  Target, which does have an interest in entering big city markets, has done all but fall on its sword in an effort to support gay-friendly causes, and win necessary land use permits. The new Target store opening in San Francisco is a perfect example.  The news of Target's anti-gay support in Minnesota came just as the company was filing for land use permits to open two stores in San Francisco.   Get a sense of the tone Target was facing on those permits here.  Since then, Target has openly courted San Francisco's LGBT community. The San Francisco's Bay Area Reporter, the city's LGBT newspaper, listed out Target's donations to the community in a March article:

As Target prepares to open its first stores in San Francisco, the national retailer is increasing its giving to local LGBT organizations.

The company upped its donations to the LGBT Community Center, which is marking its 10th year and has launched a $1 million fundraising drive. Target donated $50,000 toward the anniversary campaign and is sponsoring the center's annual Soiree gala later this month at the $15,000 level.

Target first gave toward the event in 2011, and also donated $20,000 toward the center's education initiative last year with the San Francisco Unified School District.

Center Executive Director Rebecca Rolfe told the Bay Area Reporter the organization is "very pleased" to have Target as a major donor this year.

. . .

"At Target, we're proud of our long history of supporting the LGBT community through giving, volunteerism and event partnership and participation. Target was one of the San Francisco LGBT Center's first corporate sponsors," wrote Snyder.

The company has also been a major corporate sponsor for Out and Equal Workplace Advocates. Since 2010 Target has been a presenting sponsor for the San Francisco-based LGBT group's Workplace Summits.

What a difference a couple years make!  Like Ken noted, the reality is that many discretionary land use permitting disputes are resolved through informal means, especially when there is tension between national chain stores and local communities.  But query:  why did big city politicians not send letters to Target after its support of anti-gay rights causes saying they would never permit a Target in their communities?  Why the difference in treatment with Chick-fil-A?  I have at least one idea:  because big cities want Target stores for the tax revenue!  The small matter of the tax dollars may be enough to explain why big city politicians will negotiate with a potential big-revenue producer like Target on a culture wars slip-up (provided the store makes amends), and excoriate a negligible source of tax revenue to those same cities, such as Chick-fil-A.  Could such differential treatment, even in the culture wars, ultimately be all about the money?

Stephen R. Miller

July 31, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, July 30, 2012

Salkin on the Quiet Revolution and Federalism

Patricia Salkin (Touro Law Center) has posted The Quiet Revolution and Federalism: Into the Future, 45 John Marshall Law Review (2012).  The abstract:

This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local land use across three time periods: first, that which existed before the publication of THE QUIET REVOLUTION; second, legislation that emerged a quarter century after the publication of THE QUIET REVOLUTION; and third, more recent federal programmatic and legislative approaches. Part IV provides analysis of the future of federalism in land use regulation, noting the increasing trend of the federal programmatic influence and the potential future influence on local land use controls. The Article concludes with a warning to local governments to be vigilant and to rethink the paradigm of land use regulation to regain control in certain areas to prevent further encroachment by the federal government into matters of local concern.

This article comes from last year's excellent Kratovil Conference retrospective on The Quiet Revolution in Land Use Control (David Callies & Fred Bosselman (Council on Environmental Quality, 1971)), hosted by John Marshall Law School in Chicago.

Matt Festa

July 30, 2012 in Federal Government, History, Local Government, RLUIPA, Scholarship, State Government, Zoning | Permalink | Comments (0) | TrackBack (0)

City Sues Former Law Firm Over Land Use Law Advice

Here is an interesting article from today’s Oregonian (I used to live in Portland and still follow the local news) discussing the city of Forest Grove, Oregon’s lawsuit against a firm that represented it in a land use case.  There is more background detail in an earlier article in the Portland Tribune.  I could not find the filings in the case.  

The city sought to condemn 140 acres of private farmland for use as a park.  It eventually abandoned its condemnation attempt, paid the property owner $186,000 in legal bills, and later settled, for $300,000, a suit for lost rental income and potential income.   Forest Grove is now seeking $528,004 from the law firm, which it asserts failed “to provide adequate guidance to the city leading up to and after the condemnation effort.”  The lawsuit centers on the language in a resolution passed by the city, at the advice, it claimed, of its attorney, stating that the city could “sell or lease for private development any portion [of the land taken by condemnation] not needed for park and recreation needs.”  The property’s owners invoked this passage in challenging the condemnation and the city argues the resolution weakened its position in court. 

Oregon’s law governing eminent domain, which includes a post-Kelo provision prohibiting condemnation with intent to convey to a private party, can be found here.

John Infranca

July 30, 2012 | Permalink | Comments (0) | TrackBack (0)

The Politics of Chick Fil-A Bans

Matt has the legality of the various proposed Chick Fil-A bans covered.  As numerous commentators have pointed out, prohibiting Chick Fil-A stores based on the opinions of the store's owner is flagrantly unconstitutional.  While most commentators have focused on the First Amendment, I think Chik Fil-A has an equally strong legal argument under the Fourteenth Amendment given the Supreme Court's decision in Village of Willowbrook v. Olech, 528 U.S. 562 (2000): it is a violation of the equal protection clause to discriminate against a particular landowner due to "animus" against the landowner. 

To me, the more interesting question is why city officials would propose something that is obviously unconstitutional (leaving aside the possibility that these officials are dumb, which is of course a legitimate possibility).  In fact, if city officials really wanted to prevent Chick Fil-A from locating in their towns, the very worst thing they could have done is announce publicly their discriminatory animus toward the franchise.  As land use folks have seen time and again, it's really easy for communities to exclude land uses they don't like (e.g., affordable housing) by citing vague concerns about traffic, noise, congestion, and so on.  They rarely make the mistake of saying "we just don't want poor people living here."  Now, because of what the various officials in Chicago, San Francisco, Boston, etc have said, it will only be harder to exclude Chick Fil-A even if the city has legitimate concerns about traffic, noise, etc because the inference of discriminatory animus will be so hard to shake.  So why, to repeat my question, are city officials doing this?  There are two possible answers, as I see it:

1) City officials see themselves as having nearly absolute power over zoning. Such a sense of entitlement may stem from a variety of sources: 1) city officials' authority is rarely challenged by repeat-player developers who would rather not anger city officials they may have to deal with again and again; 2) the news media rarely takes up zoning issues as causes celebre, and 3) courts are largely deferential toward local zoning practices.  This sense of entitlement may be especially acute in Chicago, where the informal practice of "aldermanic privilege" essentially grants the alderman in each ward the unfettered right to dole out land use permissions.

This is the less likely of two alternatives, however.

2) City officials knew all along that what they were proposing was unconstitutional, and never had any serious intention of banning Chick Fil-A.  The real reason for their strident statements: signalling that they are gay-friendly communities.  Under the public choice model of local governance, cities are conceptualized as "firms" who compete for affluent residents and tax revenues.  Richard Florida has provocatively argued that one of the greatest potential resources for cities are gay residents, who tend to have high disposable incomes and have had a history of revitalizing depressed neighborhoods in many urban areas.  Thus, it makes sense that these cities would want to signal their friendliness toward gays, and it especially makes sense that once one city so signalled, others did the same to ensure that they're not seen as any less gay-friendly.  In this sense, the proposed Chick Fil-A bans are very similar to then-mayor Gavin Newsom performing gay marriages in San Francisco in 2004 in flagrant violation of California law. 

One footnote here: If I'm right, why did New York mayor Mike Bloomberg so forcefully diverge from these other big-city officials and declare that cities have no right to ban Chick Fil-A?  Perhaps Bloomberg felt he already had sufficient credibility with gays that this was an unnecessary stunt.  In addition, cities aren't just competing for gays but for business.  Bloomberg's corporate instincts probably led him to conclude that potential investors in NY real estate might be deterred if the city started engaging in viewpoint-discrimination among different businesses.  This shows the delicate tap-dance big city officials have to constantly engage in: give sufficient tribute to the liberal constituencies while not alienating big business. 

Ken Stahl

July 30, 2012 in Chicago, Constitutional Law, First Amendment, Food, Local Government, New York, Politics, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

California flirts with new environmental review exemptions for infill projects

Anyone who has practiced or studied land use law in a state with a strong environmental review process knows how that environmental review process often comes to override the land use permitting process.  In particular, urban projects have often suffered from an environmental review process that works better for reviewing greenfield projects, and also from more litigious groups of neighbors that use environmental review procedures either to oppose the project, or seek "mitigations" that benefit neighboring property owners.  On the other hand, efforts to ease the environmental review burdens on infill projects often run into a roadblock of environmental groups that believe exemptions for infill projects will likely only lead to more exemptions and a gutting of the entire law itself (the "slippery slope" argument). 

This fight has been ongoing in California, and other states, for decades.  Several infill exemption provisions from the state's California Environmental Quality Act ("CEQA", pronounced "SEE-kwa") look good on paper, but are essentially unworkable if there are litigious parties involved.  Such unworkable exemptions are in the state's landmark SB375 legislation that seeks to link land use and transportation:  the list of requirements for applicability of the exemption apply to, well, about absolutely nowhere.  Another unworkable exemption is CEQA Guidlines section 15332, which is seldom used where litigation is possible.

With the passage of SB 226 in 2011, however, the state is once again taking a hard look at exemptions for urban infill projects.  Under a mandate of SB 226, the Governor's Office of Planning and Research, now headed by Ken Alex, a well-respected former senior assistant attorney general who ran the California Attorney General's environmental division, has drafted a proposed new CEQA Guideline for urban infill exemptions that was released on June 25, 2012 after epic public commenting.  The proposed CEQA Guideline is now going through formal rulemaking processes at the state's Natural Resources Agency. A cheat sheet on the new proposed infill exemption is available here.  If you want to keep up-to-date on the California infill exemption hearings, you can do so by adding your name at this link.

California's purpose for pursuing the infill exemption is now structured in terms of the climate change debate, but decades ago, the need for such legislation was structured in terms of "sprawl" or "smart growth."  We all know that it is harder to build in urban areas than in greenfields, and there needs to be a way to level that playing field and encourage urban infill.  Following this latest effort in California will be a chance to watch this debate unfold once more, and now in the framework of the climate change debate.

Stephen R. Miller

July 30, 2012 in California, Development, Downtown, Environmental Law, Smart Growth | Permalink | Comments (0) | TrackBack (0)

Sunday, July 29, 2012

Call for Papers: Local Government Law Works-in-Progress Conference

Here's a great opportunity for the local government scholars among us (Full disclosure for those who don't want to scroll to the bottom: I am one of the conference organizers)

Call for Papers: Local Government Law Works-in-Progress Conference

Marquette University Law School is pleased to announce that it will host the first annual
Local Government Law Works-in-Progress Conference on Friday, September 21, 2012
(possibly Saturday, September 22, 2012 as well, depending on interest). The conference
will provide an opportunity for local government law scholars to present works-in-
progress and receive feedback from their colleagues in the field.

Registration Deadline: Monday, August 13, 2012

Register: [Link] (https://mulaw.wufoo.com/forms/local-government-law-worksinprogress-conference/)


Abstracts and Papers: Deadline Tuesday, September 4, 2012; submit papers to
matthew.parlow@marquette.edu

Conference Organizers:

Matt Parlow, Associate Dean for Academic Affairs, Marquette University Law School
Ken Stahl, Associate Professor of Law, Chapman University School of Law
Rick Su, Associate Professor of Law, SUNY Buffalo Law School

Recommended Hotel

Ambassador Hotel (ask for MULS rate)
2308 W. Wisconsin Ave.
Milwaukee, WI 53233
414.345.5000
Rate: $109 (plus applicable taxes)

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For more information, please contact Matt Parlow at matthew.parlow@marquette.edu

Ken Stahl

July 29, 2012 in Conferences, Local Government, Scholarship | Permalink | Comments (0) | TrackBack (0)