Wednesday, August 24, 2016

Seeking guest bloggers for 2016-2017 academic year

After a several month hiatus, I am pleased to be back blogging at Land Use Prof Blog where I have blogged since 2012.  

As I have done in previous years, I am sending out a general call for bloggers to join me on the blog during the 2016-2017 academic year.  Our requirements for guest bloggers are quite reasonable--1 or 2 posts a week for a month--adding up to 4 to 8 posts a month.  You can write about your own work, events of the day, or, you know, anything else land use law-related.  During the academic year, the blog receives about 10,000 - 15,000 page views a month and, I have found, is an invaluable way to get the word out about your work.

The only restriction on guest bloggers is that, given the platform, a blogger must either be a "prof" of some sort--adjuncts and VAPs welcome--or an aspiring prof going on the market this year. 

If you are interested, send me an e-mail at millers <at> uidaho.edu and we can work out details. 

August 24, 2016 | Permalink | Comments (0)

Tuesday, August 23, 2016

Ferguson, Land Use and the Voting Rights Act

Yesterday, a district court in the Eastern District of Missouri held that political processes for electing Board members in the Ferguson-Florissant School District deprive African American voters of an equal opportunity to elect representatives of their choice in violation of § 2 of the Voting Rights Act.  As the court noted in a detailed decision, "[d]etermining whether a § 2 violation exists is a complex, fact-intensive task that requires inquiry into sensitive and often difficult subjects."  In making its evaluation, the court took the time to evaluate detailed testimony about how land use regulation had affected the African-American community in the St. Louis area.  I found these excerpts particularly of interest:

B. The Historical and Ongoing Effects of Discrimination in the State, St. Louis Metro Area, and FFSD (Senate Factors 1 and 5)

Senate Factor 1 examines “the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process.” Bone Shirt, 461 F.3d at 1021. Senate Factor 5 asks whether African Americans “bear the effects of discrimination in such areas as education, employment and health.” Id.
 
The parties have stipulated to the history of official discrimination in the State of Missouri and in the St. Louis Metropolitan Region. Joint Stip. ¶¶ 226-230. The District, however, argues that Plaintiffs have failed to establish the history of discrimination and its effect in the District itself, and have therefore failed to prove Senate Factors 1 and 5. I find that both of these factors weigh heavily in favor of Plaintiffs.
 
1. Official discrimination
 
Throughout the 19th and 20th centuries, many Missouri statutes and constitutional provisions permitted—or required—discrimination against Black Missourians. See Joint Stip. ¶¶ 226-230, 241, 251, 253; Dred Scott v. Sandford, 60 U.S. 393, 398 (1856); Mo. Const. of 1865, art. II, § 18 (restricting franchise to white males); U.S. Const. amend. XV; Mo. Const. of 1865, art. V, § 2 (requiring that the governor be a white man), art. V, § 12 (requiring that the lieutenant governor be a white man), art. IV, § 3 (requiring that members of the Missouri house of representatives be white men), art. IV, § 5 (requiring that state senators be white men), art. III, § 6 (requiring that all voters be white men); RSMo. ch. “Negroes and Mulattoes,” § 2, at 600 (1825) (barring Black Missourians from bearing witness in court); RSMo. ch. 146, § 2-2, at 797 (1870) (barring Black Missourians from serving as jurors); Mo. Const. of 1875, art. XI, § 3 (amended to require, rather than permit, racially segregated schools); Missouri v. Jenkins, 515 U.S. 70, 76 (1995) (Ginsburg, J., dissenting).
*46 Jurisdictions within FFSD, including the municipalities of Ferguson and Berkeley, also historically engaged in purposeful discrimination against African Americans in education, housing, and other areas. See Joint Stip. ¶¶ 254-60; United States v. Missouri, 388 F. Supp. 1058 (E.D. Mo. 1975), aff'd, 515 F.2d 1365 (8th Cir. 1975); Gordon Testimony, Trial Tr. vol. 1, 119:17–121:1; PLTF-40, Gordon Rep., at 16; Trial Tr. vol. 2, 12:4–13:15, 42:1-17 (Henson explaining that his mother, an African American resident of what was a smaller FFSD in the 1930s and 1940s was prohibited from attending school there because of her race, so she was forced to endure long commutes to Black schools in other districts); Trial Tr. vol. 2, 64:24–65:10 (Graham testifying that she attended a segregated one-room schoolhouse in another part of St. Louis County, and some of her classmates were bused from Kinloch); id. 68:3–69:15.
 
As Dr. Gordon testified, historical policies, including not only educational segregation and the racially-motivated use of incorporation but also the way houses, streets, and public infrastructure were physically built, were “intended and designed to create starkly segregated and separate [school] districts.” Trial Tr. vol. 1, 121:2-24; see also PLTF-40, Gordon Decl., pp. 16, 21-23.
 
The three school districts that now comprise the present-day FFSD—the overwhelmingly-white former Ferguson-Florissant and Berkeley school districts and the predominantly-Black Kinloch school district—demonstrate how political and physical discrimination created and perpetuated a racially dual system of school districts. See PLTF-40, Gordon Rep., at 16, 21-22; Gordon Testimony, Trial Tr. vol. 1, 119:17–121:1; see also Trial Tr. vol. 2, 12:4–13:15, 42:1-17 (Henson testimony); Trial Tr. vol. 2, 64:24–65:10, 68:3–69:15 (Graham testimony); Missouri, 515 F.2d at 1367 (noting that Kinloch had been forced to cobble together schools “markedly inferior to the opportunities offered in the adjoining Berkeley and Ferguson districts”). The former Ferguson-Florissant and Berkeley school districts displayed commitment to unlawfully maintaining Kinloch as a segregated district. For two decades after the Supreme Court's decision in Brown v. Board of Education, 347 U.S. 483 (1954), this dual system persisted despite school reorganization study recommendations and requests from the school district itself that Kinloch be consolidated with other school districts, see Missouri, 515 F.2d at 1367, flouting the constitutional obligation to “take such affirmative measures as are necessary to deestablish that dual system and to eliminate the continuing vestiges of that system.” United States v. Missouri, 363 F. Supp. 739, 745, 747 (E.D. Mo. 1973). It ultimately took a lawsuit brought by the United States Department of Justice and a federal court order to force the overwhelmingly white school districts to consolidate with their predominantly Black neighbor. See Missouri, 515 F.2d at 1366-67; Missouri, 388 F. Supp. at 1060; PLTF-40, Gordon Decl., pp. 16, 22-23; Trial Tr. vol. 1, 119:14–121:24.
FFSD is part of St. Louis County, the larger St. Louis metropolitan area, and the state of Missouri, each of which has also historically engaged in official discrimination. Dr. Gordon testified that the processes of segregation and discrimination of those jurisdictions affected and fundamentally continues to affect the lives of FFSD residents in “particularly powerful” ways. Trial Tr. vol. 1, 115:13–116:13; 100:4–101:1 (noting that “it's particularly important to have a broader focus for a metropolitan area like St. Louis because the municipal fragments, the corporate fragments, including municipalities and the school districts, are very small and in some respects very artificial political divisions”); id. at 101:14–20; id. at 102:13–103:12 (explaining that official laws and policies restricting land use and regarding urban development, urban redevelopment, zoning, and mortgage finance continue to have “enormous consequences” on populations' opportunities to purchase house and accumulate housing equity, which in turn affected the quality of schools available to a population and has sustained a “racialized gap in wealth” that “persist[s] to the present day”).
 
*47 Up until at least the mid-1960s, while official policies in the St. Louis metropolitan area intended to create and perpetuate racial segregation were “at times blocked by the courts,” they nonetheless continually “shift[ed] in form” to achieve the same goal of segregation. See, e.g., Gordon Testimony, Trial Tr. vol. 1, 104:5-20; see also id., 105:17–107:18 (discriminatory real estate practices in the area, including realty licensing requirements and race-restrictive deed covenants); Trial Tr. vol. 1, 107:19–111:9 (noting that, when restrictive covenants were effectively blocked by Shelley v. Kraemer, 334 U.S. 1 (1948), realtors and developers “quite publicly mobilized to accomplish the same thing by other means,” including strengthening their professional code of ethics to require residential segregation and denying home showings and sales to African Americans, and their efforts were reinforced by official federal mortgage lending policy and redlining, as well as “a flurry of” municipal incorporation for the “quite explicit” purpose of exclusionary zoning); see also id. at 110:17-22; Joint Stip. ¶¶ 235-36; PLTF-40, Gordon Rep., at 7-16; PLTF-48, Kimball Rep., at 8-10.
 
Providing multiple salient examples from the St. Louis metropolitan area, including in North St. Louis County and FFSD itself, Dr. Gordon testified that, although official policies of urban renewal and redevelopment in the mid- and late-20th century were ostensibly intended to “address some of the damage...of segregation and the collapse of central cities,” they “actually sharpen[ed] and deepen[ed] segregation both in St. Louis and St. Louis County” by using federal money and the power of eminent domain to “target[ ] neighborhoods of mixed use and largely African-American occupancy for removal or destruction so the land could be used for a higher use.” See Trial Tr. vol. 1, 112:4–115:6 (also describing how, between 1950 and 1970, about 75,000 people were displaced in the metro area by government renewal or development, the “vast majority” without any relocation assistance, 84% of whom were African American, and when they moved from downtown to suburban neighborhoods, were then “targeted for renewal or code enforcement or other attention”); see also Joint Stip. ¶ 242; see PLTF-40, Gordon Rep., at 26-27.
2. Continuing effects of past discrimination on political participation African Americans in FFSD continue to bear the effects of past discrimination. As Dr.
Gordon testified, one can still see once-formalized policies of racial segregation and housing discrimination “inscribed on [the regional] landscape” and that the formalized pattern of segregation by deed covenant had been “written into land use zoning,” which is “still very much the way in which we organize property and housing opportunity in a metro area,” causing officially sanctioned race discrimination and segregation to “persist to the present day.” Trial Tr. vol. 1, 111:15–112:3.
 
According to Dr. Gordon's testimony, because of this persistent physical segregation, when the federal court desegregation order tied together the overwhelmingly white Berkeley and former Ferguson-Florissant and predominantly-Black Kinloch school districts, it created a present-day FFSD that has “trade [d] segregation between districts for segregation within a district.” Trial Tr. vol. 1, 121:2-24. This racial segregation has settled along a north-south divide within FFSD that persists today and is reflected in socioeconomic, educational, and other disparities. See Gordon Testimony, Trial Tr. vol. 1, 122:1–123:14, 126:7–127:5, 127:17–128:1, 128:9–129:11; Trial Tr. vol. 3, 81:1–82:12 (Green testimony); Trial Tr. vol. 4, 166:19 (Thurman testimony); see also PLTF-40, Gordon Rep., at 2-4, 27-28, Map 10 (p. 29); see also PLTF-44, Cooper Decl., ¶ 34, Fig. 7 (p. 14), Ex. C (p. 39).
 
Housing equity is the principal form of wealth for most families, so barriers to equal opportunity to home ownership that African Americans in St. Louis County have faced for decades have had and continue to have a substantial negative impact on a family's opportunity to accrue and retain wealth, to get favorable loan terms, to access public services and high-performing schools, and to benefit from increasing property values. See Gordon Testimony, Trial Tr. vol. 1, 115:25–118:19; PLTF-40, Gordon Rep., at 20-21, 23-24, 27-28, 32; see also PLTF-41, Gordon Resp., at 3-4; Joint Stip. ¶¶ 244-46; Gordon Testimony, Trial Tr. vol. 1, 116:9-13 (“the best way to characterize it is that white families in the St. Louis area were able to get on a sort of escalator-of-wealth creation in the 1930s and 1940s that African Americans were largely barred from for at least a generation”). As Dr. Gordon also testified, the wealth gap has increased recently “as a result of the last housing bubble and bust.” Trial Tr. vol. 1, 116:24– 117:1; see also generally Gordon Testimony, Trial Tr. vol. 1, 99:4–119:7. The wealth gap is one chief driver of continuing (and in some cases widening) disparities between African Americans and whites in FFSD in areas such as educational achievement, level of poverty, employment, and health care. PLTF-48, Kimball Rep., at 10; PLTF-40, Gordon Rep., at 21.
 
*48 These continuing effects of past discrimination impact the ability of the African American community in FFSD to participate in the electoral system. Dr. Kimball testified that political scientists who study voting behavior commonly use the “calculus of voting” as a cost-benefit framework for determining whether and why individuals, as well as groups of people, do and do not vote. See Kimball Testimony, Trial Tr. vol. 2, 114:8–115:4. The calculus takes into account the probability that one's vote will determine the outcome of an election, the benefits of seeing one's preferred candidate win an election and potentially implement preferred policies, and the costs of voting, including: informing oneself about candidates, completing the administrative process of registering to vote, locating one's polling place, and getting time off work. Id.
 
Dr. Kimball testified that this cost-benefit framework “indicates that for many people the decision of whether to vote or not can be a close call, and that...relatively small changes in either the benefits or the cost side of the equation can substantially increase or decrease the likelihood of voting in an election.” Trial Tr. vol. 2, 115:5-11. A small change in benefit or cost has a more pronounced effect on voters with less education and/or less income, and/or who are “less habitual” voters, because for them “it's a little more difficult to overcome the cost that is associated with registering and turning out to vote, learning about candidates and so forth.” Kimball Testimony, Trial Tr. vol. 2, 115:12-25; see also PLTF-48, Kimball Rep., at 11-12; Gordon Testimony, Trial Tr. vol. 1, 130:15–131:1 (“the scholarly consensus is very clear that when a population is disadvantaged economically, when they're disadvantaged in terms of job opportunities, educational opportunities, or residential opportunities, that these [disadvantages] affect civic participation”). Consistent with Dr. Kimball's “calculus of voting” framework, Dr. Gordon testified that based on his survey of historical discrimination and segregation, African Americans in FFSD bear the effects of past discrimination in ways that affect their ability to participate in the political process. Gordon Testimony, Trial Tr. vol. 1, 145:10-24; see also Kimball Testimony, Trial Tr. vol. 2, 144:2–147:24, 148:18–149:1; Trial Tr. vol. 3, 20:11-17.
 
There is ample evidence that the costs of voting are higher and the benefits lower for African American residents of FFSD as compared to white residents. There continue to be undisputed disparities between Black and white residents of FFSD on almost every socioeconomic indicator, including employment, wealth, homeownership, access to health care, and other factors underlying basic economic security. Joint Stip. ¶¶ 248, 269-71; PLTF-40, Gordon Rep., at 2-4, 27-28, Map 10 (p. 29); PLTF-41, Gordon Resp., at 3-4; Paulette-Thurman Dep., 63:8-13; PLTF-48, Kimball Rep., at 9-10, 12; PLTF-44, Cooper Decl., ¶¶ 36-37; PLTF-45, Cooper Suppl. Decl., ¶¶ 17-20; Gordon Testimony, Trial Tr. vol. 1, 126:10–127:5 (rates of poverty are higher in majority-Black block groups in the District); Trial Tr. vol. 1, 128:2–129:11 (same for “neighborhood stress” indexes, which measure block groups' engagement with the labor market and poverty index); Cooper Testimony, Trial Tr. vol. 1, 200:10-14 (in FFSD, “[o]n almost every metric, African Americans lag behind non-Hispanic whites”); Kimball Testimony, Trial Tr. vol. 2, 151:3-19; Rodden Testimony, Trial Tr. vol. 5, 75:20-22.
 
There are also undisputed disparities between African American and white FFSD students in educational achievement (including enrollment in advanced classes, the FFSD gifted and talented program, enrichment programs, extracurricular activities) and the application of discipline (including in-school suspensions, out-of-school suspensions, referrals to law enforcement, and corporal punishment). Joint Stip. ¶¶ 261-62, 265-67; PLTF-93, FFSD Data Reported to Office of Civil Rights – Course Enrollment by Race (Ex. 17 to Dep. of Brian Scott Ebert, June 16, 2015), at 1-3, 16, 18; PLTF-84, FFSD Data on Office of Civil Rights Website – LEA Summary of Selected Facts (Ex. 5 to Dep. of Paul Morris, June 15, 2015), at 1-5; PLTF-85,

MISSOURI STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs, v. FERGUSON-FLORISSANT SCHOOL DISTRICT, et al., Defendants., No. 4:14 CV 2077 RWS, 2016 WL 4429695, at *45–48 (E.D. Mo. Aug. 22, 2016).

August 23, 2016 | Permalink | Comments (0)

Call for Applications: Community Planning Assistance for Wildfire (CPAW) Program

I have been working with the leaders of CPAW as part of my wildfire research the past year and have been very impressed by this group.  They are now inviting new communities into the CPAW program.  For any western community looking to use land use planning to address wildfire risks, participating in CPAW might be the best first step.  Feel free to contact me if you would like to learn more about why I think CPAW is a great program.  Here is the announcement on CPAW:

The Community Planning Assistance for Wildfire program (CPAW) provides technical consulting services in the form of land use planning, forestry expertise, mapping and risk assessment.The CPAW team is excited to inform you that the 2016-2017 CPAW application process is now open. Applications can be accessed via the website: planningforwildfire., and will be accepted until September 23, 2016, 5pm MT.

During the 2016-2017 cycle, five communities will be selected based on a competitive application process. Selected communities are not responsible for any direct costs associated with CPAW services provided, but staff time to participate is required. All advice and assistance given to the community will be limited to services that are intended to reduce the risk from wildfires. Local governments will retain sole authority for implementation of any land use planning recommendations provided through CPAW. Any community in the U.S. can apply, and eligible jurisdictions include towns, cities, or counties having authority over local land use and zoning decisions (unincorporated communities require county application). Only applications demonstrating support from both the community’s planning and fire departments will be considered.

Attached is an informational flyer to share with your colleagues.

If you have questions about the program or the application process, please contact me at ben@wildfireplanning.com or directly at 847-754-8745. The CPAW team is eager to begin working with our next round of communities, and we hope that you apply!

Download CPAW_Application_Flyer_2016-2017

CPAW

August 23, 2016 | Permalink | Comments (0)

Tuesday, August 16, 2016

Zoning's Centennial blog series by John R. Nolon now available in a collection

A note from John R. Nolon (Pace):

Earlier this year, under the title of "Zoning's Centennial," I posted 21 blogs tracking the birth, maturation, and contemporary relevance of zoning: aka land use law. I have compiled them into a single document for interested professors and students, particularly those studying land use law.  If you email me off line, I will be happy to send it along.  E-mail Prof. Nolon at jnolon@law.pace.edu.

Relatedly, Patty Salkin (Touro) and I are pleased to announce that Stephen R. Miller (Idaho) and Jonathan Rosenbloom (Drake) have joined us as authors of our Land Use and Sustainable Development Law casebook, the ninth edition of which will be available next year.

August 16, 2016 | Permalink | Comments (0)

Is a Negative Declaration Property? How about Rescission of One?

 An interesting takings case from New York came past my desk this morning.

Developers in Union Vale, New York owned a bunch of land in an area known as East Mountain. In 1986, the developers petitioned to have the land designated an open development area and the Town of Union Vale did so. That enabled subdivision of the land into individual lots serviced by private roads. The first phase of the project (simply labeled East Mountain) was approved in 1987 and went through the state environmental review process (New York's State Environmental Quality Review Act or SEQRA). Finding that the project would result in no significant adverse environmental impacts, the 1987 Town Board issued a Negative Declaration ("Neg Dec").

In 2009, the developers were ready to move on to phase two of their project, development of East Mountain North. Still seeking subdivision into individual lots with private roads. Developers assert that the plan is consistent with the town's master plans and all town codes. The developers and the town then negotiated about the main access road (originally reaching an agreement, but then having the Board change the requirement for curves, unclear if the parties reached a subsequent agreement). In March 2012, the Board then rejected the Developers' application for East Mountain North. The Board passed a resolution rescinding the 1987 Neg Dec. 

Continue reading

August 16, 2016 | Permalink | Comments (0)

Monday, August 15, 2016

Interpreting Conservation Easements in New York

A recent conservation easement case from New York has a lot of land trusts worried. The Appellate Division of the Supreme Court (the first level of appeals in the New York state court system) recently found for a landowner on a case of conservation easement interpretation: Orange County Land Trust v. Tamira Amelia Farm, 34 N.Y.S.3d 618 (2016).

Background Facts: In 2004, the Orange County Land Trust (OCLT) entered into a conservation easement with Tamira Amelia Farm.  The stated purpose of the conservation easement was to  was “to conserve productive agricultural and forestry lands and natural resources associated with the Property for the benefit of the public and for future generations, and also to conserve the scenic character of the Property for the benefit of the public and for future generations.” In 2005, Tamira Amelia Farm sold the burdened property to Clemente Farms. OCLT originally alleged 27 violations of the conservation easement. There seems to be no dispute that the landowner violated specific terms of the conservation easement by failing to obtain prior approval for building a barn. The landowner was supposed to bring all such activities before the land trust for its approval. Acknowledging its mistake, the landowner sought after the fact approval for the construction, but OCLT would not grant it. Additionally, the land trust challenged the building of an access road which was done both without seeking permission and allegedly with construction debris. The land trust sued in for conservation easement violations in 2010 and a bench trial followed in 2012. The trial court found in favor of the landowner and the appellate court agreed, acknowledging the misstep in procedure by the landowner but holding that it was wrong of OCLT to withhold consent for the barn construction. The court also held that the conservation easement did not require pre-approval for a road and there was insufficient evidence to show the road building material was improper. 

More beyond the fold

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August 15, 2016 | Permalink | Comments (0)

Wednesday, August 10, 2016

Federal district court in Alabama holds a sex offender law is zoning for purposes of RLUIPA

A recent federal district court has held that an Alabama statute that prohibits individuals whose names are listed on the Alabama sex offender list from living together in the same home, and further provides that offenders cannot live on the same property as another offender unless the homes are at least 300 feet apart, is a zoning law under RLUIPA.  The whole case, Martin v. Houston, is worth a read and is available here.  One section I found especially of interest is the part where the court openly struggles to define "zoning."  Here is an excerpt of that section:

Martin’s allegations are sufficient, however, to support the finding that the Act qualifies as a zoning law. It first bears noting that the precise definition of “zoning” is difficult to delineate. Fortress Bible Church v. Feiner, 694 F.3d 208, 216 (2d Cir. 2012). In general terms, zoning refers to the “legislative division of a region, esp[ecially] a municipality, into separate districts with different regulations within the districts for land use, building size, and the like.” Zoning, BLACK’S LAW DICTIONARY (10th ed. 2014); cf. Ala. Code § 11-52-70 (authorizing municipal corporations within Alabama to divide territory for different uses). The Act makes territorial divisions in the same way. It divides the state of Alabama into two districts: one where adult sex offenders may not live within 300 feet of each other, and one where they may. The former includes the entirety of Chilton County, and the latter comprises all other counties within the state. Rather than imposing in personam restrictions on adult sex offenders themselves, the legislature opted to limit the acceptable uses of property within the Chilton County zone. In this sense, for purposes of applying the individualized assessments prerequisite, the Act qualifies as a zoning law, and thus constitutes a land use regulation. The allegations in the amended complaint are sufficient to support this element of the individualized assessments inquiry.

August 10, 2016 | Permalink | Comments (0)

Tuesday, August 9, 2016

[UPDATED] Call for Papers: State & Local Government Law Works-in-Progress Conference

The University of Houston Law Center will be hosting the 5th Annual State & Local Government Law Works-in-Progress Conference on Friday, October 7, 2016 and Saturday, October 8, 2016.  Scholars and practitioners writing in areas related to state and local government law are invited to attend and/or present works in progress. Participants can register and obtain hotel information here.

Please register for the conference by September 9, 2016.  Participants will have the option of either presenting a full draft or an early work-in-progress/abstract.  Drafts/abstracts will be due September 26, 2015.  Questions should be directed to Kellen Zale at kbzale@central.uh.edu.

August 9, 2016 | Permalink | Comments (0)

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)