Tuesday, June 14, 2016
Contemporary Issues in Climate Change Law & Policy, Part 3: Thinking Ecosystems, Providing Water: The Water Infrastructure Imperative, by Keith Hirokawa & Jonathan Rosenbloom
Land Use Prof Blog is hosting a series of posts that are excerpts from book chapters in the recently released Contemporary Issues in Climate Change Law and Policy: Essays Inspired by the IPCC. The book was co-edited by Robin Kundis Craig (Utah) and me. The posts will progress in the order of the book's chapters. This third post is an excerpt from Profs. Keith Hirokawa and Jonathan Rosenbloom's chapter, "Thinking Ecosystems, Providing Water: The Water Infrastructure Imperative." The entire chapter is available here. Links to previous excerpts are at the bottom of this post.
Buy the book here.
III. Greening the Gray: Climate Preparedness through Ecosystem Services Implementation
In this final part, we begin what we hope is a sustained dialog about where and how ecosystem services can be implemented at the local level to help provide water-based services. The areas of focus and the examples below are meant to illustrate the benefits of ecosystem services planning. They also showcase opportunities where cities and communities are investing in ecosystem functionality to ensure that ecosystems performing at a fraction of the cost of built infrastructure while illustrating that implementing ecosystem services at the local level can occur in many ways, from broad-based approaches (such as “low impact development” practices described in Section A) to specific ordinances (such as mitigation of urban forest losses set forth in Section B) [Sections A and B available in full text version at link above]. In addition, ecosystem services may apply to diverse and core local legal instruments, including comprehensive plans, zoning and building codes, and water distribution regulations.
- Low Impact Development
One example of green infrastructure for reducing stormwater impacts has been “low impact development” (LID) practices. LID generally refers to conservation-based land use strategies that minimize impervious surfaces and emphasize the use of natural features and native vegetation as stormwater control tools. Common implementation programs include reduction of lot sizes and parking lot sizes while maintaining overall density (and preserving open space), rooftop capture of stormwater, downspout disconnection, adjusting curb design to capture instead of transport stormwater in vegetated swales, replacing impervious surfaces with permeable surfaces, and increasing vegetation on development sites. Common targets for these practices are parking lots, roads and driveways, street curbs, rooftops and residential and commercial developments. In recent decades, many communities and municipalities have implemented LID practices to control stormwater flows and improve water quality, especially in communities suffering the challenges of combined sewer overflows (CSO).
A study commissioned by Pierce County, Washington, illustrates some potential LID practices in local residential subdivisions. The consultant was directed to evaluate the costs and benefits of implementing green infrastructure solutions to the stormwater impacts caused by new development. The report analyzed a typical lot size, but on atypical developments that incorporated LID practices. The report described the following:
[T]he LID design attempts to reduce the severity of the changes in the landscape thereby reducing the change in the hydrology from the predeveloped state. Mitigation for changes in the landscape are completed as close to the source of runoff as possible with nonstructural [best management practices] such as swales, bioretention areas, and open spaces. If designed correctly and allowed to function without encroachment from incompatible uses these stormwater treatments should function much more like natural systems thereby meeting the goal of maintaining the predeveloped hydrology of the site.
The report identified significant benefits from the use of green infrastructure techniques and provided support for the notion that green infrastructure can facilitate stormwater infiltration at volumes closer to natural and background levels of stormwater control. These designs also incorporate air and water filtration through the protection of vegetation and wetlands, reductions to habitat impacts, and reduced peak flows through groundwater infiltration. Interestingly, the report also identified “non-quantified benefits,” which included a reduction in automobile traffic as a result of the creation of a more walkable neighborhood, as well as environmental literacy benefits by including residents in the water quality process.
The approach set forth in the Pierce County Report exemplifies the initiatives taken by local governments across the nation to infuse infrastructure planning with ecosystem concepts. New York City, for example, has committed roughly $2.4 billion to green infrastructure practices over the next 18 years to integrate green roofs and streets, bioswales, and other natural systems to manage stormwater. This approach is intended to reduce the amount of “contaminant-latent water” flowing into the waterways. The City of Philadelphia has committed $1.2 billion to green infrastructure over the next 25 years to manage stormwater, including the conversion of 9,600 impervious acres into permeable surfaces. Washington, D.C., has proposed nearly $60 million in green infrastructure along its Rock Creek waterway and another $30 million along the Potomac River. These projects will capture pollutants and retain stormwater to prevent flooding, while providing green space and recreational opportunities. Portland, Oregon, has launched a campaign to promote rooftop rainwater capture, downspout disconnection, curb cuts to feed runoff water into bioswales, and permeable road surfaces to complement Oregon’s smart growth system.
These examples of LID practices implement an ecosystem services approach by using natural processes to control and mitigate stormwater flows. As a component of the local land use regulatory process, LID practices integrate resiliency by improving the natural environment and the dependency on gray, temporary solutions.
- Urban Forests as Water Infrastructure
In addition to LID practices, cities are looking to forests to help ensure the provision of water-based services. From the forestry perspective, urban forests are relevant to an ecosystem services analysis because urban trees are engaged where people live, work, and play. From the infrastructure perspective, urban forests are relevant because of the critical and essential services they provide. The shade offered by urban trees results in lower climate control costs. Trees capture air pollutants, provide shelter and food for urban critters, and even contribute community assets such as neighborhood attractiveness and property values. For our purposes here, urban forests also provide substantial stormwater control services by retaining soils and by capturing and filtering stormwater, resulting in cleaner water and reducing flood flows. Urban forests illustrate the importance of ecosystem function and transform our understanding of nature “from amenity to living technology.”
Some local governments protect these values by requiring tree removal applications, imposing stringent tree replacement requirements, and mandating the planting of native species. Other cities incorporate urban forest resources throughout their land use planning scheme because of the significant economic benefits they accrue as infrastructure. For instance, the City of Vancouver, Washington, has noted in its comprehensive plan that, “unlike traditional grey infrastructure capital improvements, such as transportation and water systems, which begin to depreciate as soon as they are installed, green infrastructure accrues value and provides greater services as time passes.” As part of its comprehensive plan, the City of Vancouver has been active in protecting its urban forest resources for some time. Currently, urban forestry is included as part of the city’s compliance with state stormwater control requirements. To protect the benefits of urban trees, the City of Vancouver has created an urban forestry commission, adopted regulations to protect street trees, and regulated clearing in priority habitat areas to maintain “habitat function and value.” In its tree conservation ordinance, Vancouver also regulates the destruction or removal of “any tree” without an approved tree plan. Development applicants under this program are required to preserve any tree that could be protected by selection of a “feasible and prudent location alternatives on-site” for the project. Development applicants must also demonstrate meeting the minimum 30 tree units per acre for most projects.
Vancouver estimates that its tree canopy captures enough stormwater to save $12.9 million in avoided construction costs for stormwater retention structures and $78.3 million in air pollutant removal services. Vancouver estimates an annual net benefit per tree of $1 to $8 for small trees, $19 to $25 for medium-sized trees, and $48 to $53 for large trees. Vancouver has stated:
Improving aesthetics of our community has tangible economic benefits. Systems of open space and bike trails give a community a reputation for being a good place to live and visit. Increased recreational and community activity attracts new businesses and stimulates tourism. Well-maintained trees improve residential “curb appeal” and increase potential buyers’ willingness to pay a 3–7% premium for property. Trees in retail settings increase shoppers’ willingness to pay for goods and services by 12%.
Tree protection programs similar to Vancouver’s stand apart from conventional water infrastructure wisdom. Without pipes and dams to measure, urban forestry programs break free of preferences for the built environment. Yet tree protection programs typically provide added societal benefits and critical functions needed in water infrastructure at a substantially decreased cost and with a longer lifespan.
- City Creation and Infrastructure Planning
A third example of innovative, ecosystem-based infrastructure planning is illustrated in the City of Damascus, Oregon. When Damascus was drawn into the Portland Urban Growth Boundary in 2002, public infrastructure served only 10% of its area. Damascus subsequently incorporated and took on significant infrastructure responsibilities. The cost for constructing built infrastructure and public services was estimated at $3 to $4 billion. In the process of developing a comprehensive land use plan and an ecosystem services master plan, the City prioritized ecosystem services as a component of its utility infrastructure and stormwater management “to forestall increased costs to the citizens of Damascus. These increased costs take the form of built infrastructure to replace the service (as in stormwater management), increased regulatory compliance hurdles (as in Clean Water Act and Endangered Species Act compliance), and loss of quality of life.” The City prepared a public facilities plan that mapped the existing ecosystem services to develop “relative level of service (LOS)” that incorporated the location and quality of the ecosystem services. With input from service providers and the public, Damascus developed an Integrated Water Resource Management Plan (IWRMP) “to establish an integrated, cost-effective, and sustainable approach for providing water, wastewater, reclaimed water, and stormwater services to new and existing development in the City.”
The City of Damascus has not completed its infrastructure, and in likelihood, the road ahead will be complicated. In the summer of 2015, the City was presented with an infrastructure white paper that detailed an accounting of the needs and assets required to maintain an effective water infrastructure. The white paper referred to the City’s ecosystem services obligations in its capital facilities plan. It relied on the capital facilities plan map previously produced that located gray infrastructure based in part on minimizing interruption of ecosystem services. On the other hand, the City has not yet adopted the LID concepts that were intended to govern new development and integrate ecosystem services ideas. Even worse, the white paper does not illustrate the importance of ecosystem services in the accounting for infrastructure needs. Rather, the white paper provides a needs assessment for new pipes and culverts, roads, and treatment facilities.
The example of Damascus is interesting from a resiliency planning standpoint because of the breadth of the challenge: because Damascus’ water infrastructure was, in a sense, starting “from scratch,” it was not bound to conventional formulae and engineering preferences. Under these circumstances, the idea of accounting for ecosystem services and ecosystem vulnerabilities as a launching point for infrastructure planning is a great experiment. In the climate change era, many, if not most, cities will undergo transformation and will bear the burden of reinvention as climatic changes are more extreme and vulnerabilities become more pronounced. Cities will have opportunities to rebuild.
 Pierce County, Pierce County Low Impact Development Study 38–39 (Apr. 11, 2001), available at http://www.co.pierce.wa.us/archives/150/LID%20Report%20final%20complete.pdf.
 Id. at 39.
 Trees in urban areas “soothe eyes and spirits, they shade, they form special places for recreation or relaxation, they provide habitat for birds and other wildlife, they purify the air, and they increase the market value of real estate.” Henry W. Lawrence, The Neoclassical Origins of Modern Urban Forests, 37 Forest & Conservation Hist. 26, 35 (1993).
 E. Gregory McPherson, Accounting for Benefits and Costs of Urban Greenspace, 22 Landscape & Urb. Plan. 41, 41 (1992).
 For instance, the Township of Jackson, New Jersey, has declared that its trees are “important cultural, ecological, scenic and economic resources” and regulates land uses to preserve tree canopy, biomass production, air filtering and oxygen production. Jackson, N.J., Admin. Code §100:A (2003). Applications must be accompanied by a reforestation plan and may be denied where the proposed activity indicates “any negative effect upon ground and surface water quality, specimen trees, soil erosion, dust, reusability of land, and impact on adjacent properties.” Id.; see also New Jersey Shore Builders Association. v. Township of Jackson, 970 A.2d 992 (N.J. 2009) (in which the New Jersey Supreme Court upheld the Jackson Ordinance).
 City of Vancouver, Vancouver Urban Forestry Management Plan 7 (Dec. 2007), available at http://www.cityofvancouver.us/parksrecreation/parks_trails/urban_forestry/pdf/UFMP_final-web.pdf. See also Vancouver Watersheds Alliance, Report of 2014 Activities by the Vancouver Watersheds Alliance Supporting Vancouver’s NPDES Phase II Permit (2014), available at http://www.cityofvancouver.us/sites/default/files/fileattachments/public_works/page/1125/5c_vwa2014annualreport.pdf.
 The purpose of the Urban Forestry Commission for “managing, conserving and enhancing the existing trees located in the parks and public areas owned by the city of Vancouver and in public right-of-way, and thereby enhancing the appearance of the city and protecting an important environmental and economic resource. . . .” Vancouver, Wash. Mun. Code 12.02.010 (2009).
 Vancouver, Wash. Mun. Code 12.04 (2006).
 Vancouver, Wash. Mun. Code 20.740.110 (2009).
 Vancouver, Wash. Mun. Code 20.770.020.A (2004).
 Vancouver, Wash. Mun. Code 20.770.070.B.1 (2004).
 Vancouver, Wash. Mun. Code 20.770.080 (2007).
 City of Vancouver, supra note 36, at 9. In the Vancouver Municipal Code, the City declares that trees are protecting and valuable for the following functions: 1. Increasing the air quality with the absorption of air pollutants, assimilation of carbon dioxide and generation of oxygen, and with the reduction of excessive noise and mental and physical damage related to noise pollution; 2. Minimizing the adverse impacts of land disturbing activities and impervious surfaces on runoff, soil erosion, land instability, sedimentation and pollution of waterways, thus, minimizing the public and private costs for stormwater control/treatment and utility maintenance; 3. Cost-effective protection against severe weather conditions with cooling effects in the summer months and insulating effects in winter; 4. Providing habitat, cover, food supply and corridors for a diversity of fish and wildlife; and 5. Economic support of local property values and contribution to the region’s natural beauty and enhancing the aesthetic character of the community. Vancouver, Wash. Mun. Code 20.770.010 (2004).
 Anita Yap et al., Ecosystem Services & City Planning: The City of Damascus Develops a Model Approach to Public Facilities Planning, Or. Insider 1, 4 (Aug. 2009), on file with the authors.
 Id. at 1.
 Id. at 3, 9.
 Work Session, City of Damascus City Council, Ecosystem Services – Executive Summary from the Tier II Ecosystem Services Report ES-1 (2010), on file with the authors.
 CH2MHILL, Damascus Integrated Water Resources Management Plan ES-1 (2011), available at http://ci.damascus.or.us/References/Misc/Draft_Damascus_IWRMP_07062011.pdf.
 The white paper notes, “In addition to the traditional public facilities, the plan also took into consideration ecosystem services, which are the unique and irreplaceable service provided by the existing natural resources such as air and water quality, stormwater management, erosion control, and fish and wildlife habitat.” Infrastructure White Paper, City of Damascus 3-4 (June 22, 2015), http://www.damascusoregon.gov/AgendaCenter/ViewFile/Agenda/06252015-397.
 Id. at 6–11.
Links to previous excerpts in this series are below:
Monday, June 13, 2016
The latest edition of MIT's Projections, which is written primarily by doctoral planning students with some professors mixed in, focuses upon "new approaches to law and planning." You can download the journal here. In particular, the introductory essay by Karthik Rao-Cavale is of interest as it addresses the relationship between the fields of planning and law and proposes areas of future dialogue that may be especially fruitful. Worth a read.
The University of Houston Law Center will be hosting the 5th Annual State & Local Government Law Works-in-Progress Conference on Friday, October 7, 2016 and Saturday, October 8, 2016. Scholars and practitioners writing in areas related to state and local government law are invited to attend and/or present works in progress. A formal call for papers will follow during the summer. Registration will take place in late August, and the deadline for papers and abstracts will be in mid-September. The conference will provide an opportunity for state and local government law scholars and practitioners to present works-in-progress and receive feedback from colleagues. Questions should be directed to Kellen Zale at firstname.lastname@example.org.
Friday, June 10, 2016
Yesterday I posted about the unveiling of a monument to Euclid v. Ambler Realty, courtesy of Michael Allan Wolf. Prof. Wolf has also kindly shared the comments of former Euclid mayor Paul Oyaski upon the placement of the monument. Mr. Oyaski's comments are reproduced below with his permission:
June 9, 2016 Euclid v. Ambler Realty Historic Marker Dedication
Greetings to Euclid’s 14th Mayor, distinguished guests, friends and neighbors, especially fellow members of the Euclid Historical Society. Every day is a fine day to be in Euclid but today…is an auspicious and historically fine day. We are thankful for the many sponsors that made this marker a reality.
I have been asked to tell the story behind the lawsuit that made the Village of Euclid nationally famous.
In short: Why are we here?
Historic events occur when, at a particular time and place, a battle occurs involving important principles and featuring memorable leading personalities. The resolution of that battle has far reaching impacts. This is what happened with The Village of Euclid v. Ambler Realty. It is also the story of David v. Goliath during the Roaring Twenties.
What were the particular time and place like when this battle began? When the Village Council passed Ordinance 2812 in November 1922, it was only a few short years after the First World War and the worldwide flu epidemic which had caused millions of deaths. Women could vote but no one could drink. The Cleveland Indians had recently won the world series. The Terminal Tower had not been started. Most of the mansions on Millionaire’s Row remained. 796,000 people lived in Cleveland. 84% of county residents then lived in the central city. Today, barely 31% of county residents live in Cleveland.
Euclid was home to less than 4000 residents and less than a thousand dwellings, mostly located near the old downtown area by Chardon and Euclid. 265 people lived in Richmond Heights and only 851 lived in Mentor. Smaller versions of Shore, Central, Noble and Roosevelt schools existed. The Village had two interurban (or, early rapid transit) trains running through it as well as two standard railroads, the New York Central to the north and the Nickel Plate to the south at the rear of this parcel. The Village’s population was less than one percent of that of Cleveland. Euclid’s streets were named, not numbered. E 222nd was Bliss Road, 260th was Upson, 200th was Cutt Road. When the small Village and its leaders took on the major Cleveland property developer Ambler Realty who owned this site, it truly was a case of David standing up to Goliath.
The legal battle between competing interests began when the Village passed the comprehensive zoning ordinance, which set forth detailed rules regulating how all private property could be developed. The ordinance set forth rules for the height of structures, rules for how much of a parcel could be built upon and the major bone of contention, rules limiting how private property owners could use their property, such as single family residential or industrial.
Before government-passed zoning ordinances, differences between private property owners were addressed in civil court by the individuals involved relying on older legal concepts like nuisance, trespass and breach of contract. In keeping with the spirit of the Progressive Era, comprehensive zoning ordinances with a variety of restrictions, especially on the use of private property, were new creations. They were viewed by many as a modern, systematic and efficient way to regulate land use.
Euclid’s zoning ordinance was not the first such ordinance adopted in the United States. But Euclid, the “mere” suburb of giant Cleveland became the target of the first federal lawsuit alleging that the ordinance in its entirety was unconstitutional for violating the due process rights, the liberty interests and the equal protection rights of the owner of this then 68-acre property, Ambler Realty. The Euclid ordinance determined that Ambler’s parcel would have to be used for single or two family residences only along the Avenue. Only the rear portion of this parcel next to the railroad could be used for industrial purposes. Ambler was very unhappy with these restrictions as he saw the maximum value of his private property was greatly reduced. The successful 77 year-old Ambler wanted to decide himself how to best use his property. Industrial use was his preferred choice for his Euclid Avenue frontage.
Euclid’s position was that its elected government, possessing home rule powers under the 1912 Ohio constitution, could legislate what was in the best interests of the public health, safety and general welfare of its residents. Ordinance 2812 was based on the Village’s desire to prevent congestion, to not overburden the sewer and water systems, and to preserve the Village’s character. Euclid’s law pointed out that they had set aside sufficient land for industrial purposes but not at this spot.
The issue of how much power the government has over private property was the crux of the matter that, once resolved, established a long-enduring legal precedent, served as a model for thousands of other communities and rightfully earned us this historical marker.
Who were the key leaders in the battle? The Village was led by its fifth Mayor, Charles X. Zimmerman, 57 years old and a veteran of the Spanish-American War and the First World War and a Brigadier General to boot. The village was represented by lawyer James Metzenbaum, who once lived in a beautiful house on the Avenue near Sherwood Boulevard with his late, beloved wife, Bessie Benner Metzenbaum. The six members of Village Council, including the sponsor of Ordinance 2812, Councilman Cantlon, were unanimous in their support for the innovative ordinance. Just after Ambler filed suit in May, 1923, Euclid offered to compromise by increasing the size of the area for industrial use that could be built next to the railroad. Euclid never budged on its decision that the Euclid Avenue frontage must be residential. The village’s concession did not stop the lawsuit.
The private property owner was Judge William Ambler whose family had developed the still beautiful Ambler Heights subdivision, just east of University Circle. Ambler was represented by Newton Baker, someone who would have been one of the first selections to the Cleveland politicians’ Hall of Fame if there was such a thing. Baker was once the law director for the legendary Cleveland Mayor Tom Johnson, then Mayor himself when City Hall was dedicated and later Woodrow Wilson’s Secretary of War during WW 1. Baker was a founder of the powerhouse Cleveland law firm, Baker and Hostetler, now located in Key Tower. Baker privately considered Euclid’s zoning restrictions as “communistic” in that they took the value of private property and gave that value to the public without compensating the private owner. Baker was a mover and a shaker and he raised several thousands of dollars to cover legal fees and expenses in advance from major property owners, including the two railroads in Euclid. Ambler filed suit initially in the federal district court then found in the new federal building on Public Square. The local federal judge assigned to decide the case was Judge David Westenhaver, Baker’s former law partner whom Baker reportedly encouraged President Wilson to appoint to the bench.
The initial decision by Judge Westenhaver in early 1924 was a total loss for Euclid. He decided that the Euclid law violated the due process clause by taking private property for public use without just compensation. It was discriminatory, confiscatory, exclusionary and unreasonable. Euclid’s law had put private property in a “straitjacket.” Round one of Euclid v. Ambler was a complete victory for the 55 year-old Baker and his client. In those days, an appeal could be made directly to the US Supreme Court led by former President Taft which the Village and Metzenbaum promptly filed.
By all accounts, the 43-year old Metzenbaum was a nervous worry wart as he mounted the appeal, inundating the Court clerk with numerous filings. This would be his only case before the highest court and he was determined to win. It was also said that the village’s attorney was a small man whom the justices had to lean forward to see from the high bench upon which they sat.
There was a first hearing in early 1926 and the results of that hearing had Metzenbaum worried; he urgently and successfully asked the Court for permission to file another brief from his homebound train which was stuck in a blizzard. An unusual second hearing was granted for the fall of 1926 and it included all nine justices. In the meantime, a national planning expert, Alfred Bettman from Cincinnati was permitted to file a brief on behalf of Euclid. In the end, Bettman’s work justifying zoning was considered very helpful to Euclid.
On November 22, 1926, by a 6-3 vote, Euclid won! The famous decision upheld the validity of municipal zoning and is still good law today. Justice Sutherland, once known as one of the four most conservative justices—the so-called Four Horsemen of the Apocalypse- who were generally supportive of private property rights and opposed to government regulation, wrote a thorough opinion upholding Metzenbaum and Bettman’s arguments. Sutherland said that changes in modern society justified a new approach to reviewing the extent of governmental power involving land use issues. His opinion gave deference to local governments, saying the Euclid’s law was not clearly arbitrary or unreasonable and that it was not unrelated to the public health, safety and general welfare. Sutherland was not impressed with the fact that Ambler’s property was worth less under Euclid’s zoning, finding that the village’s regulation was not an unconstitutional taking of the parcel’s entire value. Sutherland noted that most state court decisions had previously upheld the power of zoning under state constitutions. Westenhaver’s lower court decision was reversed.
A key cameo role was played by US Commerce Secretary Herbert Hoover who was then developing the Standard State Zoning Enabling Act, promoting the federal view that states should empower their subdivisions to enact local zoning in the interests of efficiency. Mayor Zimmerman admitted that Euclid relied on an early version of Hoover’s work when the village was studying the subject in 1922.
Euclid’s zoning plan was given the Supreme Court’s seal of approval! The Cleveland City Manager called the decision “revolutionary.” Major US newspapers commented favorably on the decision. The Christian Science Monitor said that it was an answer to an urban reformer’s prayer. And, David had beaten Goliath! Ordinance 2812 is still the law in Euclid, although repeatedly amended. It has been a model for more than 4000 American cities. The bold initiative taken by Mayor Zimmerman and the Village Council was completely vindicated. Thanks to zoning, there are no fast food restaurants on Ball Avenue and no smoke stacks north of the Boulevard. Homes are setback from the street just so far, fences can only be so high, signs so big, and houses must be set apart from one another.
Zoning laws, while not without criticism, led to such newer concepts as environmental protection and historic preservation. Cities can still lose zoning cases today if a court finds the regulations to be arbitrary, discriminatory, unreasonable or based on aesthetics. But zoning stills stands as a municipal watchdog.
In Euclid after 1926, industry, for a time, was limited to the area along and between the railroads until Hitler started invading most of Europe. America prepared to respond. Congress passed a law calling for the increased production of war materials and the federal construction of war plants, including one right here that made airplanes and airplane parts. The Constitution also states that federal laws are the supreme law of the land meaning that the US government is not bound by local zoning. So, long after Judge Ambler and Newton Baker passed away, the Ambler property here was used for industry after all. The need for the Arsenal of Democracy trumped Ordinance 2812.
James Metzenbaum had won his one and only case before the US Supreme Court. His argument and legal skills bested the vaunted Newton Baker. His attention to detail and determination on behalf of the people of Euclid established a lasting precedent. His life after this victory was described as melancholy. His young wife, Bessie Benner Metzenbaum died in 1920 after 15 years of marital bliss. They had no children. Shortly after her death, Mayor Zimmerman had put him to work on the committee that drafted Ordinance 2812. Metzenbaum moved to Cleveland’s Statler Hotel after her death, wrote two popular law casebooks on the Law of Zoning, and ran several times for public office. He bought a farm in Chester Township in the late 1940s. Metzenbaum remained devoted to her wife’s memory. He visited her at Lakeview Cemetery two or three times weekly for the forty years! In fact, Metzenbaum died on New Year’s Eve in 1960 while trying to free his car from a snow drift in Lakeview after his last visit to his beloved Bessie. Metzenbaum’s will left part of the farm in Chester to serve young people and the Metzenbaum Center for the developmentally disabled opened in 1966 and is still hard at work today. The balance of the farm became the beautiful Bessie Benner Metzenbaum Park.
Metzenbaum’s legacy lives on in American jurisprudence, in the community of Euclid he served so diligently and on a beautiful rustic site a short distance from here.
Four score and ten years ago, the mere suburb known as the Village of Euclid, population of less than 4000, boldly passed a visionary law, tenaciously fought to defend that law and won the day before the highest court in the land against formidable opponents. That victory led to the nationwide adoption of zoning laws, and American cities have been forever transformed as a result.
Thank you for allowing me to join you today. Please join us after the reception at the Euclid History Museum at 21129 North Street-just east of the Chardon Road fire station because you will see Euclid v. Ambler Realty is only one small part of this community’s 220 years of pride and progress.
Paul Oyaski June 9, 2016 at 20001 Euclid
Thursday, June 9, 2016
Monday, June 6, 2016
Contemporary Issues in Climate Change Law & Policy, Part 2: Creating Legal Pathways to a Zero Carbon Future, by John C. Dernbach
Land Use Prof Blog is hosting a series of posts that are excerpts from book chapters in the recently released Contemporary Issues in Climate Change Law and Policy: Essays Inspired by the IPCC. The book was co-edited by Robin Kundis Craig (Utah) and me. The posts will progress in the order of the book's chapters. This second post is an excerpt from Prof. John C. Dernbach's chapter, "Creating Legal Pathways to a Zero Carbon Future." Read Prof. Dernbach's entire chapter here. Links to previous excerpts are at the bottom of this post.
Buy the book here.
The Challenge of the Carbon Budget
The challenge posed by climate change is both urgent and enormous. It is also daunting: it requires that the world, as a whole, move as soon as possible from the current situation of increasing greenhouse gas emissions to rapid reductions in greenhouse gas emissions. A recently developed concept—the carbon budget—provides a way of understanding both the magnitude of this challenge and possible pathways for an effective response.
The objective of the U.N. Framework Convention on Climate Change is “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” In 2010, the Conference of the Parties to the Convention translated the stabilization objective into a maximum permissible surface temperature increase—2 degrees Celsius (or 3.6 degrees Fahrenheit) above preindustrial levels. Parties, it said, “should take urgent action to meet this long-term goal, consistent with science and on the basis of equity.” In addition, it stated the importance of “strengthening the long-term global goal on the basis of the best available scientific knowledge, including in relation to a global average temperature rise of 1.5 °C.” The Paris Agreement, which was adopted unanimously by the Conference of the Parties in December 2015, stated the objective in terms of both temperatures—to hold “the increase in the global average temperature to well below 2 °C above pre-industrial levels,” and to “pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.”
The IPCC has translated the 2°C limit into a carbon “budget”—a numerical limit on all additional emissions, cumulatively, for the rest of the century. It concluded that this budget is between 630 and 1,180 gigatons of carbon dioxide equivalent. That range represents the cumulative total of all new emissions of carbon dioxide equivalent between 2011 and 2100. If cumulative emissions do not exceed the figures in that range, the IPCC states, it is “likely” that global average temperatures will stay below a 2°C increase. To have a “likely” chance of staying within this budget, IPCC says, global greenhouse gas emissions need to be 40% to 70% lower by 2050 and “near zero” gigatons of carbon dioxide equivalent or “below” by 2100.
Several points of caution are needed to understand this carbon budget. First, there is a one in three chance that, on its own terms, the budget will not succeed. The term “likely”—as used by both the Conference of the Parties and the IPCC—means that the chance of a particular outcome is greater than 66%, or two out of three. To put this probability in perspective, it helps to recall that the U.S. Environmental Protection Agency (EPA) has traditionally regulated chemicals under its major statutes when they create a risk of cancer of between one in 10,000 and one in 10 million. Cancer risks from chemicals are different from the risks of climate change, of course, but the contrasting probabilities are striking nonetheless. Even in Russian roulette, a player has only a one in six chance of dying.
Second, other calculations of a carbon budget provide even less time to reduce emissions that low. The writers of a frequently cited 2009 paper in Nature, for example, focused on the time period between 2000 and 2050, not 2000 and 2100, and calculated carbon budgets to avoid exceeding a 2°C increase based on cumulative emissions in the first half of this century. Given past and projected emissions, they conclude, “we would exhaust the CO2 emission budget by 2024, 2027 or 2039, depending on the probability accepted for exceeding 2°C (respectively 20%, 25% or 50%).” The International Energy Agency states that, with business-as-usual emissions, the remaining carbon budget (based on a 50% chance of keeping the temperature increase below 2°C) will be exhausted around 2040. Others, including James Hansen, are less certain that the world can increase global temperatures by 2°C without severe adverse consequences. They argue that 1.5°C, or an even lower temperature limit, would be even better. The Paris Agreement appears to be based on a recognition of these concerns, aiming to keep the temperature increase “well below 2 °C” and indicateing the desirability of holding the increase to 1.5°C. Of course, the carbon budget to stay below a 1.5°C increase is even smaller, and hence it is more likely that the world will exceed it.
Third, operationalizing this budget requires that it be allocated by nation based on population, historical contribution to global atmospheric greenhouse gas concentrations, development status (developed vs. developing), equity, and other factors. The question of each nation’s “fair share” of the budget is both essential and highly contested.
At the same time, if business as usual continues, and the growth of greenhouse gas emissions continues to accelerate, the world will simply blow by the budget and considerably exceed global average temperature increases of 2°C. According to the IPCC, emissions of carbon dioxide equivalent are increasing by about 1 gigaton annually, were the highest in human history between 2000 and 2010, and in 2010 alone reached 49 gigatons. Half of cumulative anthropogenic (human-caused) carbon dioxide emissions have occurred in the last 40 years. These increases are occurring in spite of the efforts that have been made thus far to reduce greenhouse gas emissions. The IPCC thus concludes:
Without additional efforts to reduce GHG emissions beyond those in place today, emissions growth is expected to persist driven by growth in global population and economic activities. Baseline scenarios, those without additional mitigation, result in global mean surface temperature increases in 2100 from 3.7 °C to 4.8 °C compared to pre-industrial levels. . . .
A variety of other projections based on business-as-usual emissions growth also put the world on track for a temperature increase of at least 4°C.
A 2012 report for the World Bank by the Potsdam Institute for Climate Impact Research and Climate Analytics describes the impact of a 4°C temperature increase by 2100 as disastrous. Such a world, the report said, would be “one of unprecedented heat waves, severe drought, and major floods in many regions, with serious impacts on ecosystems and associated services.” The report adds:
[G]iven that uncertainty remains about the full nature and scale of impacts, there is also no certainty that adaptation to a 4°C world is possible. A 4°C world is likely to be one in which communities, cities and countries would experience severe disruptions, damage, and dislocation, with many of these risks spread unequally. It is likely that the poor will suffer most and the global community could become more fractured, and unequal than today.
In the 2015 Paris Agreement, “Parties aim to reach global peaking of greenhouse gas emissions as soon as possible…and to undertake rapid reductions thereafter…so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century….” This “balance” means that net greenhouse gas emissions should be zero by that time. Serious efforts to address the carbon budget must begin as soon as possible. As economist Nicholas Stern summarizes the available scientific literature, the window for keeping temperatures under 2°C “is still open, but is closing rapidly.”
 Fred Pearce, What Is the Carbon Limit? That Depends Who You Ask, environment360, Nov. 6, 2014, http://e360.yale.edu/feature/what_is_the_carbon_limit_that_depends_who_you_ask/2825/.
 United Nations Framework Convention on Climate Change, art. 2, May 29, 1992, S. Treaty Doc. No. 102-38, 1771 U.N.T.S. 107. U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 I.L.M. 849.
 Conference of the Parties, United Nations Framework Convention on Climate Change, Decision 1/CP.16 (The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention) ¶ 4, in Report of the Conference of the Parties on its Sixteenth Session, Held in Cancun from 29 November to 10 December 2010, Addendum, Part Two: Action taken by the Conference of the Parties at its sixteenth session, FCCC/CP/2010/7/Add.1 (2011), available at http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf.
 Id. That translates to 2.7 degrees Fahrenheit.
 United Nations Framework Convention on Climate Change, Conference of the Parties, Paris Agreement, art. 2.1(a), in Decision 1/CP.21 (Adoption of the Paris Agreement) (2015), U.N. Doc. FCCC/CP/2015/L.9/Rev.1, available at https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf.
 2014 IPCC Mitigation Report, supra note 3, at 431. A gigaton is one billion tons. Carbon dioxide equivalent includes all greenhouses gases measured according to the warming potential of carbon dioxide.
 Id. at 441. Working Group I reached a slightly different estimate about the budget—1,010 additional gigatons of carbon dioxide equivalent. 2013 IPCC Physical Science Report, supra note 1, at 27. Working Group I used a slightly different methodology and did not use ranges. 2014 IPCC Mitigation Report, supra note 3, at 441.
 2013 IPCC Physical Science Report, supra note 1, at 13.
 Id. at 4, note 2.
 John D. Graham, The Legacy of One in a Million, Risk in Perspective 1-2 (1993) (Harvard Center for Risk Analysis), available at http://www.hsph.harvard.edu/wp-content/uploads/sites/1273/2013/06/The-Legacy-of-One-in-a-Million-March-1993.pdf.
 Malte Meinshausen et al., Greenhouse-Gas Emission Targets For Limiting Global Warming To 2 °C, 458 Nature 1158 (2009).
 Id. at 1159.
 International Energy Agency, Energy and Climate Change: World Energy Outlook Special Report, Executive Summary 2 (2015), available at http://www.iea.org/publications/freepublications/publication/WEO2015SpecialReportonEnergyandClimateChangeExecutiveSummaryUKversionWEB.PDF.
 James Hansen et al., Assessing “Dangerous Climate Change”: Required Reduction of Carbon Emissions to Protect Young People, Future Generations and Nature, 8 PLOS One e81648 (2013). See also Jeff Tollefson, Global-warming Limit of 2 °C Hangs in the Balance, 520 Nature 14 (Apr. 2, 2015).
 Donald A. Brown, Climate Change Ethics: Navigating the Perfect Moral Storm (2012); Fred Pearce, The Trillion-Ton Cap: Allocating The World's Carbon Emissions, environment360, Oct. 23, 2013, at \http://e360.yale.edu/feature/the_trillion-ton_cap_allocating_the_worlds_carbon_emissions/2703/.
 2013 IPCC Physical Science Report, supra note 1, at 6.
 Id. at 7.
 Id. at 6.
 Id. at 8.
 Sustainable Development Solutions Network & Institute for Sustainable Development and International Relations, Pathways to Deep Decarbonization 4 (2014), available at http://unsdsn.org/wp-content/uploads/2014/09/DDPP_Digit_updated.pdf.
 International Bank for Reconstruction and Development/World Bank, Turn Down the Heat: Why a 4°C Warmer World Must be Avoided (2012), available at http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2015/07/17/090224b0828c33e7/1_0/Rendered/PDF/Turn0down0the00orld0must0be0avoided.pdf.
 Id. at ix.
 Id. at xviii.
 Paris Agreement, supra note 9, art. 4.1.
 Nicholas Stern, Why are We Waiting? The Logic, Urgency, and Promise of Tackling Climate Change 32 (2015).
Below is a list to previous excerpts in this series:
Tuesday, May 31, 2016
It's summer, and that means I'm turning to several writing projects, some reading, and also some great travel. For those reasons, I won't be blogging much until August but for the ongoing series of excerpts from my new book with Robin Craig, the first of which appeared earlier this week.
I look forward to seeing you all again on the blog in the fall!
Monday, May 30, 2016
Contemporary Issues in Climate Change Law & Policy, Part 1: Climate Change, Sustainable Development, and the IPCC’s Fifth Assessment Report, by Robin Kundis Craig
Beginning this week, Land Use Prof Blog is hosting a series of posts that are excerpts from book chapters in the recently released Contemporary Issues in Climate Change Law and Policy: Essays Inspired by the IPCC. The book was co-edited by Robin Kundis Craig (Utah) and me. The posts will progress in the order of the book's chapters. We begin today with an excerpt from Prof. Craig's chapter, "Climate Change, Sustainable Development, and the IPCC’s Fifth Assessment Report." Read Prof. Craig's entire chapter here.
Buy the book here.
In this excerpt, Prof. Craig argues that there are three models of sustainable development that have emerged in relationship to environmental law. Citations are omitted.
Sustainable development emerged at about the same time as scientists were becoming convinced that climate change was occurring and that humans had something to do with it. While the International Union for the Conservation of Nature (IUCN) dates the concept of sustainable development to its 1969 mandate and the 1972 United Nations Conference on the Human Environment (Stockholm), the World Commission on Environment and Development’s (also known as the Brundtland Commission’s) 1987 report, Our Common Future, is generally credited with launching sustainable development as an international governance goal. Indeed, that report provided the most common definition of sustainable development: “Development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” Sustainable development goals were further operationalized in 1992 at the “Earth Summit” in Rio de Janeiro, Brazil, particularly in Agenda 21. Sustainable development also became one of the United Nations’ eight Millennium Development Goals in 2000.
Sustainable development has been defined and redefined a number of times in a number of ways. Literally, as sustainable development textbook author Jennifer Elliott has noted, “sustainable development refers to maintaining development over time." More importantly, pursuers of sustainable development make different assumptions about the relationship between human beings and the environment. Such differing assumptions are evident in the three models of sustainable development—the “three pillars” model, the “interlocking circles” model, and the “nested circles” model—all three of which describe the relationships among society and social welfare, the environment, and economic development.
The three pillars model (Figure 1) “confirm[s] the need to consider the social, ecological and economic arenas together and equally” to achieve sustainable development, but it does not clearly depict the interconnections among the three pillars. In particular, the three pillars model does not acknowledge that economic development and social well-being, as well as sustainable development, depend upon well-functioning ecosystems that can continue to deliver goods and services. In other words, the three pillars model suggests that social and economic systems (or socioeconomic systems) can exist and function independently of the environment, when in fact all social and economic systems are socio-ecological systems.
This conceptual view of the social and economic pillars as independent helps to explain the difference between “weak” and “strong” sustainability. “Weak” interpretations of sustainable development view human and physical capital as adequate substitutes for natural capital in the environment in terms of “the total capital stock passed onto the next generation. . . .” In this view, for example, an increase in roads might be deemed an adequate substitute for loss of wetlands in terms of resources left to the next generation. Weak sustainability perspectives thus underplay the ultimate dependence of all human societies and economies on functional ecosystems. In contrast, “[s]trong sustainability demands the protection of critical natural capital because once lost, these assets are lost forever, and they cannot be recreated.” “Critical natural capital” are the natural resources “required for survival,” including both functional resources such as the ozone layer and valued resources such as rare species or species helpful to medical care.
Unlike the three pillars model, the interlocking circles model of sustainable development (Figure 2) more clearly communicates “the need to integrate thinking and action in sustainable development across traditional disciplinary boundaries and established policy-making departments. . . .” Indeed, the IUCN, in its Programme for 2005–2008, adopted “the interlocking circles model to demonstrate that the three objectives need to be better integrated, with action to redress the balance between dimensions of sustainability. . . .” The middle area of overlap represents the area in which the goals of all three spheres are all maximized—i.e., “the possibility of mutually supportive (‘win-win-win’) gains” in all three areas (economic, social, and environmental) simultaneously. Moreover, “[t]he small area of overlap relative to the whole sphere portrays the unsustainable nature of much activity, but also opens the idea of the potential to expand this area of positive overlap.”
this model supports understandings that achieving sustainable development in practice regularly involves trade-offs across the different spheres; that difficult choices have to be made at particular points in time and at particular scales as to what is being pursued and how; that certain goals can be compromised in the achievement of others; and that any action will carry unequal impacts for particular interests and for groups of people. An important but often overlooked aspect of the overlapping spheres model is the concept of tradeoffs. Specifically, the small area in the center representing true sustainable development is the product of tradeoffs among the three areas. As such,
this model supports understandings that achieving sustainable development in practice regularly involves trade-offs across the different spheres; that difficult choices have to be made at particular points in time and at particular scales as to what is being pursued and how; that certain goals can be compromised in the achievement of others; and that any action will carry unequal impacts for particular interests and for groups of people.
The interlocking circles model thus also supports the idea that sustainable development requires systems thinking—that is, an approach that acknowledges that society, economic development, and the environment exist as complex interactions rather than isolated arenas. The IUCN, for example, has identified “two fundamental issues” for sustainable development, “the problem of environmental degradation that so commonly accompanies economic growth, and yet the need for such growth to alleviate poverty.”
However, like the three pillars model, the interlocking circles model treats the three areas of focus as equal and somewhat commensurable—i.e., it suggests no limits on humans’ ability to trade improvements in one sphere (say, economic development) for degradations in another (say, the environment). As such, the interlocking spheres model, like the three pillars model, can support a weak sustainability approach that undermines the environmental “bottom line” of human existence.
Environmental limits do emerge, however, in the third model of sustainable development, the nested circles model (Figure 3). In this model, “the spheres of economy and society are shown as embedded in a wider circle of ecology,” portraying “an understanding of environmental limits setting boundaries within which a sustainable society and economy must be sought.” Furthermore, this model acknowledges that “activities that damage the functioning of natural systems ultimately weaken the basis of human existence itself.” Thus, this model underscores that the societal and economic goals within sustainable development ultimately depend on a rich and well-functioning environment that supplies at the very least critical natural capital and preferably more extensive ecosystem goods and services.
Tuesday, May 24, 2016
Obama signs executive order requiring federal buildings in the WUI to meet wildfire-preparedness standards
With wildfire season just around the corner, President Obama executive order last week drew new attention to codes that can significantly reduce the effects of wildfire on buildings in the wildland-urban interface. Here is the the order:
WILDLAND-URBAN INTERFACE FEDERAL RISK MITIGATION
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to improve the Nation's resilience to wildfire, I hereby direct the following:
Section 1. Policy. It is the policy of the United States to strengthen the security and resilience of the Nation against the impacts of wildfire. The annual estimates on structure loss due to wildfire have increased dramatically over the past six decades as a result of multi-year drought conditions in combination with accumulated fuel loads, growing populations residing in the wildland-urban interface, and associated increases in the exposure of built environments. As such, we must continue to ensure our Nation is resilient to wildfire in order to promote public safety, economic strength, and national security.
The Federal Government must continue to take proactive steps to enhance the resilience of buildings that are owned by the Federal Government and are located on Federal land. Each executive department and agency (agency) responsible for implementing this order shall seek to enhance the resilience of its buildings when making investment decisions to ensure continued performance of essential functions and to reduce risks to its buildings' occupants in the event of a wildfire.
Sec. 2. Codes and Concurrent Requirements. (a) Commencing within 90 days of the completion of the implementing guidelines as described in section 3(b)(i) of this order, each agency shall ensure that every new Federal building above 5,000 gross square feet on Federal land within the wildland-urban interface at moderate or greater wildfire risk for which the agency has not completed design is in compliance with the 2015 edition of the International Wildland-Urban Interface Code (IWUIC) promulgated by the International Code Council (ICC), or an equivalent code, consistent with the provisions of and to the extent required by 40 U.S.C. 3312. When the ICC releases a new version of the IWUIC, a determination shall be made whether the new version is a nationally recognized code for the purposes of 40 U.S.C. 3312(b), as expeditiously as practicable, but not later than 2 years after the release of the new version. If a determination is made that a new version is a nationally recognized code, agencies shall ensure that any Federal building covered by this section for which the agency has not completed design is in compliance with that new version, or an equivalent code, consistent with the provisions of and to the extent required by 40 U.S.C. 3312.
(b) Commencing within 90 days of the completion of the implementing guidelines as described in section 3(b)(i) of this order, each agency responsible for the alteration of an existing Federal building above 5,000 gross square feet on Federal land within the wildland-urban interface at moderate or greater wildfire risk for which the agency has not completed design shall ensure that the alteration is effectuated in compliance with the IWUIC, or an equivalent code, consistent with the provisions of and to the extent required by 40 U.S.C. 3312. When the ICC releases a new version of the IWUIC, a determination shall be made whether the new version is a nationally recognized code for the purposes of 40 U.S.C. 3312(b), as expeditiously as practicable, but not later than 2 years after the release of the new version. If a determination is made that a new version is a nationally recognized code, agencies shall ensure that any Federal building covered by this section for which the agency has not completed design is in compliance with that new version, or an equivalent code, consistent with the provisions of and to the extent required by 40 U.S.C. 3312.
(c) Each agency that owns an existing Federal building above 5,000 gross square feet on Federal land within the wildland-urban interface at moderate or greater wildfire risk is strongly encouraged to ensure that such existing buildings are in compliance with the IWUIC, or an equivalent code.
(d) The heads of agencies whose activities are covered by sections 2(a) and 2(b) of this order shall complete a wildfire risk assessment of their existing Federal buildings above 5,000 gross square feet within the wildland-urban interface and are strongly encouraged to consider creating and maintaining a defensible space in compliance with the IWUIC, or an equivalent code, for each of those buildings they determine to be at highest risk.
(e) Each agency that leases space in a building to be constructed for the predominant use of an agency above 5,000 rentable square feet in the wildland-urban interface in an area of greater than moderate wildfire risk is strongly encouraged to ensure that the building is designed and constructed in accord with the IWUIC, or an equivalent code.
(f) Each agency assisting in the financing, through Federal grants or loans, or guaranteeing the financing, through loan or mortgage insurance premiums, of a newly constructed building or of an alteration of an existing building above 5,000 gross square feet within the wildland-urban interface at moderate or greater wildfire risk shall consider updating its procedures for providing the assistance to be consistent with sections 2(a) and 2(b) of this order, to ensure appropriate consideration of wildfire-resistant design and construction.
(g) To the extent permitted by law, the heads of all agencies may:
(i) require higher performance levels than exist in the codes described in section 2(a) of this order;
(ii) apply the requirements within section 2(a) of this order to new buildings less than 5,000 gross square feet on Federal land within the wildland-urban interface at moderate or greater wildfire risk; and
(iii) apply the requirements within section 2(b) of this order to existing buildings less than 5,000 gross square feet on Federal land within the wildland-urban interface at moderate or greater wildfire risk.
(h) When calculating whether a building is at moderate or greater wildfire risk, agencies should act in accordance with the methods described in the 2015 edition of the IWUIC, or any subsequent version that is determined to be a nationally recognized code for the purposes of 40 U.S.C. 3312(b), or an equivalent code, or in accordance with an equivalent method.
(i) Each building constructed or altered in accordance with section 2(a) or (b) of this order shall comply with the IWUIC, or an equivalent code, only to the maximum extent feasible as determined by the head of an agency.
Sec. 3. Agency Responsibilities. (a) The heads of all agencies that own Federal buildings above 5,000 gross square feet on Federal land within the wildland-urban interface at moderate or greater wildfire risk shall determine the appropriate process within their respective agencies to ensure compliance with this order.
(b) The Mitigation Framework Leadership Group (MitFLG) shall:
(i) create implementing guidelines to advise and assist agency compliance with the code requirements within 240 days of the date of this order;
(ii) provide assistance to the agencies in interpreting the implementing guidelines.
(c) When determining whether buildings are located within the wildland-urban interface, agencies shall use the U.S. Department of Agriculture Forest Service's, "The 2010 Wildland-Urban Interface of the Conterminous United States," or an equivalent tool. The Secretary of Agriculture shall provide assistance to the agencies in determining whether buildings are located within the wildland-urban interface.
(d) The heads of agencies whose activities are covered by sections 2(a) and 2(b) of this order shall submit a report once every 2 years to the Chair of the MitFLG on their progress in implementing the order, commencing 2 years from the date of this order.
Sec. 4. Definition. As used in this order, "building" means a constructed asset that is enclosed with walls and a roof that provides space for agencies to perform activities or store materials as well as provides spaces for people to live or work.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law, including the National Historic Preservation Act of 1966, and subject to the availability of appropriations.
(c) This order applies only to buildings within the United States and its territories and possessions.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
THE WHITE HOUSE,
May 18, 2016.
Monday, May 23, 2016
As I noted in an earlier post, the two Colorado fracking decisions that came down this month seem to provide local governments some wiggle room for regulating fracking. The decisions seem to indicate that local governments cannot do a ban, and that a five-year moratorium is more like a prohibited ban than a permitted local land use control. So, what about a two-year moratorium? Or a six-month moratorium? Or a one year moratorium where you employ some experts to do studies? This seems to be the new frontier in Colorado. From NGI Shale Daily (via Jamie Baker Roskie):
Reacting to a recent Colorado Supreme Court ruling, Boulder County commissioners on Thursday imposed a new six-month moratorium on hydraulic fracturing (fracking) after lifting a four-year prohibition that had been in place for unincorporated portions of the county. The ban will last through Nov. 18.
On May 2, Colorado's high court struck down a ban and moratorium on fracking by the cities of Longmont and Fort Collins, respectively, siding with the oil/natural gas industry and affirming that the local government actions were preempted by state law making them invalid and unenforceable (see Shale Daily, May 3).
Boulder County elected officials lifted their "timeout" on accepting and processing new oil/gas development applications, which was to be effective through July 1, 2018, replacing it with the six-month ban, which they said was needed to take public comments and adopt updates to the county's land-use and environmental regulations covering oil/gas operations.
Officials said their actions were prompted by the state Supreme Court ruling against local bans. The county's ban goes back to 2012 and has been extended several times (see Shale Daily, June 21, 2013).
Colorado Oil and Gas Association CEO Dan Haley was somewhat skeptical about the county action, noting “only Boulder County ends a moratorium by creating a brand new one; [it] has had years to consider new rules and regulations, but has failed to do so.
“We will watch carefully to see if the county is sincere in enacting oil/gas regulations within the context of the recent Supreme Court ruling, or if this is just a ploy to extend their previous moratorium and it's business as usual.” Haley, said he encourages the county to work with the state and industry as it drafts new and updated land-use regulations and holds public hearings before their final adoption.
Rest of the story here.
[“This is the final post in the Zoning’s Centennial series. More posts celebrating zoning’s 100th birthday will be forthcoming later this year.]
John R. Nolon
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
Land Use Law and Climate Change Management
When a New York City commission (1916) and the Hoover Commission (1922) created zoning, and SCOTUS validated it (1926), they had no idea that they were arming local governments to battle climate change. When the floating zone was first created in 1950, the Village legislators in Tarrytown could not have known that this and other Neo-Euclidian techniques could possibly evolve to address such an unfathomable menace.
One hundred years have passed, and we are now at work in coastal communities on Long Island helping local leaders adapt to sea level rise and storm surges. They are digging through our database of strategies and thinking of creating a wholly new zone: an “expanding zone”, one that grows as new data about climate change is received. They are trying to get ready to use the “R” word, “retreat”, to explain the inevitable to their residents and business owners. They ask us whether they should create a retreat zone, an adaptation zone, and a safe zone to guide future development. They are utterly preoccupied by this ill-defined space between the mean high tide line and an elevation safe (at least for now) from inundation. They are handling and reshaping the tools that New York City, Hoover, the Supreme Court, and a century of local innovation gave them.
Can they adapt floating zoning, overlay zoning, transfer of development rights zoning, density bonus zoning, conservation easements, wetlands laws, and the land use system’s other inventions to properly control development in these new zones? If they don’t do something of that kind, will they eventually be held liable, legally or politically, for their failure after the next catastrophe occurs or gradual inundation destroys their sole-source drinking water aquifers? How do they account to their children and children’s children for their time at zoning’s helm?
Other local leaders are focused on mitigating climate change. Of course this phenomenon is global, but urban communities are the principal sources of carbon emissions, which are the primary cause of climate change. The Land Use Law Center has created a Mayor’s Redevelopment Roundtable and, through it, currently serves the largest cities and urban villages in our region. These mayors want to know whether they can use zoning’s inventions as well. The Presidential Climate Action Project says that “the greatest potential for reducing greenhouse gas emissions…is to reduce vehicle miles travelled—the miles Americans drive each year.” Hundreds of local governments, including some in the Roundtable, have adopted Transit Oriented Development (TOD) zones and are rezoning for compact, mixed-use development to create “WalkUPs” (walkable urban places). The new demographics—seniors emerging rapidly from their single-family cocoons, mobile millennials looking for lively urban neighborhoods, and immigrants seeking employment—are tipping the urban-suburban balance, and they are being zoned in through TOD and other zoning strategies. Our mayors are interested as well in other tools including energy code enhancements, design controls, green infrastructure, and other techniques to make their neighborhoods safe, lively, and livable places.
This series of blogs demonstrates that zoning is adaptable to new challenges as it responds to changing conditions. We defenders of zoning are reminded, however, that zoning is parochial, extending only to municipal boundaries--far, far short of the reach it needs to effectively manage global climate change. We are also told that localities have limited assets and staff capacity to handle sophisticated problems. We point out that land use law is essential to mitigation. It regulates buildings, which consume 40% of the energy produced in the U.S. It is responsible for vehicle miles travelled, which contribute 33% of CO2 as personal vehicles motor from origin to destination over a landscape created by zoning. Further, the natural landscape, which sequesters 18% of CO2, can be diminished or enhanced by zoning.
We are advised to pay attention to top-down, mostly federal solutions as our preferred path to a new era of effective climate control. This endless debate was sharpened in Paris at the Conference of the Parties in 2015. Building on an insight of the UN Climate Change Conference in Warsaw in 2013, the Paris COP memorialized the INDC: Intended Nationally Determined Contributions. The Paris agreement turns climate policy upside down, changing the focus from nation-state dominated action to on-the-ground solutions, guided, bolstered, and supported by state and national governments. This new approach operates from the bottom up, engaging “sub-national” entities, cities, states, corporations, NGOs, etc., to demonstrate how they can contribute to climate change mitigation.
This debate will continue. In March 2016, the U.S. submitted its INDCs to the UN, relying primarily on stricter emissions standards for coal-fired energy generation plants and similar top-down contributions. China, the world’s leading emitter, took a different approach; its INDCs include emission reductions that rely on the construction of green buildings, renewable energy in buildings, low-carbon community operations, low-carbon transportation systems, and promoting pedestrian- and bicycle-oriented neighborhoods. By 2020, China says, 30% of travel will be by transit and 50% of new buildings will be green.
China will have to allocate resources to the municipal level to implement its INDCs. The US can follow suit. Funding, data, and technical assistance—conditioned on intermunicipal or regional cooperation—can remove the barriers to zoning’s larger success. Such a program, funding actors in a system where all politics is local, can truly be a bipartisan effort, one that is much more likely to pass our curious Congress than most top-down solutions. This may be the path to Zoning’s New Century.
For further information: stay tuned.
Links to previous posts in the Zoning Centennial’s Series:
Part 8: Regionalism and ‘Wistful Hoping’
Part 11: Designing Density
Part 12: Green Infrastructure
Part 12B: Land Use and Energy Conservation
Part 14: Transit Oriented Development
Part 15: Zoning in Solar and Clean Energy
Part 17: Water Scarcity and Land Use Planning
Wednesday, May 18, 2016
Earlier this week, the Center for American Progress released a huge web-based project, called "Disappearing West," with lots of maps, data, and videos that illustrate the changing nature of land use in the west. It is well worth spending some time with. The link to the home page is here. From the report:
A team of scientists at the nonprofit Conservation Science Partners, or CSP, analyzed nearly three dozen datasets; a dozen types of human activities; and more than a decade of satellite imagery for 11 western states: Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming.
Here is what they found: Human development in the West now covers more than 165,000 square miles of land. That is roughly the size of 6 million superstore parking lots.
This development is growing fast. Between 2001 and 2011, natural areas in the West—including forests, wetlands, deserts, and grasslands—were disappearing at the rate of one football field every 2.5 minutes.
Here is one of the many videos from the project:
Monday, May 16, 2016
John R. Nolon
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
Open Space Zoning Turns to Sequestration
When the Land Use Law Center was asked in 1994 to report to President Clinton’s Council on Sustainable Development, we concluded that under present zoning, the amount of open space in the Hudson Valley Region would decline from 70% then to 30% by 2050. This estimate was calculated based on the rate at which large tracts of land were being subdivided into smaller, mostly residential parcels. At work were the mechanics of sprawl. Zoning maps adopted by the 256 municipalities in the region created a blueprint for future development, most of which would be residential subdivisions. Once zoned for single-family housing, local planning commissions approve subdivisions, applying standards in subdivision regulations that are adopted by local legislatures.
This erosion of open space, here and throughout the nation, gave rise to a movement. Land trusts came of age as open space concerns stimulated donations of land, development rights, or funds that could be used to acquire such land. Local voters began to approve bond resolutions or support real property tax increments to secure funds to purchase and set aside open space. State support for open space preservation manifested itself in a number of ways that involved direct appropriations, taxes, state bonds, tax exemptions, and local financing schemes. These land purchase and donation initiatives signaled a commitment to mitigate sprawl and its ill effects on the quality of life in developing communities, one parcel at a time.
In the aggregate, these funds allow the purchase of the small percentage of the land that needs to be preserved in order to change the ratio of open space to developed land that we projected in our report. This realization – here and elsewhere – led to an effort to prioritize purchases based on lands that matter most. In the eyes of some communities, this meant the purchase of lands that created a historic viewshed; for others, it meant acquiring land that provided needed ecosystem services. In still others, it meant creating a connected landscape that provided for the movement of critters, water, and people through unfragmented natural areas.
A parallel – but too often disconnected – movement sprung up at the local level through changes in land use regulations and procedures. Some communities began to inventory their undeveloped parcels, prioritize their contributions to residents’ quality of life and the environment, add open space components to their comprehensive plans, and adopt zoning and subdivision regulations that preserved the natural resources associated with open space. Localities began to create a new blueprint, one that balanced open space preservation and development, through use of land exactions, mandatory clustering of development, deductions of constrained land from counting in developable lot calculations, and overlay zoning that added strict standards to development located in critical environmental areas. These efforts, when coordinated by a comprehensive plan, can achieve open space preservation – one community at a time.
Today, a quarter of a century into this movement, attention is slowly focusing on sequestering lands: those that mitigate climate change by absorbing nearly a fifth of the carbon dioxide emitted by vehicles, buildings, and enterprise. Biological sequestration of CO2 emissions occurs within the vegetated environment; places like forests, pastures, meadows, and croplands. These landscapes naturally absorb and store carbon.
The local and state initiatives that have evolved to preserve and enhance open space provide a basis for a broader sequestration policy, one that builds on available legal technology and existing norms to respond to the looming global perturbation of climate change. The need, however, is to bring these local efforts to scale, particularly when the objective is to achieve a goal as ambitious as climate change mitigation.
With federal and state involvement, the efforts of land trusts and localities can transcend their one parcel and one community at-a-time impacts. Consider two recent examples.
In New Zealand, in heavily forested zones, the federal government identifies carbon accounting areas, uses geospatial mapping systems, establishes metrics, and measures increases in sequestration. The owners of forested land are given accounts and issued certificates of tons sequestered; these credits are tradable, depending on the viability of carbon markets (a story for another day). Land trusts and local governments would benefit from such a scheme, especially from the monies it could bring to their preservation efforts while increasing the percentage of CO2 sequestered nationally.
A new law in California opened up opportunities to receive compensation for the carbon value of forests and a land trust in eastern Maine is leading the way. The California law requires polluters to reduce their carbon emissions over time, but allows them to use approved "offset" projects to meet up to 8% of their emissions cap. The first group of offset projects announced by the California Air Resources Board listed the Maine-based Downeast Lakes Land Trust preservation project as one of two forest offset projects selected. Proceeds from the sale will allow the land trust to acquire and preserve an additional 55,000 acres of sequestering land.
For more information on open space preservation and sequestration, see John R. Nolon, Managing Climate Change through Biological Sequestration: Open Space Law Redux, 31 Stan. Envtl. L.J. 196 (2012).
Links to previous posts in the Zoning Centennial’s Series:
Part 8: Regionalism and ‘Wistful Hoping’
Part 11: Designing Density
Part 12: Green Infrastructure
Part 12B: Land Use and Energy Conservation
Part 14: Transit Oriented Development
Part 15: Zoning in Solar and Clean Energy
Part 17: Water Scarcity and Land Use Planning
Part 18: Zoning and Economic Development
Saturday, May 14, 2016
Governing Magazine has a nice article about Miami's form-based zoning code. Here's an excerpt:
Miami’s Wynwood neighborhood epitomizes hip. A neglected industrial enclave that sat mostly empty just a few years ago, Wynwood today thrums with energy. Its low-slung warehouses and onetime auto garages are filled with buzz-worthy eateries, high-end tattoo studios, vegan juice bars and edgy art spaces. At Wood Tavern, twentysomethings gather around graffiti-covered picnic tables to sip La Rubia blonde ale, brewed just a couple of blocks away at the Wynwood Brewing Company. At nearby Wynwood Kitchen and Bar, diners eat Latin-tinged cuisine under wall-sized paintings by popular street artists. A block down, the line at Panther Coffee can stretch out the door. Throughout the neighborhood, at all hours of the day, people stop to snap selfies in front of the colorful new murals that cover seemingly every inch of every building in Wynwood.
It’s the kind of dynamic urban scene that cities dream about. And it would never have happened, Miami planners say -- or at least not to the same degree of success -- without the city’s new zoning code known as Miami 21. “I cannot imagine it,” says Francisco Garcia, the city’s planning director, shaking his head at the thought. “I just can’t even imagine.”
Miami 21 isn’t actually brand-new: It’s been on the books since 2010. But it was the first true overhaul of the city’s code in nearly 80 years, and it points toward major change in the way Miami will grow for generations to come. The controversial code has altered every aspect of the city’s development, from the way a builder interacts with the planning department to the size of the windows of a finished storefront. And it touches every part of the city, from the shimmering urban high-rises of downtown Brickell to the single-family homes in historic, tree-lined residential neighborhoods like Little Havana and The Roads.
Public zoning codes are typically filled with mind-numbingly dry details of frontages, setbacks and floor-area ratios -- and Miami’s is too. But these codes ultimately determine the way a city looks and feels and functions. They’re the 1s and 0s that build the matrix. Miami 21 may be abstruse, but it’s also a new vision for what the city wants to be.
Miami 21 is what’s known as a form-based code. Rather than prescribing development based on how a plot of land will be used -- residential, say, or mixed-use commercial -- the code defines the physical shape development should take in different parts of the city. That means buildings are considered in context with what’s around them, regardless of what goes on inside. The goal is a more walkable, more human-scale form of development. When Miami adopted the code in 2010, it was the first big U.S. city to implement a form-based code citywide. Six years later, it’s still the only one.
Rest of the article here.
Monday, May 9, 2016
Zoning’s Centennial, Part 18: Shaping and Attracting Economic Development: A Series by John R. Nolon
John R. Nolon
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
Zoning: Shaping and Attracting Economic Development
Zoning historically assumed that the private market would inform developers what to build for maximum profit. Its job was to shape individual developments into appropriate human development patterns. The essential land use question, of course, is what type of a community is desirable and feasible to create. Changing demographics, financial markets, and environmental conditions require constant rethinking and resupplying zoning’s toolkit.
Today’s ascendant demographic groups, such as millennials, immigrants, and senior households, prefer “walkups,” that is, walkable urban places. They have driven the real estate market toward urban centers and challenged urban planners to shape livable, sustainable, and lively neighborhoods. Fortunately, climate change mitigation also requires walkups, where buildings use less energy, water, and materials, and fewer vehicle trips are taken, resulting in fewer vehicle miles travelled. Zoning occupies a central position in creating the strategies needed to respond to these new market signals.
The Land Use Law Center’s field laboratory is the Hudson Valley Region in New York. Ten years ago, our attention was captured by the changing demographics in the region and its apparent effect on the region’s cities. To focus our energies, we organized a Mayors’ Redevelopment Roundtable, a network of mayors, corporation counsels, and development commissioners representing the region’s 12 largest urban communities. Our strategy was to work with the planning, legal, and development staff of the member communities on urban revitalization to identify common issues; conduct research; identify best land use practices; and provide assistance in implementation. In these places, zoning needs to attract economic development, rather than to simply shape it.
This is a report from the field; a quick summary of some of the issues selected for implementation and a few illustrations of best practices implemented. The highest priorities among the mayors were, not surprisingly, to increase tax ratables, keep expenditures in check, and improve their communities’ aging infrastructure. These, they intended to accomplish through five strategies: job development, sustainable development, infill development, scattered site projects, and distressed property remediation. We found that zoning, land use regulations, and their associated strategies were effective tools to accomplish these objectives.
Job Development: In this context, job development comprises new employment opportunities for Millennials, immigrants, and low-income residents. New development brings with it several opportunities to generate new employment prospects. Building and infrastructure development, including renewable energy projects, create construction jobs and jobs for those who serve construction projects. Many of these jobs require skilled, union labor, but a percentage of them can be filled by less skilled workers, including the young women and men who live in distressed neighborhoods. The City of Newburgh led the way among Roundtable communities, insisting, during the land use review process, that all new and rehabilitation projects and municipal capital projects include local workers and provide them with the necessary training. This objective can be furthered by bonus density zoning to provide the funds developers need for training and supervision.
Sustainable Development: This topic aggregates transit-oriented development, promoting renewables, energy conservation in new and renovated buildings, affordable housing and balanced gentrification, designing for density, and green infrastructure, among others. The City of New Rochelle, through fast tracking the planning and rezoning of its downtown, offering density bonuses, and creating traffic improvements, stimulated a transit-oriented development project around its central transit station that is leveraging redevelopment of adjacent sites. Yonkers created its own list of criteria for sustainable, or green, projects and requires compliance through its power pursuant to the State Environmental Quality Review Act to mitigate adverse environmental impacts by imposing mitigation conditions. Green buildings, for example, mitigate climate change (an adverse environmental impact). Peekskill is increasing zoning density and expanding land uses permitted in its waterfront transit neighborhood, as well as developing its parking lots there to create a sustainable neighborhood that will prime the pump for further downtown redevelopment.
Infill Development: Cities can accomplish many goals through infill development, which emphasizes the development of vacant lots, reuse of abandoned and underutilized buildings, and creative development of open spaces adjacent to corporate, medical, educational, and non-profit buildings. The City of Mount Vernon adopted numerous criteria from the USGBC’s LEED-ND program to guide its rezoning of a transit station area in a developed neighborhood to shape the redevelopment of its remaining infill lots. White Plains is planning a significant Transit Oriented Development program concentrated on the coordinated development of infill sites in proximity to its commuter rail station. This plan begins with two projects comprising 561 rental apartments, retail space, and parking within a short walk of the city’s TransitCenter.
Scattered Site Projects: In some communities, development opportunities are scattered throughout their downtowns and adjacent urban neighborhoods. Prioritizing the development of a few such sites in order to leverage development nearby is a strategy of interest to the Roundtable communities. The Village of Brewster adopted an urban renewal plan that shaped its rezoning to encourage development of scattered sites throughout the neighborhoods within walking distance of its train station. The Village of Port Chester selected five market-ready “hot spots” for redevelopment as the first step in warming up the market in adjacent neighborhoods.
Distressed Property Remediation: In order to revitalize downtowns, other neighborhoods, and infill sites, areas of concentrated distressed properties need to be addressed. Buildings and properties there provide an opportunity for affordable housing for existing residents, workforce housing for needed new employees, and sites for job development itself. The City of Poughkeepsie is planning a large-scale downtown-focused project that will use flexible zoning, coordinated transit, pedestrian and bike ways, development on underused parking lots, and a variety of funding sources to initiate pump-priming projects in the area. Newburgh created the first city-wide land bank in the State of New York, which is acquiring vacant lots and buildings, selectively demolishing some of them, promoting community gardening and security devices, and preparing sites for private market development, stimulated by new zoning techniques it recently adopted.
All of these projects and strategies create tensions among local interest groups and require the cooperation of multiple stakeholders, such as property owners, developers, equity advocates, city departments, taxpayers, and local resident leaders. They call for new approaches to project development and approval, including the use of consensus building techniques for community decision-making. Lawyers who are trained in conflict resolution and settlement are particularly needed to advise their clients and local officials how to achieve economic development through strategies like those implemented through the Mayors’ Redevelopment Roundtable. In these stories can be glimpsed the collaborative and creative work that needs to be done in zoning’s second century.
For more information on the Mayors’ Redevelopment Roundtable and the strategies discussed above, email email@example.com; See also John R. Nolon & Jessica A. Bacher, The Role of Lawyers in Resolving Environmental Interest Disputes, Real Estate L.J. (Winter 2008).
Links to previous posts in the Zoning Centennial’s Series:
Part 8: Regionalism and ‘Wistful Hoping’
Part 11: Designing Density
Part 12: Green Infrastructure
Part 12B: Land Use and Energy Conservation
Part 14: Transit Oriented Development
Part 15: Zoning in Solar and Clean Energy
Part 17: Water Scarcity and Land Use Planning
Saturday, May 7, 2016
Back in January, some hospitality and real estate scholars at Penn State released a study of the short-term rental market. The key findings are below, which emphasizes the growth of professional operators in major markets:
Thursday, May 5, 2016
Today I thought I would blog about a historic marker that was just installed in the park three blocks away from my house. I live in Boise's North End, a historic neighborhood that was built on a grid system where residents could buy one, two, or three 25 x 100 lots. It made for an eclectic mix of starter homes and mansions, side by side.
Within this small neighborhood were a number of neighborhood groceries that people ran out of their homes. See the map below. It is kind of remarkable to imagine so many grocers, all operated within homes, in such a small neighborhood. But I kind of love the idea. I also love the idea that there was so much open retail built into the fabric of the neighborhood.
Independent of the economics of being a neighborhood grocer, it is hard to imagine such retail being permitted in single-family use districts throughout much of the country. I wonder how today's North End, which is considerably wealthier than in the days when these grocers were operating, would respond--or welcome--such retail uses today.
Wednesday, May 4, 2016
Today is the 100th birthday of land use thinker extraordinaire, Jane Jacobs! She died almost exactly 10 years ago. Google has a beautiful little doodle. And The Guardian has a thoughtful remembrance by Saskia Sassen (Columbia-Sociology). Walk a few blocks in a city today.
Tuesday, May 3, 2016
Two questions for the Colorado Supreme Court's fracking cases: Do land use regulations of fracking survive in Colorado? Should the scope of a state agency's rulemaking govern preemption of local governments?
The two cases:
In addition to my comments on the show, I would note the following:
- Land use regulations of fracking appear to survive the decisions. To my reading, the cases do not preclude local land use zoning regulations of fracking, which is something that is not coming out in the media discussions. See the Fort Collins case at Slip Op. 12-13. Rather, what the cases seem to say, collectively, is that a ban--such as that of Longmont--is preempted by state law per a two step test. First, the court determined that the ban was a matter of mixed state and local concern. Second, because there was a state interest, then the question of whether the local regulation is valid turns of whether it conflicts with state law. Under Colorado law, in matters of purely local concern, state laws do not preempt home-rule enactments, but in matters of statewide or mixed concern, state laws supersede any conflicting local regulations, irrespective of the relative dominance of the state interest." In both cases, the Colorado Supreme Court held that there was neither express nor implied preemption. The question then was whether there was "operational conflict" preemption, which the court announced as a standard of "whether the effectuation of a local interest would materially impede or destroy a state interest. In Longmont, they held that a ban did materially impede, and thus was preempted. However, in the Fort Collins 5-year moratorium, there is a more subtle discussion. In Fort Collins, they held that the moratorium was preempted under the same standard because it (1) detleteriously affects what is intended to be a state-wide program of regulation and (2) impedes the goals of the Oil and Gas Conservation Act. Nonetheless, I read Fort Collins to hold that land use regulations are not preempted and, moreover, that shorter moratoria may still be able to meet the standards evinced for preemption in these cases. What do others think?
- Can a Department regulate its way into State preemption? In evaluating the extent of the State's interest in its operational conflict preemption analysis, almost the entirety of the argument of the court rests not on the statute, but on administratively created regulations. See Longmont Slip Op. at 23-24. I find this fascinating when you consider that, under the Court's analysis, the creation of regulations by a state agency is sufficient to evince a state interest, especially when the court does not dig into the history of those regulations. There's something about that, which feels less-than-satisfying to me. Again, what do others think? Should a state agency be able to regulate its way into preemption of local governments?
In any case, the interview also features Charles Warren. I welcome folks thoughts.