February 9, 2013
Two hypotheses on why there are so few form-based code cases
I enjoyed reading Jonathan Zasloff’s post on new urbanism and also Matt Festa’s response. It turns out that, this semester, my clinic is advising a jurisdiction here in Idaho that is considering implementation of form-based codes. My students and I have been digging under every rock to try to find cases involving form-based codes, but have found very little. Reading that other professors have unearthed very little is re-assuring! In this research, however, I have developed two hypotheses for why I believe there are so few form-based code cases (note: Zasloff said "new urbanism," but I use the term "form-based codes" because I believe it is broader, and inclusive of other movements that I find more powerful, such as those of the architect Christopher Alexander).
First, I’d posit that jurisdictions where it is believed that form-based codes would be controversial have opted to make them optional, instead offering them as an alternative to traditional Euclidean zoning schemes for the adventurous developer. If something is simply an option, it is very unlikely to lead to appellate litigation that would result in a reported case. For an example, see Dallas’ optional form-based codes. That does not mean there are not potential legal issues with form-based codes; rather, it means there isn’t enough skin in the game for it to matter yet.
Second, another sub-set of form-based codes are emerging for larger projects that have the implicit approval of the developer in the codes' design. A great example of this is the Treasure Island project in San Francisco Bay. The single (yes, massive) development project is guided by an enormous 362-page form-based code document called Design for Development, but the San Francisco Planning Code, the city's Euclidean zoning bible, has just a few pages on what this project will entail and instead mostly incorporates the Design for Development standards. Because the developers are essentially the ones creating these form-based codes as a way of getting a type of “pre-project approval,” as I see it, they obviously are not going to be suing over form-based codes they helped to draft.
I’d be curious to hear whether these hypotheses ring true to any others that have researched this area.
In the research conducted by our clinic, it appears there are also about five decent law review articles (in my humble opinion) hypothetically analyzing legal problems that may arise from form-based zoning. If anyone wants my picks, I’m happy to send them along.
February 8, 2013
Zasloff: Has New Urbanism Killed Land Use Law?
Jonathan Zasloff (UCLA) has a piece on Legal Planet: The Environmental Law and Policy Blog (Berkeley/UCLA) called Has New Urbanism Killed Land Use Law?
My Land Use casebook, like most of them, mentions New Urbanist zoning and planning techniques, but does not dwell on them. In order to teach New Urbanist concepts such as Form-Based Codes, SmartCode, and the Transect, I had to develop my own materials, as well as shamelessly stealing a couple of Powerpoint presentations from a friend who works at Smart Growth America.
What’s the cause of this gap? Is it because land use professors have a thing about Euclidean zoning?
I doubt it. A quick check in the Westlaw “ALLCASES” database yields only one result for the phrase “Form-Based Code” and none of the results for “transect” has anything to do with the New Urbanist land use concept. That means that it is very difficult actually to find cases that reflect aspects of New Urbanism.
One can understand that in several ways, I suppose. You could infer that New Urbanism just leaves less room for legal disputes than traditional Euclidean zoning. For example, there is no need to worry about non-conforming uses, use variances, or conditional use permits with Form-Based Codes because those codes do not regulate uses to begin with. . . .
Now let me quibble with this a little bit: in Houston--the Unzoned City--we supposedly don't regulate uses either. But it seems we do nothing here but apply for, and fight over, variances, nonconforming uses, and special exceptions, for everything from lot sizes and setbacks to sign code and HP rules. It seems to me that people are going to want incremental exceptions for building form or site requirements at least as commonly, if not more so, than for use designations.
But overall it's a good point. Zasloff concludes that even if we do move to form based codes, we'll still probably need to keep a little zoning around:
[W]hile New Urbanism coding can serve as a replacement for a lot of Euclideanism, it cannot eliminate it entirely — not because we are addicted to Euclidean forms, and not because we are dumb, but because lots of the world is uncertain, and cities will have to grapple with that.
I also find that New Urbanism is hard to teach in a doctrinal land use law class. Zasloff concludes:
If this is right, then land use casebooks will still emphasize Euclidean zoning, because that’s where the disputes are and necessarily will be.
A problem set with form-based codes would be nice, though. Just sayin’.
I know some recent land use casebooks have moved to a problem-based approach, and some of our colleagues have created their own materials for teaching New Urbanism. Students find this stuff interesting, so we should all work towards developing these resources for teaching.
Movable Conservation Easement Not Perpetual
As regular readers already know, I am pretty skeptical of tax deductions for golf course conservation easements. The bold landowners in Belk v. CIR, 140 T.C. No. 1 (Jan. 28, 2013) asserted that the conservation easement burdening a golf course should be valued at over $10 million. The golf course was part of a residential suburban development. I am sure many of you have seen these places where the golf course is part of the attraction for people to buy the homes in the development both because of the attraction of being able to play golf but because of the open space the golf course provides. The valuation of such golf courses is complicated because it often fails to account for the fact that the presence of the golf course increases the value of the surrounding homes. In this case, the Belk conservation easement also had an unusual provision. It stated that the landowners could change the boundaries of the conservation easement with agreement of the conservation easement holder. Here is the exact language from the conservation easement:
3. Owner may substitute an area of land owned by Owner which is contiguous to the Conservation Area for an equal or lesser area of land comprising a portion of the Conservation Area, provided that:
a. In the opinion of Trust:
(1) the substitute property is of the same or better ecological stability as that found in the portion of the Conservation Area to be substituted;
(2) the substitution shall have no adverse affect on the conservation purposes of the Conservation Easement or on any of the significant environmental features of the Conservation Area described in the Baseline documentation;
(3) the portion of the Conservation Area to be substituted is selected, constructed and managed so as to have no adverse impact on the Conservation Area as a whole;
(4) the fair market value of Trust's conservation easement interest in the substituted property, when subject to this Conservation Easement, is at least equal to or greater than the fair market value of the Conservation Easement portion of the Conservation Area to be substituted; and
(5) Owner has submitted to Trust sufficient documentation describing the proposed substitution and how such substitution meets the criteria set forth in subsections (1)-(4) above of this Section B.3.a. of this Article III.
The IRS disallowed the deduction because a moveable conservation easement is not perpetual as required by the statute allowing charitable deductions for conservation easements. The Tax Court agreed. This view of conservation easements places a primacy on the location preserved over the features preserved (or conservation value of the restriction). In some ways, I am happy to see scrutiny of these highly appraised golf course conservation easements, but regret that the IRS does not recognize the potential value of a movable conservation easement. With climate change and shifting land use patterns, there are multiple reasons for wanting more flexible arrangements that the typical permanent conservation easement. This law doesn’t prohibit it of course (although it might signal some trouble for arrangements of that type in states like California that require conservation easements to be perpetual), but does indicate movable conservation easements won’t be able to garner tax deductions that have induced many landowners and developers to create the restrictions. For two other summaries of this case, see Nancy McLaughlin’s take and Jonathan Bockian’s. For more thoughts on movable conservation easements, check out this article by Bill Weeks.
February 5, 2013
Great NYC fellowship opportunity for law grads and future housers
The NYC Department of Housing Preservation and Development and the NYC Housing Development Corporation are offering a two-year fellowship for graduating law students to begin in Fall, 2013. The program description sounds like an amazing opportunity for someone interested in land use issues, and housing in particular. For "housers" in the making, here is the program description:
The HPD-HDC Housing Fellowship is a two-year program, and individuals who are selected to join the program make a two year commitment. Each class of Fellows is chosen following a national search. Fells must be recent graduates of schools of public policy, urban studies, planning, management, law or a related field. In the first year, Housing Fellows rotate through three four-month placements, learning firsthand about HPD's efforts to revitalize New York City's neighborhoods through financing, including tax-exempt and taxable bonds; new construction; rehabilitation; code enforcement; housing litigation; outreach and loans to private owners. In the second year, Fellows expand their time in a specific program area to encourage further growth by choosing two half-year or one full-year placement. In addition to their work experiences, Fellows participate in site visits to developments across the City; meet with housing leaders in government, business, nonprofit organizations and academia; accompany HPD housing inspectors investigating complaints in the field; and participate in conferences, among other activities. At the end of the two year period, Fellows either secure positions within HPD or HDC or move on to continue working in the field at other agencies or organizations. Please note that neight HPD nor HDC can promise permanent employement at the end of the program.
This blog site does not permit attachments, but I have attached the application to my other blog site here. Applications are due March 1, 2013. I see a future Catherine Bauer Wurster being made on the banks of the Hudson through this program! Encourage students to apply!
February 4, 2013
Summer Environmental Law WIP Event
The University of Washington Law School is going to be hosting its second annual Yound Environmental Law Scholars Workshop in July and I thought it might be of interest to some of our readers. As many of you know, I really struggle with have given up on trying to articulate the line between environmental law and land use. The event will be July 10-12 ay UW in Seattle and they have already lined up an impressive array of senior scholars to read and comment on drafts.Here’s their description of the event:
This collegial two-day workshop features discussion of works-in-progress by ten early career environmental law scholars: professors with two or fewer years of tenure, pre-tenure professors, visiting assistant professors, or legal fellows. We welcome submissions from the broad fields of environmental, natural resources, and energy law.
Participating junior scholars will be asked to submit an unpublished work-in-progress one month before the workshop. Each paper will be circulated to the entire group for review and assigned to one senior scholar and one junior scholar for detailed commentary. At the workshop, each paper will receive an hour of discussion: a brief presentation by the author, followed by detailed comments from the designated junior and senior scholars, and then a more general review by the group. The overall aims of this process are to promote scholarly discussion and to facilitate rigorous early review for works to be offered for publication in a law journal.
Meals will be provided. Travel and lodging costs will be the responsibility of the participants. To apply, send a cover letter, an abstract of no more than 500 words, and a C.V. to Todd Wildermuth at firstname.lastname@example.org by March 1, 2013.
Fellow position: Georgetown University Law Center - Housing and Community Development Clinic
Some of our readers may be interested in applying for this position...
2 year fellowship at Georgetown University Law Center leading to an LL.M. in advocacy; the stipend for 2013-2014 is $53,500 (taxable) plus health and dental benefits. The Fellow will supervise 2nd and 3rd year law students working on affordable housing development issues, development of community facilities and small business issues. The Fellow will also assist in the teaching of a weekly seminar. Required: minimum 2 yrs. legal experience with background in transactional housing and/or business matters. Spanish language ability is a plus. Admission, or ability to waive into the DC Bar is required. Send letter of interest and resume by 4/1/13 to Professor Michael Diamond, Georgetown University Law Center, 600 New Jersey Avenue NW, Suite 102, Washington., DC 20001 or by email to email@example.com. Applications will be reviewed as received.
As a director of a C/ED clinic myself, I think this sounds like a great way for a budding academic to get a foot in the door in a really fun and important area of law.
Ridesharing / Hitchhiking 2.0: Yes, there's an app for that
Last week I wrote a somewhat quirky post about hitchhiking and ridesharing. It appears this may be becoming a serious business. Today I read an article about how a number of apps are now available to help people arrange rides and eliminate the need to "thumb it." The interesting issue is that they are being challenged in court as potentially violative of taxi regulations, as some of the apps charge a percentage of "donations" that passengers give to drivers for a ride. From the article:
Uber [one of the new apps] allows passengers to use their smartphones to summon luxury town cars and other vehicles driven by professional drivers. Customer credit cards are charged fares based on time and distance.
Lyft and SideCar describe themselves as community "ridesharing platforms" that connect riders and drivers, who use their own vehicles. After each ride, passengers are asked for a voluntary donation based on what others paid for similar trips. The companies take a 20 percent cut.
"We started Lyft to create a system for matching up people who need a ride with people who can offer a ride," said Logan Green, co-founder of San Francisco-based Zimride, which operates Lyft.
But taxi operators say the new ride services are little more than illegal cabs that don't have permits, pay city fees or follow regulations. The upstarts are also steering business away from cab drivers, making it harder to earn a living.
"It makes for an uneven playing field," said Barry Korengold, who heads the San Francisco Cab Drivers Association. "We're not trying to stifle technology. We're saying do it in the legal way."
It's a great story of how technology can revolutionize an age-old tradition, but also run afoul of norms--even the "new property" rights--established by regulating an industry. These apps may not only permit people to get across town quickly, or find a nearby neighbor who shares a similar commute pattern, but also require us to reconsider how we regulate taxis and other "traditional" forms of ridesharing that are more centralized, and often less responsive, to decentralized demand. Could the traditional, regulated taxi industry be the next victim of a mobile phone app?
What To Do About Bad Conservation Easement Appraisals...
Looks like the federal governement is continuing its scrutiny of conservation easements. This time they are looking at appraisers who place inflated values on conservation easments (particularly an issue in the historic preservation realm). Conservation Easement guru Nancy McLaughlin has posted a detailed description over at the Nonprofit Law Prof Blog. I wonder of course, where all these conservation easements are now.