Saturday, November 1, 2014
We are pleased to have Deborah Curran (University of Victoria Faculty of Law) as our November guest blogger at Land Use Prof Blog. Here is Deborah's bio:
Deborah Curran is the Hakai Professor in Environmental Law and Sustainability at the University of Victoria Faculty of Law. She teaches courses on municipal law and real property transactions, as well as the Environmental Law Clinic – Intensive course. Curran also facilitates a unique field course in environmental law in the Central Coast at the Hakai Beach Research Institute on Calvert Island. As a Program Director with the Environmental Law Centre at UVic, she supervises students working on environmental law projects for community organizations and First Nations.
Curran’s areas of research include water law, growth management and land use law, food systems and agricultural land, and the common ownership of property. As a municipal lawyer who focuses on sustainability issues, she is currently writing on green real estate, local governments and the evolution of water law in Canada.
Friday, October 31, 2014
Michelle Wilde Anderson (Stanford) was on NPR's Here and Now today discussing Stockton, California's effort to emerge from bankruptcy. Listen here:
Two years of financial limbo came to an end yesterday in the Northern California city of Stockton. A judge approved the city’s plan to reorganize more than $900 million of debt, which means Stockton can emerge from bankruptcy.
Stockton spent lavishly before the recession on sports venues, public buildings and employee benefits. Those expenditures ended up costing the city dearly. It became the second largest city in the country to file for bankruptcy protection after Detroit, which will learn the fate of its own restructuring plan next week in a Michigan court.
Michelle Wilde Anderson, a law professor at Stanford University, has been following the legal proceedings in both cities and speaks to Here & Now’s Robin Young about the terms of the cities’ reorganization plans, and whether retirees and creditors will get the money they were promised.
Wednesday, October 29, 2014
Vacant properties are a persistent land use issue in the most financially distressed regions, as thousands of properties currently sit empty throughout nation. “Zombie” properties result when a bank begins foreclosure proceedings on a property, and the owner abandons the property before the process can be completed. Existing in limbo until the foreclosure paperwork is finally finished, the properties sit rotting for years, attracting unsavory activities and decreasing neighborhood property values. In Newburgh, N.Y., alone, ten percent of all homes are in some state of abandonment, and many of these properties are zombie properties based on the Land Use Law Center’s study of confirmed vacant properties in Newburgh. Other cities that have experienced an industry exodus, such as Poughkeepsie (for which the Center has conducted a similar study), Niagara Falls, Buffalo, and even Westchester County localities face a similar plight and are eager to begin taking substantive steps to resolve them.
Jessica Bacher, Executive Director of Pace Land Use Law Center, has been a key player in the process of property remediation in localities struggling with vacant properties. She serves as Chair of the ABA State and Local Government Section’s Distressed Properties Sub-Committee of the Land Use Planning & Zoning Committee, and her forthcoming article in the Urban Lawyer, A Local Government’s Strategic Approach to Distressed Property Remediation, co-authored with Meg Byerly Williams, discusses this issue in detail. In Newburgh specifically, Jessica has worked closely with city staff and local non-profits on code enforcement best practices, the development of one of the first land banks in New York State, and creation and amendment of local laws to better address the concerns posed by vacant properties.
Vacant properties also have caught the attention of the New York Attorney General’s Office. The Attorney General strongly advocates legislation that directly addresses the vacancy issues faced by localities, and the legislature will consider this legislation again in January 2015 during the new legislative session. The legislation will require banks to register vacant properties in a central database and pay for their upkeep. Jessica believes this is a crucial step to effectively address the vacancy issue: “a statewide registry would alleviate a significant local burden and shed light on an issue that until now has gone almost unnoticed. The registry would help to clarify the extent of the problem, so appropriate strategies and enforcement techniques can be developed and deployed.” The bill also creates a standardized definition of the term “abandonment,” provides guidelines for determining abandonment, requires banks to provide notice to those residing in foreclosed properties that they have a right to remain in the property until the conclusion of the foreclosure proceedings, and imposes penalties on banks that do not wrap up their foreclosure proceedings in a timely manner (up to $1,000 per day). If passed in the upcoming legislative season, the bill will ease the uphill battle localities face when addressing vacant property issues.
Tuesday, October 28, 2014
My colleague and compatriate in maps, Lee Dillion, alerted me to an extraordinary website that is seeking to catalogue, map, and provide a short description of all the major art and architecture projects of the New Deal. The website is called The Living New Deal and the research is headquartered at UC Berkeley's Department of Geography. Here is how the site describes itself:
In the depths of the Great Depression, President Franklin D. Roosevelt promised the American people a “New Deal.” Over the decade 1933-43, a constellation of federally sponsored programs put millions of jobless Americans back to work and helped to revive a moribund economy. The result was a rich landscape of public works across the nation, often of outstanding beauty, utility and craftsmanship.
No city, town, or rural area was untouched by the New Deal. Hundreds of thousands of roads, schools, theaters, libraries, hospitals, post offices, courthouses, airports, parks, forests, gardens, and artworks—created in only one decade by our parents and grandparents—are still in use today. The long-term payoff from this public investment helped propel American economic growth after the world war and is still working for the American people today.
Because these public works were rarely marked, the New Deal’s ongoing contribution to American life goes largely unseen. Given the scale and impact of the Roosevelt years across America, it seems inconceivable that no national register exists of what the New Deal built. The Living New Deal is making visible that enduring legacy.
Today, our team is building a national database of thousands of documents, photographs, and personal stories about public works made possible by the New Deal. And it’s all just a click away on our national map of New Deal public works sites. California’s leading historian and former State Librarian, Kevin Starr, has likened the Living New Deal to a WPA project from the 1930s in its ambition and scope.
Far from an antiquarian exercise, the Living New Deal aims to help preserve New Deal art and architecture from destruction or privatization, to see that New Deal sites are properly marked, and to help communities and families across the nation rediscover their heritage.
The Living New Deal is even more timely because of the worldwide economic crisis of 2008-2012, which has invited so many comparisons with the Great Depression of the 1930s, as well as calls for similar government programs to revive the economy and relieve the severe unemployment and financial suffering of millions of Americans. For five years the unemployment rate hovered near 10 percent, wages stagnated, home foreclosures were epidemic, and national growth anemic. Unlike the Great Depression, however, many government programs shrank, infrastructure continued to decay, and the wealthiest 1% gained a larger share of national income.
The legacy of the New Deal has much to teach about farsighted leadership and what can be achieved when our country rallies to serve needs of ordinary people in troubled times. What is more, it provides a shining example of what positive government can achieve when it invests in public works that serve the collective good. Yes, government can work for all the people by creating useful infrastructure, job for the unemployed, and things of beauty like public murals and elegant buildings.
Canal Street Post Office Sculpture, 2013
Canal Street Post Office Sculpture
Photo Credit: Evan Kalish © All Rights Reserved
The research arm of the Living New Deal is hosted by the Department of Geography at the University of California, Berkeley. The public service branch of the Living New Deal is a California non-profit organization. The Living New Deal is funded by a mix of public grants and private donations.
A really fun site!
Stephen R. Miller
Monday, October 27, 2014
Cambridge University Press has just announced the release of Robin Paul Malloy's new book, Land Use Law and Disability: Planning and Zoning for Accessible Communities (2014). In it, Robin argues for a new generation of inclusive design standards to foster more housing opportunities for persons living with mobility impairments. Robin's scholarly work in this area has further developed land use law as a basis, independent of civil rights statutes and constitutional guarantees, for inclusionary claims made by marginalized persons.
Friday, October 24, 2014
Transferable Sharing Rights: A Theoretical Model for Regulating Airbnb and the Short-Term Rental Market
For the last several months, I have been interested in thinking about how to regulate the sharing economy and, in particular, the short-term rental market typified by Internet sites like Airbnb. Thus far, it seems only tentative, relatively weak proposals to the problem have been offered. I wanted to try something different--something big--like a regulatory scheme that would permit the short-term rental market to operate while also address its externalities. My first shot at this is a working draft of an essay, which I've placed on SSRN, entitled, Transferable Sharing Rights: A Theoretical Model for Regulating Airbnb and the Short-Term Rental Market. Here is the abstract:
Stephen R. Miller
Thursday, October 23, 2014
As someone who clears title to vacant inner-city properties--first in Baltimore, now in South Bend--I have been asked more than once "Can Homeless People Move into Baltimore's Abandoned Houses?" An Atlantic article with that exact title tells the story of an attempt by a coalition of labor, community development and homelessness activists to transform vacant houses in the McElderry Park neighborhood of Baltimore into permanently affordable homes for the homeless. Regular readers of this blog may already be familiar with the Community Land Trust model and its use of resale restrictions to make sure that subsidized homes are affordable not just to the first homeowners but to subsequent homebuyers as well.
Housing Our Neighbors, the Baltimore group featured in the Atlantic piece, is ambitiously bringing together a permanent affordability model usually connected to homeownership with an upstart approach to ending homelessness called Housing First. The National Alliance to End Homelessness makes a straightforward argument: Life on the streets kills homeless people. The homeless need housing now. Rather than funnel the vast number of people on the streets through the impossibly tiny number of transitional units with supportive social services attached to them, Housing First advocates making housing immediately available to homeless persons, adding services as needed, and not making engagement with those services a condition of residents' right to stay.
The article offers a great deal to think about. Hat tip to Jaime Lee, my successor as Director of the University of Baltimore School of Law Community Development Clinic!
Wednesday, October 22, 2014
The theme of the annual conference of Pace Law School’s Land Use Law Center is Transitioning Communities. An esteemed group of conference advisors reminded us that land use law in America is nearly 100 years old and pointed to its constant transition from rigid Euclidian methods to more flexible and inventive strategies. As it approaches its Centennial, this legal system is responding to unprecedented challenges with new approaches and techniques. In its first century, the land use system gave us floating zoning, overlay zoning, smart growth, bonus densities, and local environmental law to name a few. Now, words that were unknown in the field a few years ago, such as retreat, micro housing, legal neighborhoods, and trigeneration, are dominating our research and directing the practice of law as we search for solutions to new problems.
This year’s conference will showcase exemplary land use practices that are evolving as municipal governments face changing demographics, new markets, the effects of shrinking or growing development pressures, and transitions at the suburban/rural-urban interface. The conference will highlight how communities are embracing sustainability, disaster preparedness, and revitalization. The keynote speakers are Kaid Benfield, Special Counsel for Urban Solutions at the Natural Resources Defense Council and Mitchell Silver, NYC Parks Commissioner, Past President of the American Planning Association, Former Raleigh Chief Planning Officer, and City Innovator.
Tuesday, October 21, 2014
The Center for the Comparative Study of Metropolitan Growth at Georgia State University College of Law would like to invite you to apply for Study Space VIII, Phoenix Cities: Urban Recovery and Resilience in the Wake of Conflict, Crisis and Disaster. This weeklong workshop is being held in Warsaw, Poland June 15-19, 2015 and is being organized with the Center for Dispute Conflict Resolution at the Faculty of Law and Administration at the University of Warsaw, and in cooperation with Tulane University Law School Payson Center for International Development and the Atlanta Regional Commission.
The cost of the program is $900 and includes scheduled group meals (listed in the schedule), speaker honoraria and site visits. Hotel (estimated at $850 for the week with breakfast daily), airfare, and airport ground transportation must be purchased separately.
Attached is the program brochure, which details the schedule and expectations of participants. You may also find more information online at: http://law.gsu.edu/centers/metro-growth/programs/study-space/.
Early application is encouraged as space is limited. You may apply online at https://insidelaw.gsu.edu/study-space/. A $450 deposit is required, and is refundable through March 2, 2015. The balance of the program fee ($450) will be due on April 13, 2015 and is nonrefundable.
If you have any questions, please do not hesitate to contact me at email@example.com or 404-413-9175.
Monday, October 20, 2014
YALE LAW SCHOOL LUDWIG CLINICAL FELLOWSHIP
Community and Economic Development Clinic
Yale Law School seeks applications for the Ludwig Clinical Fellowship, a two-year position beginning on July 1, 2015. The Fellowship is designed for a lawyer with a minimum of four years of relevant practice experience who is interested in preparing for a career in law school clinical teaching. The Fellow will work with the Ludwig Community and Economic Development Clinic (CED).
CED is a semester-long, in-house clinic offered in both fall and spring semesters, with a substantial number of continuing students who have completed the seminar but remain enrolled in the clinic to handle ongoing or new cases. Clients include non-profit and for-profit corporations, community development financial institutions, advocacy organizations, neighborhood associations, governmental entities, social enterprises and merchants associations. Their missions range from building access to financial services among low-income people to bringing arts institutions and grocery stores to chronically under-resourced communities to breaking down barriers to affordable housing development in high-opportunity communities. All our clients share an interest in promoting economic opportunity and mobility among low and moderate-income people.
On behalf of our clients, our students negotiate and draft contracts; provide advice on the tax consequences of deal structures and entity choices; structure and carry out real estate transactions; represent borrowers and lenders in financings; engage in legislative and regulatory advocacy; form for-profit and not-for-profit entities; and resolve land use and environmental issues. The Clinic is open to students from the Schools of Law, Management, Divinity, Forestry and Environmental Studies, Public Health, and Architecture. In addition to representing clients, students in their first semester of the clinic take a seminar which covers federal, state and local policies affecting urban and suburban places; substantive law in tax, real estate development, and corporate governance; and transactional and regulatory lawyering skills, such as negotiation and drafting contracts.
The Fellow’s responsibilities include representing clients, supervising students, assisting in teaching classes, and pursuing a scholarship and research agenda. Candidates must be prepared to apply for admission to the Connecticut bar. (Pursuant to a recent state bar admission amendment, candidates may qualify for admission without examination.) All work will be conducted with the support of the clinical faculty, principally Clinical Associate Professor Anika Singh Lemar.
Candidates must be able to work both independently and as part of a team, and must possess strong written and oral communication skills. Annual salary is $63,000. In addition, the Fellow will receive health benefits and access to university facilities. Send (or email) a resume, cover letter, writing sample, and names, addresses and telephone numbers of three references by January 9, 2015 to Kathryn Jannke, Office Manager, The Jerome N. Frank Legal Services Organization, P.O. Box 209090, New Haven, CT 06520-9090; telephone: (203) 432-4800; fax: (203) 432-1426; firstname.lastname@example.org.
Yale Law School is an Affirmative Action,
Equal Opportunity, Title IX employer
The following is excerpted from Land Use and Climate Change Bubbles: Resilience, Retreat, and Due Diligence by Prof. John R. Nolon. For the first post on this topic, click here.
“The financial crisis of…2008 was not a single event but a series of crises that rippled through the financial system and, ultimately, the economy.” “Despite the expressed view of many on Wall Street and in Washington that the crisis could not have been foreseen or avoided, there were warning signs. The tragedy was that they were ignored or discounted.”
Similarly, Land Use Climate Bubbles are emerging in every region of the country that should rivet the attention of policy makers. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, constant fear of wildfires, the lack of water in residential, commercial, and agricultural areas, and real concerns with mudslides in vulnerable areas. This persuasive evidence that local economic bubbles are forming is reinforced by a variety of recent and persuasive reports at the national and international level.
GAO High Risk List
The heightened cost to the federal government of climate change is evidenced by the addition in 2013 of climate change to the Governmental Accountability Office’s (GAO) list of issues that pose the greatest threat to the U.S. In doing so, the GAO recognized that climate change threatens to inflict huge costs to the U.S. taxpayer, including damage to physical infrastructure, increased insurance liability, and disaster relief. The addition of climate change to the GAO’s High Risk list demonstrates the serious financial risk that climate change poses and sharpens the focus on the threat that it entails to public health, the environment, and the economy.
National Climate Assessment
According to the May, 2014 National Climate Assessment, “[c]limate change, once considered an issue for a distant future, has moved firmly into the present.”  The study, was prepared by a large scientific panel overseen by the government and concluded that the effects of climate change are being experienced throughout the United States, and have been primarily caused by human activities over the last fifty years. The report specifically mentions water growing scarcer in dry regions, torrential rains increasing in wet regions, heat waves becoming more common and more severe, wildfires growing worse, and forests dying under assault from heat-loving insects.
The report noted that U.S. average temperature increased by 1.3°F to 1.9°F since record keeping began in 1895 and that most of that increase occurred since about 1970. In addition, the panel reported if the U.S. continues its current GHG emissions path, the temperature could increase by 8-11°F by 2100. This increase in temperature has caused many immediate effects that will only be exacerbated in the decades to come, including shorter duration of ice on lakes and rivers; reduced glacier extent; earlier melting of snowpack; reduced lake levels due to increased evaporation; lengthening of the growing season; changes in plant hardiness zones; increased humidity; rising ocean temperatures; rising sea level; ocean acidification; and extreme weather patterns, including the increased severity of winter storms, heat waves, floods, and droughts, as well as the increased magnitude and frequency of hurricanes in the North Atlantic.
Risky Business in the Private Sector
The economic risks of climate change to the private sector were the topic of a report issued in June, 2014 by Risky Business, a joint initiative of Bloomberg Philanthropies, the Office of Hank Paulson, and Next Generation. The Risky Business project frames climate change in economic terms, attempting to provide a “common language for how to think about climate risk.” This project supports an independent economic analysis to quantify the range of likely costs of climate-driven impacts on everyday weather, natural disasters, and the economy of nine regions of the U.S. It is essentially a call to action for American businesses to react on a national scale.
The report focused on both the short-term and long-term economic impacts that sea level rise, rising temperatures, and snowmelt will have on coastal infrastructure, agriculture, and energy consumption, as well as public health and labor productivity. The report found, “[i]f we continue on our current path, by 2050 between $66 to $106 billion worth of existing coastal property will likely be below sea level nationwide, growing to $238 to $507 billion by 2100. In addition, it concluded, “absent agricultural adaptation…national commodity crop production (corn, soy, wheat, and cotton) could decline by 14 percent by mid-century and by up to 42 percent by late century” as extreme heat spreads across the middle of the country. In all, these findings “underscore the reality that if we stay on our current emissions path, our climate risks will multiply and accumulate as the decades tick by.”
Real Estate and the Land Use Climate Change Bubble
Climate change creates serious risk in the real estate market and real estate investors, insurers, and mortgagees are risk averse. Risks, once perceived by this market, slow the pace of sales, lower property values, increase the cost of insurance, and limit the availability of financing. The biggest economic threats of climate change, in fact, are to the real estate industry. In some vulnerable areas, casualty insurance rates have increased by over seventy-five percent.
Climate change factors such as extreme weather, sea level rise, coastal erosion, floods and wildfires are projected to cause some $300 million to $3.9 billion in California real estate losses annually. It’s a huge range, due to uncertainty in climate models, impacts and adaptation, and that uncertainty makes insurers even more nervous, because they’re not quite sure what to prepare for. What we do know for sure is that California alone has $2.5 trillion in real estate assets at risk for climate change damage. That’s approximately 135 percent of the state’s annual gross domestic product! Insurers have already begun cancelling homeowners’ policies in high-risk areas and raising insurance costs in potentially impacted locations. In the San Francisco Bay Area, for example, most high value bayside property will be inundated if the sea level rises just one meter—well within the range of conservative scientific projections.
Given the impact on the housing bubble on the nation’s economy, it is painfully clear that the bursting of Land Use Climate Bubbles in all regions of the country will have catastrophic economic ripple effects. If we do not see and respond to the warning signals, the consequences could easily dwarf those of the 2008 collapse of the housing market.
 Fin. Crisis Inquiry Comm’n, The Fin. Crisis Inquiry Report: Final Rep. of the Nat’l Commission on the Causes of the Fin. and Econ. Crisis in the U.S. 354 (2011), at 27.
 Id. at xvii.
 U.S. Gov’t Accountability Office, High Risk Series: An Update 15 (2013), available at http://www.gao.gov/assets/660/652133.pdf.
 Id.; see also Thomas L. Friedman, Obama on Obama on Climate, N.Y. Times (June 7, 2014), http://www.nytimes.com/2014/06/08/opinion/sunday/friedman-obama-on-obama-on-climate.html (Quoting President Obama, “[w]ildfires are ‘now consuming a larger and larger portion of the Department of Interior budget. And if we continue to fund fighting fires in the same way we’ve done in the past, all the money for everything else – for conservation, for maintenance of forests -- all that money gets used up.’”).
 U.S. Nat’l Climate Assessment, supra note 7, at iv (“A team of more than 300 experts guided by a 60-member Federal Advisory Committee produced the report, which was extensively reviewed by the public and experts, including federal agencies and a panel of the National Academy of Sciences.”).
 Id. at 1-4.
 Id. at 3, 20. This report was the result of the Global Change Research Act of 1990, which requires the U.S. Global Climate Research Program (USGCRP) to prepare and submit an assessment of effects of global change in the U.S. to the President and Congress every four years. The USGCRP is made up of thirteen federal agencies and departments, including the Department of Agriculture, Department of Commerce, Department of Defense, Department of Transportation, and the Environmental Protection Agency.
 Id. at 19-20.
 Id. at 26.
 A Climate Risk Assessment for the U.S., Risky Business, supra note 11, at 48. These groups commissioned the Rhodium Group, an economic research firm that specializes in analyzing disruptive global trends, to complete this report. Rhodium then convened a research team, co-led by climate scientist Dr. Robert Kopp and economist Dr. Solomon Hsiang, and partnered with Risk Management Solutions, the world’s largest catastrophe-modeling company for insurance and investment management companies. An independent Expert Review Panel composed of leading climate scientists and economists reviewed their work, including its methodology and statistics.
 Id.at 4.
 Kelly Coplin, How Climate Change Will Affect Home Value: Essential Answer, Stan. Mag. (Sept./Oct. 2009), https://alumni.stanford.edu/get/page/magazine/article/?article_id=30265.
 Id.; see also Climate Cent., Washington, D.C. and the Surging Sea: A Vulnerability Assessment with Projections for Sea Level Rise and Coastal Flood Risk 15 (2014), available at http://sealevel.climatecentral.org/uploads/ssrf/DC-Report.pdf (“We find that in Washington D.C., some $4.6 billion in property value – half in the zip code of 20024 (a large portion of Southwest DC) – and more than 1,400 people in 400 homes sit on land less than 6 feet above the local high tide line. At 10 feet the totals increase to $9 billion and 4,833 people residing in 1,900 homes.”).
Friday, October 17, 2014
Yesterday, New York’s highest court, the Court of Appeals, denied a last-ditch industry motion for reargument inMatter of Wallach v. Town of Dryden. As a result, and not surprisingly, the Court’s June 2014 decision remains the law of the land in New York.
In the June decision, the Court ruled that the towns’ authority to ban hydraulic fracturing (commonly referred to as “fracking”) within their borders pursuant to the home rule powers vested in municipalities to regulate land use was not preempted by New York’s Oil, Gas and Solution Mining Law (“OGSML”). In August 2014, Wallach filed a motion for reargument, asking the Court to reconsider its ruling in light of Colorado Oil & Gas Ass’n v. City of Longmont (D. Ct., Boulder Cnty. Co., July 24, 2014), which granted summary judgment in favor of the Colorado Oil & Gas Association, reasoning that Colorado’s oil and gas law preempted Longmont’s fracking ban. Today, the New York Court of Appeals denied Wallach’s motion for reargument without opinion.
For those unfamiliar with the underlying case, Wallach and Dryden were two appeals brought on behalf of gas and oil interests that sought to overturn lower court rulings that had rejected challenges to the upstate towns of Dryden’s and Middlefield’s zoning enactments, which banned fracking operations within their boundaries. Appellants Norse Energy Corp. USA and Cooperstown Holstein Corporation asserted that the towns lacked the authority to proscribe fracking because section 23-0303(2) of New York’s Environmental Conservation Law (“ECL”), which is the supersession clause in the OGSML, demonstrated that the state legislature intended to preempt local zoning laws that curtailed energy production.
On June 30, 2014, a 5-2 majority of the Court of Appeals affirmed the lower court in a single opinion authored by Judge Graffeo. The majority applied the “home rule” provision of the state constitution, the Municipal Home Rule Law, and the plain language of the Court’s prior holdings in Frew Run Gravel Products v. Town of Carroll and Matter of Gernatt Asphalt Products v. Town of Sardinia to arrive at the conclusion that the OGSML “does not preempt the home rule authority vested in municipalities to regulate land use.”
New York State Constitution Article IX is the provision that grants local governments the authority to regulate land use and provides that “every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law … except to the extent that the legislature shall restrict the adoption of such local law.”
According to the Wallach majority, the OGSML is not a restriction on the adoption of zoning laws because it only supersedes “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries” and not the designation of areas in which mining is either permitted or prohibited. Since zoning does not regulate mining or the mining industry, but rather designates the areas where mining is permitted, the Court found that local zoning laws do not constitute regulation of the industry and are therefore not covered by the OGSML suppression clause.
This language in the OGSML is virtually identical to language in New York’s Mined Land Reclamation Law (“MLRL”) considered by the Court in Frew Run 25 years ago. In Frew Run, the Court of Appeals held that the MLRL’s prohibition against “local laws relating to the extractive mining industry” did not preempt local zoning laws. The Frew Run Court had interpreted this language in conjunction with municipal home rule powers and concluded that “local laws that purported to regulate the ‘how’ of mining activities and operations were preempted whereas those limiting ‘where’ mining could take place were not.” Thus, it would seem that the only path the Court could have taken to strike Dryden’s and Middlefield’s zoning laws would have been to overrule Frew Run.
The Court’s analysis conforms to traditional concepts of municipal zoning authority. Practically speaking, zoning laws have always regulated where businesses, such as retail stores, banking, and gas stations may be located, but not how they operate (e.g., hours of operation and labor policies). No basis in law exists for treating zoning related to extractive mining processes differently.
What then of the Towns of Dryden’s and Middlefield’s absolute ban on mining via their zoning laws? Weren’t they regulation of mining?
Yes, according to the July 2014 Colorado decision. But, no, according to the majority in Wallach. While the local ordinance in Frew Run delineated the zoning districts in which mining was banned, the local law under consideration in Gernatt, the other case upon which the New York opinion relied, eliminated mining as a permitted use anywhere in the town borders. In Gernatt, the Court of Appeals, relying on Frew Run, ruled that an absolute mining ban was a reasonable use of a town’s police and zoning powers.
Relying on Gernatt, Judge Graffeo upheld the two towns’ actions:
Manifestly, Dryden and Middlefield engaged in a reasonable exercise of their zoning authority as contemplated in Gernatt when they adopted local laws clarifying that oil and gas extraction and production were not permissible uses in any zoning districts. . . .
[T]here is no meaningful distinction between the zoning ordinance we upheld in Gernatt, which “eliminate[d] mining as a permitted use” in Sardinia, and the zoning laws here classifying oil and gas drilling as prohibited land uses in Dryden and Middlefield.
The June 2014 opinion was also careful to emphasize that it was passing no judgment on the merits of fracking and noted that
“These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York.”
Rather, the Court explained, the appeals are concerned only with “the relationship between the State and its local government subdivisions, and their respective exercise of legislative power.”
Writing for the dissent, Judge Pigott took the view, in which Judge Smith concurred, that the zoning laws of “Dryden and Middlefield do more than just regulate land use, they regulate oil, gas, and solution mining industries under the pretext of zoning.” The dissent argued that the Dryden and Middlefield ordinances are distinguishable from the ordinances in Frew Run and Gernatt, because the Dryden and Middlefield ordinances apply to the entire municipality and do more than eliminate fracking as a permitted use by, for example, going into detail concerning prohibitions against gas storage, petroleum exploration, and production materials and equipment.
Rejecting these arguments, the majority reaffirmed that “the regulation of land use through the adoption of zoning ordinances [is] . . . one of the core powers of local governance,” noting that the Court has “repeatedly highlighted the breadth of a municipality’s zoning powers ‘to provide for the development of a balanced, cohesive community’ in consideration of regional needs and requirements.” The majority explained that the Court does not “lightly presume preemption where the preeminent power of a locality to regulate land use is at stake. Rather, [the Court] will invalidate a zoning law only where there is a ‘clear expression of legislative intent to preempt local control over land use.” And here, following the analytical framework articulated in the Court’s prior decisions, the Court reaffirmed that the OGSML did not contain a clear expression of legislative intent to preempt local control over land use.
Thus, notwithstanding a Colorado court’s contrary opinion, yesterday’s order reaffirmed the right of New York municipalities to regulate where fracking may occur, including the right to ban fracking entirely within their boundaries, pursuant to the home rule authority vested in municipalities to regulate land use.
Commenting on yesterday’s denial of the Wallach motion to revive the case, Earthjustice Managing Attorney Deborah Goldberg, who represented the Town of Dryden, opined that
“We are not surprised that the Court refused to give the oil and gas industry a second bite at the apple. The law of the state is clear, and it supports local zoning of high impact industrial land uses. But we’ll gladly celebrate with the people of Dryden and communities throughout New York whose rights once again have been upheld.”
Thursday, October 16, 2014
This week the Council on Climate Preparedness and Resilience issued a major report entitled Enhancing the Climate Resilience of America’s Natural Resources. There is much worth dipping into. Among the ideas I found most interesting was an effort to create a "Resilience Index." The concept appears in several places throughout the report. I like the idea, broadly conceived, and it will be interesting to see what emerges. Here are the parts of the report that mention a Resilience Index:
Key Themes and Commitments Moving Forward:
This Agenda identifies four priority strategies to make the Nation’s natural resources more
resilient to a changing climate. For each strategy, the Agenda documents significant progress
and provides a roadmap for action moving forward. Highlights of the key actions agencies will
undertake in the near term to implement each of the four strategies are described below and in
1. Foster climate-resilient lands and waters – Protect important landscapes and develop the science, planning, tools, and practices to sustain and enhance the resilience of the Nation’s natural resources.
Key actions include the development of a Resilience Index to measure the progress of restoration and conservation actions and other new or expanded resilience tools to support climate-smart natural resource management. Agencies will identify and prioritize landscape-scale conservation opportunities for building resilience; fight the introduction and spread of invasive species; and partner internationally to promote resilience within the Arctic. Throughout, agencies will evaluate resilience efforts to inform future actions.
Design an Ecosystem Resilience Index: In 2015, Federal agencies, to include DOI, NOAA, the Federal Emergency Management Agency (FEMA), the Army Corps of Engineers (USACE), and the Department of Transportation (DOT), will design a framework for a decision-support tool that will provide baseline resilience data and measure the progress of restoration, conservation, and other resilience-enhancing management approaches. Experts will work toward developing common metrics, monitoring protocols, modeling approaches, and valuation methodologies to establish baseline conditions and provide measures of increased ecosystem resilience from cost-effective restoration. This work will be coordinated with other Federal projects, including the Community Resilience Index under development by FEMA, NOAA and the National Institute of Standards and Technology (NIST), the Disaster Resilience Framework under development by NIST (see Chapter IV), the efforts of the Data and Tools Working Group described in Chapter I, the Climate Resilience Toolkit, and emerging efforts to develop indicators through the National Climate Assessment conducted by the U.S. Global Change Research Program.
Evaluate and Learn from Ongoing Resilience Efforts to Inform Future Actions: Within six months of the release of this agenda, agencies to include DOI, USDA, NOAA, U.S. Army Corps of Engineers (USACE), Department of Defense (DOD), and EPA will identify programs for resilience evaluation. Such evaluations will include a) developing resilience metrics and b) evaluating whether investments produce resilience benefits for the resources and surrounding communities. An example is the third-party evaluation of DOI’s $300 million Sandy Supplemental resilience investments, initiated in September 2014. These efforts will be used to inform the Resilience Index over time.
Develop a Community Resilience Index: In 2014, FEMA will begin work in coordination with NOAA, NIST, and insurers to identify or develop a community resilience index that considers environmental, economic, and social resilience. This work will focus on economic and social components, in particular infrastructure, and will incorporate data and ecosystem information developed through DOI and NOAA efforts to measure progress on resilience through restoration. By 2015, this work will produce a set of key indicators and an initial index methodology for implementation. Products of this effort will be incorporated into the Climate Resilience Toolkit as appropriate in the future.
Hat tip to Patty Salkin over at Law of the Land for bringing the report's publication to our attention.
Stephen R. Miller
Wednesday, October 15, 2014
Using Zoning to Protect the Environment: An excerpt from Protecting the Environment through Land Use Law: Standing Ground
The following is an excerpt from Chapter 3 of Prof. John R. Nolon's new book, Protecting the Environment through Land Use Law: Standing Ground:
Municipalities across the nation are incorporating natural resource preservation principles into their zoning ordinances. They are not doing so uniformly, but their collective progress is impressive. Some local legislatures describe the protection of the natural environment as a specific purpose of zoning. Localities may protect open space in zoning districts by adjusting applicable density, lot size, and setback restrictions. For example, conservation zoning districts permit only private land uses that are compatible with the natural environment, while agricultural zoning districts preserve agricultural land for farming purposes and open space.
Municipalities in several states have identified environmental protection as a purpose or goal of their zoning regulations. A purpose of the Durham County, North Carolina, zoning ordinance, for example, is to promote the health, safety, and general welfare of the residents of the city and county by conserving land and water resources, providing adequate light and air, and preventing overcrowding of land and undue concentrations of population. The zoning ordinance of the city of Manhattan, Kansas, includes in its statement of purpose a specific reference to the conservation of natural resources, including open space preservation.
In Pennsylvania, the township of West Manchester amended its single-family residential district regulations to require open space preservation in undeveloped areas. Before amending the ordinance, the local legislature prepared maps showing potential future development under the existing conventional zoning. This exercise, often described as a “build-out analysis,” illustrated the great amount of existing open space and farmland that would be lost under the present zoning ordinance. In addition, the legislature mapped anticipated open space preservation to show landowners and developers exactly what was envisioned: interconnected open spaces crossing parcel lines.
In Santa Monica, California, one of the purposes of the zoning regulation is to protect and enhance the quality of the natural and built environment, and to ensure adequate park and public open space. Each of the city’s zoning districts has certain property development standards. These standards include maximum unit density, lot coverage, building height, minimum lot size, setback requirements, and building spacing, as well as a requirement for open space. For example, in the Ocean Park residential zoning district there is a requirement that at least one hundred square feet per housing unit of usable common open space [be] accessible and available to all project residents for outdoor activities. Development in any of the city’s residential districts must provide “usable” common open space, private open space, or both.
The zoning regulations of the town of Wallingford, Connecticut, require that existing trees are to be preserved to the maximum extent possible. Trees and landscaping are to be preserved and provided under the town’s regulations to reduce excessive heat, glare, and accumulation of dust; to provide privacy from noise and visual intrusion; and to prevent the erosion of the soil, excessive run-off of drainage water, and the consequent depletion of the ground water table and the pollution of water bodies.
Conservation district zoning is used to carry out local environmental objectives. In Cumberland, Maryland, the Conservation District regulations provide that “no structure shall be erected, nor shall any material or equipment be stored, nor shall any fill be placed, nor shall the elevation of any land be substantially changed” except for certain permitted uses. These include agricultural, horticultural, and forestry uses; public and private parks; recreation areas; historic areas; conservation areas; and other similar uses employing open land with open structures, gardening, and outdoor plant nurseries. All residential uses are prohibited in the zoning district.
In Cheltenham Township, Pennsylvania, a Soil Conservation overlay district was created to protect steep slopes from inappropriate development and excessive grading, and to permit and encourage the use of these areas for open space purposes. Among the many objectives of this regulation is to “permit only those uses in steep slope areas that are compatible with the preservation of existing natural features . . . by restricting the grading of steep slope areas,” and to protect individuals and adjacent landowners in the township from the possible harmful effects of inappropriate grading and development on steep slopes. Permitted uses in this zoning district are limited to passive recreational activities, wildlife sanctuaries, game farms, pastures, crop cultivation, and related uses. In Wells, Maine, a coastal community, a Resource Protection District was created to protect and preserve fragile environmental areas from intrusions that would upset ecological systems, or create potential public health or safety problems. Passive recreation is a permitted use in the district, while aquaculture, municipal facilities, piers, docks, and wharves are also permitted, subject to site plan approval.
The court upheld a legislative zoning change that applied to a single parcel in Bartram v. Zoning Commission of City of Bridgeport (68 A.2d 308, Conn. 1949). The parcel in question was limited to residential use. The owner sought to build a drug store, hardware store, grocery store, bakeshop, and beauty parlor in a residential neighborhood removed from the nearest shopping district. The amendment was granted, challenged by the neighbors, and invalidated by the trial court. On appeal, the Connecticut Supreme Court held that the rezoning was valid, noting that the means of achieving the purposes of zoning are within the discretion of the zoning authority and not subject to review of the courts unless the authority abused its discretion; a court is without authority to substitute its own judgment for that vested by the statutes in a zoning authority.
The zoning change in the 1949 Bartram decision was innovative for its time. To alleviate downtown traffic congestion, the city council decided to allow more services and retail products in small shopping centers in residential neighborhoods, much to the displeasure of nearby homeowners. By providing local goods and services, the neighborhood became more walkable, vehicle trips and vehicle miles traveled were reduced, and air quality in the downtown improved. In today’s environment, we see such a zoning change as mitigating climate change by reducing greenhouse gas emissions, approximately 80% of which is carbon dioxide. Adjusting zoning to the realities of global warming and climate variation to mitigate its effects and adapt to its consequences is driving many zoning amendments in coastal and urban communities.
Tuesday, October 14, 2014
CALL FOR ABSTRACTS
– DEADLINE EXTENDED TO OCTOBER 27 –
AALS Section on Property
Junior Scholar Mentoring Session
2015 AALS Annual Meeting
Property Section Breakfast
January 4, 2015
The AALS Section on Property is pleased to invite junior faculty members to submit an abstract of a current writing project or an abstract outlining a possible paper idea. Authors of selected abstracts will informally present their theses/ideas during a mentoring session to be held as one part of the Section breakfast at the 2015 AALS Annual Meeting in Washington, D.C. The breakfast will take place at 7:00 am on January 4, 2015, just before the Section’s 8:30 am panel program.
The goal of this event is to create a safe and organized (but informal) space at the AALS meeting for junior property scholars to meet and engage with more experienced scholars. Selected presenters will have a maximum of 5 minutes to informally present their emerging theses/ideas to their table at the breakfast, after which the members of the Section at each table can offer feedback. Each table will have at least one member of the Section’s Executive Committee as well as other more senior property scholars who will provide mentoring advice, including constructive comments and guidance designed to help suggest ideas and directions of research that might assist with the junior scholar’s project.
Interested full-time, junior faculty members (defined for these purposes as 10 years or less in the academy) of AALS member law schools are invited to submit an abstract of one to three pages to Professor Timothy M. Mulvaney (Texas A&M University School of Law), Chair of the AALS Section on Property, at email@example.com by the new, extended deadline of October 27, 2014. During this extended submission period, a review panel consisting of six property scholars will select an additional one to three junior scholars’ abstracts for these informal presentations and table discussions at the Section breakfast. Selected presenters will be notified of the review panel’s decision in early November. Each selected presenter will be responsible for paying his/her annual meeting registration fee, the registration fee for attending the Property Section breakfast, and travel expenses.
Please feel free to direct questions to Professor Mulvaney at firstname.lastname@example.org.
Monday, October 13, 2014
This past week the ABA State and Local Government Section is meeting in Denver, Colorado and exploring recreational and medical cannabis issues for local government lawyers, cattle ranching and public lands, and impacts on state and local government of more frequent and more extreme weather.
One particular issue facing the region is reconciling economic growth and water shortages. Pace Law School’s Land Use Law Center, in partnership with Western Resource Advocates, is engaged in a multi-year training program on the front range of the Rocky Mountains to integrate water conservation and land use planning at the regional and local levels. From this, resources are being developed to assist planners, attorneys, and officials in the West as they race to accommodate robust development in the face of certain water shortages. Click here to see questions communities can use to guide water and land use planning integration.
Thursday, October 9, 2014
This is (hopefully) the last in a series of three posts, again cross-posted from Concurring Opinions. In the first, I asked why more land use professors are not libertarians, considering the strong leftist critique of local government. In the second, I suggested that one reason for the leftist commitment to local government (and specifically to local government land use control, albeit often in the guise of “regionalism”) is that the relevant libertarian alternatives – namely, the marketplace and the common law of nuisance – are far worse. Nevertheless, I conceded that this answer was unsatisfactory, considering that many leftists – myself included – betray a Tocquevillian optimism about local government that is difficult to square with the position that local governments are merely the least bad of all the alternatives. So I am left here, in this third post, with the hardest question: How can left-leaning local government scholars have any optimism about local government in light of the abusive local government practices we have witnessed (and documented)?
State Structuring of Local Governments
Alright, here goes… While there is no denying the manifold abuses of which local governments are guilty (see my initial post), the blame for these abuses really falls upon state governments, not local governments. The reason local governments act in the parochial fashion they do is because states have empowered and constrained local governments in such a way that effectively forces local governments to be parochial. In a variety of ways, states have facilitated and encouraged the proliferation of small local governments within metropolitan regions, each of which is thus coerced into a zero-sum competition with the others for scarce revenues. States have, at the same time, dumped all kinds of unfunded and underfunded mandates on local governments, which they must meet with whatever revenue they raise locally. Yet, there is one saving grace for local governments: states have given them an awesome power — the land use power. Is it any surprise that local governments use the biggest power states have given them to solve the biggest problem states have saddled them with –an ongoing obligation to provide costly services with limited funds? The local government abuses I mentioned in my initial post, including the “fiscalization” of land use, exclusion of undesirable land uses (and users), strategic annexation and incorporation efforts, and sprawl are thus not things local governments do because they are inherently corrupt; they do so because the state has structured local government law so as to make these abuses inevitable.
That’s not even the interesting part. This is: Why have the states created a system in which local governments have such perverse incentives? According to Jerry Frug, states created the modern system of local government law because they were threatened by cities. Cities’ openness and spirit of participation stood in contrast to the bureaucratizing tendencies of the state. States created a system of local government law designed specifically to emasculate and frustrate cities’ ambitions. In other words, local government represents a vital aspect of human experience that has been actively suppressed by the state. Frug and many others have argued ever since that in order to recover the essence of the local, we need to recalibrate local power and change cities’ incentive structures.
Local Governments and Participatory Democracy
Frug wrote in the tradition of the New Left, with its emphasis on participatory democracy, and in the aftermath of a period in which cities had been devastated by riots, white flight, urban renewal, disinvestment, and outright hostility from state and national political figures. During the late 1960s, there had been a moment when cities appeared to be on the brink of realizing their potential as fora for public participation – a heady time of citizens’ councils and “maximum feasible participation” – but this potential was quickly squashed by nervous elites.
Frug’s argument echoes theorists of participatory democracy such as Hannah Arendt. Arendt writes that, despite the bureaucratization of modern life, there periodically erupt spontaneous displays of citizen activism that demonstrate a latent human desire for political participation. These moments, of which she includes the Paris Commune of 1871, the Hungarian Revolution of 1956, and others, are quickly snuffed out when powerful interests feel threatened. Nevertheless, Arendt sees participatory democracy as lying at the core of the human condition, and the quest to recover the lost tradition of spontaneous citizen activism as a noble calling, which she refers to as “pearl diving.” This “pearl diving,” this quest to recover the vital potentiality of the local, is I think what motivates many leftist local government scholars, and fuels our optimism.
A False Utopia?
Before we all choke on the sentimentality of the last paragraph, I should note that the nostalgia for the pre-Progressive era city is somewhat discomfiting. The Gilded Age city was no enlightened democracy; even before the political machines turned cities into cesspools of corruption, as legal historian Robin Einhorn writes, cities were highly privatized, “segmented” entities that almost exclusively served the will of propertied interests. Going back further in history, certainly very few of us would like to live in the “free” cities of the middle ages, which were basically totalitarian communes, or the Athenian polis, which was rooted in the exploitation of slave and female labor.
Moreover, it is hard for cities to fulfill their potential as fora for participation when they are so embroiled in the quotidian business of governing at the local level. While states have the freedom to delegate hard decisions and devote their energies to ideological struggles, cities have to deal with the pragmatic daily chore of picking up the garbage, literally and figuratively. On a nearly daily basis, cities must address intractable issues such as homelessness, affordable housing, climate change, education, health care, security, immigration, and more, issues that, in an era of globalization, are only likely to intensify the pressure on cities as states and national governments recede in influence. Managing all these issues will require shortcuts, and city governments will be forced to make unpopular decisions that are sure to anger significant segments of the community; these issues cannot possibly be addressed if we see urban politics as merely, or even principally, a forum for democratic deliberation.
But everything I have just said also explains why we leftists insist on putting all our eggs in the local government basket. Like it or not, cities are, and for the foreseeable future will be, the primary means of dealing with the messy everyday problems we confront. In some cases, as with the provision of clean water (see my earlier post on cities in the developing world) they have succeeded spectacularly. In others, such as the provision of affordable housing, they have failed miserably. But even where they have failed, as in the case of affordable housing, we can often point the finger at the way states have empowered local governments, rather than some inherent flaw in local government. In any event, as I mentioned in my previous post, we have few viable alternatives to local government. For reasons both practical and utopian, it figures to think that cities represent our best hope for the future, and to rest our efforts on improving urban governance rather than displacing it.
Wednesday, October 8, 2014
I'm not sure how many land use profs find themselves teaching about the issue of implicit bias, but it certainly came up when I was running the Land Use Clinic at UGA. Race and attitudes toward race are expicit or implicit in so many land use issues, particularly in the South, where segregation-based land use patterns persist. (For more on this, see some of my previous posts on race and environmental justice, here, here, here, and here.)
I always found it a struggle to teach about the implications of race. Apparently, I'm not the only one, because a question by Ohio State's Amna Akbar to the clinicians' listserv earlier this spring sparked quite a conversation. Now Alabama's Tanya Asim Cooper has compiled a summary of that conversation and related resources, and posted it on the Clinical Law Prof Blog. I find it fascinating, and not just because my contributions are included. Whether you're a doctrinal or a clinical teacher, if you struggle to raise the issue of race with your students, I highly recommend you check it out.
Jamie Baker Roskie
Tuesday, October 7, 2014
This post is, again, cross-posted fom the Concurring Opinions blog.
In my previous post, I asked why more land use/local government law professors do not identify as libertarians, considering the role many of us have played in exposing the dysfunctional workings of local government.
If there is an obvious argument in favor of the status quo in land use/local government regulation, it is that all the alternatives seem worse. Let us consider some of the candidates:
An unimpeded free market in land use development would apparently be the worst of all worlds, as there would be no way to prevent open space from being gobbled up by new housing, roads and schools becoming impossibly congested, or a refinery locating next to a single-family home (or, perhaps more likely, a landowner threatening to build a refinery in order to extort his neighbor, a common scenario in pre-zoning Chicago). In a densely populated society, we need some way of ensuring that landowners consider the impact of their land use on neighbors. The good people of Oregon realized this after an ill-advised ballot initiative a few years ago effectively wiped out zoning, and suddenly a single landowner could, for example, subdivide his parcel into 100 lots for single-family homes with no regard for the impact the development would have on local services or infrastructure. The ballot initiative was repealed by a subsequent initiative a few years later.
In my previous post, I mentioned Houston as a possible alternative to most places’ current system of land use regulation. Houston is often touted for its lack of zoning, and corresponding low home prices. I should point out, however, that Houston is not quite a free-market paradise. Houston has a full complement of land use laws, including subdivision regulations (to prevent the aforementioned 100 lot problem) billboard regulations, and the like. The city even enforces restrictions contained in private covenants. As my friend and Houstonian Matt Festa points out, Houston has a quirky city charter that prohibits zoning without a voter initiative, so the city does lots of land use regulation but simply calls it something other than zoning. And, while I’m on the subject, does anyone really think the reason Houston has lower land prices than San Jose is because of zoning?
The common law of nuisance, a favorite of libertarian land use scholars, would appear to solve some of the problems of a free-market system, such as the refinery locating near a single-family home. But what if, instead of a refinery, it’s a bowling alley? A tavern? A cemetery? Are any of these nuisances? On that note, is subdividing my property into 100 new lots a nuisance? In all of these cases, the answer is … maybe. It depends on the severity and nature of the impact on my neighbors, the existing precedent on nuisance law in the particular state, and, most importantly, how the judge assigned to the case chooses to balance the interests involved.
This, of course, is exactly the problem. If local government land use control has been criticized for subjecting landowners to uncertainty about permissible uses of their property, for forcing developers to go through an expensive and time-consuming process to get permits, for picking winners and losers based on crass political concerns such as campaign contributions, the process of “judicial zoning” through nuisance law is little better. First, nuisance law is, if anything, more uncertain and expensive than local government land use control. Nuisance doctrine is so ambiguous that no landowner can ever know with certainty what his or her rights are without resorting to a highly fact-intensive litigation, which will inevitably involve a massive expenditure of time and money. (And Coasean bargaining won’t work if people don’t know their rights.) Second, judges inevitably pick winners and losers in nuisance cases, and while we might expect a judge – even an elected one – to rule on the legal merits of a nuisance case rather than political considerations, the nuisance inquiry is so vague and policy-driven (e.g., harm v. utility) that judges necessarily end up making value judgments about what land uses they find desirable and undesirable. Moreover, though judges – again, even elected judges – are surely less influenced than legislators by political concerns like campaign contributions, public choice research has shown that the judicial decision-making process shares many of the abuses that plague the political process – such as the dominance of repeat players and the ability of small, well-organized interests to exercise disproportionate influence.
To go a step further, the fact that local government decisionmaking is “political” whereas judicial decisionmaking is not (at least in principle) is precisely what makes local government land use control superior. When local officials make land use decisions, members of the community will at least have the opportunity to influence them through the political process. By contrast, a judge hearing a nuisance case is likely to be far less sensitive to the full array of interests affected by its decision, both because the adversarial nature of common-law litigation precludes anyone but the parties from being heard, and because judges, even when elected, are generally (and hopefully!) less amenable to pressure from voters than are local politicians.
The question, as my favorite economist Bill Fischel puts it, is whether we would rather be ruled by judges or by legislators. Though the choice, as I have presented it here, is an unpleasant one, the balance of the evidence seems to favor legislators. Judges have long understood this, and they have consciously assumed a passive and deferential role in the land use process from the beginning (Indeed, it is notable that the foundational 1926 case upholding the constitutionality of zoning, Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), was authored by perhaps the most libertarian justice of all time, George Sutherland. Sutherland’s opinion made a point that zoning was necessary because nuisance law had become an inadequate means of dealing with modern land use problems.)
Nevertheless, there is something unsatisfying about this justification for local government land use control, even for leftists. The leftist vision for local government is an optimistic one, rooted in the belief that local government offers an opportunity to realize our highest aspirations for democratic self-government. The local-government-as-least-of-all-evils argument is for us an unacceptably pessimistic view of government, and its insistence on a merely quantitative accounting of the relative demerits of various systems of land use control invites every armchair empiricist to place a thumb on the scale in favor of his or her own preferred arrangement. On the other hand, given the unsparing descriptive account of local government detailed in my previous post, how can leftists be so optimistic? I will address that question in my next post.
Monday, October 6, 2014
In case you missed it, I am cross-posting something I initially posted to Concurring Opinions, that may be of interest to our readers here. Parts II and III to follow:
Many professors who study land use and local government law, myself included, consider ourselves leftists rather than libertarians. That is, we have some confidence in the ability of government to solve social problems. Nevertheless, were you to pick up a randomly selected piece of left-leaning land use or local government scholarship (including my own) you would likely witness a searing indictment of the way local governments operate. You would read that the land use decisionmaking process is usually a conflict between deep-pocketed developers who use campaign contributions to elect pro-growth politicians and affluent homeowners who use their ample resources to resist change that might negatively affect their property values. Land use “planning” – never a great success to begin with – has largely been displaced by the “fiscalization” of land use, in which land use decisions are based primarily on a proposed land use’s anticipated contribution to (or drain upon) a municipality’s revenues. Public schools in suburban areas have essentially been privatized due to exclusionary zoning practices, and thus placed off limits to the urban poor, whereas public schools in cities have been plundered by ravenous teachers’ unions.