Tuesday, March 22, 2016

LEGOLand urbanism

I am just back from spring break, which included for me a visit to LEGOLand in California.  I was pleased to see there a major exhibit on world urbanism; well, in fact, they called it MiniatureLand and it seemed to largely be a spectacle of lilliputian life.  There was no mention of land use or Jan Gehl anywhere.  Nonetheless, I feel compelled to share vacation pictures that surely are of interest to blog readers.  

 It occurs to me now that the children of land use law professors everywhere surely have their work cut out for them.

 

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 Grand Central Terminal ... in LEGOs.

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 Midtown ... in LEGOs.

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 Times Square ... in LEGOs.

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 The French Quarter ... in LEGOs.

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 Mardi Gras ... in LEGOs.

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 Washington, D.C. ... in LEGOs.

 

March 22, 2016 | Permalink | Comments (0)

The arrival of the transgender restroom sign

I saw this sign in a bathroom in San Diego last week; such a great design.  Seems about time that, at a minimum, we stop building new gendered bathrooms.  Retrofitting old gendered bathrooms will take awhile but seems to make so much sense.  

 

Bathroom sign

March 22, 2016 | Permalink | Comments (0)

SCOTUS Reviews a Land Use Law Case- kind of

The United States Supreme Court is presently reviewing a case with lots of land use law principles. Murr v. Wisconsin involves two nonconforming (or “substandard”) lots. The Court of Appeals of Wisconsin found (in an unpublished decision) that an ordinance that merged two adjacent, riparian lots for purposes of sale or development did not constitute a regulatory taking. The issue for the United States Supreme Court centers on the “relevant parcel” inquiry.


In 1960, Murr’s parents purchased a lot and built a cabin on the lot, then transferring title to the family business. In 1963, Murr’s parents purchased the adjacent lot in their personal names, but never built anything on the lot. In 1994 and 1995, both lots were conveyed to Murr and her siblings, bringing the lots into common ownership.


Murr requested the following eight variances or special exception permits: (1) variance to sell or use two contiguous substandard lots in common ownership as separate building sites; (2) variance to reconstruct and expand a nonconforming structure outside its original footprint; (3) variance to fill, grade, and place a structure in the slope preservation zone; (4) special exception to fill and grade within forty feet of the slope preservation zone; (5) special exception to fill and grade more than 2000 square feet; (6) variance to construct retaining walls and stairs inside the ordinary high-water mark setback; (7) variance to reconstruct a patio within the ordinary high-water mark setback; and (8) variance to construct a deck within the ordinary high-water mark setback.

The applicable ordinance was adopted pursuant to WIS. ADMIN. CODE § NR 118.08(4) and provides, in pertinent part:


(4) SUBSTANDARD LOTS Lots of record in the Register Of Deeds office on January 1, 1976 or on the date of the enactment of an amendment to this subchapter that makes the lot substandard, which do not meet the requirements of this subchapter, may be allowed as building sites provided that the following criteria are met:
*181 (a) 1. The lot is in separate ownership from abutting lands, or
2. The lot by itself or in combination with an adjacent lot or lots under common ownership in an existing subdivision has at least one acre of net project area. Adjacent substandard lots in common ownership may only be sold or developed as separate lots if each of the lots has at least one acre of net project area.
(b) All structures that are proposed to be constructed or placed on the lot and the proposed use of the lot comply with the requirements of this subchapter and any underlying zoning or sanitary code requirement
 
Each of the Murr lots contained approximately ½ acre of net project area.


After the variances and special exceptions were denied, and upheld by the Court of Appeals, Murr filed suit, claiming a regulatory taking. The suit averred that the regulation deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot”. Note that Lot E (the lot with no dwelling) could not be farmed or otherwise used because of the steep terrain and size. Murr and the State filed motions for summary judgment. Although the lower court found the claims by Murr time barred, the court reached the merits of the claim. The court found that the “property as a whole” included both lots, not each individual lot separately. Therefore, the regulation did not enact a taking, as residential uses remain.


The Court of Appeals found that Zealy v. City of Waukesha, 201 Wis.2d 365, 548 N.W.2d 528 (1996) stands for the proposition that continguous property, “[r]egardless of how that property is subdivided” should be considered as one parcel for the purposes of regulatory takings analysis. “[The] well-established rule [holds] that property under common ownership is considered as a whole regardless of the number of parcels contained therein.” Viewing the two lots as one, Murr failed to show that all or virtually all uses of the property are denied. Therefore, the Lucas claim failed.


The court proceeded to review the case under the Penn Central balancing test, as Murr “obliquely suggest[ed]” a partial taking as well. Citing the environmental character of the regulation, the court balanced the factors and rejected that claim as well.


The issue before the United States Supreme Court is whether Wisconsin’s rule that merges adjacent properties under common ownership for the purposes of regulatory takings analysis is constitutional. Given the fact specific nature of regulatory takings analysis, I predict that the court will reject the automatic merger rule and remand the case.


For those that read this blog, perhaps the more important question is whether merging adjacent nonconforming lots under common ownership, which appears to be a reasonable and common practice, will result in successful takings claims if the case is indeed remanded. In the context of nonconforming lots, should a provision that merges adjacent nonconforming lots be reviewed in the context of a regulatory takings claim as one lot or two lots?


This case frankly drives me crazy, since the posture of the case, and Wisconsin’s rather arbitrary rule of combining adjacent parcels as the relevant parcel for regulatory takings claims, obscures the real land use issue- methods of dealing with nonconforming lots. This important issue is lost in translation, and ignored in the briefs (and was ignored in the Wisconsin courts).


Although reasonableness is not the test for regulatory takings claims or for determining the relevant parcel, I further predict that on remand the Wisconsin Court of Appeals, on remand, will find that in these particular circumstances, where a local ordinance merges adjacent nonconforming lots under common ownership, the two lots should be considered as one in the relevant parcel analysis.

Jesse Richardson

March 22, 2016 | Permalink | Comments (0)

Monday, March 21, 2016

Zoning’s Centennial, Part 11: Designing Density: A Series by John R. Nolon

Part 11

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

 

Designing Density

 

In land use, there are two things that Americans dislike: one is sprawl, the other is density. This catch-22 can be resolved by mitigating those aspects of urban living associated with density: congestion, bulky buildings, sameness, design incongruities, unsafe streets, inefficiency, and the sense that neighborhoods are not livable and pleasant. These characteristics of density cut against sustainability. They define places that people want to leave as soon as they can. To reduce vehicle miles travelled and carbon emissions, as well as to prevent sprawl, we must create places of enduring value, located next to transit in walkable and sustainable neighborhoods.

When zoning was first adopted a century ago, little attention was paid to design. The focus was on separating incompatible uses and rigidly defining building heights, setbacks, and lot coverage: the ingredients of sameness, often the antithesis of livability. Gradually, over the years, communities addressed this issue by creating Architectural Boards of Review, Landmarks Commissions, Historic District Commissions, and adopting design review standards for individual buildings, whether new, landmarked, or historic. Over time, these initiatives have been supplemented by adopting standards contained in the U.S. Green Building Council’s LEED-Neighborhood Development rating system and by incorporating into zoning the Congress for the New Urbanism’s form-based codes approach to urban design control.

The law in many states expressly supplements traditional zoning by authorizing localities to create boards and commissions and design standards that are either advisory or regulatory. Such locally created commissions and boards can issue certificates of consistency to rehabilitate landmarks or build in historic neighborhoods. Similarly, these laws authorize the creation of Architectural Review Boards (ARBs), and the adoption of design guidelines for all buildings within the community, enforced either by the ARB or, with the ARB’s advice, by the local Planning Commission. In the latter case, the Planning Commission is authorized to require design features in all development it approves through subdivision or site plan review or the issuance of special permits.  

The idea is to ensure that individual buildings are consistent with the historic fabric of the locality or are architecturally compatible with the neighborhood. These techniques are not Euclidian Zoning, but rather constitute an attempt to mitigate the designs wrought by use separation and area and bulk requirements that are traditionally applied uniformly in zoning districts.

Two relatively recent land use innovations have evolved organically to breathe better design into zoning at the neighborhood scale: the voluntary LEED-Neighborhood Development rating system, promulgated by the U.S. Green Building Council, and form-based codes, developed by the Congress for New Urbanism and the Form-Based Codes Institute.  

The LEED-ND rating system was developed by the USGBC in response to criticism of its New Construction rating system, which could result in Platinum or Gold rated buildings located in agricultural zones or environmentally sensitive areas. These buildings, while internally sustainable, are decidedly not consistent with larger principles of sustainability that emphasize environmental conservation and the reduction of automobile use and vehicle miles travelled. Here, place matters, and LEED-ND contains prerequisites and criteria that require rated buildings to be sustainability located as well as built.

Local governments have begun to incorporate LEED-ND standards in their zoning and land use regulations. See, for example, the Technical Guidance Manual for local governments developed by the Land Use Law Center for the USGBC. This document includes a step-by-step process for incorporating sustainable neighborhood standards into the local comprehensive plan, zoning, land use regulations, approval processes, and capital budgets.  

Finally, form-based codes are beginning to catch on, especially in urban neighborhoods. The unique aspect of such codes is that they deemphasize use, bulk, and area requirements, substituting for them actual physical designs, adopted as code, that govern development. Diagrams and illustrations become regulations and govern building styles, details, and materials that are permitted, as well as the ways in which they can be incorporated into specific building elements. These regulations reach into the public realm and present in graphic form the width and dimensions of streets, sidewalks, paths, street trees, furniture, and more.

To zoning’s credit, design standards fit into the Standard Zoning Enabling Act, its focus on the appropriate use of the land and the processes it uses to review and approve specific buildings. We are unaware of any case that has successfully challenged as ultra vires the incorporation of LEED-ND standards or the precepts of form-based codes in to local law. And, since historic, landmark, and architectural guidelines are often authorized by discrete state laws, the power of local governments to design density is clear, and is becoming an important aspect of sustainable development.

For more information, see the U.S. Green Building Council’s Technical Guidance Manual for Sustainable Neighborhoods (developed by the Pace Land Use Law Center), and the website of the Form-Based Codes Institute.

Links to previous posts in the Zoning Centennial’s Series:

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

March 21, 2016 | Permalink | Comments (0)

Sunday, March 20, 2016

Would a vote on annexation thwart Oregon's heralded land use system?

Oregon's leaders appear to think so.  This Portland Tribune op-ed explains newly enacted legislation on annexation and the issues faced:

Since 1973, when the Oregon Legislature passed a historic land-use planning law, this state has been heralded for its innovative efforts to preserve forest and farmland and its requirement that every city and county decide where its future dwellings and businesses should go.

Earlier this month, the 2016 Legislature took an important — and somewhat controversial — step to ensure that the process set up more than four decades ago is not undermined by voters in individual cities.

Senate Bill 1573 was part of a package of housing measures. We applaud Gov. Kate Brown for signing that bill.

The bill, one of the few in the recent legislative session to draw bipartisan support — and opposition — would prevent residents of urban and suburban communities from blocking annexation with a popular vote. It can be used only if several conditions are met: Agreement by 100 percent of the landowners involved; at least one lot must abut current city limits or a right of way; and the annexation must comply with the city comprehensive land-use plan and other ordinances.

The democratic process should never be thwarted without good reason. Because of that principle, both the League of Oregon Cities and the League of Women Voters of Oregon opposed the bill.

We agree that voters should be able to have a say in what happens in their cities, but giving them veto power over annexation plans throws the whole state land-use system into jeopardy.

That’s because a key provision of the state law is that metropolitan areas must establish urban growth boundaries to accommodate 20 years of growth.

That contentious process, which includes local elected officials, generally leaves everyone a bit unhappy with the resulting urban growth boundary. Some communities that would like to expand onto farm or forest land are told they can’t. And some areas, which may not want to grow, are earmarked for growth anyway, because of their proximity to jobs, transit or other urban services.

Residents in several cities where growth is controversial, including Sherwood and Oregon City, require a public vote on all annexations. In practice, such votes almost always nix annexations.

The result is an urban growth boundary that looks great on a map, but doesn’t work in practice.

The rest of the op-ed here.

March 20, 2016 | Permalink | Comments (0)

Wednesday, March 16, 2016

Land Use and the Law of Armed Conflict

Clara Barton competition 2016

What does the law of land warfare have to do with the law of land use? Quite a lot, actually. Greetings from the Clara Barton International Humanitarian Law Competition,  sponsored by the American Red Cross and its IHL Section. Several property law issues are prevalent in the law of armed conflict.

I’m coaching my South Texas team (sponsored by the Frank Evans Center for Conflict Resolution) in this unique event that challenges students to advocate and role-play in realistic scenarios involving international humanitarian law (IHL), also known as the law of armed conflict (LOAC) or more traditionally, the law of war.

The LOAC/IHL is mostly focused on protection of persons, but it also covers a lot of property law. The bottom line is that wars and armed conflicts involve a lot of property issues—the rules about what actions armed forces can or must take with regard to public and private, real and personal property. There is a complex international law regime, codified through the Geneva and Hague Conventions, the UN Charter, and other treaties and customary international law, that deals with land and property rights.

Here at the American Red Cross IHL competition (named for ARC founder Clara Barton, who performed medical and humanitarian assistance during the Civil War, including a field hospital at the Fairfax church where I was married(!)), the scenarios included detainee interviews, targeting decisions, public relations, and international criminal court arguments. Several of the scenarios involved issues of seizure, occupation, requisition, and cultural protection of property. Other armed conflict issues include claims, restitution, and post-conflict governance questions such as titles, registration, and resolving property disputes. These property issues are governed by the international law of armed conflict.

While most of the public perception of the Red Cross is based on its important missions of disaster relief and blood donations, the movement was founded to establish and enforce international humanitarian law in the wake of disastrous nineteenth-century battles. The ICRC is the world's lead organization on this and you can read its Intercross blog; the ARC also has an important IHL section with the mission to educate, train, and promote IHL, which you can read about at the Humanity in War blog. 

As some of you know, I have been busy over the past few years in my Army Reserve assignment as an Associate Professor of International & Operational Law at the U.S. Army Judge Advocate General’s School in Charlottesville, Virginia. I’ve been focused more on the law of land warfare than the law of land use. That’s why I haven’t been blogging much here at the Land Use Prof Blog, while Stephen Miller has been outstanding in continuing to lead this crucial forum for the land use academic community. Going forward, I plan to contribute some thoughts about the relationship between land use and the law of armed conflict, and more broadly, international property law . . . and also get back to blogging about land use here in the "unzoned city" of Houston.

Matt Festa

March 16, 2016 in Comparative Land Use, Federal Government, Historic Preservation, History, Property Rights, Teaching | Permalink | Comments (1)

Sunday, March 13, 2016

Zoning’s Centennial, Part 10: The Emergence of the Law of Sustainable Development: A Series by John R. Nolon

Part 10

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

 

The Emergence of the Law of Sustainable Development

 

When we created and named the Land Use Law Center for Sustainable Development in 1993, we had a foggy vision of the contours of Sustainable Development Law. We knew that the advent of local environmental law, the origins of smart growth, and zoning for affordable housing traced the outlines of this field of law and practice. These movements in land use law focused on promoting and regulating economic development to meet present needs, providing for equitable community development, and preserving natural resources to meet the needs of future generations: the essential elements of sustainable development as defined in the Rio Accords of 1992.

We did not know then, however, that land use law would progress rapidly over the next quarter century to include topics as diverse as green infrastructure and biological sequestration; adaptation to sea level rise and storm surges; siting and promoting wind and solar facilities; preserving agricultural land through urban food sheds; creating livable neighborhoods through design controls; and regulating hydrofracking to protect the health of local residents.

In 1993, the technology was either nascent or did not exist for achieving high levels of on-site stormwater infiltration; constructing zero net energy buildings; measuring increases in sequestering vegetation and urban tree canopies; expanding domestic gas and oil exploration through fracking; creating clean energy facilities such as geothermal, combined heat and power, and micro-grids; developing rating systems for sustainable buildings and neighborhoods; identifying neighborhoods where high energy waste occurs; understanding ecosystem services and their values; creating metrics that identify base lines for carbon emission and measure its increases and decreases; and designing models that project the extent of sea level rise in coastal areas.

Over the past 25 years as these technologies developed, the law adapted to put them to effective use in promoting sustainability in all of its dimensions. We now know, through examining advances in technology and local law, how to achieve development that uses less material, avoids destroying wetlands or eroding watersheds, consumes less energy, eliminates or shortens vehicle trips, emits less carbon dioxide, lessens stormwater runoff, reduces ground and surface water pollution, and creates healthier places for living, working, and recreating.

This body of law is being created mainly by municipalities, which have the principal legal authority to regulate building construction, land use, and the conservation of natural resources at the local level. Increasingly, however, positive federal and state influences are speeding local adaption of sustainable law techniques.

This is evident in federal and state tax credit, spending programs, and technical assistance that promote solar and other clean energy facilities. Similarly, the Sustainable Communities Initiative – a partnership between HUD, the Department of Transportation, and EPA – has aided local efforts to achieve transit oriented development and reduce vehicle miles travelled.  HUD’s recent efforts to affirmatively further fair housing guide localities in identifying the impediments to fair and affordable housing. With coastal protection and disaster planning, federal and state efforts are helping localities, as first responders, deal with climate-induced hazards. Federal and state transportation spending is directed by federally-required Metropolitan Planning Organizations, creating one model of regional planning that involves local elected officials. In the environmental field, EPA’s stormwater management program and aligned state efforts have greatly assisted localities to reduce stormwater runoff. EPA has experimented with efforts to cooperate with local land use authorities to reduce nonpoint source pollution to achieve its Total Maximum Daily Load objectives for federally-impaired waters. These initiatives that exhibit a clear-eyed view of the importance of local land use provide a basis for a fuller integration of local, state, and federal efforts to create rational land use and transportation patterns.

The challenge ahead is to scale up the most exemplary of these integration efforts. The patterns of a more coherent framework of sustainable development law can be observed in the operations of each level of government and the close connections between economic development, environmental protection, and the promotion of equitable development.

As these patterns become better understood, the prospect brightens for a robust and integrated system of federal, state, and local laws dedicated to sustainable development and climate change management. The law has always evolved in this way to serve the needs of society. Expect as much progress in law and technology over the next quarter century as we have witnessed in the last.

For more information, see John R. Nolon, Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, 24 Fordham Envtl. L. Rev. 242 (2013) and John R. Nolon, The Law of Sustainable Development: Keeping Pace, 30 Pace L. Rev. 1246 (2010).

Links to previous posts in the Zoning Centennial’s Series:

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

March 13, 2016 | Permalink | Comments (0)

Tuesday, March 8, 2016

This Wed-Fri: Live-streams from the Rocky Mountain Land Use Institute 25th anniversary conference

If you can't make it to Denver for the Rocky Mountain Land Use Institute's annual conference this week, be sure to check out some of the events that will be live-streamed over the next several days.  These live-streamed events will include several workshops on linking land use and water, which will include blogger John Nolon.  I will be moderating the sharing economy panel on Friday morning.  

For those attending, I will be in Denver Thursday and Friday.  Hope to catch up with some folks!

 

 

 
  2016 Rocky Mountain Land Use Institute Conference
If you didn't register for RMLUI's 2016 Western Places/Western Spaces conference, you can still participate.

We will be providing a live stream of select sessions throughout the conference.

 Wednesday, March 9
 9:00am - 12:00pm Linking Land Use & Water workshop
 1:00pm - 4:00pm Linking Land Use & Water workshop
   
 Thursday, March 10
 10:15am - 11:45am Here Comes the Big Box: AICP Ethics Case of the Year
 1:15pm - 2:45pm Sagebrush Rebellion III? The Effort to Transfer Ownership of Public Land
 3:00pm - 4:30pm Water's Role in Shaping the Rocky Mountain West
   
 Friday, March 11
  8:30am - 10:00am The Sharing Economy Matures: How the On-Demand Marketplace Is Evolving; How Cities Will Respond
 10:15am - 11:45am Resilient Communities: Learning from the World's Best
 1:15pm - 2:45pm Creative Solutions to the Affordable Housing Crisis
 3:00pm - 4:30pm The Role of the Neighborhood Association in the Land Use Approval Process

 

For more information about the sessions, please visit RMLUI online todownload the program. Handouts are available online at the 2016 Session Materials page.

If you would like to participate in the live streaming event, click on the links above.

If you have any questions about the event or the streaming service, please contact Lisa Loranger Bingham at 303-871-6319 orrmlui@law.du.edu. Please note that the links will only be active for the times indicated.



The Rocky Mountain Land Use Institute's 25th Annual Conference
is brought to you in part by:

 The University of Denver Sturm College of Law is committed to providing facilities that are accessible to persons with and without disabilities. We encourage anyone who requires additional assistance to contact Lisa Loranger Bingham at 303-871-6319 orlbingham@law.du.edu for further information.

 
 
 

March 8, 2016 | Permalink | Comments (0)

Monday, March 7, 2016

From Liability to Viability: Neglected Properties Toolkit

Throughout the United States, communities trying to attract economic development are faced with abandoned and neglected buildings. In addition to being eyesores, these properties can be health and safety hazards. The problem is acute in West Virginia. To help local governments in West Virginia, the Land Use and Sustainable Development (LUSD) Law Clinic at the West Virginia University College of Law has published a free guide to navigating the legal issues of dealing with dilapidated properties. “From Liability to Viability: A Legal Toolkit to Address Neglected Properties in West Virginia” was written by the attorneys in the LUSD Law Clinic.

The easy-to-use handbook identifies the various tools available to attorneys, mayors, code enforcement officers, land use planners and community leaders. It is based on dozens of interviews conducted statewide with experts as well as in-depth reviews of local ordinances. Topics addressed in the handbook range from prioritization and collaboration to codes, eminent domain and negotiation. Although the handbook uses West Virginia law, the explanation of tools will benefit local governments across the country.

The book grew out of the LUSD Law Clinic’s experiences working throughout West Virginia over the past several years. Working with local governments on land use and planning issues, the clinic kept hearing about the problem of dilapidated properties. The issues are complex, dealing with a broad range of legal questions, but the need is very real. 

From Liability to Viability” is part of a LUSD Law Clinic initiative called West Virginia Legal Education to Address Abandoned and Neglected Properties, or WV LEAP. A grant from the Claude Benedum Foundation in 2014 provided the initial funding for WV LEAP. A PDF of “From Liability to Viability” is available for free at wvleap.wvu.edu. Hard copies of the handbook are available by contacting the LUSD Law Clinic at (304) 293-4633 or emailing Erica.Hetzel@mail.wvu.edu.

Jesse Richardson

March 7, 2016 in Economic Development, Planning, Redevelopment | Permalink | Comments (0)

John Oliver / Last Week Tonight take on special taxing districts

 

Hat tip to Lee Dillion.

March 7, 2016 | Permalink | Comments (0)

Zoning’s Centennial, Part 9: Mixed Signals: Exclusionary Zoning and Fairness: A Series by John R. Nolon

Part 9

 

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

 

Mixed Signals: Exclusionary Zoning and Fairness

 

After encountering significant NIMBY opposition to the expansion of the Lucasfilm facilities on his land in Marin County, California, George Lucas abandoned his plans and proposed to sell his land to affordable housing developers. The backstory involves the Fair Housing Act, various federal grant-in-aid programs, and a Voluntary Cooperation Agreement entered into between Marin County and the U.S. Department of Housing and Urban Development. After an investigation, HUD required the County to take steps to affirmatively further fair housing opportunities for people of color and other groups that face barriers to housing in the region.

Marin County’s minority population is much lower than that of other communities in the Bay Area. As a recipient of federal funding, it has an obligation to Affirmatively Further Fair Housing (AFFH), which includes eliminating impediments to fair housing, such as zoning restrictions that cause segregation. The neighbors of Lucas’s property are now contemplating a different change in the neighborhood than the one they initially opposed.

Under the 10th Amendment, the matter of land use control is left to the states, which have delegated that power to local governments. Exclusionary zoning is, in the first instance, a matter of state law. It is based on the Euclidian notion that zoning’s purpose is to segregate different land uses into various districts. Zoning is inherently exclusionary. Yet, since land use authority is delegated to localities by the state, there are constitutional limits to excluding growth and affordable housing.

State courts, however, are relatively shy about intruding into the local legislative realm and mandating solutions to affordable and fair housing. State legislatures, because all politics is local, have been equally reticent. Courts in New Jersey and the state legislatures in California and Connecticut which have aggressively and clearly defined the obligations of local government regarding housing are outliers.

New York courts are more engaged in the topic than most state court systems, but their holdings fall far short of providing effective guidance to localities regarding their responsibilities to provide affordable housing. In the seminal case, Berenson v. New Castle (1975),  the state’s highest court noted: “[T]he primary goal of a zoning ordinance must be to provide for the development of a balanced, cohesive community which will make efficient use of the town’s land…. [I]n enacting a zoning ordinance, consideration must be given to regional [housing] needs and requirements…. There must be a balancing of the local desire to maintain the status quo within the community and the greater public interest that regional needs be met.” The state court held that New Castle’s failure to zone land for multifamily housing was exclusionary. Mr. Berenson’s land was then rezoned for condominiums that sold for today’s equivalent of $500,000.

These abstract judicial utterances, in the few jurisdictions where state courts have entered the fray–coupled with the absence of state legislative guidance–leave localities wondering what their obligations are under state law. Meanwhile, if they receive federal funding or fail to rezone land proposed for multifamily housing, like Marin County, they may be liable for their failure to AFFH. The Fair Housing Act aims to fight racial segregation and thus implicates the very nature of zoning. How can segregation be eliminated if most land in communities is zoned for single-family housing, the ubiquitous result of Euclidian zoning? But what exactly does this mean? What does federal law require?

What we know is that communities that receive federal housing and community development funding must certify that they have analyzed the impediments to AFFH and acted in good faith to eliminate them. They may be liable if they have not, which implicates the zoning that creates a segregative settlement pattern. We also know that the refusal to rezone specific parcels for multi-family housing may result in municipal liability for discrimination, if such failure results in disparate impacts or disparate treatment. Huntington Branch, NAACP v Huntington (1986), held: “…[W]e find that the disproportionate harm to blacks and the segregative impact on the entire community resulting from the refusal to rezone create a strong prima facie showing of discriminatory effect.” 

In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. (2015), the U.S. Supreme Court held that “recognition of disparate-impact claims is consistent with the FHA’s central purpose.” The Court pointed to “zoning laws and other housing restrictions” that it viewed as “unfairly…excluding minorities from certain neighborhoods without any sufficient justification.” It went on to say that “[g]overnmental or private policies are not contrary to the disparate-impact requirement unless they are “artificial, arbitrary, and unnecessary barriers. Courts should avoid interpreting disparate impact liability to be so expansive as to inject racial considerations into every housing decision.”

Municipalities and their attorneys are getting unclear signals in this area of land use law. They may create zoning districts and specify whatever uses they wish. But they must not craft these districts and uses in a way that excludes households in the state in search of housing. Yet, nowhere is the extent of this responsibility defined. There is no guidance on what constitutes “the region” or “regional needs”; localities’ “fair share” or their “duty” to actually make housing for such households affordable; or what combination of zoning techniques and housing subsidies (over which there is no local control) municipalities must use. When precisely, under federal law, are localities responsible to affirmatively further fair housing? Is that liability limited to communities that get federal funding and those that deny housing developers multifamily zoning? Or, does it extend to the entire pattern of development created by local zoning if its districts are not integrated racially? Wouldn’t that be injecting racial considerations into every land use decision that affects housing?

Perhaps nowhere in the story of Zoning’s Centennial is the legal system more confused than in this area of fair and affordable housing. It is an interjurisdictional mess, begging for sensible reform. But, where should this reform begin? State governments are often the appropriate intermediary between federal and local interests. State constitutions give the police power to their legislatures. They have, in turn, delegated it to localities regarding land use without clear guidance as to these critical fairness issues. The resolution of these questions should be a matter of state concern and become state priority, given the importance of these unresolved issues.  

For more information, see John R. Nolon, Affordable Housing in the New York Courts: A Case for Legislative Action, N.Y. Zoning Law & Prac. Rep., vol. 7, no. 3 (2006).

Links to previous posts in the Zoning Centennial’s Series:

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’

March 7, 2016 | Permalink | Comments (0)

Sunday, March 6, 2016

Webcast tomorrow at 6:30 pm Mountain: A grassroots discussion on fracking by the mayor of Dish, Texas

This is a local event about fracking, but since it is being webcast, I am posting it here.  Fracking has just come to Idaho and, with uncertain reserves, it is unclear what role it will play in Idaho's future.  For those around the country with an interest in what grassroots organizations around fracking look and sound like, I thought this could be a way in...without having to leave your computer.  Here is the info:

Tomorrow, Monday, March 7th, Citizens Allied for Integrity and Accountability - C.A.I.A. - is bringing the former Mayor of Dish, TX, Calvin Tillman, to speak at the Lincoln Auditorium at the Statehouse in Boise at 6:30 p.m. (flier attached).  Calvin now sits on the Aubrey City Council and has years of firsthand experience with oil and gas development in his capacity as an elected official and impacted homeowner/father.

Any help you can help you can give us in spreading the word would be much appreciated!  THIS EVENT IS BEING LIVE-STREAMED!  Here's the link.   There isn't a person in the country who will not benefit from hearing Calvin speak.  Even if you are pro-oil and gas, you need to hear what he has to say to protect yourself and get favorable leasing term.  In case the link doesn't work for you: http://idahoptv.org/insession/inc/inSess_vidParams.cfm?streamType=IOS&locID=11&commID=0&legBodyID=11V

SB1339 will probably be voted on by the full house on Monday.  If you haven't written/contacted your lawmakers it's not too late.  For those of you on the Eastern side of the state (or Central/Northern Idaho) this bill WILL affect YOU and YOUR property rights also!  If you need a list of talking points, email me and I'll send them!

March 6, 2016 | Permalink | Comments (0)

Saturday, March 5, 2016

Welcome to our March guest blogger, Jesse Richardson

Land Use Prof Blog is excited to welcome back Jesse Richardson (WVU Law) as our March guest blogger.  Here is a bio:

Jess J. Richardson, Jr. .is the Lead Land Use Attorney at the Land Use and Sustainable Development Law Clinic and Associate RichardsonProfessor of Law at the West Virginia University College of Law. Before coming to WVU, Jesse was an Associate Professor in Urban Affairs and Planning at Virginia Tech, teaching land use law, environmental law, urban growth management and real estate. His research and experience focuses on land use law and water law. Prior to his academic endeavors, Jesse was in private practice in his home town of Winchester, Virginia, first with a large law firm, then as a solo practitioner. He presently serves on the Board of Directors of the American Agricultural Law Association, the Universities Council on Water Resources and the National Cave and Karst Research Institute. He previously served on the Virginia Farmland Protection Task Force and the Virginia Water Policy Technical Advisory Committee. Jesse was honored with the 1999 Professional Scholarship Award from the American Agricultural Law Association, the 2004 William E. Wine Award for a history of teaching Excellence from Virginia Tech (the highest teaching award granted by the university), and the 2009 University Certificate of Excellence in Outreach. He has worked with communities in West Virginia and Virginia on land use planning issues, including issues related to karst and water resources. He holds a B.S. and M.S. in Agricultural and Applied Economics from Virginia Tech and a J.D. from the University of Virginia School of Law.

Welcome! 

March 5, 2016 | Permalink | Comments (0)

Wednesday, March 2, 2016

Ninth Circuit upholds NEPA analysis for forest plan reducing sheep grazing by 70%, potentially paving the way for dramatic reductions in sheep grazing on federal lands

The Ninth Circuit just issued its decision in Idaho Wool Growers v. Vilsack.  Decision here.  The decision upholds NEPA analysis for Payette National Forest forest plan that will reduce sheep grazing in the forest by 70%, from 100,000 acres to 30,000 acres.  With this win, it is likely that the Forest Service, and other federal agencies in the West, will seek to reduce sheep grazing because of fear of disease transmission between domesticated sheep and bighorn sheep.  Here is an excerpt of my editorial about the case for the LA/SF Daily Journals (Nov. 17, 2015 editions, behind pay wall):

In Idaho Wool Growers, sheep grazers challenged the adequacy of the U.S. Forest Service’s environmental review of the Payette National Forest Land and Resource Management Plan, a document required under the National Forest Management Act that has been a source of acrimony since its first draft appeared in 1988.  At the center of the plan, which was last amended in 2010, was to reduce grazing of domestic sheep in the forest by 70 percent—from 100,000 acres to 30,000 acres—in order to protect wild bighorn sheep from disease potentially transmitted from the domesticated sheep. 

That proposal cut straight to the heart of locals, as sheep grazing is an industry deeply entrenched in the State’s political and cultural heritage.  For instance, the State’s lieutenant governor, a former president of the Idaho Wool Growers, operated a third-generation sheep farm started by his grandfather, known as “The Sheep King.”  Idahoans continue to celebrate a deep cultural connection to their nineteenth century Basque immigrant forefathers, many of whom were sheep grazers.  Those days meant months at a time spent living in spare karro kampos wagons, a heritage now proudly celebrated and remembered at Basque festivals, called Jaialdi, held every five years in Boise.

It is no wonder, then, that the sheep grazers would seek to prevent the Forest Service from dramatically reducing sheep grazing in the forest.  Moreover, there is concern among many sheep grazers that this forest plan is just the first salvo:  other federal agencies that govern public lands in this State, such as the Bureau of Land Management, are watching this case to decide how to proceed with protecting bighorn sheep from disease on their own lands.  A win for the Forest Service here could mean more big reductions in sheep grazing from those other agencies.  The federal agencies’ hands are also being forced, to some degree, by environmental groups that are challenging sheep grazing allotments out of concern for bighorn sheep.

Despite the high stakes for sheep grazers, the NEPA case itself presents a relatively common “experts” question.  At its core, the plaintiffs’ case is that NEPA regulations require the Forest Service to consider relevant expert agency comments into decisionmaking and that the agency violated this requirement by failing to consider input from the Agricultural Research Service (ARS), the in-house research agency of the U.S. Department of Agriculture, which is often more favorable to agricultural interests than some other agencies.  In particular, plaintiffs allege that the Forest Service improperly ignored a paper by a specific ARS scientist that cast doubt on the link between domestic sheep grazing and bighorn health issues. 

The Forest Service argued that ARS and the scientist were not relevant “experts” because they had no expertise in wildlife management.  In any case, the Forest Service further argued, it took into consideration opposing viewpoints, voiced largely by representatives of agricultural interests, and weighed those viewpoints against “a large body of peer reviewed and published literature spanning several decades,” the majority of which “supports the potential for disease transmission between the species, documents bighorn die-offs near domestic sheep, and supports the management option of keeping these species separate to prevent disease transmission.”  The agency noted that “there is no peer reviewed literature that suggests [that] bighorn sheep can be grazed with domestic sheep without concern for disease transmission between the species” and that “[s]cientists from both sides of the issue also recommend that the species be kept separate until the disease transmission science is better understood.”

This decision may well be a threshold decision on the future of sheep grazing on federal lands.

 

March 2, 2016 | Permalink | Comments (0)

Tuesday, March 1, 2016

Land use law articles posted to SSRN in February

Here are all of the land use-law related articles posted to the SSRN Property, Land Use & Real Estate Law eJournal in February.  

 

Scholars based at U.S. institutions:


 The Private Pore Space: Condemnation for Subsurface Ways of Necessity
Wyoming Law Review, Vol. 16, No. 1, 2016
Tara Kathleen Righetti 
University of Wyoming College of Law 

 Simple Acts of Tolerance: A Slap in the Face to Acquisitive Prescription
Jessica Mae Reed 
Southern University Law Center 

 Addressing Rural Blight: Lessons from West Virginia and WV LEAP
24:3 Journal of Affordable Housing and Community, 2016, Forthcoming
Ann M. Eisenberg 
West Virginia University, College of Law, Students 

 On Bargaining for Development
Florida Law Review Forum, Vol. 67
Timothy M. Mulvaney 
Texas A&M University - School of Law 

 A Three-Legged Stool on Two Legs: Recent Federal Law Related to Local Climate Resilience Planning and Zoning
47 Urb. Law. 525 (2015), Touro Law Center Legal Studies Research Paper Series
Sarah Adams-Schoen and Edward Thomas 
Touro College - Jacob D. Fuchsberg Law Center and Independent 

 Externality Entrepreneurism
BYU Law Research Paper No. 16-03
Lisa Grow Sun and Brigham Daniels 
Brigham Young University - J. Reuben Clark Law School and Brigham Young University - J. Reuben Clark Law School 

 The Potlatch as Fractional Reserve Banking
Unlocking the Wealth of Indian Nations, Terry L. Anderson ed., Lexington Books, Forthcoming, George Mason Law & Economics Research Paper No. 16-05
D. Bruce Johnsen 
George Mason University - School of Law 

 Property, Intellectual Property, and Social Justice: Mapping the Next Frontier
Brigham-Kanner Property Rights Conference Journal, 2015, UC Berkeley Public Law Research Paper No. 2736517
Peter S. Menell 
University of California, Berkeley - School of Law 

New York Residential Landlord-Tenant Law and Procedure ─ 2015-2016
Gerald Lebovits, Damon Howard & Michael Terk, New York Residential Landlord-Tenant Law and Procedure ─ 2015-2016 (N.Y. St. B. Ass'n 8th ed. 2015)., 
Gerald Lebovits Damon P. Howard and Michael B. Terk 
Columbia University - Law School , Independent and David Rozenholc & Associates 

 Fracking and Cracking: Strict Liability for Earthquake Damage Due to Wastewater Injection and Hydraulic Fracturing
Blake A. Watson, Fracking and Cracking: Strict Liability for Earthquake Damage Due to Wastewater Injection and Hydraulic Fracturing, 11 Texas Journal of Oil, Gas, and Energy Law 1 (2016)
Blake A. Watson 
University of Dayton School of Law 

 A Doctrine Adrift: Wisconsin's Public Trust
Nicholas Bullard 
United States Courts - United States Court of Appeals for the Eighth Circuit 

 'Foaming the Runway' for Homeowners: U.S. Bankruptcy Courts Preserving Homeownership in the Wake of the Affordable Modification Program
American Bankruptcy Institute Law Review, Vol. 23, 2015
Linda E. Coco 
Barry University - Dwayne O. Andreas School of Law 

 On Resolving Church Property Disputes
Arizona Law Review, Forthcoming
Michael W. McConnell and Luke W. Goodrich 
Stanford Law School and The Becket Fund for Religious Liberty 

 Two Wrongs? Correcting Professor Lazarus's Misunderstanding of the Public Trust Doctrine
Michael C. Blumm 
Lewis & Clark Law School 

 Shooting the Albatross: Why a State Takeover of Federal Public Lands Would Make Endangered Species Act Compliance More Expensive and Difficult
Environs, Vol. 38, 2016, University of Utah College of Law Research Paper
John Ruple Mark K. Capone Emanuel Vásquez and Alison Jones 
Office of the General Counsel, National Oceanic and Atmospheric Administration, U.S. Department of Commerce , Wild Utah Project and Wild Utah Project 

 Mitigating Climate Change by Zoning for Solar Energy Systems: Embracing Clean Energy Technology in Zoning's Centennial Year
Zoning & Planning Law Report, December 2015
John R. Nolon 
Pace University School of Law 

 Assessing the Effect of Airbnb on the Washington DC Housing Market
Nicholas Pairolero 
Independent 

 Fifty Shades of State: Quantifying Housing Market Regulations in Germany
Konstantin A. Kholodilin 
German Institute for Economic Research (DIW Berlin) 

 The Transfer of Public Lands Movement: Taking the 'Public' Out of Public Lands
Stegner Center White Paper No. 2015-01, S.J. Quinney College of Law Research Paper No.99
Robert B. Keiter and John Ruple 
University of Utah - S.J. Quinney College of Law and 

 Buying Happiness: Property, Acquisition, & Subjective Well-Being
David Fagundes 
University of Houston Law Center 

 Local Regulating of Drone Activity in Lower Airspace
Boston University Journal of Science and Technology Law, Forthcoming, Arizona Summit Law School Paper Series 2016-A-02
Michael N. Widener 
Arizona Summit Law School 

 Fracking in Louisiana: The Missing Process/Land Use Distinction in State Preemption and Opportunities for Local Participation
Louisiana Law Review, Forthcoming, UNM School of Law Research Paper No. 2016-01
Alex Ritchie 
University of New Mexico School of Law 

 A Park for Everyone: The National Park Service in Urban America
56.1 Nat. Resources J. 1 (2016), Akron Research Paper No. 16-01
Sarah J. Morath 
University of Akron - School of Law 

Decentralized, Disruptive, and On Demand: How the Sharing Economy Will Re-Shape Local Government
Ohio State Law Journal, Forthcoming
Stephen R. Miller 
University of Idaho College of Law - Boise 

 Penn Central Take Two
Vanderbilt Public Law Research Paper No. 16-6
Christopher Serkin 
Vanderbilt Law School 

 Colonial Property, Private Dams, and Climate Change in Virginia
Washington & Lee Legal Studies Paper No. 2015 - 21
Jill Fraley 
Washington and Lee University - School of Law 

 The Political Rhetoric of Property and Natural Resource Ownership: A Meditation on Luck, Taxation and Appalachia
Washington & Lee Legal Studies Paper No. 2015 - 20
Jill Fraley 
Washington and Lee University - School of Law 

 Reforming Proposition 13 to Tax Land More and Buildings Less
California Policy Options, 2016, Forthcoming, UCLA School of Law, Law-Econ Research Paper No. 16-01
Kirk J. Stark 
University of California, Los Angeles (UCLA) - School of Law 

 'Raisins are Not Oysters': Horne and the Improper Synthesis of the Public and Wildlife Trusts
Arizona Journal of Environmental Law & Policy, Vol. 6, No. 2, 2016
Autumn T Breeden 
University of Mississippi, School of Law, Students 

 Toward a Heterodox Property Law and Economics
2 Tex. A&M L. Rev. 489, 2015
Lua K. Yuille 
University of Kansas School of Law 

 Land Use Law Update: Reed v. Town of Gilbert Redux
29 Mun. Law. 39 (Fall 2015), Touro Law Center Legal Studies Research Paper Series No. 16-05
Sarah Adams-Schoen 
Touro College - Jacob D. Fuchsberg Law Center 

 Code Section 1031 Swap-and-Drops Thirty Years after Magneson
Journal of Passthrough Entities, Vol. 19, p. 11, 2016, Brooklyn Law School, Legal Studies Paper No. 441
Bradley T. Borden 
Brooklyn Law School 

 

Scholars based at non-U.S. institutions:

 Urbanistica, moschee e altri luoghi di culto. Riflessioni a partire da una recente legge della Regione Lombardia. (Urban Planning and Mosques. A Critical Exploration of Planning Problems Starting from Current Regulations in Lombardy Region, Italy)
GSSI Cities Working Papers Series 26/2016
Francesco Chiodelli and Stefano Moroni 
Gran Sasso Science Institute - GSSI Cities and Polytechnic University of Milan 

 Land Tenure in Asia and the Pacific: Challenges, Opportunities and Way Forward
David P Mitchell Danilo Antonio Donovan Storey Teo CheeHai and Lowie Rosales-Kawasaki 
RMIT University - School of Mathematical and Geospatial Sciences , UN-HABITAT , United Nations - Economic and Social Commission for Asia and the Pacific (ESCAP) , Independent and UN-HABITAT 

 Estudio De Los Últimos Postulados Referentes a La Atribución Del Uso De La Vivienda Familiar. La 'Necesidad De Vivienda' (Survey on Latest Advancements on Legal Doctrine as to the Allocation of the Family Home Possession. 'The Need for Housing')
InDret, Vol. 1, 2016
Beatriz Verdera Izquierdo 
University of the Balearic Islands 

 Distributional Consequences of Upstream Tree Plantations on Downstream Water Users in a Public-Private Benefit Framework
Agricultural Systems 139 (2015) 271-281
Thomas L. Nordblom Iain Hume John D. Finlayson David J. Pannell Jonathan E Holland and Anthea J. McClintock 
Government of New South Wales - Department of Primary Industries , Australian National University , Charles Sturt University - Graham Centre for Agricultural Innovation , University of Western Australia , NSW DPI and NSW Trade & Investment - NSW Department of Primary Industries 

 New Amendments to Russia's Privatization Legislation: Cosmetic Measures or Further Deregulation?
Russian Economic Developments. Moscow, 2016, #2, pp. 86-92
Georgy Malginov and Alexander Radygin 
Gaidar Institute for Economic Policy and Gaidar Institute for Economic Policy 

 Efectele Partajului (Effects of Partition)
Annals of the "Constantin Brâncuşi" University of Târgu Jiu, Juridical Sciences Series, Issue 2/2015, 
Titu Ionascu 
University Constantin Brancusi of Targu-Jiu 

 К ВОПРОСУ О ЗАЩИТЕ ПРАВ ГРАЖДАН И ЮРИДИЧЕСКИХ ЛИЦ ПРИ ИЗЪЯТИИ ЗЕМЕЛЬНЫХ УЧАСТКОВ (To the Question of Protection of the Rights of Citizens and Legal Entities at Seizure of Land)
Victoria Bagdasaryan 
Russian Presidential Academy of National Economy and Public Administration (RANEPA) 

 Ukraine's Transition from Soviet to Post-Soviet Law: Property as a Lesson in Failed Regulation
U. of Adelaide Law Research Paper No. 2016-02
Paul T. Babie 
University of Adelaide - School of Law 

 Попытки модернизации в России. Судьба собственника его собственности (институциональный анализ) (Attempts to Reform Russia: Tracking Back the Liberty and the Property)
Vladimir Lisin Konstantin Moshe Yanovskiy and Sergei Zhavoronkov 
Novolipetsk Steel - Novolipetsk Steel, Moscow , Gaidar Institute for Economic Policy and Gaidar Institute for Economic Policy 

 Les nouvelles frontières de l’expropriation: vers une expropriation pour cause d’utilité privée? (New Frontiers in Expropriation: Toward Expropriation for Private Use?)
Yaëll Emerich, Les nouvelles frontières de l’expropriation: vers une expropriation pour cause d’utilité privée? (2014) 48 Revue juridique Thémis de l’Université de Montréal 693., 
Yaell Emerich 
McGill University - Faculty of Law 

 Residential Communities in a Heterogeneous Society: The Case of Israel
In: Private Communities and Urban Governance: Theoretical and Comparative Perspectives, A. Lehavi (Ed.), New York: Springer (2016, Forthcoming)
Amnon Lehavi 
Interdisciplinary Center Herzliyah - Radzyner School of Law 

 The Constitutional Mandate for Social Welfare – Systemic Differences and Links between Property, Land Rights and Housing Rights
Potchefstroom Electronic Law Journal, Vol. 18, No. 4, 2015
AJ van der Walt and Sue Viljoen 
Stellenbosch University - Law and University of South Africa - School of Law 

 Why Restrain Alienation of Indigenous Lands?
Malcolm Lavoie 
University of Alberta Faculty of Law 

 Resisting Dignity Takings in China
Law & Social Inquiry, Vol. 41, Issue 3, Forthcoming, TLI Think! Paper 08/2016
Eva Pils 
The Dickson Poon School of Law, King's College London, Dickson Poon Transnational Law Institute 

 La destinée perpétuelle de la propriété entre symbolisme et aléas (The Perpetual Destiny of Ownership: Between Symbolism and Hazards)
Yaell Emerich, "La destinée perpétuelle de la propriété entre symbolisme et aléas" (2015) 45 Revue général de droit 501., 
Yaell Emerich 
McGill University - Faculty of Law 

 Comparative Overview on the Transformative Effect of Acquisitive Prescription and Adverse Possession: Morality, Legitimacy, Justice
REVUE INTERNATIONALE DE DROIT COMPARÉ, 2015,
Yaell Emerich 
McGill University - Faculty of Law 

March 1, 2016 | Permalink | Comments (0)

Monday, February 29, 2016

California Building Industry Ass'n - Cert Petition Denied

Stephen Miller and I have previously blogged about California Building Industry Ass'n v. City of San Jose, a case in which the California Supreme Court upheld the constitutionality of the City of San Jose's inclusionary zoning ordinance.  The California Building Industry Association had filed a petition for cert with the U.S. Supreme Court. Today, that petition was denied. However, Justice Clarence Thomas warned that the court may yet take up the issue of the constitutionality of such ordinances.

Until we decide this issue, property owners and local governments are left uncertain about what legal standard governs legislative ordinances and whether cities can legislatively impose exactions that would not pass muster if done administratively. These factors present compelling reasons for resolving this conflict at the earliest practicable opportunity. Yet this case does not present an opportunity to resolve the conflict. The city raises threshold questions about the timeliness of the petition for certiorari that might preclude us from reaching the takings-clause question. Moreover, petitioner disclaimed any reliance on Nollan and Dolan in the proceedings below. Nor did the California Supreme Court's decision rest on the distinction (if any) between takings effectuated through administrative versus legislative action. Given these considerations, I concur in the court's denial of certiorari.

In other news, today Justice Thomas asked his first question from the bench in over a decade. Given Justice Scalia's passing, perhaps Thomas feels it is time for him to take a more visible role on the court.

Jamie Baker Roskie

February 29, 2016 in Affordable Housing, California, Caselaw, Supreme Court | Permalink | Comments (0)

Advanced registration for the American Planning Association's annual conference in Phoenix ends March 3


   
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February 29, 2016 | Permalink | Comments (0)

Last day to register for Rocky Mountain Land Use Institute's 25th anniversary conference

 
  2016 Rocky Mountain Land Use Institute Conference
  Take the Leap!

Registration for
Western Places/Western Spaces
closes at midnight tonight!

Register today with our special Leap Day rates.

Because today is Leap Day, we are jumping back to our 2012 rates for the final day of registration. Save as much as $80 with our special pricing: 
       
 Corporate      $595
 Government  $495
 Non-Profit  $395
 Student  $100

Take advantage of this incredible deal on registration and come and celebrate RMLUI's 25th anniversary.

Download the program to see what we have in store. In addition to a great line up of sessions, check out these highlights:
  • Keynote presentation on Urbanism and Global Sprawl by award-winning urban planner Peter Calthorpe.
  • Plenary lunch talk by former Colorado Supreme Court Justice Gregory Hobbs on Water & Land Use Planning: What Did Powell Really Say?
  • A second plenary lunch with Warm Cookies of the Revolution called Civic Engagement Can Be Fun! (Yes, there will be cookies.)
  • Walking tours in two of Denver's up-and-coming neighborhoods.
  • Networking Reception Thursday evening where you can mix and mingle with industry leaders and fellow practitioners.
  • AICP, CLE and CRE continuing education credits.

If you have any questions about the program or registration, please contact us atrmlui@law.du.edu or 303-871-6319.

 

The Rocky Mountain Land Use Institute's 25th Annual Conference
is brought to you in part by:

 The University of Denver Sturm College of Law is committed to providing facilities that are accessible to persons with and without disabilities. We encourage anyone who requires additional assistance to contact Lisa Loranger Bingham at 303-871-6319 or lbingham@law.du.edu for further information.



 

 
 
 

February 29, 2016 | Permalink | Comments (0)

Zoning’s Centennial, Part 8: Regionalism and ‘Wistful Hoping’: A Series by John R. Nolon

Part 8

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

Regionalism and ‘Wistful Hoping’

We praise the parochial nature of American land use law because it gives power to local people to cure local problems and take advantage of local opportunities that deeply affect them. This was borne out in our examination, in my previous post, of the advent of local environmental law; where local concerns over environmental degradation gave birth, arguably, to a new field of local environmental law.

In the seminal Euclid case, the owners of the property regulated by the Village–and an entire regional industry–were upset by zoning’s interruption of the natural evolution of land development. The U.S. Supreme Court wrote, “It is said that the village of Euclid is a mere suburb of the city of Cleveland; that the industrial development of that city has now reached and in some degree extended into the village, and in the obvious course of things will soon absorb the entire area for industrial enterprises…. But the village, though physically a suburb of Cleveland, is politically a separate municipality, with powers of its own and authority to govern itself as it sees fit….”

The flip side of this is that natural resources, nonpoint source pollution, and economic and housing markets transcend local boundaries. They are intermunicipal, regional, and, in some cases, interstate in nature. Critics including industry, environmental, and fair housing advocates have bemoaned local control and called for its preemption by state or federal regulation, where their particular interests are thwarted.

The case that first validated local control of regional growth recognized the irony of its position. New York’s highest court, in Golden v. Planning Board of Town of Ramapo, wrote that “Statewide or regional control of planning would insure that interests broader than that of the municipality underlie various land use policies.” The court further noted, however, that local control should not be struck down “in the wistful hope that the efforts of [regional planning] will soon bear fruit.”

The dissonance between the regional nature of land use problems and local control is best explained by former House Speaker, Thomas P. O'Neill Jr., who quipped that "all politics is local." State and Congressional lawmakers stand for election in essentially local districts where control by remote governmental agencies is anathema.

The quandary can be resolved by searching for regional processes that respect the critical role that local governments play in land use decision-making. To be politically palpable, these initiatives must not be perceived as methods of imposing a state or regional body's will on local governments. Rather, they should be viewed as means of communicating effectively about regional and local needs, balancing those interests, and arriving at mutually beneficial decisions over time.

From its inception, the U.S. land use system has encouraged voluntary, grassroots approaches to intermunicipal and regional planning. The Standard City Planning Enabling Act provided for regional planning by authorizing local planning commissions to petition the governor to establish a regional planning commission and to prepare a master plan for the region’s physical development. Provisions were included in the Act for communication between the regional and municipal planning commissions, with the objective of achieving a certain degree of consistency between local and regional plans. Regional consciousness has been with us since the early days of American zoning.

Many localities have adopted sustainable development strategies because of encouragement, information, or funding provided by the state or federal government. This observation aligns with research results published in Urban Affairs Review, where the authors demonstrate that “more policy making occurs in states with a multilevel governance framework supportive of local sustainability action.”  http://uar.sagepub.com/content/51/1/46

Localities will align their land use plans with common sense state policies if they receive information and support via state assistance offered in the right way, without a heavy top-down emphasis or requirements that seem like mandates. Correcting the deficiencies in the hundred-year old zoning system is not about taking away local power, but rather should focus on working with localities to build a better system. This suggests that we need to discover and implement methods of using federal and state policies and resources to support, guide, and sustain local initiatives to coordinate land use policy across municipal and state borders.   

Regionalism is not at odds with our land use planning tradition. It need not be “wistful hoping” if approached in the right way. We have not, however, developed a consensus on the proper strategy of weaving local control into the broader fabric of society. It takes a clear understanding by federal and state lawmakers and agencies that parochialism has its place.  We are still waiting for this insight to seriously shape their efforts to solve regional land use problems.

For more information, see John R. Nolon, Grassroots Regionalism Through Intermunicipal Land Use Compacts, 73 St. John’s L. Rev. 1011 (1999).

Links to previous posts in the Zoning Centennial’s Series:

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

February 29, 2016 | Permalink | Comments (0)

Sunday, February 28, 2016

Pace Law hiring Associate Director of Environmental Law Programs

From the folks at Pace Law:

Pace Law School is pleased to announce that we are seeking an Associate Director of Environmental Law Programs to begin work in the late spring/early summer of 2016. The Associate Director is an integral member of the environmental law team at Pace, helping to run a multifaceted, dynamic academic program and working with a wide range of individuals both internal and external to the university. She or he will report to the Executive Director of Environmental Law Programs. Further description of the position and application requirements can be found at careers.pace.edu/applicants/Central?quickFind=55325. (Posting # 0602739). Pace’s Environmental Law Program is one of the oldest and most extensive in the world. It is perennially ranked as one of the top environmental programs in the nation. An overview of the Environmental Law Program can be found at http://bit.ly/1R6CQRZ.

February 28, 2016 | Permalink | Comments (0)