Monday, February 12, 2018
Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 7: How Do You Teach the Contract Transformation in Land Use Regulation?
[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line. -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]
Contemporary Issues in Teaching Land Use
Question 7: How Do You Teach the Contract Transformation in Land Use Regulation?
by Stephen R. Miller
The first three chapters of our casebook introduce students to the basics of the modern land use regulatory system. But we all know that the basics, while hard to master, only scratch the surface of what makes land use law difficult, and so interesting. Much of that additional complexity is embedded in Chapter 4, which makes it a tricky, and hopefully exciting, chapter for classes to tackle.
As a class enters into this chapter, there are two ways to go. On the one hand, professors can choose to pick a couple of specific subjects--subdivisions and impact fees, for instance--and teach just those several subjects each as separate entities. The book fully supports that approach.
On the other hand, the revisions to Chapter 4 also intend to permit an alternative method of teaching, which is to frame all of these land use controls as part of what Dan Selmi refers to as the "contract transformation in land use law." We suggest that this approach will be particularly fruitful for those professors teaching in larger, urban areas where complex entitlements commonly are bundled into an overarching agreement. In many larger states, this is typically done through a development agreement, while in some other states it might be bundled into the conditions of approval for a planned unit development. Whatever the local mechanism of choice, one of the goals of Chapter 4's revision is to permit classes to discuss how large developments are typically not developed through a traditional zoning code, but instead involve highly-sophisticated negotiations that also require and demand bargaining. This offers a chance to bring up concerns about "bargaining away the police power," takings, due process concerns, and multiple other important legal issues about the powers of government that subsequent chapters will explore in depth.
Professors that choose this second approach might also utilize documents from a local development that was developed with a DA. I, personally, use documents from a large development in Boise called Harris Ranch, a large master-planned community with a development agreement, a specific plan, multiple HOAs, unique funding structures for infrastructure, and lots of other teaching documents that are publicly accessible.
The beginning of Chapter 4 tries to frame this approach by noting follows:
It would not be uncommon for a modest development in a mid-sized city to require the following:
1. An annexation, especially if the development is in a “greenfield” site;
2. A rezone of the newly incorporated land;
3. A planned unit development, which permits the developer some leeway in the community design not permitted by general zoning regulations;
4. Impact fees, or some other means of financing infrastructure such as an assessment district, for roads, sewers, and even parks, schools, and fire houses;
5. Subdivision of land into marketable lots
6. A homeowner’s association (HOA), or another common interest community (CIC), with covenants, conditions, and restrictions that impose additional private land use controls that will not be enforced by local government but by a private homeowners’ association; and
7. A development agreement that often controls the phasing of the development and grants concessions beyond what regulations provide for both the developer and the local government.
Other common bargained-for components of a project may include:
1. A community benefits agreement, an agreement negotiated between the developer and neighborhood organizations—not the local government itself—to allay neighborhood externalities associated with the project;
2. Affordable housing, or “inclusionary zoning,” units in excess of those required by state or local code;
3. Private environmental measures, such as conservation easements or habitat mitigation agreements;
4. Financing tools from redevelopment, such as tax increment financing;
5. Financing from federal and state tax credit schemes, such as New Markets Tax Credits, Low Income Housing Tax Credits, and Historic Preservation Tax Credits held by community non-profit organizations closely allied with local government; and
6. Other, often controversial, incentives associated with economic development programs, which often include: use of eminent domain authority to assist the project sponsor with land assembly; local government assumption of responsibility for the private entity’s compliance with federal and state environmental regulation; waiver of permitting fees; and ancillary terms, such as local hiring agreements, almost all of which are typically conditioned on timely land use approvals of the proposed project.
However professors today choose to teach the subjects in Chapter 4, I believe it is important to make clear that while each control can be a stand-alone land use regulation, most are typically used in conjunction with other controls and their application is often "bargained for." That, in turn, sets up nicely the turn to takings in Chapter 5, and how Nollan / Dolan / Koontz affect, and respond to, this transformation.
The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year. Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.
Previous posts in the Contemporary Issues in Teaching Land Use series