Thursday, October 9, 2014
This is (hopefully) the last in a series of three posts, again cross-posted from Concurring Opinions. In the first, I asked why more land use professors are not libertarians, considering the strong leftist critique of local government. In the second, I suggested that one reason for the leftist commitment to local government (and specifically to local government land use control, albeit often in the guise of “regionalism”) is that the relevant libertarian alternatives – namely, the marketplace and the common law of nuisance – are far worse. Nevertheless, I conceded that this answer was unsatisfactory, considering that many leftists – myself included – betray a Tocquevillian optimism about local government that is difficult to square with the position that local governments are merely the least bad of all the alternatives. So I am left here, in this third post, with the hardest question: How can left-leaning local government scholars have any optimism about local government in light of the abusive local government practices we have witnessed (and documented)?
State Structuring of Local Governments
Alright, here goes… While there is no denying the manifold abuses of which local governments are guilty (see my initial post), the blame for these abuses really falls upon state governments, not local governments. The reason local governments act in the parochial fashion they do is because states have empowered and constrained local governments in such a way that effectively forces local governments to be parochial. In a variety of ways, states have facilitated and encouraged the proliferation of small local governments within metropolitan regions, each of which is thus coerced into a zero-sum competition with the others for scarce revenues. States have, at the same time, dumped all kinds of unfunded and underfunded mandates on local governments, which they must meet with whatever revenue they raise locally. Yet, there is one saving grace for local governments: states have given them an awesome power — the land use power. Is it any surprise that local governments use the biggest power states have given them to solve the biggest problem states have saddled them with –an ongoing obligation to provide costly services with limited funds? The local government abuses I mentioned in my initial post, including the “fiscalization” of land use, exclusion of undesirable land uses (and users), strategic annexation and incorporation efforts, and sprawl are thus not things local governments do because they are inherently corrupt; they do so because the state has structured local government law so as to make these abuses inevitable.
That’s not even the interesting part. This is: Why have the states created a system in which local governments have such perverse incentives? According to Jerry Frug, states created the modern system of local government law because they were threatened by cities. Cities’ openness and spirit of participation stood in contrast to the bureaucratizing tendencies of the state. States created a system of local government law designed specifically to emasculate and frustrate cities’ ambitions. In other words, local government represents a vital aspect of human experience that has been actively suppressed by the state. Frug and many others have argued ever since that in order to recover the essence of the local, we need to recalibrate local power and change cities’ incentive structures.
Local Governments and Participatory Democracy
Frug wrote in the tradition of the New Left, with its emphasis on participatory democracy, and in the aftermath of a period in which cities had been devastated by riots, white flight, urban renewal, disinvestment, and outright hostility from state and national political figures. During the late 1960s, there had been a moment when cities appeared to be on the brink of realizing their potential as fora for public participation – a heady time of citizens’ councils and “maximum feasible participation” – but this potential was quickly squashed by nervous elites.
Frug’s argument echoes theorists of participatory democracy such as Hannah Arendt. Arendt writes that, despite the bureaucratization of modern life, there periodically erupt spontaneous displays of citizen activism that demonstrate a latent human desire for political participation. These moments, of which she includes the Paris Commune of 1871, the Hungarian Revolution of 1956, and others, are quickly snuffed out when powerful interests feel threatened. Nevertheless, Arendt sees participatory democracy as lying at the core of the human condition, and the quest to recover the lost tradition of spontaneous citizen activism as a noble calling, which she refers to as “pearl diving.” This “pearl diving,” this quest to recover the vital potentiality of the local, is I think what motivates many leftist local government scholars, and fuels our optimism.
A False Utopia?
Before we all choke on the sentimentality of the last paragraph, I should note that the nostalgia for the pre-Progressive era city is somewhat discomfiting. The Gilded Age city was no enlightened democracy; even before the political machines turned cities into cesspools of corruption, as legal historian Robin Einhorn writes, cities were highly privatized, “segmented” entities that almost exclusively served the will of propertied interests. Going back further in history, certainly very few of us would like to live in the “free” cities of the middle ages, which were basically totalitarian communes, or the Athenian polis, which was rooted in the exploitation of slave and female labor.
Moreover, it is hard for cities to fulfill their potential as fora for participation when they are so embroiled in the quotidian business of governing at the local level. While states have the freedom to delegate hard decisions and devote their energies to ideological struggles, cities have to deal with the pragmatic daily chore of picking up the garbage, literally and figuratively. On a nearly daily basis, cities must address intractable issues such as homelessness, affordable housing, climate change, education, health care, security, immigration, and more, issues that, in an era of globalization, are only likely to intensify the pressure on cities as states and national governments recede in influence. Managing all these issues will require shortcuts, and city governments will be forced to make unpopular decisions that are sure to anger significant segments of the community; these issues cannot possibly be addressed if we see urban politics as merely, or even principally, a forum for democratic deliberation.
But everything I have just said also explains why we leftists insist on putting all our eggs in the local government basket. Like it or not, cities are, and for the foreseeable future will be, the primary means of dealing with the messy everyday problems we confront. In some cases, as with the provision of clean water (see my earlier post on cities in the developing world) they have succeeded spectacularly. In others, such as the provision of affordable housing, they have failed miserably. But even where they have failed, as in the case of affordable housing, we can often point the finger at the way states have empowered local governments, rather than some inherent flaw in local government. In any event, as I mentioned in my previous post, we have few viable alternatives to local government. For reasons both practical and utopian, it figures to think that cities represent our best hope for the future, and to rest our efforts on improving urban governance rather than displacing it.
Tuesday, October 7, 2014
This post is, again, cross-posted fom the Concurring Opinions blog.
In my previous post, I asked why more land use/local government law professors do not identify as libertarians, considering the role many of us have played in exposing the dysfunctional workings of local government.
If there is an obvious argument in favor of the status quo in land use/local government regulation, it is that all the alternatives seem worse. Let us consider some of the candidates:
An unimpeded free market in land use development would apparently be the worst of all worlds, as there would be no way to prevent open space from being gobbled up by new housing, roads and schools becoming impossibly congested, or a refinery locating next to a single-family home (or, perhaps more likely, a landowner threatening to build a refinery in order to extort his neighbor, a common scenario in pre-zoning Chicago). In a densely populated society, we need some way of ensuring that landowners consider the impact of their land use on neighbors. The good people of Oregon realized this after an ill-advised ballot initiative a few years ago effectively wiped out zoning, and suddenly a single landowner could, for example, subdivide his parcel into 100 lots for single-family homes with no regard for the impact the development would have on local services or infrastructure. The ballot initiative was repealed by a subsequent initiative a few years later.
In my previous post, I mentioned Houston as a possible alternative to most places’ current system of land use regulation. Houston is often touted for its lack of zoning, and corresponding low home prices. I should point out, however, that Houston is not quite a free-market paradise. Houston has a full complement of land use laws, including subdivision regulations (to prevent the aforementioned 100 lot problem) billboard regulations, and the like. The city even enforces restrictions contained in private covenants. As my friend and Houstonian Matt Festa points out, Houston has a quirky city charter that prohibits zoning without a voter initiative, so the city does lots of land use regulation but simply calls it something other than zoning. And, while I’m on the subject, does anyone really think the reason Houston has lower land prices than San Jose is because of zoning?
The common law of nuisance, a favorite of libertarian land use scholars, would appear to solve some of the problems of a free-market system, such as the refinery locating near a single-family home. But what if, instead of a refinery, it’s a bowling alley? A tavern? A cemetery? Are any of these nuisances? On that note, is subdividing my property into 100 new lots a nuisance? In all of these cases, the answer is … maybe. It depends on the severity and nature of the impact on my neighbors, the existing precedent on nuisance law in the particular state, and, most importantly, how the judge assigned to the case chooses to balance the interests involved.
This, of course, is exactly the problem. If local government land use control has been criticized for subjecting landowners to uncertainty about permissible uses of their property, for forcing developers to go through an expensive and time-consuming process to get permits, for picking winners and losers based on crass political concerns such as campaign contributions, the process of “judicial zoning” through nuisance law is little better. First, nuisance law is, if anything, more uncertain and expensive than local government land use control. Nuisance doctrine is so ambiguous that no landowner can ever know with certainty what his or her rights are without resorting to a highly fact-intensive litigation, which will inevitably involve a massive expenditure of time and money. (And Coasean bargaining won’t work if people don’t know their rights.) Second, judges inevitably pick winners and losers in nuisance cases, and while we might expect a judge – even an elected one – to rule on the legal merits of a nuisance case rather than political considerations, the nuisance inquiry is so vague and policy-driven (e.g., harm v. utility) that judges necessarily end up making value judgments about what land uses they find desirable and undesirable. Moreover, though judges – again, even elected judges – are surely less influenced than legislators by political concerns like campaign contributions, public choice research has shown that the judicial decision-making process shares many of the abuses that plague the political process – such as the dominance of repeat players and the ability of small, well-organized interests to exercise disproportionate influence.
To go a step further, the fact that local government decisionmaking is “political” whereas judicial decisionmaking is not (at least in principle) is precisely what makes local government land use control superior. When local officials make land use decisions, members of the community will at least have the opportunity to influence them through the political process. By contrast, a judge hearing a nuisance case is likely to be far less sensitive to the full array of interests affected by its decision, both because the adversarial nature of common-law litigation precludes anyone but the parties from being heard, and because judges, even when elected, are generally (and hopefully!) less amenable to pressure from voters than are local politicians.
The question, as my favorite economist Bill Fischel puts it, is whether we would rather be ruled by judges or by legislators. Though the choice, as I have presented it here, is an unpleasant one, the balance of the evidence seems to favor legislators. Judges have long understood this, and they have consciously assumed a passive and deferential role in the land use process from the beginning (Indeed, it is notable that the foundational 1926 case upholding the constitutionality of zoning, Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), was authored by perhaps the most libertarian justice of all time, George Sutherland. Sutherland’s opinion made a point that zoning was necessary because nuisance law had become an inadequate means of dealing with modern land use problems.)
Nevertheless, there is something unsatisfying about this justification for local government land use control, even for leftists. The leftist vision for local government is an optimistic one, rooted in the belief that local government offers an opportunity to realize our highest aspirations for democratic self-government. The local-government-as-least-of-all-evils argument is for us an unacceptably pessimistic view of government, and its insistence on a merely quantitative accounting of the relative demerits of various systems of land use control invites every armchair empiricist to place a thumb on the scale in favor of his or her own preferred arrangement. On the other hand, given the unsparing descriptive account of local government detailed in my previous post, how can leftists be so optimistic? I will address that question in my next post.
Monday, October 6, 2014
In case you missed it, I am cross-posting something I initially posted to Concurring Opinions, that may be of interest to our readers here. Parts II and III to follow:
Many professors who study land use and local government law, myself included, consider ourselves leftists rather than libertarians. That is, we have some confidence in the ability of government to solve social problems. Nevertheless, were you to pick up a randomly selected piece of left-leaning land use or local government scholarship (including my own) you would likely witness a searing indictment of the way local governments operate. You would read that the land use decisionmaking process is usually a conflict between deep-pocketed developers who use campaign contributions to elect pro-growth politicians and affluent homeowners who use their ample resources to resist change that might negatively affect their property values. Land use “planning” – never a great success to begin with – has largely been displaced by the “fiscalization” of land use, in which land use decisions are based primarily on a proposed land use’s anticipated contribution to (or drain upon) a municipality’s revenues. Public schools in suburban areas have essentially been privatized due to exclusionary zoning practices, and thus placed off limits to the urban poor, whereas public schools in cities have been plundered by ravenous teachers’ unions.
Wednesday, October 1, 2014
In early August, microcystin from toxic algal blooms in Lake Erie forced officials to issue a “do not drink” order for all municipal water users in Toledo. The drinking-and-cooking ban affected nearly 400,000 people and lasted for two days, leaving residents scrambling for bottled water. Given that some 40 million people in the U.S. and Canada rely on the Great Lakes for drinking water, Toledo’s experience was something of a wake-up call for leaders throughout the region.
Last week, mayors and officials from cities throughout the Great Lakes and St. Lawrence watersheds met at the Mayors Drinking Water Summit in Chicago to discuss measures needed to prevent the kind of pollution that poisoned the water in Toledo. A biggest culprit in polluting the water is excess phosphorus loads in runoff, which feeds toxic algal blooms. The mayors called for concrete steps to address both agricultural and urban sources of runoff:
- For the EPA to establish a common limit and an emergency response protocol for microcystin in drinking water for the Great Lakes and St. Lawrence region;
- For Great Lakes states to establish a phosphorus open lake water quality standard;
- For agriculture to further reduce the runoff from farms into Lake Erie, including better nutrient management and application of the ‘4R Nutrient Stewardship’ program;
- For municipalities to further reduce phosphorus loadings through more green infrastructure, better treatment plant operations, and pollution prevention measures.
One aggravating factor in the spikes the increasing prevalence of high-precipitation rain storms occasioned by climate change. Heavy storms strip fertilizer from fields and cause municipal sewer systems to overflow, causing large spikes of excess phosphorus to flow into the Great Lakes. Cities sorely need upgrades to antiquated sewer systems that overflow during heavy rain events. In the meantime, cities can better prepare for these intense storms by working to increase the amount of green infrastructure—green roofs, wetlands, and vegetation—to capture rainfall as it occurs and filter runoff.
Last week municipal leaders and environmental groups stood together in calling for swift and sensible action. What happens from here remains to be seen, but if there is one environmental issue that pretty much everyone can get behind quickly it’s that the water that flows from the tap should be safe enough to drink.
On another note: this is my last guest post here at Land Use Prof Blog. Many thanks to Jess Owley and Stephen Miller for inviting me into the conversation.
~Celeste B. Pagano, DePaul University College of Law
Friday, September 26, 2014
Check out EPA's Greening The Apple blog, which reported today on a collaboration between Touro Law Center's Land Use & Sustainable Development Institute and the Long Island Smart Growth and Resiliency Partnership (LISGRP): Turning Lemons into Lemonade: Resilience, Smart Growth and Equitable Development on Long Island | Greening The Apple. LISGRP is partnership of EPA, FEMA, New York State Department of State, Suffolk County, Nassau County and the Metropolitan Transit Authority (MTA) formed shortly after Super Storm Sandy to help Long Island rebuild in a smarter, stronger and more resilient fashion.
Among other projects that focus on the intersection of climate resiliency and smart growth, LISGRP is working with Touro Law Center to place law students with the City of Long Beach to support sustainable rebuilding. Consistent with priorities identified in the City's recently completed NY Rising Community Reconstruction Plan, the City is implementing recommendations from a Global Green Technical Assistance project (funded through a grant from EPA’s Building Blocks for Sustainable Communities program) and a New York University study on green infrastructure and storm water management.
Thus, according EPA Greening the Apple bloggers Joe Siegel and Rabi Kieber, LISGRP and its collaborators are "turning lemons into lemonade" in the wake of the devestation of Super Storm Sandy.
...Long Island Smart Growth Resiliency Partnership has turned lemons into lemonade by incorporating not only climate change resilience but smart growth and equitable development into long term planning on Long Island. The groundbreaking work of the Partnership will no doubt serve as a model for other recovery efforts in Region 2 and beyond.
Posted by Professor Sarah J. Adams-Schoen, Director of Touro Law's Land Use & Sustainable Development Law Institute. You can follow the Institute's blog here, and contact Professor Adams-Schoen by email or phone (firstname.lastname@example.org, (631)761-7137).
September 26, 2014 in Beaches, Climate, Coastal Regulation, Community Economic Development, Federal Government, Green Building, Local Government, Planning, Smart Growth, State Government, Sustainability, Zoning | Permalink | Comments (0)
Monday, September 22, 2014
And the New York climate change news keeps rolling in…. Today, in conjunction with Climate Week 2014 in New York City, Governor Andrew Cuomo signed into state law the Community Risk and Resiliency Act.
In today's press release, the Governor described the Act as "a comprehensive package of actions that help strengthen and reimagine our infrastructure with the next storm in mind." The legislation implements some of the recommendations made by Governor Cuomo’s NYS 2100 Commission, established following Superstorm Sandy. The Governor also proclaimed the week of Sept. 22-28, 2014 "Climate Week," finding among other things that
"New York State will not allow the national paralysis over climate change to stop us from pursuing the necessary path for the future."
You can read the executive proclamation here.
The Community Risk and Resiliency Act (A06558/ S06617-B) requires New York State agencies to consider future physical climate risks caused by storm surges, sea level rise or flooding in certain permitting, funding and regulatory decisions. The standards would apply to smart growth assessments; siting of wastewater treatment plants and hazardous waste transportation, storage and disposal facilities; design and construction regulations for petroleum and chemical bulk storage facilities and oil and gas drilling permits; and properties listed in the state’s Open Space Plan, as well as other projects. The Act also requires the NY Department of Environmental Conservation (DEC) to adopt sea level rise projections by January 1, 2016, and update the projections every five years.
But, of particular note to land use scholars and practitioners, the Act also:
- Requires the NY DEC and NY Department of State to prepare model local laws to help communities incorporate measures related to physical climate risks into local laws, and provide guidance on the implementation of the Act, including the use of resiliency measures that utilize natural resources and natural processes to reduce risk.
- Provides funding, subject to appropriation, to municipalities for local waterfront revitalization planning projects that mitigate future climate risks. Projects may include preparation of new local laws, plans, and studies, and construction projects.
- Provides funding on a competitive basis, subject to appropriation, to municipalities or not-for-profits toward the cost of coastal rehabilitation projects that consider future climate risks.
- Allows the Commissioner of the Office of Parks, Recreation and Historic Preservation to enter into maintenance and operation agreements for open space land conservation projects in urban areas or metropolitan park projects with municipalities, not-for-profits, and unincorporated associations, if the project demonstrates consideration of climate-change risks.
According to today’s press release,
"Scientists have confirmed a sea level rise of approximately 13 inches since 1900 along New York's coast, and have also measured a significant increase in the proportion of total precipitation that arrives in heavy rainfall events. These climate changes, coupled with land-use planning, zoning and investment that allow and sometimes encourage development in at-risk areas, have resulted in more people, businesses and public infrastructure existing in vulnerable areas."
The legislation was approved in both houses by wide margins, and had support from a diverse group of stakeholders including: The Nature Conservancy in New York, The New York League of Conservation Voters, The Business Council of New York State, the General Contractors Association, The Reinsurance Association of America, The American Institute of Architects New York State, The Municipal Arts Society of New York, Audubon New York, Natural Resources Defense Council, Environmental Advocates of New York, and The Adirondack Council.
Posted by Professor Sarah J. Adams-Schoen, Director of Touro Law's Land Use & Sustainable Development Law Institute. You can follow the Institute's blog here, and contact Professor Adams-Schoen by email or phone (email@example.com, (631)761-7137).
Wednesday, September 17, 2014
Last year I wrote an article about DIY Urbanism—modest, often illegal, transformations of urban physical space. A few examples of the phenomenon unfolded before my eyes during the year I recently spent in Jacksonville, Florida. Two of those examples involved artwork on utility boxes.
Among my friends in Jacksonville were Kate and Kenny Rouh of RouxArt, artists whose stated mission is to “tile the town” with community-based mosaics. One day thay casually mentioned their plans to spend that weekend installing a mosaic on a utility box in Hemming Plaza, a downtown public space fronted by City Hall, a Federal Building, and the Museum of Contemporary Art Jacksonville. Unfortunately, Hemming Plaza has received a lot of negative attention in recent years, some due to physical neglect and some in response to the use of the space by many homeless people. The artists’ goal was simply to respond to the negativity with action instead of handwringing by adding a positive feature to the Plaza. They later told me of their very enjoyable weekend interacting with plaza users who observed them working on the project. The final result is pictured at left. (To our amusement, local news outlets covering the sudden appearance of the mosaic credited it to an “unknown artist,” despite the fact that the RouxArt name is rather clear on one side of the pillar. RouxArt has worked with the City before, has appeared numerous times in local media, and is easily searchable online.) With its community-focused aesthetic and uniformly positive reception, RouxArt’s small artwork in Hemming Plaza is an example of DIY urbanism at its best.
The second, more complex story played out several major themes from my article: the heightened probability of enforcement when an intervention is controversial, the frequent shift from illegality to legality, and the need for simple process to allow DIY interventions to happen. My engagement—this time simply as a community member and spectator—started one day on my afternoon commute. While exiting a bridge, I noticed a bright figure in the style of a Keith Haring painting onto a free-standing electric box. According to local media reports, the artist called himself KHG, for “Keith Haring’s Ghost,” and that the small structure he had painted was actually a signal box, a previously-drab feature of the urban landscape housing an electrical mechanism that controlled the traffic light.
Over the next couple of weeks, I saw more, similar paintings, joyous additions to the cityscape on signal boxes throughout my Riverside neighborhood. In my article, I had noted that DIY urbanists who create interventions that enhance cityscapes rarely face legal sanction. Sadly, this did not apply to KHG: the City of Jacksonville arrested him in March, revealing his true identity as artist Chip Southworth and charging him with a felony for “damaging” the utility boxes. The City attempted to justify its heavy-handed response in part with a theory that the paint colors might cause the signal boxes to overheat and malfunction. However, another reason might be the fact that some of the works were overtly political, commenting on race relations, gun violence, and discrimination based on sexual orientation—issues that remain highly contentious in Jacksonville. For example, an early work in the series portrayed an angel in a hoodie, standing in for slain teenager Trayvon Martin. (In contrast, RouxArt’s contribution to Hemming Plaza had been chiefly decorative.) Southworth’s charge was later lowered to a misdemeanor; he pled no contest, performed community service, and agreed to pay fines and court costs totaling more than $1,000.
In my article also noted that interventions with illegal origins sometimes gain legitimacy and, eventually, legality. That appears to be happening in Jacksonville, where the debate over KHG’s arrest has highlighted the need to legalize some street art, including a possible program for painting signal boxes. Legalization of street art seems particularly appropriate given Jacksonville’s recent efforts to brand itself as a creative hub, with the creation of the One Spark Festival and a downtown arts district to spur economic activity “through artistic energy, cultural vibrancy and exciting streetscapes.” As now-president of the Cultural Council Tony Allegretti noted in an interview with the Folio Weekly before KHG's arrest, the only thing lacking was a simple process for legal street art projects:
"I don't know why, necessarily, it's controversial...I was surprised to hear there was any kind of negativity around [KHG's works]. I think they add to the beautification of our neighborhoods. … The only thing left to discuss is, what's the process next time? In an ideal situation, we're one meeting away. How can we take something that lacks a process and create a process?"
As of this writing, the Cultural Council has submitted proposed legislation to achieve just that. Although KHG's vibrant signal boxes have all been painted over, his DIY street art may yet leave a more enduring mark on the city.
~Celeste Pagano, DePaul University College of Law
Tuesday, August 5, 2014
As this is my maiden voyage into the blogosphere, I thought I’d share with you my passion for historic resources and their preservation along with an exciting recent publication. Before ever dreaming of law, or legal academia for that matter, I was studying medieval British history at Oxford University. Due to many experiences in the UK—handling and reading thousand-year-old vellum documents on a regular basis; participating in voluntary archaeological digs for Anglo-Saxon settlements; mapping the phases of urban growth in Oxford; charting extant Romanesque and Gothic survivals in old Oxford buildings and sharing these discoveries with others—I realized more fully how the past enriches the present, and how without an understanding of what has come before, our own lives are less complete.
I’ll never forget eating pizza on the second floor of an old restaurant in Oxford. While munching on a slice, I looked over at one of the walls. During renovations the owners discovered 16th century wall paintings depicting the symbiotic relationship between plants and humans and took steps to preserve these paintings, incorporating them into the ambience of a modern pizza joint. This visible connection between the past and present made me muse about all the people who had eaten (or lived) in this building before, and it made mediocre pizza taste like manna.
Laws governing the management of tangible historic resources—often referred to as Historic Preservation Law and/or Cultural Heritage Law—are rounding into maturity. Given that historic resources encompass many types of law (property law, land use law, natural resources law, environmental law, Native American law) and traverse local, state, tribal, federal and international jurisdictions, there has long been a need for a resource that speaks to those jurisdictions and varied types of law collectively, rather than in silos as the field is typically analyzed
Professor Sara Bronin (University of Connecticut School of Law) and I have recently published such a resource with West Academic: Historic Preservation Law in a Nutshell.
Here is the publisher's blurb: “Historic Preservation Law in a Nutshell provides the first-ever in-depth summary of historic preservation law within its local, state, tribal, federal, and international contexts. Historic Preservation is a burgeoning area of law that includes aspects of property, land use, environmental, constitutional, cultural resources, international, and Native American law. This book covers the primary federal statutes, and many facets of state statutes, dealing with the protection and preservation of historic resources. It also includes key topics like the designation process, federal agency obligations, local regulation, takings and other constitutional concerns, and real estate development issues.”
Click this link to go to Amazon where hardcopy and E-book formats can be purchased.
I hope that this book can be of use to you, and I would welcome any feedback on how it may be improved in future editions.
To some extent, all legal and policy decisions we make today--particularly those concerned with land--are predicated on the past. And in knowing about and respecting the past, we learn more about ourselves. As Shakespeare wrote in the Tempest, "What's Past is Prologue".
Monday, August 4, 2014
This August marks the ninth anniversary of Hurricane Katrina’s devastating collision with the Gulf Coast. New Orleans, of course, did not suffer the direct hit that submerged and leveled the Mississippi Gulf Coast, but the hurricane’s historic tidal surge overwhelmed a poorly maintained and engineered Orleans Parish flood protection system. Lake Pontchartrain’s brackish muddy waters poured through gaping holes in flood walls and levees and submerged 80 percent of the city.
The disaster’s immediate aftermath has been described in thousands of blogs, maps, documentaries, songs, books, articles, and deeply disturbing pictures that are seared into the collective American consciousness. The shockingly poor government agency response at every level has earned “Katrina” a place not only in the American political lexicon, but also in international discourse, alongside “Waterloo”, “Watergate”, and “9.11.” For the past nine years, however, an equally compelling but far less “photogenic” story of long-term recovery has unfolded – glacially at first, then haltingly, and over the past four years at a steadier pace. The flood waters inundated the city in just hours, but the long-term recovery has proceeded as a kind of community development ‘trench warfare’, advancing one street and one block at a time.
Nine years later there are still neighborhoods that show only a faint pulse of life amid boarded houses, car-eating potholes, and jungle-like yards. These are particularly the lower income neighborhoods with pre-storm populations that were predominantly African American. These include neighborhoods such as the Upper Ninth Ward and the Lower Ninth Ward. At the same time, the redevelopment slog that has characterized the long-term recovery has been the catalyst for instances of remarkable investment in, and revitalization of, moribund neighborhood commercial corridors.
Many of the law teachers and development practitioners reading this entry have one or more former students or protégés who have sought out opportunities over the past twenty years in New Orleans or Gulfport, Cedar Rapids or Grand Forks, Tuscaloosa or Galveston, or most recently New York City, New Jersey and Detroit to work with federal, state, and local government agencies and, perhaps even more important, with non-profit and philanthropic organizations who often spearhead long-term recovery and revitalization efforts. The next couple of New Orleans dispatches are intended to serve less as a land use travel log than as a discussion of what
happens during a community's long-term recovery as well as the key skills and proficiencies that our students must have in order to contribute to rebuilding cities. It is no coincidence that non-profit and local government executives point to legal capacity and sophistication as critical and also troublesome components of New Orleans’ long-term recovery. The refrain not infrequently heard is that ‘we lost thousands of dollars’ or ‘weeks of time’ because a developer did not challenge an informal government interpretation of a federal regulation that turned out to be incomplete or based solely on anecdotal experience from a disaster in another jurisdiction. There is no substitute for learning how to read and carefully analyze agreements, local code provisions, or federal regulations.
Over the next few weeks, there will be at least two more dispatches from New Orleans. The first dispatch will be from the Oretha Castle Haley Boulevard (“O.C. Haley”), which begins just a football field’s length from the edge of the New Orleans' Central Business District (CBD) and travels southwest towards the Central City neighborhood, which prior to Katrina reported some of the city’s highest poverty and crime rates. You can follow along by entering the intersection of Martin Luther King, Jr., Boulevard and O.C. Haley Boulevard into your favorite mapping application.
Friday, May 2, 2014
So many interesting sessions here making it hard to choose which panel to attend, but I had to give some more co-blogger love and check out Ken Stahl's paper and the panel on local government law.
Nestor Davidson (Fordham Law School) started the panel off with a talk on administrative law at the local level. fascinating stuff and unquestionably important for us land-usey types. Many land use decisions are made or carried out by local agencies and I had never given much thought to how really different admin law is at the local stage. I was particularly taken aback by the lack of separation of powers and the increased blurring of public and private lines.
Ken Stahl presented a paper/essay/book review building off "The Great American City" by Sampson. Here is the official abstract:
Urban policymakers have long debated whether to focus on people or on places. Give poor people the means to leave deteriorated neighborhoods, or attempt to bolster such neighborhoods by reinforcing the social norms of the community? Direct the police to crack down on low-level crime, or foster informal connections between the police and local institutions? Definitive answers to these questions have been elusive, but Robert Sampson’s new book GREAT AMERICAN CITY provides some needed insight. Sampson demonstrates that people are ineluctable products of their local environments, and he concludes that “place-based” policies that focus on building community are more likely to be successful than policies premised on the assumption of individual mobility and choice. This essay revisits the “people v. places” debate in light of GREAT AMERICAN CITY. Though the book is sure to have a tremendous impact on that debate, Sampson devotes relatively little attention to the policy implications of his work, and thus I attempt to articulate and probe what I see as the book’s major policy implications. Principally, I interpret Sampson’s work as an implicit challenge to the predominant public choice model of local government, which conceptualizes urban residents as mobile individuals who make locational choices regardless of social context. Seen in this light, GREAT AMERICAN CITY raises important questions about the wisdom of policymakers’ longstanding reliance on the public choice model, but also leaves much to speculation. I further argue that in light of Sampson’s findings, efforts to aid disadvantaged communities might be most effective if they undertook to induce people to stay in such communities.
I have not yet read this book and really enjoyed hearing Ken's description and the concerns it raised for him with regard to neighborhood structure and power.
Ashira Ostrow (Hofstra) rounded out the panel with a talk on the strange weighted voting system used in Hudson, NY. Not clear to me (or Ashira) whether the system is constitutional (based on the one person - one vote requirement) but if so it could present an interesting structure for local governments where representative's vote are based on their number of constituents.
Monday, April 7, 2014
Sarah Schindler (Maine) has posted Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms and the Local Food Movement, 2014 Wisc. L. Rev __ (forthcoming). Just in time for the finalizing of my presentation on unauthorized vacant property use for next month's ALPS conference (in Vancouver!). Here's the abstract:
It is becoming more common in many urban and suburban areas to see chickens in backyards, vegetable gardens growing on vacant, forclosed-upon, bank-owned property, and pop-up restaurants operating out of retail or industrial spaces. The common thread tying all of these actions together is that they are unauthorized; they are being undertaken in violation of existing laws, and often norms. In this essay, I explore ideas surrounding the overlap between food policy and land use law, and specifically the transgressive actions that people living in urban and suburban communities are undertaking in order to further their local food-related goals. I assert that while governmental and societal acceptance and normalization of currently illegal local food actions is likely needed for the broader goals of the local food movement to succeed, there are some limited benefits to the currently unauthorized nature of these activities. These include transgression serving as a catalyst for change and as an enticement to participate.
Thursday, November 21, 2013
In the discourse of local government law, the idea that a mobile populace can “vote with its feet” has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout’s seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden.
This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. People today move between — and not just within — metropolitan regions, domestically and even internationally. This is particularly so for a subset of residents — high human-capital knowledge workers and the so-called “creative class” — that is prominently coveted in this interregional competition. These modern mobile residents tend to evaluate the policy bundles that drive their locational decisions on a regional scale, weighing the comparative merits of metropolitan areas against each other. And local governments are increasingly recognizing that they need to work together at a regional scale to compete for these residents.
This Article argues that this intermetropolitan mobility provides a novel justification for regionalism that counterbalances the strong localist tendency of the traditional Tieboutian view of local governance. Contrary to the predominant assumption in the legal literature, competition for mobile residents is as much an argument for regionalism as it has been for devolution and decentralization. In an era of global cities vying for talent, the mobility case for regionalism has significant doctrinal consequences for debates in local government law and public finance, including the scope of local authority, the nature of regional equity, and the structure of metropolitan collaboration.
Friday, November 15, 2013
I no longer follow Georgia news closely, but recently my Facebook feed lit up with multiple article postings and opinions about the Atlanta Braves' plan to build a new stadium in suburban Cobb County, abandoning Turner Field, which they've occupied for only 16 years. Sentiment amongst my friends is running about 20 to 1 against the move. It even merited national attention from a Huffington Post blogger. He brings up the not-unfamiliar criticism that Cobb County has no business spending $450 million on a new stadium when they're furloughing teachers:
Now it seems that Cobb County is one of the 100th wealthiest counties in America, and the 12th most educated. So $450 million must be chump change -- it's not like they're Philadelphia, slashing public school teachers in the face of massive budget cuts. Oh, wait... actually they are sort of like that: "Cobb County's school board approved a 2013-14 budget Thursday night that will result in five furlough days for all employees, the loss of 182 teachers through attrition and a slimmer central administration staff."
The cuts are the result of reduced state aid and lower property tax revenues -- although apparently the lower property tax revenues that are low enough to mean fewer teachers aren't so low that they can't BUILD A NEW BASEBALL STADIUM! For a team that already has what you and I might, sanely, consider a pretty new baseball stadium.
I'm friends with several local government lawyers, and my friend, law school classmate, and former member of the Georgia legislature Rob Teilhet rightly pointed out that building the stadium has no direct relationship to school funding. But, as Land Use Prof chief blogger Matt Festa noted in a blog post he wrote in 2009 on stadium controversies generally, claims are often made that the overall economic development caused by the stadium will benefit the community generally. This project is no exception.
Jamie Baker Roskie
Monday, November 11, 2013
How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.
Friday, November 1, 2013
Marie Boyd (South Carolina) has posted Zoning for Apartments: A Study of the Role of Law in the Control of Apartment Houses in New Haven, Connecticut 1912-1932, 33 Pace L. Rev. 600 (2013). In it, she reviews building records and Sanborn maps to give her reader a complete picture of the restrictions placed on apartment development before and after New Haven's first zoning ordinance in 1926. Here's the abstract:
This article seeks to contribute to the legal and policy debates over zoning by providing a more detailed examination of the impact of apartments on both pre-zoning land use patterns and the zoning process during the formative initial stages of zoning in the United States than has been provided in the literature to date. Specifically, this Article analyzes the impact of apartments on both pre-zoning land use patterns and the zoning process in New Haven, Connecticut. It focuses on the period beginning with the selection of New Haven’s first Zoning Commission in 1922, and concluding with the passage of New Haven’s first zoning ordinance in 1926. Through this detailed historical account of the realities of zoning, this Article demonstrates how — due to delays in the enactment of zoning — New Haven’s first zoning ordinance, rather than shaping the future growth of the regulated area, was instead shaped by existing land use patterns and political considerations.
Wednesday, October 30, 2013
So it's been quite awhile since my last post, but I felt compelled to share the end of the story about putting a Wal-Mart in downtown Athens, Georgia. If you're a longtime reader of the blog you may remember that an Atlanta based developer proposed a mixed-use development, anchored by a Wal-Mart, in the center of Athens. (See my previous post here.) Although Wal-Mart never expressed official interest in the project, many local residents were highly opposed to the idea.
Yesterday the local paper featured a story saying that the developer has now abandoned the project entirely, due to market conditions. The development featured student apartments as its residential component, and downtown Athens is already overbuilt in that category. However, the site, while topographically challenging, is prime real estate. I'm sure as market conditions improve something will eventually be built there.
Jamie Baker Roskie
Friday, September 20, 2013
A new paper on conservation development provides oodles of information about conservation development in the western United States while pinpointing shortfalls with current ordinances. Conservation development for the uninitiated is well... pretty much exactly what it sounds like. It is a land-se planning strategy that requires conservation measures for new development. It can take the form of conservation easements, cluster development, conservation-oriented planned development, etc. A common feature is setting aside some portion of land for conservation in a residential development project. Many counties and local governments have laws promoting conservation development (often pledging faster project review or bestowing density bonuses).
Although not yet available in print, you can get an early view of an article in the upcoming issue of Conservation Biology by Sarah Reed, Jodi Hilty, and David Theobald that examines conservation development ordinances in 11 western states. The authors did an impressive job of reviewing ordinance for 402 counties (97% response rate-- wowzers). As conservation biologists, the authors were interested to see if the county ordinances promoted sound ecological principles. A few interesting things coming out of the study:
- over 30% of the counties actually had conservation development ordinances
- most required protection in perpetuity, but not all
- most required conservation of some portion of the land, but set no minimum sizes on protected area, rarely required connection with other protected lands or even other lands within the site
- very few ordinances required ecological analysis
- only 8% required some type of consultation with an ecologist or conservation biologist
- few required management plans
These are just a few of the points that they make, and I recommend getting the full article to learn more. This is a good article for lawyers and planners to read because it highlights some of the problems we have communicating with each other. One thing they don't answer but I wondered about is how many conservation biologists were consulted when the counties actually wrote the ordinance.
Here is the full title and abstract:
Guidelines and Incentives for Conservation Development in Local Land-Use RegulationsSARAH E. REED, JODI A. HILTY, & DAVID M. THEOBALD
Article first published online: 3 SEP 2013
Effective conservation of biological diversity on private lands will require changes in land-use policy and development practice. Conservation development (CD) is an alternative form of residential development in which homes are built on smaller lots and clustered together and the remainder of the property is permanently protected for conservation purposes. We assessed the degree to which CD is permitted and encouraged by local land-use regulations in 414 counties in the western United States. Thirty-two percent of local planning jurisdictions have adopted CD ordinances, mostly within the past 10 years. CD ordinances were adopted in counties with human population densities that were 3.0 times greater and in counties with 2.5 times more land use at urban, suburban, and exurban densities than counties without CD ordinances. Despite strong economic incentives for CD (e.g., density bonuses, which allow for a mean of 66% more homes to be built per subdivision area), several issues may limit the effectiveness of CD for biological diversity conservation. Although most CD ordinances required a greater proportion of the site area be protected than in a typical residential development, just 13% (n = 17) of the ordinances required an ecological site analysis to identify and map features that should be protected. Few CD ordinances provided guidelines regarding the design and configuration of the protected lands, including specifying a minimum size for protected land parcels or encouraging contiguity with other protected lands within or near to the site. Eight percent (n =11) of CD ordinances encouraged consultation with a biological expert or compliance with a conservation plan. We recommend that conservation scientists help to improve the effectiveness of CD by educating planning staff and government officials regarding biological diversity conservation, volunteering for their local planning boards, or consulting on development reviews.
- Jessie Owley
Friday, August 23, 2013
Tim Iglesias (USF) has recently published Framing Inclusionary Zoning: Exploring the Legality of Local Inclusionary Zoning and its Potential to Meet Affordable Housing Needs, 36 No. 4 Zoning and Planning Law Report 1 (2013). The Report is a West publication, so even if you cannot find the piece on SSRN or bepress, it is available here at Westlaw (login required). Apart from clicking on the link, you can copy the citation above into the Find By Citation box on the Westlaw sidebar.
Tim's briefly examines how opponents and supporters have attempted to frame various kinds of inclusionary zoning ordinances as land use regulation, exactions, rent control or something distinct from all three. His review of leading cases on the validity of local inclusionary zoning measures looks at each of the three frames in turn, with the latter two involving state preemption as well as constitutional issues.
I don't plan on returning to the Land Use Planning course for a few semesters, but I recommend this piece as supplemental reading for students trying to get their heads around the legal vulnerability of inclusionary zoning ordinances, particularly in the wake of Koontz.
Wednesday, July 17, 2013
This past weekend I was in Southern California for a family wedding, and we had the chance to go over to the Getty Museum. It is a spectacular place for many reasons including land use and architecture. Right now, and through July 21, the Getty is featuring an incredibly interesting exhibit called Overdrive: LA Constructs the Future, 1940-1990. It tells the story of how LA was the archetype for American land use and development in the postwar era through the end of the 20th Century.
Amy Hardberger (St. Mary's) has posted World's Worst Game of Telephone: Attempting to Understand the Conversation between Texas's Legislature and Courts on Groundwater, forthcoming in the Texas Environmental Law Review. The abstract:
Groundwater is a critical component of Texas water resources. Currently, groundwater accounts for 60% of all water withdrawn in the state. Historically, the largest groundwater user was the agricultural sector; however, Texas cities are also increasingly reliant on these water sources. State water demands are projected to increase 22% in the next fifty years. Many of these demands will be in the groundwater sector. In addition to increasing demand, periodic and sometimes severe droughts challenge an already stressed system. Texas’s ability to provide sufficient resources depends in large part on their effective management.
This paper evaluates the Day decision through the lens of past court decisions and legislation in an effort to understand why the court ruled as it did. Part II introduces Texas’s groundwater resources, current uses of that water, and present concerns regarding sustainability. Part III chronicles the line of cases that established capture as the common law rule in Texas. Part IV traces the history of groundwater legislation after courts established rule of capture. This legislation created a regulatory overlay on the common law rule of capture through localized groundwater conservation districts and the statewide planning process. Part V describes the process through which the Edwards Aquifer Authority came into existence and why it is different from other groundwater districts in the state in that its strict pumping cap immediately raised property rights concerns. Part VI explains how groundwater litigation shifted from right of capture limitations to questions of when ownership vests. This change was a product of increased pressure on groundwater resources caused by additional regulations and growing population demands.
Finally, Part VII presents three hypotheses regarding why the court came to its decision in the Day case despite the case law history. The first theory is that delineation of property interests is an issue reserved for courts’ authority. Another alternative is that the holding in Day was a result of a statewide shift towards the protection of private property rights above other concerns. The final proposed alternative is that the Day holding was actually an effort to define the property right in such a way as to encourage more regulation or at least limit takings claims through the expansive of correlative rights to groundwater.
Interesting and important--Texas is a huge state with a growing economy and population and an energy boom, and water is going to be a critical issue in the immediate and long-term future.
July 17, 2013 in Caselaw, Environmentalism, Local Government, Oil & Gas, Planning, Property Rights, Scholarship, State Government, Sustainability, Texas, Water | Permalink | Comments (0) | TrackBack (0)