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.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

 

February 12, 2018 | Permalink | Comments (0)

Friday, February 9, 2018

Housing affordability in London - Talking Politics podcast

The Talking Politics podcast has a nice segment on housing affordability in London.  Worth a listen.  Access here.

February 9, 2018 | Permalink | Comments (0)

Yale Center for Private Law accepting applications for 2018-19 Fellow in Private Law

From Sadie Blanchard:

The Yale Law School Center for Private Law is now accepting applications for the 2018-19 Fellow in Private Law. The Fellowship in Private Law is a full-time, one-year residential appointment, with the possibility of reappointment. The Fellowship is designed for graduates of law or related Ph.D. programs who are interested in pursuing an academic career and whose research is related to any of the Center for Private Law's research areas, which include contracts (including commercial law, corporate finance, bankruptcy, and dispute resolution), property (including intellectual property), and torts. More information is available here.    

February 9, 2018 | Permalink | Comments (0)

Thursday, February 8, 2018

Mandelker: New Perspectives on Planned Unit Developments

Daniel Mandelker (Wash U Law) has just published New Perspectives on Planned Unit Developments.  Here is the abstract:

Planned unit developments, also called planned communities, are a major development type. Originally cluster housing projects with common open space, they can be planned today as infill in downtown areas or as a major master-planned community. They require discretionary review, are often dominant in the zoning process, and present a challenge to the zoning system. A threshold question is how municipalities should zone for planned unit developments, and this Article discusses conditional use, base zone, and rezoning alternatives.

This Article next discusses the zoning review process for these developments, which must operate fairly and produce acceptable decisions. Alternatives that can avoid or supplement discretionary review are considered next, and this Article concludes with a discussion of affordable housing as a social responsibility.

February 8, 2018 | Permalink | Comments (0)

Wednesday, February 7, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 6: The Land Use Stabilization Wedge: Transportation: A Series by John R. Nolon

This post is the sixth in a series that will continue over the coming months.

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.

The Land Use Stabilization Wedge: Transportation

by John R. Nolon Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

The second slice of the land use stabilization wedge focuses on transportation, which accounts for over 70% of total demand for oil in the U.S. Americans drove over five million miles in 2014, 70% of that in personal vehicles, which contributes 20.5% of national CO2 emissions. Urban form and carbon emissions from vehicles are closely connected.  In a typical suburban neighborhood, for example, households may require up to 15 vehicle trips a day to commute to work, drive to school, and complete errands. This contrasts to many fewer vehicle trips daily where compact, mixed-use developments are required by local land use law.  Fewer trips translates into fewer vehicle miles travelled, which lowers CO2 emissions.

The Fifth Assessment Report of the IPCC, Chapter 12, targets the shaping of human settlements as a key to climate change mitigation.  It focuses on “the patterns and spatial arrangement of land use, transportation systems, and urban design elements, including the physical urban extent, layout of streets and buildings, as well as the internal configuration of settlements.” Chapter 12 also notes that “areas with a high mix of land uses encourage a mix of residential and retail activity and thus increase the area’s vitality and the aesthetic interest of the neighbourhood.” Land use regulations can ensure attractive buildings, personal neighborhood scales, and amenable green infrastructure. 

These fine points are critical.  Promoting compact, mixed use development by itself may not reduce driving much, particularly if the walking and biking options are not enticing. There is a current debate raging in the urban planning literature on this point, with recent statistical analyses suggesting less correlation between compact, mixed-use development and driving than previously posited.  Common sense and on-the-ground experience, however, make it clear that this type of development, enhanced by livable design, conveniently located shops and amenities, safe passage, and supportive infrastructure, lures many drivers from their cars and lowers trips and miles travelled significantly.  Little can be done to reduce emissions from personal travel without this type of neighborhood development.

The successful development of transit stations and rail and bus lines is dependent upon land use densities and mixed use development. There must be a large enough number of commuters in a transit station area to provide a base level of ridership. In addition, ridership must be sufficiently diverse to ensure that people are traveling to work, to shop, to seek entertainment, and to go home at various times during the day, thereby increasing the cost efficiency of the transit system.

Local land use plans and zoning, which determine population density and building uses, control how much the population will increase over time in a certain area, and what transportation needs new people will have.  This, in turn, dictates the demand for various types of transportation services.  Locally, this planning is done at the neighborhood level and should be guided by objectives contained in the city-wide comprehensive plan.  To make transit systems feasible, land use planning among localities must be coordinated with regional transportation planning and development, which occurs under federal programs in urban areas at the metropolitan-area level.

Even where communities are not served by transit systems, local leaders can create compact, mixed use neighborhoods that reduce car trips and miles traveled.  Zoning controls can limit the size of housing units and combine retail, office, and residential land uses, putting services, shops, and jobs in closer proximity to homes.  Communities not yet served by transit can designate one or more priority growth districts and create overlay zones for them that allow greater densities and more land uses than permitted in the underlying zoning districts.  By clustering development strategically, these growing localities position themselves for future service by commuter rail or bus rapid transit, thereby becoming “transit ready.”

Suburban areas that adopt higher-density, mixed-use zoning will find it easier politically to adopt strong environmental protection ordinances applicable to the land outside high-density zones.  Where state law permits, density bonuses may be provided in denser suburban zones and cash contributions made by developers in exchange.  This money can be used to purchase development rights from landowners in sensitive environmental areas outside the higher-density zone, areas that mitigate climate change through biological sequestration.  This balance between development and conservation can be accomplished within transit-served urban areas as well – highlighting again zoning’s ability to create sustainable settlement patterns and to mitigate climate change.

The strategies described here are generally divided into urban, transit-served neighborhoods, or Transit Oriented Development and denser mixed-use suburban neighborhoods without transit, referred to as Transportation Efficient Development. One of the corollary benefits of concentrating development in these ways is the preservation of surrounding open spaces which enhances sequestration, another mitigation strategy that will be taken up in the next blog. See Climate Change, Zoning and Transportation Planning: Urbanization as a Response to Carbon Loading.

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

February 7, 2018 | Permalink | Comments (1)

Saturday, February 3, 2018

NYU Furman Center seeks Legal Research Fellow / Policy Director

From John Infranca:

Job descriptions are available online at http://furmancenter.org/about/jobs and below.

NYU Furman Center (New York, NY)

LEGAL RESEARCH FELLOW

The Furman Center for Real Estate and Urban Policy at New York University invites applications for a post-graduate legal fellowship. The Furman Center, jointly housed at NYU’s School of Law and its Wagner Graduate School of Public Service, is a leading academic research center devoted to the public policy aspects of land use, real estate development, and housing. The Furman Center’s law fellowships are designed for promising legal scholars with a strong interest in housing, local government, real estate, or land use law. The Fellow’s time is shared equally between independent research on topics of his or her choice in preparation to enter the academic job market, and Furman Center research projects, conducted jointly with faculty members, graduate students, and staff. In recent years, legal fellows have worked on projects addressing the legal impediments to the development of micro and accessory dwelling units in New York and other cities; an empirical and legal analysis of the use of transferable development rights in New York City; the economics and legal issues surrounding mandatory inclusionary zoning; and a number of projects addressing fair housing requirements. The Law Fellow is invited to participate in faculty workshops, colloquia, and other scholarly forums at the NYU School of Law. This two-year fellowship typically begins summer/fall. The position comes with a salary and a generous array of benefits, which include medical, dental and vision.  Further information regarding benefits can be found here:  http://www.nyu.edu/employees/benefit/full-time/Professional-Research-Staff-Code-103.html. Note that this position is considered a Research Scholar at NYU School of Law.

Qualifications:  A J.D. degree, superior academic achievement, excellent writing skills, initiative, and a demonstrated interest in and commitment to scholarship are required.

Applicants should submit a cover letter, curriculum vitae, scholarly writing sample, law school transcripts (unofficial copies are acceptable), and the names and contact information of 3 references. Send application materials and questions to furmanjobs@nyu.edu. Please include “Legal Research Fellowship” in the subject line. Applications will be given consideration until the position is filled. Review of applications will begin immediately and will be evaluated on a rolling basis. Only candidates of interest will be contacted. 

EOE/AA/Minorities/Females/Vet/Disabled/Sexual Orientation/Gender Identity.

 

NYU Furman Center (New York, NY)

POLICY DIRECTOR

The Policy Director leads the effort to link the NYU Furman Center’s research with policy-relevant issues, ongoing public debates, and key stakeholders. He or she also serves as a key point of contact for policymakers and other stakeholders who rely on the Center’s work. The Policy Director serves as a member of the NYU Furman Center’s leadership team.

Primary Responsibilities:

Research Development and Management

●        Identify and monitor pressing policy discussions and debates--in New York City and nationally--to help shape the NYU Furman Center’s research agenda on affordable housing and urban policy issues.

●        Write and edit NYU Furman Center reports, briefs, presentations, talking points, and other products focused on policy analysis and reform.

●        Translate academic research--including the Center’s legal, data, and quantitative analysis--into materials accessible for non-academic audiences.

●        Serve as project manager for select research and policy projects.

●        Supervise and mentor policy staff and/or graduate student research assistants focused on the Center’s policy projects.

 

External Relations

●        Help to elevate the profile of the NYU Furman Center as a leader in the housing policy field.

●        Build and maintain relationships with public officials, private-sector stakeholders, and community groups, and solicit feedback to inform future research and policy work.

●        Oversee the planning and execution of the Center’s key events, including policy breakfasts, webinar briefings, symposia, and roundtables.

●        Represent the NYU Furman Center as a public-facing spokesperson for panels, presentations, and in the media.

●        Participate in the development of research proposals and fundraising strategy in coordination with Directors.

Qualifications:  A J.D., master’s degree in Public Policy/Administration, or an advanced degree in an equivalent field. Minimum of five years of relevant experience preferred, including management experience and a concentration in at least one of the following areas: urban policy, affordable housing, land use, or real estate. Strong writing and communication skills and ability to present quantitative findings are required. The candidate should also have strong organizational, analytical, and project-management abilities; and be comfortable working on a team. Knowledge of federal, state, and municipal housing programs or land use strongly preferred.

The position comes with a salary and a generous array of benefits, which include medical, dental, and vision. Further information regarding benefits can be found here:  http://www.nyu.edu/employees/benefit/full-time/Professional-Research-Staff-Code-103.html.

To Apply:  Applicants should submit a cover letter, resume, writing sample, law/grad school transcripts (unofficial copies are acceptable), and list of 3 references. Send application materials and questions to furmanjobs@nyu.edu. Please include “Policy Director Position” in the subject line. Review of applications will begin immediately. Only candidates of interest will be contacted.

EOE/AA/Minorities/Females/Vet/Disabled/Sexual Orientation/Gender Identity.

February 3, 2018 | Permalink | Comments (0)

Thursday, February 1, 2018

The SCHMOOZE Is On! Texas A&M Real Property Law Roundtable begins today

I am excited to be in Fort Worth for the next few days at the Texas A&M University School of Law’s 2nd Real Property Law Roundtable (aka, Real Property Law “Schmooze”).  The theme this year is "Bridging the Urban Versus Rural Divide."  Below is the current schedule of events:

8:30 a.m. – 8:45 a.m. -- Welcome and Introductions

Lisa T. Alexander

Faculty Co-Director, Program in Real Estate and Community Development Law Professor of Law, Texas A&M University School of Law
Joint Appointment with the Department of Landscape Architecture and Urban Planning in the College of Architecture at Texas A&M University

Thomas W. Mitchell

Interim Dean, Co-Founder & Former Faculty Co-Director, Program in Real Estate and Community Development Law Professor of Law, Texas A&M University School of Law

8:45 a.m. – 10:15 a.m. –Session One – Urban and Rural Land Use and Local Government Law

Moderator: Timothy Mulvaney, Professor of Law & Associate Dean for Faculty Research and Development, Texas A&M University School of Law

Panelists:

Zachary Bray, University of Kentucky College of Law

Flawed and Fragile: State Restrictions on Local Monument Control

Audrey McFarlane, University of Baltimore School of Law

The Properties of Integration: Mixed Income Housing as Discrimination Management

Alan Romero, University of Wyoming College of Law; Director, Rural Law Center

Bridging the Urban Versus Rural Divide in Extraterritorial Land Use Regulation

10:15 a.m. – 11:45 a.m. –Session Two—Urban and Rural Housing Law and Policy

Moderator: Aric K. Short, Professor of Law & Director, Professionalism & Leadership Program, Texas A&M University School of Law

Panelists:

Lisa T. Alexander, Texas A&M University School of Law

Tiny Homes: Bringing Home the Right to Housing

Blake Hudson, University of Houston Law Center

Consenting to Disaster: The Urban Impacts of Rural Climate Change Denial Culture in the U.S. South

Brandon M. Weiss, University of Missouri-Kansas City (UMKC) School of Law

Carrying Coals to Newcastle: A Locational Analysis of State Housing Subsidy Allocation Rules

12:00 p.m. – 1:15 p.m. – Luncheon and Keynote Presentation (Law School Lecture Hall) Distinguished Real Property Law Keynote Speaker:

Joseph William Singer, Bussey Professor of Law, Harvard Law School

Keynote Presentation:Things Invisible to See: State Action and Private Property

1:30 p.m. – 3:00 p.m. – Works in Progress Session Three –The Sharing Economy and Public and Private Property

Moderator: Gabriel Eckstein, Professor of Law & Director, Program in Natural Resources Systems, Texas A&M University School of Law

 Panelists:

Stephen R. Miller, University of Idaho College of Law / Jamila Jefferson - Jones, University of Missouri-Kansas City (UMKC) School of Law

The Sharing Economy Coalesence: Smart Cities, Big Data, Artificial Intelligence and Emerging Real Property Governance Regimes

Vanessa Casado Pérez, Texas A&M University School of Law

Managing Public Property: Curbside Parking

Nadav Shoked, Northwestern Pritzker School of Law

Property Edges

3:00 p.m. – 3:30 p.m. – Break

3:30 p.m. – 5:00 p.m. – Works in Progress Session Four – Ruminations on Bridging the Urban Rural Divide

Moderator: Luz Herrera, Professor of Law & Associate Dean for Experiential Education, Texas A&M University School of Law

Panelists:

Lisa Pruitt, UC Davis School of Law

The Interdependence of Rural and Urban Economies and Livelihoods

Nestor Davidson, Fordham University School of Law

The Dilemma of Localism in an Era of Political Polarization

Rashmi Dyal-Chand, Northeastern University School of Law

Legal Scholarship for the Urban Core: From the Ground Up

 

 

February 1, 2018 | Permalink | Comments (1)

Wednesday, January 31, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 5: The Land Use Stabilization Wedge: Buildings: A Series by John R. Nolon

This post is the fifth in a series that will appear over the coming months.  

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.  

The Land Use Stabilization Wedge: Buildings

by John R. Nolon Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

This blog begins a discussion of discrete strategies to mitigate climate change through land use regulation.  Its focus is buildings. In 2004, Princeton Professor Robert Socolow provided a framework for mitigating climate change through “stabilization wedges,” each capable of preventing at least a billion metric tons of carbon emissions annually using existing technology.   This and the next four blogs describe an alternative: the “land use stabilization wedge.”  Whether, in the aggregate, the existing land use techniques described below and in subsequent blogs will prevent a billion or more metric tons of emissions each year depends on how many, and to what extent, local governments embrace them.  See The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change.

According to the Census Bureau, the U.S. population will increase by over 90 million people during the next 40 years. Using today’s domestic household size, there will be around 34 million new households. Each will require a home and many of them will need workplaces. The 30% increase in population will expand significantly market demand for residential and commercial buildings, as will the need to substantially rehabilitate or replace millions of structures that will age-out during the next four decades.

The most recent EPA Greenhouse Gas Inventory estimates that residential and commercial buildings emit nearly 40% of domestic CO2, consume over 70% of the electricity produced in the U.S., and are responsible for over 40% of total energy used.  

State legislatures adopt energy conservation codes for buildings, which in many states are then adopted, enforced, and enhanced by municipal governments.  Similarly, the land use standards that dictate energy efficiency in new and substantially rehabilitated buildings are created by state and local governments. The size and shape of buildings and their interior spaces, their thermal efficiency, and whether they are served by efficient energy sources are dictated and influenced by zoning and other local land use regulations.  

In a previous blog, the novel idea of requiring large, energy consumptive houses to be more energy efficient was demonstrated by its incorporated into local law in Marin County, California. The County requires large homes under 4,000 sq. ft. to exceed energy conservation code requirements by 15%. If the home is over 4,000 sq. ft., but less than 5,500 sq. ft., it must exceed the state code in efficiency by 20%. For homes between 5,500 and 6,500 sq. ft., the requirement is 30%. Homes over 6,500 sq. ft. must be “net zero energy” users; a goal that green builders can actually achieve.

Energy Star is a voluntary set of standards, one of many that local governments may reference in their zoning and energy code requirements. The Town of Greenburgh, NY, enhanced its local energy code by requiring all new homes to comply with the Energy Star rating system promulgated by the Environmental Protection Agency and the U.S. Department of Energy. Energy Star can achieve energy savings in excess of 30% greater than the base energy code. It governs appliances, heating and cooling systems, the thermal envelope, electrical, ventilation, and equipment efficiency.

Also in New York, the Town of Blooming Grove offers home builders a density bonus under its zoning code to encourage them to adopt Energy Star. The Town awards a 10% increase in the number of homes that can be constructed under local zoning in exchange for making them all Energy Star compliant.

Local land use boards can require developers and their design consultants to follow an integrated design process, where they collaborate during the early stages of the project review process to achieve the greatest possible energy conservation and cost reduction. It is at this stage that decisions can be made about building orientation, form, shading, energy-efficient exterior lighting, window size and location, rooflines and extensions, reflective roofing, height-to-floor ratios, and building features that relate to passive ventilation and cooling.

Using similar powers and administrative techniques, localities can promote the construction of passive homes, both single- and multi-family. Instead of mechanized systems providing heating or cooling, passive buildings rely on the construction materials to use significantly less energy. For example, buildings utilizing the latest US passive house standards will only use 10-25% of the energy of a similarly sized building. Techniques used include thick insulation, exterior air sealing, fluid-applied silicone air barriers over plywood sheathing, triple-paned windows, and high efficiency heat-recovery ventilators.

In Milton, Vermont, a nonprofit developer created multi-family senior apartments, using passive building techniques.  The heating bill for these 30 senior households is expected to be 80% less that the cost of energy required by similarly sized buildings, and even less than what the owners of many single-family homes in the community pay for heat.

For more information on local land use strategies for conserving energy in buildings see  Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation.

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

 

January 31, 2018 | Permalink | Comments (0)

Monday, January 29, 2018

In Memoriam: Peter Appel

From Jamie Baker Roskie:

It is with deep shock and sorrow that I report the death of my friend and mentor, Peter Appel.  Peter was the Alex W. Smith Professor at University of Georgia School of Law.  He had a deep expertise in environmental law, having served as an attorney with the Environment and Natural Resources Division of the U.S. Department of Justice prior to joining the UGA faculty. Peter began teaching at UGA in 1997, shortly before I became a student there.  I took his environmental law and natural resources law courses, and I so enjoyed his teaching.  And then, when I returned to UGA as a faculty member, he welcomed me back warmly and became a mentor and friend.

He was a tough teacher, and he did not brook foolishness in the classroom. I still remember the look he would get when one of my classmates’ cell phones rang in class, or when it was obvious someone hadn’t read the cases.  His exams were epically difficult.  But, he loved teaching and he tried, through goofy jokes, songs, and a general love of the subject matter, to make learning the law joyful. (One of our former students says she still remembers him singing “Tiny Dancer” in his property class. I have no idea why, but I’m sure it reinforced some legal principle.)

Peter was also a leading light in the scholarly community, publishing widely on natural resources issues, including a casebook on wilderness law.  He also continued to teach and mentor folks in the public sector, including teaching regularly at a federal training facility in Missoula, Montana.  He mentored many junior faculty members, and the shock of his passing resonates throughout the legal academy.

I don’t think I ever adequately conveyed to Peter my appreciation for all the knowledge and kindness he provided me through the years.  He was in significant pain the last few years, due to neck and back issues and related surgeries. But we communicated frequently through Facebook messages and emails, and his wit and heart were as keen as ever. 

We will miss you, Peter. The world is a much poorer place for your passing.

 

January 29, 2018 | Permalink | Comments (3)

John Nolon on Contemporary Issues in Teaching Land Use: Question 6:  Introducing the Common Law and the Power of the Pen

[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 6:  How do you introduce students to the common law and the “power of the pen?”

by John Nolon

 

My colleagues have discussed a number of intriguing opportunities in teaching the seemingly inauspicious topics of nonconforming uses, accessory uses, and home occupations.  Another dimension the professor can consider is the issue of investment-backed expectations, which appears in later sections of the casebook, notably in those cases regarding regulatory takings.

When zoning was first adopted, it was feared that if nonconforming uses were not allowed to continue courts might find it unconstitutionally confiscatory.  “How can the law that permitted me to build what I own suddenly draw a line around a district and not allow my use to continue?”  That would be unfair, politically infeasible, and arguably arbitrary and capricious.  The settled expectation of property owners is that their existing investments in development cannot be so summarily treated.  Zoning had to tolerate the nonconforming use.

There is a similar expectation regarding accessory uses. The original zoning codes could not possibly list and permit all the accessory buildings and structures that property owners expect to construct in conjunction with their permitted principal use. “This R zone permits me to build a single-family house; of course I can add a garage, carport, even a swimming pool.” Again, it would be bad politics to prohibit the types of uses that typically accompany principal uses and no neighbor could rightfully complain that buildings next door that are customary, incidental to, and subordinate to the principal uses shouldn’t be allowed.

Harkening back to the Goldman v. Crowder case in Chapter One, why was zoning in Maryland declared unconstitutional simply because Goldman, the tailor, was prevented from stitching a few fabrics in the basement of his four-story townhouse?  Did the Baltimore zoning ordinance not have an accessory use provision? The result of the case must have insured that municipal attorneys nation-wide made sure such provisions were included.

But, as courts remind us, tempora mutantur and overtime accessory uses become hand ball courts, homeless shelters, dance studios, or, God forbid, lawyers’ offices.  They are arguably incidental, secondary, and customarily found in conjunction with single-family uses. Whether they are or not depends on the interpretation of those words by the zoning enforcement officer. When accessory uses begin to clash with the settled expectations of neighbors, they will get political attention and then the zoning is amended to include a list of permitted home occupations, limiting, for example, the number of associates in the lawyer’s home office or the square footage that can be committed to the home occupation.

Returning to the theme of the importance of language, teach students to read accessory use and home occupation sections of zoning codes carefully and apply standard rules of statutory interpretation to them.  Is the list illustrative or inclusive? If illustrative, is my client’s use similar to those listed? Consult the rule of ejusdem generis.   If inclusive, is there a word in that list that is a synonym for the use in questions?

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.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

 

 

January 29, 2018 | Permalink | Comments (0)

Monday, January 22, 2018

Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 6:  Introducing the Common Law and the Power of the Pen

[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 6:  How do you introduce students to the common law and the “power of the pen?”

by Jonathan Rosenbloom

Not only can the areas of nonconforming use and home occupation be glossed over, as both Patty and Stephen suggest, but also they can be so straightforward that they are difficult to teach in an engaging and inspiring way. Patty’s and Stephen’s posts provide several good ideas for teaching these topics in the future. Below, I set forth one additional suggestion. It is a home occupation exercise that I find helpful in livening up the discussion, while providing a real-world introduction to these topics and an opportunity to engage the topics in a way that a land use lawyer may.

This exercise was developed by Keith Hirokawa (Albany). He was generous enough to previously share it with me and has allowed me to discuss it here. For the exercise, the students are asked to determine whether they would be permitted to open a law office in their home as a home occupation / accessory use. Students are asked to draft a short memo (2-5 pages) identifying the regulations and any significant obstructions they face.

One of the first tasks students must do as part of this assignment is to find the relevant city code and map, in my course that would typically be the Des Moines zoning code and zoning map. By the third chapter of the book, we’ve already looked at various portions of the Des Moines zoning code, but possibly not the map. This may be the first-time in the semester that the students are asked to actively combine the map and the code. This exercise provides a good opportunity to make the connection between the code and the map and to discuss how to read a zoning map and how to do so in conjunction with the code—critical land use lawyer skills that are not always part of land use law courses.

The other thing I like about this exercise is that it requires the students to wade through the code to find the relevant provisions for their zoning classification. This part of the exercise requires students to explore the table of contents, which may list over 100 sections. While determining which sections are relevant, students are also learning about what else might be in the zoning code. This provides a good learning opportunity to discuss what they saw in the table of contents and whether they had any questions about what something was or whether anything stood out.

Once students identify the relevant provisions, they find that they are often required to bounce from one section of the code to another. For example, the permitted accessory uses in an R1-60 district in Des Moines are those “accessory uses permitted in the R1-80 district.” Des Moines Code, Sec. 134-413. Thus, students are required to jump over to the R1-80 district, where they will find the following is permitted:

The home office of a[n] . . . attorney . . . in that person's bona fide and primary residence, provided that not more than one assistant shall be regularly employed therein, and no colleagues or associates shall use such office; not more than one-half the area of one floor shall be used for such office; no advertising sign shall be permitted excepting a type A identification sign or a combination of such signs not to exceed one square foot in area.

Des Moines Code, Sec. 134-343. Here again, we have a great opportunity to discuss important parts of the home occupation code. We can discuss why there are limitations on accessory uses and what those limitations are (for example, no associates in an R1-80 district). In addition, the exercise provides an opportunity to discuss other critical accessory uses, such as signs (see last sentence of Sec. 134-343 quoted above), which Stephen described in his prior post.

Finally, the instructions for the memo ask the students to not only identify the key provisions, but also to counsel the client and make relevant recommendations. As Keith noted in an email to me, “A significant part of the exercise is that it is not academic – [the students] need to counsel their client (which happens to be themselves) on the likelihood of success, steps to get there, obstacles and the like. They are required to address the issue as a lawyer and a professional.”

While the exercise is fairly straightforward, it is an all-around excellent one. I think the students enjoy it in that they are engaged in exploring what is permitted on their property. As Keith notes, “student reaction to this exercise has been overwhelmingly positive.  Every time I have assigned this project, the students have raved that it really meant something to realize how land use law works, how to navigate a code, and also how to counsel a client.” The exercise provides a good opportunity to explore some fundamentals in searching a zoning code. And while we are working on fundamentals, the exercise also raises some of the complexities embedded in the map, the code, and the numerous provisions in the code. Overall, the exercise facilitates an excellent introduction and concrete understanding of home occupation.

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.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

 

 

January 22, 2018 | Permalink | Comments (0)

Wednesday, January 17, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 4: Shaping Human Settlements: A Series by John R. Nolon

[This post is the fourth in a series that will appear over the coming months.]  

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.  

Shaping Human Settlements

by John R. Nolon Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

The concept that municipal governments can physically shape their development is not well understood. The uniform, single-use land use pattern originally created by zoning designed communities to accomplish discrete objectives such as protecting child health and safety, controlling traffic congestion, and providing housing and commercial space to meet market demands.  As time progressed, the environmental and economic harm caused by the resultant urban patterns led many local governments to reshape their settlements.

The 1972 Petaluma Plan discussed in the previous post rebalanced the future housing stock of the City through zoning reform that required an even mix of single-family and multi-family housing. The local legislature changed its land use law to achieve more environmentally friendly design, protect open space, create a greenbelt around the community, provide for a variety of housing choices, evenly distribute housing between the east and west sides of the City, and to service growth efficiently.  Only in retrospect do we recognize these strategies as mitigation measures that reduce per capita energy consumption and protect the sequestering environment. 

Petaluma’s reforms were not novel, even in 1972. In 1937, for example, the local legislature in Bridgeport, Connecticut amended its zoning ordinance to allow small commercial developments along major arterials in single-family neighborhoods in order to reduce downtown traffic congestion. As the population increased in Bridgeport’s single-family zones, more and more residents drove to the central business district to shop for goods and services. The commercial uses allowed in these new small districts included hardware, grocery, and drug stores, bake shops, and beauty parlors.  Permitting these developments reduced downtown congestion but also vehicle trips and vehicle miles travelled, one of the largest contributors to CO2 emissions.  This climate change mitigation effect was not on the minds of Bridgeport’s legislators at the time, but the zoning technique they created can be used today to reduce carbon emissions from vehicle travel.

A decade after Bridgeport’s innovation, the Village of Tarrytown, New York, adopted a floating zone to provide affordable garden apartments to attract workers needed for employers whose businesses were essential to stabilize the Village’s real property tax base.  The 1947 zoning ordinance created a floating garden apartment zone, but it did not specify where the dwelling units would be permitted. This was left to private-market developers who could petition the Village legislature for a zoning map amendment, allowing them to build garden apartments. Significant landscaping was required to buffer the effect of multi-family housing in single-family neighborhoods where the new housing type was permitted. By zoning for workforce housing close to jobs and requiring significant landscaping, the Village created a mechanism that communities today can use to mitigate climate change.

In the 1970s, the Town of Ramapo adopted an impressive number of land use tools to control its growth, significantly adding to the land use tool box. Among these were a moratorium on development, a short- and long-term capital budget, a point system linking development with the provision of infrastructure (including open public spaces), the use of special use permits in lieu of as-of-right development, novel land use definitions, permits for small-scale development, and hardship exemptions to prevent regulatory taking claims.  All of these were embodied in a new land use plan designed to allow this suburban community to absorb efficiently the population growth emanating from nearby New York City.

In the 1980s, Omaha reconfigured its urban form by adopting a planned unit development zoning ordinance. This legislative reform permitted the developer to create a large, mixed-use neighborhood, while preserving much of the rezoned acreage as open space. The City entered into a multi-phase agreement with the developer that specified the many details of the development – techniques designed to allow the developer to meet new market needs for mixed-use development and protect the downstream riparian owners from flooding. Indirectly, climate change was mitigated and community resilience promoted by the creation of a walkable neighborhood and the preservation of sequestering open space.

There are many who doubt that parochial local governments can respond in any significant way to the challenge of global climate change. There are, however, many local land use tools available to them that clearly reduce or sequester carbon emissions. The local climate change mitigation tool box has been stocking up for decades. Techniques created for a different purpose are now being used by localities for a highly challenging purpose.  As the first responders to climate-caused disasters and damage, local leaders are highly motivated to act. The wisdom of the IPCC in including shaping human settlements as a critical mitigation strategy in its Fourth Assessment Report is increasingly evident as local governments quicken the pace of adopting such tools to respond to the perturbations of climate change.

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

January 17, 2018 | Permalink | Comments (0)

Tuesday, January 16, 2018

Want a livable city? Move to Australia or Canada

For the seventh year in a row, The Economist has ranked Melbourne the most livable city in the world.  Having just returned from a month in Australia and a week in the world's most livable city, I have to admit that they are doing something right.  I plan to blog about what I saw in Melbourne, and the rest of Australia, over the coming weeks.  Here is the rest of the list, which is dominated by mid-sized global cities in Australia and Canada:

 

Screen Shot 2018-01-15 at 12.19.46 PM

January 16, 2018 | Permalink | Comments (0)

Monday, January 15, 2018

Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 6:  Introducing the Common Law and the Power of the Pen

[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 6:  How do you introduce students to the common law and the “power of the pen?”

by Stephen R. Miller

Patty Salkin’s first post raises a number of interesting and lively issues on subjects—non-conforming uses and home occupations—that many professors (myself included, in some years) might feel they could easily skip.  I wanted to add on to her comments in two ways.

First, as a substantive matter, there are several ways that resources in other parts of the casebook could be combined with this section that could perhaps justify utilizing this material more.  First, signs.  Signs are maybe the hardest non-conforming use to address because their nature is more transient than a building, but they can be lucrative and an important revenue source for many building owners.  Addressing the non-conforming nature of signs in locations that have sign regulations creating non-conformity is a great way into the subject that I think is also intellectually challenging to students.  A discussion of signs and non-conformity could also be paired with the constitutional questions raised by sign regulation that are discussed beginning on page 602.  In addition, home occupation discussions could also be paired with a discussion of short-term rentals and the sharing economy, which is included in the new edition beginning on page 577.  The short-term rental debate rounds out and helps students to re-coneptualize the idea of how hard it can be to classify a “home occupation.”  In both cases, these would be thematic explorations that link non-conformity/home occupations to other legal principles that could justify the time in a tightly-packed syllabus that would otherwise forego them.
 
Second, I thought Patty’s discussion of using non-conformity and drafting was brilliant and something I might try in the future.  Right now, when I teach signs, I use an example in Boise that illustrates precisely the point Patty made, though I only use it in class discussion.  With Boise booming, its size has crossed over the threshold where major national companies are starting to come into the city.  Among them is the sign company Lamar, which is purchasing old, non-conforming “panel” billboards and digitizing them.  The city code has no provision that expressly governs whether replacement of a panel (the old wood-style boards) with a new digital board is a “new sign” thus requiring a new permit.  As a result, the city takes the position that this replacement is a “change of copy.”  I happen to believe this is a misreading of the code.  I know of no other city that takes the position that replacement of a panel with a digital board is a “change of copy,” a term-of-art that usually refers to the swapping out of one ad for another.  Nonetheless, sloppy drafting—or perhaps dated drafting that did not keep up with technological advances—has created a legal conundrum both for the city and the neighborhoods.  I typically raise this example in class because there are several digital billboards now installed near the law school that students generally despise that have been put up without new permits precisely because of this ambiguity in the code.  It is a visceral lesson in how poorly drafting text, or text that does not stay up-to-date with industry changes, can place the city in a difficult situation.

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.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

January 15, 2018 | Permalink | Comments (0)

Thursday, January 11, 2018

Study Space XI:  City Redevelopment, Infrastructure, and Heritage in the Era of Climate Change

We are now accepting applications for Study Space XI:  City Redevelopment, Infrastructure, and Heritage in the Era of Climate Change in Singapore from June 17-22, 2018.  This weeklong workshop is being organized by the Center for the Comparative Study of Metropolitan Growth at Georgia State University College of Law in conjunction with ICOMOS Singapore and the Konrad Adenauer Stiftung Foundation. 

Through daily lectures from leading experts and guided site visits, topics discussed throughout the week will include:

  • Balancing economic goals with natural resources and land limitations
  • Land-use law, urban planning, housing, and equitable and sustainable development
  • Smart city movement, infrastructure finance, and taxation
  • Cultural heritage and historic preservation
  • Land reclamation, environmental law, greenspace preservation, and climate change.

Additionally, through the support of the Konrad Adenauer Stiftung Foundation, this program has been expanded to include a broader, comparative perspective of these issues focusing not only on Singapore but Hong Kong and other Asia Pacific countries.

The cost of the program is $1200 and includes scheduled group meals (see schedule online), speaker honoraria and site visits.  Hotel (estimated at $1200 for the week with breakfast daily), airfare, and airport transportation must be purchased separately. 

You may find more information online at:  http://law.gsu.edu/centers/metro-growth/study-space-xi-singapore/

Applications are due April 6, 2018 but early application is encouraged and space is limited.  No payments are required at the time of application.  Apply online at: https://insidelaw.gsu.edu/study-space/

Download Study Space Singapore Brochure

January 11, 2018 | Permalink | Comments (0)

Wednesday, January 10, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 3: Carbon Emissions: The Land Use Connection: A Series by John R. Nolon

[This post is the third in a series that will appear over the coming months.]  

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC.  

Carbon Emissions: The Land Use Connection

by John R. Nolon Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

Local land use law can permit McMansions: super-large homes that consume outsized quantities of fossil fuel for heating and cooling.  The law that causes the resulting emissions can be changed. Larger houses can be required to be more fuel efficient and home sizes can be capped.  In Marin County, California, for example, a land use regulation requires that the larger the house, the more energy efficient it must be. Houses exceeding 6,500 square feet must be net zero energy users. What architects and engineers can do, the law can embrace. This modest example focuses on the critical fact that residential and commercial buildings contribute nearly 40% of national CO2 emissions.

Alternatively, houses can simply be required to be smaller: to have less space to heat and cool. In Petaluma, California, where zoning initially favored single-family construction, the City rebalanced the future housing stock by adopting the Petaluma Plan to accommodate sudden growth pressures in the 1970s. The plan -- and zoning that implemented it -- limited growth to 500 dwelling units per year. Using an intricate point system, it rewarded builders who proposed projects that conformed to the plan and its environmental design standards. The land use regulations required that housing be evenly divided between single-family and multi-family dwelling units, a consequence of which was less energy consumption and fewer emissions per-capita.

The per capita result is critical. The population of the U.S. is growing and that growth is significant. It matters where and how people live. According to the 2015 New York City Inventory of Greenhouse Gases, the average City dweller emits 6.1 metric tons annually. In Bedford, a sprawling suburb of the City, the average is 25 per capita; in the northern Atlanta suburbs it bulges to 35. Nationally, the per capita average emission metric is 24.5 tons.

Similarly, land use regulations can reduce vehicle miles travelled. The movement of personal vehicles through the built environment contributes over 20% of CO2 nationally. Cars travel to convey their occupants from where they live to where they work, play, shop, and learn. The more distance between these destinations, the more miles travelled and the more emissions. By creating mixed-use, higher density zones around transit stations, local governments can significantly lower carbon emissions. When density is increased for both residential and commercial uses, the distance between origin and destination is shorter, and walking, bicycling, and mass transit services are more feasible. Studies have shown that mixed-use zoning and increased population density decrease automobile ownership and the number of vehicle miles travelled.  

Centering growth has a corollary benefit.  It focuses needed development on urban places and moves it away from more remote open spaces.  In those places, ecological services on which life and prosperity depend are preserved as a consequence. One of those services is the biological sequestration of CO2. Up to 15% of CO2 is sequestered by the natural environment, more if that sequestered by undisturbed soils is counted.  

As sprawling development consumed increasing amounts of open lands during the last quarter of the 20th century and into the 21st, local land use law responded. Its tool box is now full of sequestration-enhancing implements: clustering development, planned unit ordinances, and neighborhood tree canopy enhancement standards, for example. Sustainable neighborhood design standards include green roofs, rain gardens, vegetated swales, xeriscaped lawns, biologically-rich site design, and connected green landscapes. All of these land use laws protect and enhance the biologically sequestering environment and reduce the climate changing emissions from all sources.

The connections between land use law and emissions are demand-side strategies. They either reduce the demand for fossil fuels by lowering energy use in buildings and the emissions attributable to vehicle miles travelled, or they capture the resulting emissions through the natural environment. All told, these strategies address over 70% of emissions.  

These strategies operate in different policy sphere from more traditional GHG mitigation initiatives such as a carbon tax, cap and trade mechanisms, or clean power regulations affecting coal-fired generation. At the national level, these supply-centered strategies are mostly on hold for the duration of the current administration.  The opposite is true of strategies employing land use tools on the demand-side. As demonstrated in the previous post, the Paris Accord embraced these strategies as valued Nationally Determined Contributions to mitigation.

As this story plays out in the U.S., other countries, still committed to top-down, supply- side strategies, can benefit by embracing such grassroots efforts. This combination provides hope that the Paris Accord can effectively counter the worsening evidence of climate change.

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

January 10, 2018 | Permalink | Comments (0)

Tuesday, January 9, 2018

New eminent domain podcast series by attorneys at Locke Lord

The attorneys at Locke Lord have put together a nice collection of podcasts on eminent domain.  You can catch a couple familiar faces in these episodes:

In Episode 13, Professor Jamila Jefferson-Jones joins us to discuss the sharing economy, regulations on short-term rentals, and how such regulations might rise to the level of a unconstitutional taking. 

In Episode 11, Professor Molly Brady from the University of Virginia joins us to discuss damaging clauses and her recent law review article. She has done some great research and is an enthusiastic and informative guest.

In Episode 7, Professor Vanessa Casado Perez of the Texas A&M School of Law in Fort Worth, Texas joins us to discuss water law and how it intersects with the eminent domain world.  We discuss the differing legal systems applicable to water in U.S., the Owens Valley California Water Wars, the Tulare Lake Basin Water Storage District case, the Casitas Municipal Water District Case, and the Edwards Aquifer Authority v. Day case. 

In Episode 4, we are joined by Professor Ilya Somin of the George Mason School of Law. Professor Somin is one of the leading thinkers and writers in the eminent domain community. Professor Somin joins us to talk about Murr v. Wisconsin, but also we veer off into other topics, including property rights in China.

January 9, 2018 | Permalink | Comments (0)

Monday, January 8, 2018

Patricia E. Salkin on Contemporary Issues in Teaching Land Use: Question 6:  Introducing the Common Law and the Power of the Pen

[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 6:  How do you introduce students to the common law and the “power of the pen?”

by Patricia E. Salkin

Although the common law is introduced briefly in Chapter 1 with a 1L property/torts review of the law of nuisance, Chapter 3 offers a nice combination of continuing the conversation of state enabling statutes with the subject of variances, and it segues into areas of the law where we tend not to see much statutory guidance (e.g., nonconforming uses and home occupations) providing a wonderful teaching moment on the tremendous power possessed by the drafters of local land use ordinances.  How do you teach students about local legislative responses to common law when the state does not speak? How can we get students to appreciate and practice drafting skills required for local government lawyers?

The topics of nonconforming uses and home occupations don’t always get the minutes they deserve in land use courses due to the difficulties we all have in allocating the small amount of time in a typical 3-credit class format.  A small handful of states, such as Connecticut, have statutory language acknowledging the existence of nonconforming uses, but the overwhelming majority of states neither define nor uniformly regulate these legally pre-existing uses.  The common law is rich with issues presented by the dilemma of the nonconforming use --- on one hand the use is grandfathered and allowed to continue, but on the other hand, the early pioneers of land use regulation believed that eventually the nonconforming uses would cease and new conforming uses would occupy the land.

Classroom discussions can become passionate over debates of fairness related to property rights in general when it comes to eliminating nonconforming uses and today the debate sharpens within the context of the right (or not) to rebuild and/or repair nonconforming uses following hurricanes, flooding, wildfires and other acts of god (or mother nature).  However, what is “fair” is in the eye of the beholder, and communities, through developed shared values, are able to arrive at articulated “ground rules” in dealing with the nonconforming use challenges. The cases in the book draw attention to key drafting opportunities when it comes to expanding, discontinuing, and amortizing nonconforming uses as well as dealing with uses that have been destroyed through no fault of the property owner.  I again ask the students to refer back to the local zoning ordinance they selected for review in class and we compare and contrast the provisions in the local laws on nonconforming uses.  Students read aloud their ordinance’s approach to abandonment – we discover together through critical reading and analysis of the language that intent is most often not required; that uses may be abandoned after 6 months, 12 months, 18 months or even 24 months depending on the words in the local law; that sometimes the period of abandonment needs to have occurred in consecutive days and other times now.  This leads to the realization that the local legislative body, as the drafter and approver of the local zoning ordinance, has tremendous power in addressing how the municipality will deal with the subject of nonconforming uses.

Another technique to demonstrate the responsibility that comes with the drafter’s “power of the pen” is to give students a short assessment assignment where a client has a pre-existing nonconforming use and due to either a potential discontinuance/abandonment or due to damage/destruction the zoning enforcement officer has determined that the use no longer exists. Give the students a passage from an actual zoning ordinance where the language is either vague or neglects to specifically address the situation at hand. Have the students write a memo to the zoning board of appeals advising them on how to interpret and apply the specific zoning code language to the matter before the board.  This will enable the students to synthesize the common law with local law, and refresh their recollection on rules for statutory construction and drafting introduced in 1L legal process courses.

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.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

January 8, 2018 | Permalink | Comments (0)

Saturday, December 16, 2017

Boise and the Battle for a Sense of Place @ CityLab

The Atlantic’s CityLab published a nice article on Friday about the growth in Boise, especially how it has crescendoed around a proposed CVS that wants to tear down 20-some affordable housing units, three historic-eligible homes, and build an entire block of surface parking in the urban center.  

It is a remarkable story of how this small city is realizing it is growing up, and really fast.  It has choices to make, and the clunky CVS proposal here put those choices in stark relief.  How many times previously have there been over 500 commenters on one project in Boise?  I think never.

I have spent considerable time over my sabbatical advising the community groups—some established, some that seemed to come out of nowhere—to oppose this project.  Sometimes I have wondered if this type of civic activism is making the most of my time on sabbatical (and as a professor), but I do believe that helping growing communities learn the tools to make better places is part of what being a professor is all about.  Sometimes those lessons coalesce around the strangest of projects—here, a banal chain store—but we seize the opportunities as they are presented to us.  

I do hope this is a turning point where Boiseans start to imagine a future beyond what Phoenix, or Las Vegas, or many other Mountain West towns now regret they built for themselves and are trying to undo.  By developing late, Boise has a chance to learn from the mistakes of other places.  But it has to want the better place, and it will have to fight for it.  

December 16, 2017 | Permalink | Comments (0)

Friday, December 15, 2017

CFP: ABA Journal of Affordable Housing & Community Development Law Student Writing Competition

From Tim Iglesias:

The ABA Journal of Affordable Housing & Community Development Law sponsors an annual student writing competition. I'm attaching the competition guidelines to this email. The deadline for submissions is ‪March 3, 2018‬. The winner gets: (1) the article published in the Journal; (2) a $1,000 cash prize; and (3) up to $1,000 reimbursement for hotel (Mandarin Oriental Hotel) and transportation expenses (not to exceed $500) to attend the Forum's Annual Conference occurring ‪May 23-25, 2018‬, in Washington, D.C. where the winner is honored in front of all conference attendees.

See the details in the pdf below:

Download Revised_2018_writing_competition_guidelines.authcheckdam

December 15, 2017 | Permalink | Comments (0)