Tuesday, August 2, 2016

New ABA State & Local Gov't Section Land Use Committee Listserv

For those not members of the ABA State & Local Government Section... a new reason to join!  See below:

Dear Land Use Committee Members,

We are pleased to inform you that you can now use the Land Use Committee Listserv to communicate with other members.  This is a wonderful opportunity to share resources, pose questions, and connect with other land use practitioners.

To communicate simply send the email to LG-LANDUSE@mail.americanbar.org, using the email address account you have listed under your ABA membership.

Also, as we prepare for the upcoming year we wanted to share the attached agenda for the Committee meeting scheduled for August 6th at 9:00-10:30 PDT at the Annual Meeting in San Francisco.  If you have any questions about the Committee or would like to get involved, please do not hesitate to contact us.

Hope to see you in San Francisco!

Best regards,

Jessica A. Bacher
Chair, Land Use Committee, Section of State and Local Government Law

Sarah J. Adams-Schoen
Vice Chair, Land Use Committee, Section of State and Local Government Law

August 2, 2016 | Permalink | Comments (0)

Monday, August 1, 2016

Conference List Updated

Just a reminder for those of you looking for information about land use and environmental law conferences, I maintain a list on SSRN that I periodically update. It can be useful for folks looking for fun conferences to attend, interesting CLE opportunities, or just trying to avoid major conflicts in scheduling your own events.

Happy to add your events if you email them to me!

 

August 1, 2016 | Permalink | Comments (0)

Sunday, July 24, 2016

Zoning's Next Century, Part 1: An Agenda for the First Decade: A Series by John R. Nolon

Zoning’s Next Century

An Agenda for the First Decade

John R. Nolon, Distinguished Professor

Elisabeth Haub School of Law, Pace University

July 25, 2016

On this date--July 25th--in 1916, New York City adopted the nation’s first comprehensive zoning ordinance.  In a series of 20 posts earlier this year, we traced zoning’s evolution into land use law and noted its steady progress in solving complex problems regarding the use and protection of land and natural resources. The posts demonstrated how zoning that ordered community development became society’s method of shaping human settlements to promote jobs, economic development, ecosystem services, and equity, while reducing carbon emissions and adapting to climate change.

On the cusp of its second century, land use law is ready to be used as an essential strategy for sustainable economic development and climate change management: a man-made tool capable of repairing damage done by an alarming man-made problem. 

In honor of this anniversary, here is a land use law agenda for the first decade of zoning’s second century.

  1. Reduced carbon emissions. The 2015 Conference of the Parties to the International Convention on Climate Change in Paris called on participating nations to list the strategies they will use to mitigate climate change. These are called Intended Nationally Determined Contributions or INDCs and they are to be submitted to the UN so that it can evaluate their cumulative results. The United States’ submission relied on traditional, top-down environmental law mechanisms to contribute to climate change mitigation. By 2020, when a new submission is due, our INDCs must be grounded as well on land use strategies that reduce vehicle miles travelled and energy consumption by reshaping settlement patterns and revising building construction protocols. This is the first order of business for zoning’s second century.
  2. Retreat and resilience: Much of our population is settled along coastal waterways and flood plains. Many more are in the drought-prone southwest where the summer’s heat threatens livability and sparks wildfires. Retreating from the most dangerous of these areas is highly controversial, but an inevitable result of the changing climate. Land use law is evolving to plan for and manage the gradual retreat from some of these danger zones and to make others resilient through proper placement and construction of buildings and infrastructure.  The loose confederacy of strategies now being developed must become a clear blueprint of best practices for states and localities to adopt.
  3. 3. Reduced liability for preventing dangerous development. A quarter of a century ago, the U.S. Supreme Court, in Lucas v. South Carolina Coastal Council, held that land use regulations that prevent all economic development are takings and require full compensation for the affected owner.  Justice Scalia, writing for the majority noted that changed circumstances and changed knowledge could be used to soften this rigid total takings rule.  Properly constructed no-build regulations in climate change’s danger zones must be validated by the use of this dictum to liberate regulators from the liability that has stifled common-sense adaptation strategies.
  4. Creating livable neighborhoods for the new demographics. Land use regulations can create livable neighborhoods for the nation’s emerging households: young individuals and couples (millennials), immigrants, and seniors who are leaving single-family neighborhoods. Most prefer urban living, but only in neighborhoods with a proper mix of services, entertainment, restaurants, and transportation alternatives. These places are where society has invested in infrastructure and where jobs and housing are needed to revitalize urban neighborhoods and reduce per capita carbon emissions. The many solid innovations already in place must be shaped into a common agenda for implementing this objective.
  5. Creating transportation alternatives. Technology is making cities smarter. They are using new media, communication, and transportation software to lower the costs and increase the amenities of urban living. Foremost among these is transit oriented development that connects mixed-use buildings with transportation services in transit station areas and makes the connections obvious and accessible to residents and workers through smart technologies.
  6. Managing neighborhood transitions. As this agenda evolves, it could result in gentrification---the displacement of low and moderate income residents, a result clearly counter to the basic precepts of sustainability. The faint outlines of a strategy for managing this transition without displacement are becoming visible. They involve job development and training for current residents, remediating distressed properties (while making them affordable), including affordable units in new housing projects, and close attention to quality of education and public safety, among other initiatives. Here, land use planning and regulation must be coordinated with other disciplines for progress to be made.
  7. Resolving the fair housing dilemma. The Inclusive Communities Project case, decided by the Supreme Court in 2015, determined that zoning that disparately impacts racial minorities may be invalid under the Fair Housing Act. This requires careful thought and action by affluent communities where whites and single-family zoning predominate. How to create an inclusive community through land use regulations is an elusive objective. Equally challenging is the issue of distributing limited federal and state housing dollars and tax credits. These resources historically have been allocated to communities with low and moderate income populations: where the need is, as they say. The Court indicated that this kind of steering may violate the Fair Housing Act because it perpetuates segregation. To the extent that limited subsidies are allocated to more affluent areas, they are less available to mitigate gentrification in revitalizing urban neighborhoods.  This is a public policy quandary of critical importance, one that must be resolved in the first decade of zoning’s new century.
  8. Protecting urban food sheds. The local food movement is inherently sustainable and innovative farmers are producing crops close to urban centers. Critical to the success of this strategy is the preservation of high quality farm land in defined food sheds. Land use laws must be adjusted to permit farmers in critical areas great flexibility to use farm land to meet market needs and diversify their on-site land uses and to provide zoning incentives to do so. Zoning that permits residential development of farm land must be reformed to protect the most fertile soils and farms.
  9. Reducing water demand and protecting water quality. As the domestic population expands, water consumption will increase in areas with limited potable water supplies. Land use regulations can foster settlement patterns that reduce per capita water use by emphasizing smaller lots and higher density development. This combined with regulations that require water smart facilities and water-conserving landscapes can reduce per capita consumption by half or more. At the same time, development that serves the nation’s growing population must be governed by local land use laws that protect ground and surface water from pollution. This requires more communities to adopt water pollution controls developed over the past two decades as local environmental law.
  10. Making local land use strategies an intentional objective of state and federal initiatives. The power of local governments to control land use is not likely to be taken away during the early decades of zoning’s new century. This power and its proper use must be harnessed for this agenda to be realized; integrating local land use authority must become an intentional objective of state and federal policy. Returning to item one on this agenda, elevating land use strategies to become a core component of the nation’s INDCs is an important, if not necessary, method of doing this.

Here are links to the 20 blogs on Zoning’s Centennial:

Part 1: The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority to Adopt Zoning

Part 3: Zoning Was Contagious, But Was It Constitutional?

Part 4: The Unintended Consequences of Euclidean Zoning

Part 5: The Most Appropriate Use of the Land

Part 6: The Surprising Origins of Smart Growth

Part 7: The Advent of Local Environmental Law

Part 8: Regionalism and ‘Wistful Hoping’

Part 9: Mixed Signals: Exclusionary Zoning and Fairness

Part 10: The Emergence of the Law of Sustainable Development

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 16: Fracking as an Industrial Use under Zoning

Part 17: Water Scarcity and Land Use Planning

Part 18: Zoning: Shaping and Attracting Economic Development

Part 19: Open Space Zoning Turns to Sequestration

Part 20: Land Use Law and Climate Change Management

July 24, 2016 | Permalink | Comments (0)

Friday, July 22, 2016

What makes inclusionary zoning happen?

A new report from the National Housing Conference has some of the answers.  Here is the abstract:

More than 500 local inclusionary zoning (IZ) programs have been implemented in communities across the country. In most cases, these IZ policies are adopted as part of a larger local strategy to expand housing options that are affordable to lower income households.  IZ policies have been adopted in a wide range of places, from big cities to suburban communities to rural areas. But what makes one community more quickly adopt an IZ policy than another community? Using a database developed in collaboration with the National CLT Network (now Grounded Solutions), researchers at NHC and the University of Maryland developed a model to explain the rate of IZ adoption in local jurisdictions across the country.  When states expressly authorize inclusionary zoning, local jurisdictions have an easier time adopting a local IZ program. Other community characteristics that are associated with adoption of a local IZ program include: higher population densities, higher shares of rent-burdened households, lower home ownership rates, and a lower share of Democratic voters. These research findings can help advocates target their education and outreach efforts as they seek to expand the number and the effectiveness of IZ programs across the country.  

July 22, 2016 | Permalink | Comments (0)

Rocky Mountain Land Use Institute seeks panel proposals for 2017 conference themed Creating Inclusive Communities


  
Western Places / Western Spaces Conference
Request for Proposals

What issues are important to you in your work?

The Rocky Mountain Land Use Institute's annual land use conference, Western Places / Western Spaces explores a range of land use, planning, law, and development issues with professionals from around the West and across the country.

At last year's event, we paused to look back at the lessons we've learned over the past 25 years. This year, we're inviting you to submit your session proposals to address how we can put those lessons into practice. 

Western Places/Western Spaces: Creating Inclusive Communities

The theme for the 2017 Western Places/Western Spaces conference,Creating Inclusive Communities, focuses on the challenges and strategies available to cities—large and small—to plan for and build communities in which everyone can thrive.

So what issues matter most in your community?

With cities and towns across the West facing rapid population growth and changing demographics, perhaps it is addressing social equity through urban planning or how to provide enough affordable housing. Denver is looking into an affordable housing fund, following in the footsteps of cities like cities like Seattle. 

Maybe it's fracking, which is certainly a hot issue here in Colorado where a proposed ballot measure would change the setback limits from occupied buildings. Or maybe your community already supports the industry but is dealing with the latest oil and gas bust.

Possibly you are working on issues of mobility, such as making your city more walkable or trying to figure out what the driverless car trend will actually look like.

Or perhaps your work involves land use and conservation and you're dealing with the current wildfire season or working out how to encourage water conservation.

 

 

Request for Proposals
Whatever issues matter to you, we invite you to submit a session proposal to share your challenges and solutions with fellow practitioners. Visit the RMLUI website to learn more about the conference theme and topics, as well as instructions on submitting your proposal.

The deadline to submit proposals is Friday, August 12. Organizers will be notified of the status of their submissions by September 30.

If you have any questions, please do not hesitate to contact us atrmlui@law.du.edu or 303-871-6319.

We look forward to reading your proposals!

Susan and Lisa 

Susan Daggett
Executive Director
Rocky Mountain Land Use Institute


Lisa Bingham
Program Coordinator
Rocky Mountain Land Use Institute

New to the RMLUI Annual Land Use Conference?
Each year, RMLUI attracts 500 people from the Rocky Mountain West to the University of Denver campus. Now in its 26th year, the conference has become the place for land use and development professionals from private practices, local governments, non-profits, and educational institutes to share knowledge and network.

You can view programs and materials from previous conferences on theRMLUI website.

Videos from the 2016 conference,Examining the Past, Exploring the Future are available to download through the Home Study Program.


Contact Us

www.law.du.edu/rmlui
rmlui@law.du.edu
303-871-6319

 

 


SAVE THE DATE!
6th Annual Carver Colloquium

 


Thursday, September 29, 2016
University of Denver
Sturm College of Law

This year’s event will feature former Colorado Justice and Sturm College of Law Professor Gregory Hobbs and Professor Gary Libecap of the University of California, Santa Barbara debating whether water should continue to be allocated using prior appropriation or if a free market system would be better.




 

University of Denver
2199 S. University Blvd.
Denver, CO 80208
To manage your email preferences, click here

July 22, 2016 | Permalink | Comments (0)

Thursday, July 21, 2016

UIdaho Law helps launch Citizens Planning Academy

Boise and the surrounding Treasure Valley rank as one of the 20 fastest growing American regions.  

To facilitate better planning of this rapid growth, I am pleased to announce that the University of Idaho College of Law and Idaho Smart Growth are teaming up to create the Citizens Planning Academy, an effort to build planning and land use law capacity within the Treasure Valley region, which begins with a series of monthly workshops.  Our first session is this coming August 3rd and will focus on how the Ada County Highway District--one of the country's few unified highway districts with control of both city and county roads--works.  We also plan a YouTube Channel that will make these sessions freely available.  For anyone in Boise with an interest in planning law, and especially transportation, this is the place to be!

Here is the announcement:

First Citizens Planning Academy Session on Aug. 3rd

Subject: Working Effectively with ACHD
When: Wed. Aug. 3 from 6 – 7pm
Where: Idaho Law & Justice Learning Center, 514 W. Jefferson Street, Room 135

The room is right next to the door on the eastern side, and it’s easiest if you enter there. Parking is available behind the building on the eastern side in the spots marked “visitor.” RSVP toDeanna if you plan to attend.

ACHD staff will discuss the following:

  • Development – how to be involved, policies, etc.
  • Plans & Projects – how to be involved
  • Community Programs – how to submit project requests

Idaho Smart Growth and the University of Idaho College of Law in Boise have teamed up to create the Citizens Planning Academy. We will hold monthly sessions on the first Wednesday of each month at the Idaho Law & Justice Learning Center from 6:00 – 7:00 pm. The purpose of the Academy is to help citizens interested in participating in planning efforts throughout the Treasure Valley—from regional to the neighborhood—to understand how to become effective advocates on land use, transportation and other planning topics. Each session will cover one topic. We will bring in staff or other knowledgeable presenters for each session and discussion will be encouraged. The sessions are free and open to anyone.

July 21, 2016 | Permalink | Comments (0)

EU proposes to integrate the land use sector into the EU 2030 Climate and Energy Framework

Yesterday, the EU released a series of proposals related to integrating land use into its 2030 Climate and Energy Framework.  These fact sheets are worth a look.  Below I have copied the overarching announcement.  At the bottom of the press release are links to other fact sheets about specific proposals that were also announced yesterday.  For those interested in cities, the specific plans related to low-emission mobility may be the most interesting.  

Here is the press release, also copied below:

 

Proposal to integrate the land use sector into the EU 2030 Climate and Energy Framework

Brussels, 20 July 2016

Questions and answers

A robust climate policy framework is a key element of the EU's Energy Union and a successful transition to a low-carbon economy. This is a necessary shift that will require a contribution from all sectors of the economy. Incentives for climate-friendly land use and forestry ensure the continued growth and sustainable productivity of our rural communities, which provide important services and economic benefit. A sustainably managed land use sector can supply renewable energy and materials, ensuring that the EU remains a world leader in these markets.

1. What is the Commission's proposal on land use and forestry about?

In October 2014, the EU agreed on a clear commitment: all sectors, including land use and forestry, should contribute to the EU's target to reduce greenhouse gas emissions by at least 40% by 2030 compared to 1990 levels. Today's proposal on land use and forestry sets out a binding commitment for each Member State and the accounting rules to determine compliance and covers CO₂ from forestry and agriculture [1].

Together with last year's  proposal for the revision of the EU Emission Trading System (ETS) and today's Effort Sharing proposal on national emissions targets for all other sectors not covered by the EU ETS (see fact sheet), this will contribute to the achievement of the EU's commitments under the Paris Agreement on climate change. The new regulatory framework is based on the key principles of fairness, solidarity, flexibility and environmental integrity.

The Commission proposes a careful balance between more incentives to capture carbon in soil and forests and the need to maintain the environmental integrity of the EU climate framework, so as to incentivise emission reductions in the buildings, transport and agriculture sectors.  

Land use and forestry include our use of soils, trees, plants, biomass and timber, and are in a unique position to contribute to a robust climate policy. This is because the sector not only emits greenhouse gases but can also remove CO₂ from the atmosphere. EU forests absorb the equivalent of nearly 10% of total EU greenhouse gas emissions each year.

 

2. What are the benefits for European citizens, farmers and foresters?

By helping to preserve and strengthen the capacity of our forests and soils to capture CO₂ in a sustainable way, this proposal benefits all Europeans.  Member States and the EU will be able to better assess climate change benefits related to agriculture and forestry, get a better understanding of effective climate protection measures in these sectors, while at the same time securing food production, protecting biodiversity, and encouraging the development of a bio-based economy.

Emissions of biomass used in energy will be recorded and counted towards each Member State's 2030 climate commitments. This addresses the common criticism that emissions from biomass in energy production are not currently accounted for under EU law. As forest management is the main source of biomass for energy and wood production, more robust accounting rules and governance for forest management will provide a solid basis for Europe's future post-2020 renewables policy.

The new rules will support farmers in developing climate-smart agriculture practices, which seek synergies between productivity, resilience and emissions reductions, without imposing restrictions or red tape for individual farms. It will support foresters and forest-based industries through greater visibility for the climate benefits of wood products which have a longer life-time and which store carbon from the atmosphere for long periods. It will provide a framework for Member States to incentivise more climate-friendly land use.

3. What is the "no-debit" commitment for land use?

The proposal requires each Member State to ensure that accounted CO₂ emissions from land use are entirely compensated by an equivalent removal of CO₂ from the atmosphere through action in the same sector.  This commitment is referred to as the "no debit rule".  In essence, if a Member State cuts down their forests (deforestation), it must compensate the resulting emissions by planting new forest (afforestation) or by improving the sustainable management of their existing forest, croplands and grasslands. In this way the "no-debit" commitment incentivises Member States to take actions that increase the absorption of CO₂ in agricultural soils and forests. Although Member States undertook this commitment under the Kyoto Protocol up to 2020, the proposal enshrines the commitment in EU law for the period 2021-2030.

The proposal also contains the accounting rules to be used by all Member States so that compliance with the "no-debit" commitment is calculated consistently across all Member States. The accounting rules regulate how emissions and removals – i.e. the absorption of CO₂ by agricultural lands and forests – are to be recognised, measured and compiled in a standardised way.

 

4. What are the accounting rules set out in the proposal?

The more robust accounting rules in the Commission proposal build on those previously established at international level under the Kyoto Protocol, which commits its Parties by setting internationally binding emission reduction targets. The modifications that the Commission proposes today will make the accounting rules fit for purpose for the period from 2021 to 2030.

The technical rules are simplified and updated, with the current methodology regarding land use accounting mostly kept, but upgraded and made relevant for a post-Kyoto protocol period (post-2020) to improve environmental integrity. The main updates are:     

-        In order to improve both accuracy and the identification of new mitigation action, the proposal updates the base period to average accounts for the years from 2005 to 2007. This creates a stable benchmark more closely aligned with the non-ETS 2005 base year.

-        Simplifying and streamlining the reporting and accounting systems to the internationally recognised approach based on tracking emissions and removals associated with different categories of land use (e.g. forest land, cropland, grassland). In the EU a standard accounting period of 20 years will be introduced for land use change, except for afforested land where Member States may choose a 30 year period, based on national justifications such as forest conditions.

The proposal also introduces a new EU governance process for monitoring benchmarks, called "forest management reference levels" that Member States will use to calculate emissions and removals from managed forests. This new EU governance approach will increase transparency and comparability across Member States, while fully taking into consideration national forest circumstances and priorities.

5. What are the new flexibilities for Member States to achieve their targets?

The proposal provides several flexibilities to Member States to meet their "no-debit" commitment while maintaining environmental integrity. If the net removals of CO2 are greater than the net emissions of CO₂ from land use in the first compliance period (2021-2025), these can be banked and used in the next compliance period (2026-2030). This gives Member States the flexibility to deal with fluctuations caused by growth cycles or other variable conditions. 

If a Member States has net emissions from land use and forestry, it can use allocations from the Effort Sharing Regulation to satisfy its "no debit" commitment.  They can also buy and sell net removals from and to other Member States. This encourages Member States to increase CO2 removals beyond their own commitment.

Where a Member State generates net removals beyond their commitment by increasing forest area (i.e. afforestation) or through good practice in agriculture (i.e. managed grassland and managed cropland) a number of these credits can be used to comply with national targets in the Effort Sharing Regulation, although this amount is strictly limited to ensure the environmental integrity of these targets. Only net credits generated domestically by afforested land, managed grassland and managed cropland can be transferred and used for compliance under the Effort Sharing Regulation. Before a similar flexibility is considered for managed forest land, the robustness of the reference levels for all Member States based on the new EU governance process should be evaluated. 

6. How do the Member States report compliance with the new rules?

The proposal establishes two compliance periods from 2021-2025 and from 2026-2030 respectively.  A five year cycle is appropriate for land use because absorptions and emissions in the sector can vary significantly from year to year, due to weather and other natural phenomena. This closely aligns the proposal with the 5-year review cycle set out in the Paris Agreement and is in line with the Commission commitment to Better Regulation.

Member States are nevertheless expected to report on their emissions and removals annually, applying the standardised accounting rules, and on policies and measures undertaken in the sector every second year. The Commission will carry out a comprehensive review of the data after each 5-year period and determine compliance with the "no debit" commitment.

Where a Member State does not meet its commitment in either period, the shortfall is deducted from their allocation in the Effort Sharing Regulation.

7. How does the proposal account for natural disasters that affect forests?

Certain natural events can cause trees to fall during storms, die (for example from infection and pests) or burn in wildfires. In the last 25 years, globally, forest fire seasons have already become 20% longer and more severe and this trend is expected to worsen in the coming decades due to increasing global temperatures.

The scale of emissions associated with extreme events that are driven by nature – i.e. natural disaster – can be substantial. Emissions that are outside the control of Member States may be excluded from the accounts for land use and forestry. Clear rules limit this exemption to ensure that it does not create a loop-hole.

 

More information

DG CLIMA website 

Press release: Energy Union and Climate Action: Driving Europe’s transition to a low-carbon economy

Fact sheet: Questions and answers on the European Strategy for low-emission mobility

Fact sheet: Questions and answers on the Commission's proposal on binding greenhouse gas emissions reduction for Member States (2021-2030)

July 21, 2016 | Permalink | Comments (0)

Touro Land Use & Sustainable Development Law Institute seeks Graduate Research Fellow for 2016-17

Graduate Research Fellow for 2016-17

Land Use & Sustainable Development Law Institute

Touro Law Center’s Land Use & Sustainable Development Law Institute is seeking a Graduate Research Fellow to take a key role on an innovativeZoning for Coastal Resilience project funded by the New York Sea Grant. The Institute is undertaking this project in coordination with a number of government and community partners, including the New York State Department of State and Governor’s Office of Storm Recovery, the U.S. Environmental Protection Agency, the Federal Emergency Management Agency, and Pace University’s Land Use Law Center, amongst others.

Threats from sea-level rise and coastal storms create significant social, environmental and economic risks. To help address these threats, the Zoning for Coastal Resilience project will provide to three Long Island, New York communities practical tools and critical information that will assist in increasing coastal resilience, including assisting local leaders in undertaking a detailed assessment of local laws, identifying land use techniques to increase resilience, and helping to develop implementable local strategies that will enable a more resilient future for the region.

To achieve these objectives, the project team will work collaboratively with community leaders and project technical experts to assist community leaders in assessing and amending their zoning codes and other related local laws to increase coastal community resilience. The project team will not recommend any particular policies or strategies, nor will they promote a particular point of view. Instead, the project team will provide support to local government officials, staff and community leaders to empower them in assessing and amending local laws to increase coastal resilience. This collaborative support may include, for example, legal research and analysis of issues related to amending zoning codes and other community planning documents to increase resilience, surveys of existing best practices, facilitation of workshops with technical experts, and assistance in drafting and assessing potential local law amendments.

The Position: The Institute is seeking a Graduate Research Fellow to staff the Zoning for Coastal Resilience project. The Fellow will work directly with the Institute Director, Professor Sarah Adams-Schoen, and the Institute’s law student Fellows. The Graduate Research Fellow will network with local, county, state and federal government and private sector partners; undertake research and analysis related to coastal resilience and local law; and help create practical tools that will directly assist coastal communities in increasing their resilience by developing land use leadership capacity and providing technical assistance on assessing and amending local laws. The project represents an excellent opportunity to work on legal issues of critical importance to Long Island, New York and the nation.

The Graduate Research Fellowship begins in July or August 2016 and continues until February 28, 2017, with the possibility of renewal for a second term from March 1, 2017 through February 28, 2018, depending on interest and performance. The Institute Director, Sarah Adams-Schoen, supervises the Graduate Research Fellow, but the Fellow is expected to assume substantial responsibility for his or her own work and to assist the Director in supervision of law student research fellows and research assistants. The Graduate Research Fellow will work closely with the Institute Director, students and administrative staff of Touro Law Center, as well as with NYSG project partners including local, county, state and federal government staff.

Qualifications: The Graduate Research Fellowship is offered to graduating law students or recent law school graduates with outstanding academic and legal credentials who are committed to sustainability. Strong candidates will have excellent legal research, writing and analytical skills. Experience in land use and zoning or local environmental law is preferred, but not required. Fellows need not be licensed to practice law.

Salary: The salary for the first-year Graduate Research Fellow is $4,583 per month, plus benefits. A cost-of-living increase is possible for second year Fellows. Fellows work 35 hours per week.

Application Procedure:  Applicants should send a cover letter of no more than 1 page, a resume, a writing sample of no more than 5 pages, and 3 references to Sarah J. Adams-Schoen, Director, Land Use & Sustainable Development Law Institute, Touro Law Center, 225 Eastview Dr., Central Islip, NY 11722, or by e-mail to sadams-schoen@tourolaw.edu<mailto:sadams-schoen@tourolaw.edu> with NYSG Graduate Research Fellow in the subject line. Applications will be accepted on a rolling basis until a candidate is hired. Interested applicants are therefore encouraged to apply as soon as possible.

July 21, 2016 | Permalink | Comments (0)

Tuesday, July 19, 2016

Conservation Easements and Prescription

Here's an Alabama case that likely escaped most people's attention: Quinn v. Morgan (am I the only one entertained by the fact that these are now two trendy kid names) from the Court of Civil Appeals in Alabama, 2016 WL 3855034. It's a great case for a review of prescriptive easements, turning on the hostility prong of the test -- which always gives my students the most trouble.

Morgan had a relatively easy time of showing that she and her husband had established a prescriptive easement across property owned by Quinn and Stough (different parcels) to access their land. What intrigues me about the case is that there was a conservation easement burdening the Stough land. The Stough land  was burdened by a conservation easement held by the Alabama Forest Resources Center. The AFRC challenged the prescriptive easement and was recognized to have standing to do so along with the other landowners. AFRC was unable to stop the recognition of a prescriptive easement. The court did not discuss the terms of the conservation easement, so we don't know whether the PE conflicted with the CE. This case suggests however that CEs could be hampered by PEs burdening the same property. CE holders will need to be vigilant monitoring the land to guard against PEs, suggesting that annual monitoring may not be enough. Moreover, it suggests the holders might need to be more alert to potential problems of adverse possession. Arguably, a conservation easement could be terminated by adverse possession as well.

July 19, 2016 | Permalink | Comments (0)

REGISTRATION OPEN FOR CENTRAL STATES LAW SCHOOLS ASSOCIATION CONFERENCE

Registration is now open for the Central States Law Schools Association 2016 Scholarship Conference, which will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND. We invite law faculty from across the country to submit proposals to present papers or works in progress.

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Please click here to register. The deadline for registration is September 2, 2016.  

Hotel rooms are now available for pre-booking. The conference hotel is the Hilton Garden Inn in Grand Forks. The hotel phone number is (701) 775-6000. When booking, identify yourself as part of the “UND School of Law” block to receive a daily rate of $89. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.

For more information about CSLSA and the 2016 Annual Conference please subscribe to our blog.
           
We look forward to seeing you in Grand Forks!

Sincerely,

The 2016 CSLSA Board
For more information about CSLSA, visit our website at http://cslsa.us/ or contact a board member.

July 19, 2016 | Permalink | Comments (0)

Monday, July 18, 2016

Staff attorney position open at Community Development Project of Urban Justice Center in NYC

Here's a job opportunity I'm posting at the request of the Community Development Project of the Urban Justice Center in NYC.

Download CDP Land Use Staff Attorney Position Description

 

Community Development Project of the Urban Justice Center

STAFF ATTORNEY

LAND USE & NEIGHBORHOOD CHANGE

 

The Community Development Project (CDP) at the Urban Justice Center seeks a Staff Attorney to provide legal support to grassroots groups on matters related to neighborhood change and development. We believe that legal services focused on land use are a critical way to support responsible, equitable development and to combat gentrification and displacement. CDP’s work in this area has included advocacy around neighborhood rezonings, negotiation of community benefits agreements, participation in citywide coalitions that support equitable development, and litigation challenging proposed developments. The position reports to the Supervising Attorney for CDP’s Capacity Building Practice. Depending on organizational needs and the candidate’s interests and experience, this position may offer opportunities to also work on transactional matters, such as nonprofit and worker cooperative development and support.

Primary Responsibilities include:

  • Support local coalitions and grassroots groups in neighborhoods facing rezonings by conducting trainings, supporting the formation of coalitions, researching best practices in equitable development, reviewing and crafting responses to the City’s proposed rezoning plans, and supporting local groups in developing and advocating for policies to better meet community needs.
  • Negotiate and draft legally binding Community Benefits Agreements (CBAs) with private developers to ensure that community members obtain concrete benefits from development projects.
  • Advocate to legislative bodies and agencies in partnership with CDP’s clients regarding issues related to equitable neighborhood change and development.
  • Participate in coalitions to support policies that promote equitable development.
  • Develop and pursue litigation to protect community members’ interests in the face of rezoning and development initiatives.
  • Develop new strategies and partnerships to advance equitable neighborhood change.
  • Support CDP on other substantive and administrative projects.
  • Comply with all grant reporting requirements and supporting CDP’s development department to ensure ongoing funding for the work.

Qualifications/Skills: 

Required:

  • Admission to the New York State Bar, able to be admitted on motion, or pending admission.
  • Demonstrated commitment to grassroots efforts for economic, racial and social justice.
  • Excellent organizational and interpersonal/communication skills.
  • Strong writing and analytical skills.
  • Demonstrated ability to work with diverse populations.
  • Ability to work independently and collaboratively.

Strongly Preferred:

  • At least 1-2 years post-law school experience in civil legal services or comparable work.
  • Familiarity with land use, property, local government, zoning, and/or NYC housing law.
  • Experience with urban planning, policy development, and/or legislative advocacy.
  • Litigation experience.
  • Fluency in Spanish.
  • Experience working with social justice and/or community organizing groups.

Background:

The Community Development Project (CDP) at the Urban Justice Center strengthens the impact of grassroots organizations in New York City’s low-income and other excluded communities.  We partner with community organizations to win legal cases, publish community-driven research reports, assist with the formation of new organizations and cooperatives, and provide technical and transactional assistance in support of their work towards social justice.  CDP’s current practice areas are Affordable Housing, Consumer Justice, Research & Policy, Worker’s Rights, and Capacity Building. cdp.urbanjustice.org.

The Community Development Project is an equal opportunity employer. CDP encourages applications from people with diverse backgrounds, including women, people of color, immigrants, people with disabilities, LGBTQ people, people from low income backgrounds, and people with personal experience with the criminal justice system. We strongly encourage applications from people with lived experiences in the communities we serve.

Salary and compensation:  A competitive salary and excellent benefits package is available, with generous vacation, personal, and sick time, along with industry leading medical and dental coverage. CDP’s staff attorneys are on a fixed salary scale, and the salary for this position will be determined based on years of relevant experience in accordance with the scale. This is a bargaining unit position represented for collective bargaining purposes by the National Organization of Legal Services Workers, UAW, Local 2320. The Urban Justice Center’s union has been formally recognized and is in the process of negotiating its first union contract.

Application Instructions:

Interested applicants should send a resume and cover letter by e-mail to cdpjobs@urbanjustice.org, attn: Gowri Krishna.  Please include “Land Use Staff Attorney” in the subject line.  Applications will be considered on a rolling basis and must be received by August 15, 2016.

July 18, 2016 | Permalink | Comments (0)

Wednesday, July 13, 2016

Ashby and the the Future of Land Use in the Unzoned City

  Ashby-high-rise-lotThe prominent “Ashby High-Rise” land use case has been decided by the Texas court of appeals. In ruling that a project that is legally permissible can’t be stopped or penalized by neighbors, the court provided needed clarity for property law and for the future of development in Houston and in other American communities. The decision means that a property owner or developer can rely on the land use rules that are on the books without having to worry about a neighborhood veto of an otherwise legal plan. The case has gotten some national and plenty of local attention, and is an important decision for property rights, land use regulation, and the rule of law.

In a huge win for the developers, the court declared that the neighbors can’t get nuisance damages for a project that hasn’t yet been built—that is, there can’t be a remedy for a merely “prospective” nuisance. It also upheld the trial court’s decision that there is no basis to stop a project that is legally entitled, because that would be and end-run around the planning, zoning, and permitting process.

The controversy has been raging since 2007, when the developers sought approval for a 23-story residential project on a 1.6-acre tract in an affluent neighborhood close to the central city area of Houston. There were many high-profile protests to “Stop [the] Ashby High-Rise”; failed attempts at changing the law to stop it; and a lawsuit against the City. Ultimately, perhaps in part because of strong Texas property-rights laws, the City agreed to grant the permit. In 2013, the neighbors sued, claiming that the project would be a nuisance.

Traditional property law is that an owner of property can use it any way they want. The doctrine of nuisance limits that freedom to prevent an owner from using their property in a way that intentionally or unreasonably injures another. The Ashby neighbors invoked nuisance law to argue that they were unreasonably harmed by a project that was legally permitted but allegedly “out of place” in their neighborhood near downtown Houston.

The trial was conducted by excellent lawyers on both sides. The jury found that the project, if it were to be built, would constitute a nuisance—but only to the immediately adjacent neighbors. After further hearings, the court upheld the nuisance verdict, but denied the neighbors’ real wish: an injunction to stop the project. Both sides appealed: the developers argued that there can be no damages for a merely “prospective” nuisance; and the neighbors disputed the denial of their more important goal, the injunction.

The Ashby appellate court held that the neighbors of the proposed high-rise aren’t entitled to damages for a project that hasn’t yet been built. The law of nuisance is limited to awarding remedies for a harm that has actually been caused. In holding that there can be no right to damages for a merely prospective nuisance, the court of appeals correctly interpreted the law. This will provide needed clarity for property law after a case that has received national attention.

Some might be tempted to blame the drawn-out controversy on Houston’s lack of traditional zoning. But the case actually turned on the fact that Houston still does have a lot of land use rules, and the courts held that the developers had followed them.

The whole point of modern land use law is to provide some guidance for these case-by-case disagreements about nuisances. If a property owner wants to build, rebuild, or modify her built environment, then the land use regulations on the books should be the guide—without having to guess, and then pay off for, the potential objections of neighbors invoking “not in my backyard” (“NIMBY”) rhetoric. In fact, this is a big part of why the planning and zoning movement took off in the Progressive Era of the early Twentieth Century: to have prospective rules in place, rather than relying on unsatisfying after-the-fact remedies through nuisance law.

The city of Houston, Texas is famous (or infamous) as the only large city in America that doesn’t have traditional zoning. We are, in fact, very lucky to be the “Unzoned City.” Leading land use experts from across the political spectrum agree that an overregulated system chokes off the kind of contemporary development that many people want—mixed-use, walkable, transit-oriented, “smart growth” urbanism. In most cities, this type of traditional neighborhood development is illegal. Zoning also constricts and channels suburban development, and forces those who prefer a more suburban lifestyle to commute ever-longer distances to race beyond the sprawl.

If a zoning code is based on a previous generation’s land use ideals—and it almost inevitably will be, because land use rules are “sticky”—then it will thwart the kind of modern development that part of the market desires—meaning that we won’t have as many options for where to live, work, and play. In the current market, both millennials and retiring boomers show signs of wanting to live in communities with more density and walkable urbanism. Middle-aged Gen-Xers and others are moving to or remaining in the suburbs. If Houston is truly the “Opportunity City,” then it should continue to provide this wide range of options, and the law shouldn’t constrain either preference. Partly because of Houston’s unique position, this case has been discussed in national property law forums and media outlets, as well as at the Rice University Kinder Institute for Urban Research. This case is a perfect example of the challenges of preserving property rights and community desires in America’s “unzoned city.”

But even our unique “zoning lite” system in Houston still has a lot of land use and development rules—minimum lot sizes, high-density rules, urban/suburban distinctions, historic preservation, parking requirements, and other land use laws that, in any other city, would be part of the zoning code. You could even call our system “de facto zoning.” We should resist the temptation to over-regulate, because this relative freedom is an important part of Houston’s history and gives us the opportunity to try new things in land use and development.

The upshot of the Ashby case is that if an owner follows the rules, then their property rights should be protected. If someone wants to use and develop their property, and their plans comply with all of the legal requirements, they shouldn’t be vetoed by neighbors. NIMBY arguments tend to restrict freedom, deny property rights, and thwart the development that the market desires, just to try and keep undesirable projects and people out of the community.

The Ashby high-rise saga also reflects a fundamental inequity in the housing market and the political process. If a wealthy neighborhood could pool resources to almost stop an undesired luxury high-rise, what recourse would other communities have? In any land use regime—typical over-regulation, or Houston’s “zoning lite”—the basic purpose of land use law is to provide the ground rules of the game so that everyone knows how to play, and what they can do within their property rights.

The greatest feature of Houston’s land use regulatory system is that it provides some basic rules for development but still allows a wide range of options for property use. This allows the Houston community—meaning property owners, developers, and future residents looking to join us—to respond to changing market demands. Our “zoning lite” approach is one of the key things that makes us unique and positioned to succeed as a leading global city for the future. The Ashby decision gets the law right and maintains this unique balance for the future.

Matthew Festa is a Professor at the Houston College of Law and a Kinder Scholar at Rice University, specializing in property, land use, and local government law. He testified as an expert witness for the developers at the trial. This article will be cross-posted at the Rice Kinder Institute's Urban Edge Blog.

July 13, 2016 | Permalink | Comments (0)

Tuesday, July 12, 2016

Urban Studies' best articles of 2015

Last month, the leading journal Urban Studies announced its best articles of 2015.  Here is the announcement with links to the short-listed papers, which are all available for free:

The Urban Studies Best Article is awarded by the editors to the author(s) of what they consider to be the most innovative and agenda-setting article published in a given year. From a longlist of 22 articles, five articles were shortlisted by the editors from those published in print copy in 2015.

The politics of sustainable development opposition: State legislative efforts to stop the United Nation’s Agenda 21 in the United States.
Frick KT, Weinzimmer D and Waddell P
Urban Studies 52(2), pp. 209-232
Abstract | Article |

‘I’m local and foreign’: Belonging, the city and the case for denizenship.
Rosbrook-Thompson J
Urban Studies 52(9), pp. 1615–1630
Abstract | Article |

Antecedent cities and inter-referencing effects: learning from and extending beyond critiques of neoliberalisation.
Bunnell T
Urban Studies 52(11), pp. 1983–2000
Abstract | Article |

The ‘lamentable sight’ of homelessness and the society of the spectacle.
Gerrard J and Farrugia D
Urban Studies 52(12), pp. 2219–2233
Abstract | Article |

Theorising Chinese urbanisation: A multi-layered perspective.
Gu C, Kesteloot C and Cook IG
Urban Studies 52(14), pp. 2564–2580
Abstract | Article |

The editors are pleased to announce that Dr Tim Bunnell of the National University of Singapore is the winner of the Urban Studies Best Article for 2015 for his article, “Antecedent cities and inter-referencing effects: learning from and extending beyond critiques of neoliberalisation”. 

This article along with the other four shortlisted papers are free to view on the Journal’s website.

Antecedent cities and inter-referencing effects: learning from and extending beyond critiques of neoliberalisation.
Tim Bunnell
Urban Studies 52(11), pp. 1983-2000
Abstract | Article |

July 12, 2016 | Permalink | Comments (0)

Monday, July 11, 2016

Can the Forest Service change its Mind about a Conservation Easement Agreement?

You can tell it is summertime in law professor land because I am slowly going through my stack of reading, including several cases that I had earmarked for further exploration. One of these is the ongoing dispute regarding a conservation easement held by the U.S. Forest Service pursuant to the Columbia River Gorge National Scenic Area Act. The case is entitled GLW Ventures v. USDA, 2016 WL 3364896 (W.D. Wash 2016)

The Columbia River Gorge National Scenic Area Act included a mechanism whereby the federal government could purchase conservation easements with the goal of preventing development and maintaining current land uses in the area (generally residential and agricultural). It is not clear when the CE in this case was created, but we do know that Sharleen Jones sold a conservation easement of 110 acres to the Forest Service, in exchange for approximately 60% of the fair market value of the land. At the time of this transaction, Jones’ land was classified as being 4 parcels. In the CE, Jones and the Forest Service agreed that the 110 acre parcel could be divided into two acres subject to zoning regulations. At the time of the agreement, both the Act and local zoning laws set the minimum lot size at 40-acres. Some of the background isn’t exactly clear from the court documents, but it appears that several years later Jones tried to get the Forest Service to buy full fee simple title to the lots, but it wasn’t interested. (The latest order from the federal court says that “she offered to sell her remaining interests to the Forest Service, which it declines.” The district court then states that this “declination converted the property’s permissible lot size from 40 acres to 80 acres.” I admit, I don’t understand that process or conclusion and would love to hear an explanation.)

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July 11, 2016 | Permalink | Comments (0)

Friday, July 8, 2016

Thinking like a landowner's attorney in Conservation Easement Transactions.

As I prepare for next week's free ABA webinar on conservation easements, I have been thinking a bit about what advice I would give attorneys representing landowners. While I sometimes twice represented landowners in practice, I mostly think about conservation easements from the holder side. I think of my research as generally talking to land trusts and government agencies. So trying to approach things from the perspective of the landowner has been a harder exercise for me than anticipated. 

One of the pointers I have for landowners is thinking carefully about who they want to convey a conservation easement to. It may feel like it doesn't matter too much which land trust (or government entity) holds the conservation easement as long as the as the landowners find the terms favorable, but I caution against that. First, with perpetual agreements it is pretty durn likely that one day an ambiguity or dispute will arise. Your conservation easement didn't contemplate potential highways for flying cars? They aren't expressly prohibited, so they must be allowed unless they conflict with the purposes of the conservation easement or the conservation values. They don't actually disturb the surface... so maybe you can still farm? are they scenic? how high off the ground do they need to be? Maybe we can easily figure this out from the CE, but it helps if the general goals of the holder align with the aims of the landowner. Do you want to give the conservation easement to The Audubon Society or to the Marin Agricultural Land Trust

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July 8, 2016 | Permalink | Comments (3)

Houston's "Ashby High Rise" Appeal Decided for Developers

Ashby signGreetings, land use readers. You may have heard that a major land use case in Houston was decided last week: the so-called "Ashby High-Rise" case.

It involves a decade-long controversy about a proposed 20+ story residential building in a neighborhood close to downtown Houston--the only major city without traditional zoning (even though Houston has "de facto zoning"). The Texas court of appeals ruled for the developers by (1) reversing the trial jury's verdict of damages for a "prospective" nuisance; and (2) affirming the trial court's denial of an injunction to stop the project, in part because of the idea that a judge shouldn't be a "one-man zoning board" when a property owner's plans are otherwise within the land use rules.

The bottom line is that it is a big victory for the developers, and also an important case to clarify property law and the land use rules in a growing city with competing pressures for housing, density, urbanism and sprawl.

I'll have more to say about it soon [I was involved in the trial, and have been teaching and writing about it for years]. For now, here's some links to the news and the decision:

Here is the opinion from the 14th Court of Appeals. You can also access the full docket of the case, including the parties' briefs.

The Houston Chronicle has provided thorough coverage of the case and its broader context over the years. They published a comprehensive breaking-news article on the appellate decision. [Prof. Asmara Tekle and I are quoted].

Reporters Nancy Sarnoff and Erin Mulvaney have covered the case for years, and discussed it on their "Looped In" podcast this week.

There have been many other local stories. We hosted a colloquium this spring with the developer's attorneys and scholars from the Rice University Kinder Institute for Urban Research. The case has gotten a lot of national attention as well, including from the Wall Street Journal, the New York Times, Bloomberg, the Huffington Post, and topical outlets such as Next City, Governing, and Planetizen.

I'll have more commentary soon; in the meantime, check out the opinion in this important land use case.

Matt Festa

July 8, 2016 | Permalink | Comments (0)

Thursday, July 7, 2016

Conservation Easements: A contract or a property right or ....?

A recent case on conservation easements from the Court of Federal Claims has got me thinking about a topic I have been mulling over for a while: how should we interpret conservation easements? Do we look at them like contracts? Like property interests? Like environmental protection instruments? And what does it matter – how do different characterization of conservation easements change attitudes or outcomes? Only a few have chimed in on this debate.

In Telzrow v. US, the plaintiffs brought a breach of contract action against the USDA asserting it did not uphold the end of its conservation easement bargain. The Telzrows participated in the USDA’s Wetlands Reserve Program. In 1997, the Telzrows conveyed a conservation easement to the USDA in exchange for $289,750. Note, this is a purchased conservation easement and there is no need for it to comply with requirements of the Internal Revenue. (In fact, it need not comply with state conservation easement law either.)

  • Before I even get into the details of the case, let’s try to figure out what law we look at? Do we look to state law of property? Generally, when considering property law, the rules of the state govern. However, this may not be true where the federal government is the holder of the property right (might the Property Clause of the Constitution come into play for federally held partial property rights?) or where the conservation easement arose as part of a federal scheme (see cases from North Dakota where feds were able to enforce conservation easements that did not comply with the state conservation easement enabling act because the CE was part of a federal scheme to protect habitat). If we instead look at the case as one involving contract law, then courts have applied federal law regarding government contracts (see Keydata case holding that a lease was a contract and therefore governed by federal law instead of Massachusetts property law).

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July 7, 2016 | Permalink | Comments (0)

Thursday, June 30, 2016

Boise burning: The wildfires come for me

Last night, a 1,400-acre wildfire ripped through the foothills just above Boise, threatened communities in the foothills, and threatened to come down into the heart of the city itself.  The timing was meaningful to me because I just posted the first publication of my work on wildfire, which I wrote with several students, on SSRN.  It lays out some of the more important legal tools for wildfire planning.  That paper, "Planning for Wildfire at the Wildland-Urban Interface," is available here.  It is also the forerunner to a much larger publication due out this summer, which will provide a detailed approach to planning for wildfire in the WUI.

In the meantime, this fire has made it all-too-real to me the importance of this project.  Here is a picture from the front porch of my colleague Lee Dillion:

 

IMG_3145

 

And here are more images of the fire from a local newspaper:

 

 

June 30, 2016 | Permalink | Comments (1)

Wednesday, June 29, 2016

Contemporary Issues in Climate Change Law & Policy, Part 5: The Local Official and Climate Change, by Stephen R. Miller

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 fifth post is an excerpt from Prof. Stephen R. Miller's chapter, "The Local Official and Climate Change."  The entire chapter is available here.  Links to previous excerpts are at the bottom of this post.

Buy the book here.

Cover

 

 

 

III. Ineffective Institutions for Regulating or Planning Land Use

The Fifth Assessment identified “[t]he urban institution conundrum”: “rapidly urbanizing cities—cities with the greatest potential to reduce future GHG emissions—are the cities where the current lack of institutional capacity will most obstruct mitigation efforts.”[1] The same is true with regard to adaptation efforts as well.[2] This section looks at several aspects of why local development institutions are ineffective and what local officials can do with an eye towards addressing climate change.

Among the reasons urban development institutions fail is not only resources, but also organizational design. Three examples serve to illustrate these failures and their effect on climate change planning: ineffective commission structures; ineffective public participation structures; and ineffective alliance of staff professional goals with climate change goals.

A.    Overcoming Ineffective Commission and Permitting Structures

The proliferation of land use controls in the last 100 years has led to the belief, in some cities, that there is a need for multiple boards or commissions to review different parts of a project.[3] For instance, the rise of historic preservation has led many advocacy groups to create a specific historic preservation committee or commission.[4] In some cities, these commissions give recommendations to planning commissions; in other cities, these commissions have equal status as planning commissions in determining whether a project obtains a certificate of appropriateness or similar entitlement.[5] Other commissions or committees common in many cities include design review boards that apply design guidelines, and transportation-focused groups that address traffic-related issues.[6] Add to these approval complications the bifurcation of land use and building permits, and it becomes clear that decisions about any one project can become highly segmented. This fragmentation can cause problems that lead to either over-regulation—in which case the various regulatory bodies fail to see the burdens imposed by other regulators and duplicate regulation—or under-regulation, in which case the developer can segment the approval process in a manner that frustrates holistic decisionmaking and collective review of the project. 

Such problems could affect climate change in a number of ways, several of which are discussed here.  First, climate change factors should be integrated into permitting processes at the front-end of the development cycle. For instance, the building efficiency of a project should be a factor in whether it obtains a discretionary land use permit.[7] However, in most American jurisdictions, the building permit, and compliance with efficiency codes, occurs in a typically ministerial review and against energy codes that are often not sufficient to meet climate change mitigation necessities.[8] Decisionmaking could be improved by integrating even energy code compliance into land use entitlement processes, something easily done by placing such goals into the comprehensive plans with which most conditional use permits for larger land use projects must comply.[9] If the project does not meet the comprehensive plan energy mandates, it might not receive the discretionary land use entitlement, even if it might otherwise meet the ministerial requirements of an outdated building code.

Second, local permitting should require demonstration of compliance with other state and federal laws prior to obtaining the local permit. Local land use decisionmaking is often not effectively coordinated with other state and federal agency processes that evaluate the project for compliance with other laws, which may currently include, or may come to include, climate change mitigation and adaptation.[10] The facts of Sackett v. Environmental Protection Agency provide a useful example.[11] In Sackett, local officials issued building permits for a project applicant’s local code-compliant home near a lake; the applicant proceeded to build on the bases of those properly issued local permits.[12] However, the U.S. Environmental Protection Agency issued an administrative compliance order to stop work when the project was already under construction because, the agency argued, the project was placing fill material into a jurisdictional wetland and thus needed a Clean Water Act Section 404 permit from the Army Corps.[13] While the outcome of the Sackett case ultimately turned on a procedural question of administrative law,[14] the facts of the case illustrate important institutional issues regarding the lack of integration of local government and other permits. Many local governments issue land use and building permits with standard conditions, which typically include the requirement that the project applicant must comply with all other state and federal laws. Problems arise, however, where local government issues land use and building permits without verifying compliance with those other laws. As in the case of Sackett, the local government likely could have foreseen the necessity of a Clean Water Act fill permit for a home being built near a lake—even though the Sacketts as developers contested that requirement—but the local government did not require that the fill permit be on file or otherwise ensure compliance with other laws before issuing its building permits.[15] This is poor institutional practice. 

It is true that it can be difficult for local governments, especially those in states that do not require environmental review of private projects, to ensure compliance with the raft of potentially applicable state and federal environmental regulations. However, local governments need not shoot in the dark: the local government could simply have a policy of sharing all applications with local offices of state and federal permitting officials seeking their guidance, as is common with the lead agency and cooperating agency distinction under the National Environmental Policy Act.[16] By using the local government permit as the coordinating permit for compliance with other state and federal laws, local officials can ensure that a situation like that in Sackett is avoided, which also aids the project applicant in ensuring that the applicant does not necessarily spend money or time on a project that will run afoul of other regulations. This coordinated approach, while valuable for many land use and environmental purposes, would also prove useful in ensuring climate change mitigation and adaptation compliance. Further, it should be noted that this process should not lengthen the entitlement timeframe because the project applicant cannot properly begin construction until all permits are obtained in any case.

B.     Overcoming Ineffective Public Participation

The last several decades have seen a great emphasis on public participation in local government decisionmaking.[17] This has included, among other changes, increased participation for neighborhood groups, as well as increasing access to GIS tools that permit the community to offer their own project alternatives.[18] Nevertheless, despite these additional procedural and technological tools to enhance community engagement, public participation routinely fails to prove effective in basic ways. Most importantly, public participation is typically focused on quasi-judicial proceedings against particular projects where the community shows up solely to oppose the project. In these situations, despite hours long meetings in which tens or even hundreds of community members offer comments, there is typically no real discussion of project alternatives. Instead, public participation typically involves a litany of reasons that oppose the particular project.

This is a poor use of the public process. Surely, in some cases, the project under review deserves wholesale rejection. However, if the project complies with the community’s basic land use documents—the comprehensive plan, zoning, and so on—then it is likely not without some merit. A better public participation process would address not only whether the project should be approved in its current iteration, but more importantly, how the project might be altered or otherwise provide mitigations that would make the project acceptable to the community.[19] This broader analysis requires a far more searching review of community goals than simply rejection or acceptance of the project; indeed, it invites conversation between city officials, the community, and the developers as to what the future of the community should be. That conversation is seldom had in quasi-judicial proceedings, but it should be, especially in situations where climate change mitigation and adaptation are at stake.

Further, in many communities, public participation is simply not a component of those processes where the real planning for the future takes place:  in the legislative determinations of how to structure the comprehensive plan and zoning. For the interested public seeking to make a difference with regard to climate change, participation in these legislative processes is instrumental to ensuring that the community’s development rules are climate-friendly.[20] Local officials can make climate change part of the legislative process by actively engaging the conversation in a manner that is appropriate to the community.[21] This engagement can include public meetings, but, increasingly, online and social media participation can be valuable. Many local communities have adapted climate action plans over the last decade, but many have taken the approach of primarily providing a common language for engaging climate rather than providing actionable regulatory compliance measures.[22] The common language assists with the previously noted goal of providing a common vision, but ultimately communities will need to find a way to move climate compliance from policy to law.

C.    Overcoming Staff Reluctance To Engage

While staff can be a great resource both for implementing existing policies as well as creating new policies, there are often significant barriers to staff effectively addressing long-term problems such as climate change. These impediments can be doubly strong in fast growth communities.

First, planning departments are often funded from fees paid by developers.[23] This mandate for planning departments to “pay their own way” can create a culture in which leadership establishes a mandate to please its perceived customer—the developer—because the department’s continued existence is dependent upon such applications. Clearly, such a mindset can make it difficult to have hard conversations with developers; it can also obscure calls in existing plans to require or encourage types of development that may not be popular with the community’s extant development sector but that might assist with climate mitigation or adaptation. Staff who work under such conditions can find themselves evaluated on the basis of how they please the customer-developer rather than with respect to the verve with which they maintain the integrity of the code or exhibit creativity in assisting project applicants with climate-friendly alternatives. 

            Second, planning is an occupation in which there is continued ambivalence about professionalization.[24] While many planning departments in major cities require some form of advanced graduate work in planning for their staff, fast growth areas often do not. As a result, many planners faced with the inordinate challenges of fast growth have no formal training in the history of land use regulation, much less regarding cutting-edge strategies for addressing long-term issues like climate change. What training that does occur in fast-growth areas tends to focus on assisting processing of applications—making the day-to-day business of the department function smoothly—rather than on contemplating alternatives that could improve a community’s mitigation of and adaptation to climate change. In these circumstances, with project applications piling up and pressure from developers to get to a hearing, finding time to learn about climate change, much less draft language and engage departmental leadership on the issue, can feel like trying to shoot the moon.

 

[1] 2014 IPCC Mitigation Report, supra note 9, §12.6.1.

[2] 2014 IPCC Adaptation Report, supra note 9, §8.4.3.4.

[3] For instance, Boise is a prime example of a still small but fast-growth city with multiple agencies. See, e.g., City of Boise, Idaho, City Code §§ 2-02-01 et seq. (Airport Commission); id. §§2-06-01 et seq. (Planning-Zoning Commission); id. §§2-07-01 et seq. (Development Impact Fee Advisory Committee); id. §§2-16-01 et seq. (Public Works Commission); id. at §§ 2-17-01 et seq. (Arts and History Commission); id. §§2-20-01 et seq. (Irrigation Commission); id. §§2-21-01 et seq. (Housing and Community Development Advisory Committee); id. §§2-23-01 et seq. (Foothills Conservation Advisory Committee); id. at §§ 2-25-01 et seq. (Boise City Accessible Parking Committee); Ada County Highway Dist., Policy Manual, http://www.achdidaho.org/AboutACHD/PolicyManual.aspx (district controls all roads in Boise City).

[4] City of Boise, Idaho, City Code § 4-13-03 (2015) (designating Boise City Historic Preservation Commission as entity tasked with reviewing historic buildings).

[5] Id.

[6] See supra note 38.

[7] See, e.g., City & Cty. of San Francisco, Cal., General Plan, Environmental Protection Element, Objective 13, Enhance the Energy Efficiency of Housing in San Francisco, http://www.sf-planning.org/ftp/general_plan/I6_Environmental_Protection.htm#ENV_EGY_12 (last visited Oct. 9, 2015).

[8] See, e.g., 7 Miller & Starr Cal. Real Est. §25:25 (4th ed. 2015) (“As a general rule, the building official is required to issue a permit if the application is in order, the proposed use is one permitted by the zoning ordinance, the proposed structures comply both with zoning conditions and with the applicable building codes, and any other conditions imposed on the development or subdivision approval.”).

[9] See supra note 41.

[10] 2014 IPCC Mitigation Report, supra note 9, §12.5.3.

[11] 132 S. Ct. 1367 (2012).

[12] Complaint for Declaratory and Injunctive Relief, Sackett v. United States Environmental Protection Agency, 2010 WL 7634112 at *7 (2010) (“[The Sacketts] applied for and obtained the requisite building permits.”).

[13] Sackett v. E.P.A., 132 S. Ct. at 1370.

[14] Id. at 1371 (holding that the administrative compliance order was a final agency action for purposes of the Administrative Procedure Act and thus petitioners could seek judicial review of the order under the Act).

[15] Id. at 1370.

[16] 40 C.F.R. § 1501.5 (2015) (duties of lead agencies); 40 C.F.R. § 1501.6 (2015) (duties of cooperating agencies).

[17] See, e.g., Lawrence Susskind et al., Mediating Land Use Disputes: Pros and Cons (Policy Focus Report) 2–5 (Ann LeRoyer ed., Lincoln Institute of Land Policy 2000).

[18] Craig Anthony Arnold, The Structure of the Land Use Regulatory System in the United States, 22 J. Land Use & Envtl. L. 441, 476 (2007) (noting that “increasingly neighborhood residents are actively participating in developing plans and land use regulations for their neighborhoods through techniques like design charrettes, scenario development, impact assessment, [and] participatory land use mapping”).

[19] Some have argued that the current air of uncertainty created by Koontz would make such consideration of alternatives more difficult. See Lee Anne Fennell & Eduardo M. Peñalver, Exactions Creep, 2013 S. Ct. Rev. 287, 287–88 (2014) (“By beating back one form of exactions creep—the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny—the Court [in Koontz] left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence.”). On the other hand, it is ironic that environmental review statutes typically require the presentation of project alternatives and thus, in those states with mini-NEPAs, the environmental review process necessitates that the land use process also envision alternatives. See Cal. Pub. Res. Code § 21002 (2015) (California Environmental Quality Act requires that “public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects” of the project.).

[20] 2014 IPCC Adaptation Report, supra note 9, § 8.4.2.2.

[21] See Maarten K. van Aalsta, Terry Cannonb & Ian Burtonc, Community Level Adaptation to Climate Change: The Potential Role of Participatory Community Risk Assessment, 18 Global Environmental Change 165 (2008).

[22] See, e.g., California Jurisdictions Addressing Climate Change, Cal. Office of Planning & Research (July 7, 2014), http://www.ca-ilg.org/sites/main/files/file-attachments/california_jurisdictions_addressing_climate_change_pdf_0.pdf (list of local governments in California that have adopted plans “to address climate change and/or to reduce GHG emissions”).

[23] See, e.g., Facts, City & Cty. of San Francisco Planning Dept., http://www.sf-planning.org/index.aspx?page=3419 (noting that, in 2012, total revenue was $24,604,399 and fees accounted for $19,630,295 of costs with just $1,905,311 in General Fund support).

[24] Becoming a Planner, Am. Planning Ass’n, https://www.planning.org/aboutplanning/becomingaplanner.htm (“In 2004, 43 percent of all APA members (note: approximately one-sixth of the APA members are planning commissioners, officials, or students, who do not have a degree in planning) had earned a master's degree in planning.”).

 

Part 1:  Climate Change, Sustainable Development, and the IPCC’s Fifth Assessment Report, by Robin Kundis Craig

Part 2:  Creating Legal Pathways to a Zero Carbon Future, by John C. Dernbach

Part 3:  Thinking Ecosystems, Providing Water:  The Water Infrastructure Imperative by Keith Hirokawa & Jonathan Rosenbloom

Part 4:  Flexible Conservation in Uncertain Times, by Jessica Owley & David Takacs

June 29, 2016 | Permalink | Comments (0)

Monday, June 27, 2016

Condemning Easements on a Conservation Easement in Kentucky

A unpublished Kentucky case on conservation easements highlights a bunch of things I have been grappling with lately. Thought I'd check in with our readers to see if anyone else has thoughts on Crain v. Hardin County Water District No.2, 2016 WL 3453206, Court of Appeals of Kentucky, June 17, 2016 (unpublished, not to be cited).

The Crains own a 270-acre farm in Hardin County, Kentucky. It has been in the family for generations. In 2004, the Crains conveyed an agricultural conservation easement (ACE) to the Purchase of Agricultural Conservation Easement Cooperation, which is part of the Kentucky Department of Agriculture. In 2013, the Water District decided to build a sewage line through the Crains' property (to facilitate development of a nearby industrial site. The parties were unable to negotiate a price for either fee simple purchase of the area needed or of an easement. The District began the eminent domain process, and through it we learn a few interesting things about CEs.

  • Subsurface Land Uses: When the Crains and the District were still in negotiation phase, the Crains expressed concern that a planned pump station would conflict with the ACE. In response, the District agreed not to place any air release valves or any above-ground facilities on the Crains’ property. This brings to mind a discussion I have been in lately with a few people about subsurface disturbance and CEs. Do we automatically assume that all subsurface use of the land is consistent with ACE? Should we take into account likelihood of associated problems like subsidence or leaks? Do we feel less nervous about sewage lines than we might feel about oil or gas lines? Could a landowner or CE holder ever object to subsurface development?
  • Condemnation not interfering the CE: There have been many discussions in the land trust community about how eminent domain and CEs. Usually these conversations are dominated by issues of calculating compensation assuming that the exercise of eminent domain on the land will remove the CE. Here, the District contended that the proposed acquisition of utility easement would not interfere with the ACE, whose restrictions would still govern. Indeed, both the state agency holding the ACE and the District agreed that the utility easement would be secondary to the ACE.
  • Condemnation in Kentucky: Here, the state CE statute specifically considers eminent domain (a rarity) and explains that certain categories of use are inconsistent with restricted agricultural land. “Landfills, sewage treatment plants and other public service facilities” shall not be located on such lands. But, installation of utility lines (including sewer lines) is specifically permitted. The court found that this was a sewer line and clearly permitted.
  • Standing: Here, neither the state agency holding the Agricultural Conservation Easement nor the third party enforcer (the United States Department of Agriculture) challenged the utility easement condemnation process. The landowner argued that the utility easement would be inconsistent with the ACE but the trial court held that the Crains did not have standing to assert the position. The idea seems to be that only a CE holder or someone with an established third party enforcement right have standing to make a challenge based on the CE, not the landowner. While the Court of Appeals does not clearly state that landowners do not have the authority to enforce CEs, it doesn’t examine the CE document to see whether a utility easement would be consistent with it. Presumably this is because the District and holder agreed that the utility easement would play second fiddle.
  • Prior Public Use Doctrine: Now, this is a fun one and an argument I had not contemplated before. The prior public use “doctrine provides that land devoted to a public use may not be taken for another public use under the power of eminent domain” in Kentucky. The Crains argued that the ACE was a prior public use, but the court did not agree. Quoting an earlier case, the court explained that just because the public receives some benefit from the land, it doesn’t “mean that the land is being used for a public purpose.” Crain at 4 (quoting Kipling v. City of White Plains, 80 S.W.3d 776 (Ky.App. 2001)). Neither this property covered by an ACE nor the Kipling property that was in an agricultural district had enough of a link to public use. BUT might the answer be different if it was an exacted CE? What if the CE under threat of eminent domain was set aside to satisfy requirements of the Clean Water Act or even just a local development law? Would it change the level of public use? I believe habitat and wetlands easements would easily meet this test. Perhaps a fun tool in the arsenal, but a circumstance that will seldom arise.

June 27, 2016 | Permalink | Comments (0)