Thursday, August 3, 2017

Mandelker 2017 Supplement on First Amendment Law for On Premise Signs

Dan Mandelker (Wash U Law) has issued a supplement to his work on First Amendment Law for On Premise Signs, which reviews sign cases from the last year.  Here is the summary from the preface:

This supplement reports cases decided and articles published since the 2016 revision. For the most part, recent cases have confirmed trends noted in the revision, especially refusing to extend Reed to sign ordinances that apply to commercial speech. When ordinances make content-based distinctions, however, as by treating similar types of signs differently, the courts do not hesitate to apply Reed and hold them unconstitutional. Cases striking down exceptions included in state highway beautification acts are also common. Surprisingly, several cases applied the time, place and manner rules to free speech claims against commercial speech regulations, rather than the Central Hudson factors. Some issues, such as whether evidence is required to prove an ordinance substantially advances governmental objectives, drew mixed decisions.

The full document is available at landuselaw.wustl.edu, and can also be downloaded from the link below:

Download First Amendment - On Premise Signs

August 3, 2017 | Permalink | Comments (0)

Wednesday, August 2, 2017

Sept 12: Community Planning Assistance for Wildfire (CPAW) pre-conference training at Western Planners Conference

Western_Planner_Training_Flyer_2017_final_2

August 2, 2017 | Permalink | Comments (0)

Monday, July 31, 2017

Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 2: Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, beginning with Chapter 1. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act

by Stephen R. Miller

The origins of modern land use planning owe a great deal—for better or worse—to the Standard State Zoning Enabling Act (SZEA) and, to a lesser degree, the Standard City Planning Enabling Act (SCPEA).  Professors Rosenbloom, Nolon and Salkin have already offered a number of excellent ways to engage students with these texts.  I will focus on several others not already mentioned.

First, I use the SZEA as a way to talk about ways that the federal government can use informal power to significantly alter how land use decisions are made at the local level.  Indeed, the SZEA was drafted by an advisory committee of the U.S. Department of Commerce under Herbert Hoover, and it created many of the formalities that we now expect and take for granted in local land use decisionmaking.  Many people focus on the fact that there has never been an official national land use planning act (although one was proposed in the Seventies by Congressman Udall and promptly went nowhere); however, the SZEA was an informal proposed statute that, in some form or another, was ultimately adopted by every state in the nation, which paved the way for widespread local planning.  In this way, the federal government was highly influential in how we came to structure land use decisionmaking.  One example that is a “go to” for me to get students thinking is the appointment of the zoning commission by the legislative body.  SZEA § 6.  I encourage students to think about why the zoning commission, which has such an important role in the evolution of a city, ought to be an appointed position rather than an elected one.  Isn’t it remarkable that there are either no—or just a few—zoning commissions almost a century later that are elected?  Why is that, especially when you think of all the other far less important roles in a city that are often elected?  That bias toward appointment, rather than election, of zoning commissions is the implicit power of the SZEA still at work, and it shapes what we think is possible.

Second, I also ask students to also take a look at the two sections of Idaho’s Local Land Use Planning Act (LLUPA) that grant powers to the planning and zoning commissions.  (Idaho Code §§ 67-6504, 67-6505, for the curious).  These sections, while not utilizing the words of the SZEA and SCPEA, are wholly indebted to these models in how allocations of power occur.  This origin story is valuable in a place, like Idaho, where land use power is controversial.  Many people wonder where land use law came from:  did it just drop out of thin air?  Why do we make decisions this way?  By tying the state enabling act back to these model codes, the origins and the rationale move from the state to a broader connection with national consequences.  It’s not just how it is in Idaho; these general allocations of power are similar across the country.  I encourage students to evaluate why and think about that larger question as we move through the course.

As a side note, I have been doing some digging into the history of the SZEA and the SCPEA.  I give students the resource on the history of the SZEA, Professor Salkin mentioned, as recommended but not assigned reading (available here).  As that article highlights, it is remarkable to me how little is available on the “origin story” of these model statutes.  These models were drafted by advisory committees that, in an era before the Administrative Procedure Act and the Federal Advisory Committee Act, apparently kept very scant records.  In any case, my contact with the U.S. Department of Commerce librarians (with much assistance from my colleague, Stacy Etheredge) has confirmed that they have no official documentation related to either of these model statutes.  Isn’t it remarkable that the debates on the model statutes that formed the background principles for how land is used in the United States are so hard to find, and may not exist at all?  I personally find this another interesting part of the story.

Finally, another interesting tidbit that I have not used in class, but which I hope to find a way to distill down into a meaningful nugget some day, is how these model statutes were part of a much larger creation of model codes that may be the most important legacy of Herbert Hoover.  Two other model statutes that I hardly hear land use professors mention that were generated in this time played a significant role in the evolution of transportation policy.  These include the Model Municipal Traffic Ordinance and the Uniform Vehicle Code.  As we enter into a world where we try to integrate land use and transportation planning, I think it is interesting to note that the separation of land use and transportation thinking was there from the very beginning in Hoover’s commissions.  This is yet one more way that our current land use patterns are indebted to these federal advisory committees of the Twenties about which we know almost nothing.

The  ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

July 31, 2017 | Permalink | Comments (0)

Wednesday, July 26, 2017

Midweek Poem: Richard Blanco: Perfect City Code

PERFECT CITY CODE

for M.C.

1.0         Streets shall be designed Euro-Style with 300-ft right-of-ways, benches, and flowered traffic circles, to provide a distinct sense of beauty, regardless of cost.

1.1         There shall be a canopy of trees and these shall be your favorite: Giant Royal Palms, 25-ft high, whereas their fronds shall meet in cathedral-like arches with a continuous breeze that shall slip in our sleeves and flutter against our bodies so as to produce angel-like sensations of eternity.

1.2         There shall be bushes, and these shall also be your favorite: Tea Roses @2-ft o.c., to provide enough blooms for casual picking; whereas said blooms shall spy on us from crystal glasses set next to the stove, over coffee-table books, or in front of mirrors.

1.3         Sidewalks shall be crack-proof and 15-ft wide for continuous, side-by-side conversations; painted either a) Sunflower-Brown, b) Mango Blush, or c) Rosemont Henna; whereas such colors shall evoke, respectively: the color of your eyelashes, of your palms, the shadows on your skin.

1.4         There shall be an average of one (1) Parisian-style café per city block, where I shall meet your eyes, dark as espresso, above the rim of your demitasse, and hold your hand like a music box underneath the table; where we shall exercise all those romantic, cliché gestures we were always too smart for.

1.5         There shall also be one (1) open-air market per city block to facilitate the purchasing of tulips, mints, baci, and other typical items to lavish on our lives; whereas every night I shall watch you through a glass of brandy as you dice fresh cilantro and dill, and disappear into the scent steaming around you.

1.6         Utility poles and structures that obstruct our view shall not be permitted. At all times we shall have one of the following vistas: birds messaging across the sky, a profile of mountains asleep on their backs, or a needle-point of stars.

1.7         There shall be an Arts District and we shall float through gallery rooms on Saturday afternoons perplexed by the pain or conflict we can’t feel in a line or a splatter of color (works that glorify or romanticize tragedy shall not be allowed).

1.8         There shall also be a Historic District to provide residents with a distinct sense of another time. We shall live there, in a loft with oak floor and a rose-marble mantle where our photos will gather, and our years together will compete with the age of the brick walls and cobblestones below our vine-threaded balcony.

NOTE:  In said city, there shall be a central square with a water fountain where we shall sit every evening by the pageantry of cherubs, where we shall listen to the trickle of their coral mouths, where I shall trust the unspoken, where you shall never again tell me there’s nothing here for you, nothing to keep you, nothing to change your mind.

--Richard Blanco

[Hat tip:  Susan Daggett]

July 26, 2017 | Permalink | Comments (0)

Monday, July 24, 2017

Patricia Salkin on Contemporary Issues in Teaching Land Use: Question 2: Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, beginning with Chapter 1. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act

by Patricia Salkin

 

The material on the Standard Zoning Enabling Act and the Standard City Planning Enabling Act that appears in Chapter 1, Section 3 of the new edition of the casebook provides rich teaching opportunities as demonstrated by the last two posts. I start by asking the students to think about what comes first - planning or zoning?  Is it a good idea to enact land use regulations without first thinking about the desired character of a particular community or neighborhood?  Of course this is a great segue to Chapter 2 and the comprehensive plan discussion. Inevitably, students quickly conclude that planning should precede zoning - and then I point out that the Standard Zoning Enabling Act was promulgated two years before the Standard City Planning Enabling Act. Since planning and zoning is influenced temporally by public policy, I find it useful to set the backdrop of major events within an historical context.  There is a terrific article on the history behind these model acts in APA's Land Use Law (February 1996) available here.

I also use this material in conjunction with a class assignment to obtain a copy of a zoning ordinance from a municipality of the student's choice. As the Teacher's Manual to the book points out, there are many important practice points from the assignment (access to local laws, Freedom of Information Laws, cost of obtaining print copies and pitfalls in relying solely on ordinances from the Internet, whether he zoning map routinely accompanies the test, etc.),  However, as related to these model acts, students are asked to compare the sections headings in the model zoning enabling act with the topical organization of their local zoning ordinance.  We discuss, for example, the creation and designation of zoning districts, and use this as a springboard to discuss differences in the number of zoning districts, the nomenclature of zoning districts and the different uses allowed in the zoning districts.  Having seen a copy of a zoning ordinance prior to reading "the early cases" in the next section of the book, it provides an important context for what the zoning ordinance actually is and how it works.  Up to this point in their law school education, most students have never seen a copy of a local law.

The  ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

July 24, 2017 | Permalink | Comments (0)

Sunday, July 23, 2017

Michael Lewyn: Government Intervention and Suburban Sprawl: The Case for Market Urbanism

Michael Lewyn (Touro) has just published Government Intervention and Suburban Sprawl: The Case for Market Urbanism.  Here is the abstract:

This book shows how suburban sprawl is at least partially a consequence of government spending and regulation, and suggests anti-sprawl policies that can make government smaller and/or less intrusive. 
 
Thus, the book responds to the widely held view that automobile-dependent suburban development (also known as “suburban sprawl”) is a natural result of the free market and of affluence, and accordingly cannot be altered without massive government regulation.  
 

July 23, 2017 | Permalink | Comments (0)

Wednesday, July 19, 2017

The Urban Institute Launches Online Policy Debate: Land Use Regulation: What's it Worth Anyway?

Today, the Urban Institute launched an online policy debate on "Land-Use Regulation: What's It Worth Anyway?", which will be live until Monday, July 24, at 5 pm ET. It features several critics of land-use regulation and several advocates of land-use regulation, including the Land Use Prof Blog's very own Tony Arnold. The link to the policy debate is: http://www.urban.org/debates/land-use-regulation-whats-it-worth-anyway.

July 19, 2017 | Permalink | Comments (0)

Tuesday, July 18, 2017

CFP: State & Local Government Law Works-in-Progress Conference

GGU Law State and Loval Govt Conference Call for Papers

July 18, 2017 | Permalink | Comments (0)

Monday, July 17, 2017

John Nolon on Contemporary Issues in Teaching Land Use: Question 2: Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, beginning with Chapter 1. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act

by John Nolon

The New York City zoning ordinance, the Standard Zoning Enabling Act, and the zoning laws in the village of Euclid and in the city of Cambridge cases, described in Chapter 1 of our casebook, provide an opportunity to discuss the basics of statutory law in the U.S.  It takes a while in my classes for students to realize that the federal government had nothing to do with regulating land use when the Hoover Commission “promulgated” the SZEA. How did New York City get its power to adopt zoning in 1916, six years before the SZEA was distributed to the states, and a few more years before New York and other states actually delegated land use authority to local governments. New York is a charter city and received discrete authority from the state legislature to adopt zoning, creating a strategic precedent for the federal Commission and the SZEA. What is a charter city and what is the nature of a local government, with or without a charter? 

If the federal government and the Commission didn’t have the power to enable state legislatures to delegate zoning authority to municipalities, where does that power reside?  This provides the first chance during the course to discuss the state police power.  What is that power, how broad is it, and how does its breadth affect the scope of power that local governments are delegated  to serve the public health, safety, welfare, and morals through zoning? 

What really are these other municipalities: a village in Ohio and a city in Massachusetts?  How were charter cities, statutory cities, and villages (later we encounter counties) created and what is their function?  Why would the state legislature decide to delegate this incredible power to hundreds of local governments, which, by the way, have other functions as instrumentalities of the state, such as taxing property and providing public services and infrastructure—functions that could not be well served without the power to zone. 

Most students have participated in campaigns to lobby Congress, write to POTUS, or descend on their state lawmakers to argue one cause or another, but most have a foggy view of the distinctions among the three different legislatures whose powers are implicated in Chapter 1: Congress, state legislatures, and local legislatures: all of which adopt laws.  As Jonathan says, what a great opportunity to show students that they have to find and read the relevant law to represent land use clients and, most of the time, that law is local and varies greatly from one place, like Euclid, to another, like Cambridge.

The  ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

July 17, 2017 | Permalink | Comments (0)

Friday, July 14, 2017

California Supreme Court splits the baby in landmark Cleveland National Forest climate change / land use and transportation planning decision

In the much anticipated Cleveland National Forest v. SANDAG decision, the California Supreme Court split the baby yesterday on major planning issues including the adequacy of climate change analysis in state environmental impact reports and, more importantly, the underlying question of how seriously the state will take efforts to integrate land use and transportation planning.  For the uninitiated, California's SB375 was a landmark piece of legislation that required the integration of land use and transportation planning...at least on paper.  What was never certain was whether SB375 had an enforcement remedy for failure to take the process seriously.  In this vein, an important question was whether the state's environmental review law, CEQA, could act as a de facto enforcement mechanism even if SB375 provided no remedy.  That is what made the Cleveland National Forest case such a big deal:  it would answer that remedy question on what to do if land use and transportation proceeded apace without considering one another.

But the California Supreme Court, after over a year of deliberation, appeared to wilt under the potential reach of the decision.  They split the baby, instead, giving a win to the local government--technically, San Diego's regional planning body charged with the land use/transportation plan--but only in this instance, and only on the narrow question of the viability of the climate analysis.  In light of that narrow win, the Court expressly noted that future environmental review would face an evolving, scientific standard:

We emphasize the narrowness of today's holding. Our decision is not a general endorsement of the adequacy of SANDAG's EIR, much less an endorsement of the adequacy of the regional plan that the EIR analyzes. Specifically, we do not address whether SANDAG's responses to the indisputably significant greenhouse gas impactsof the 2011 regional plan were adequate. The Court of Appeal concluded that the EIR failed to sufficiently consider feasible mitigation measures and project alternatives that would reduce vehicle miles traveled and curb the rise in greenhouse gas emissions. These issues are not before us, and we express no view on them. We hold only that SANDAG, in analyzing greenhouse gas impacts at the time of the EIR, did not abuse its discretion by declining to adopt the Executive Order as a measure of significance or to discuss the Executive Order more than it did.

Moreover, we caution that our conclusion that SANDAG did not abuse its discretion in its analysis of greenhouse gas emission impacts in the 2011 EIR does not mean that this analysis can serve as a template for future EIRs. Under CEQA, “[t]he determination of whether a project may have a significant effect on the environment calls for careful judgment on the part of the public agency involved, based to the extent possible on scientific and factual data.” (Guidelines, § 15064, subd. (b).) As more and better data become available, analysis of the impact of regional transportation plans on greenhouse gas emissions will likely improve. Indeed, SANDAG explains that its EIR, in analyzing its 2015 regional transportation plan, “was able to account for many factors in the GHG inventories that were not accounted for in 2011, reflecting ‘additional certainty regarding the regulatory environment, including future projections of renewable energy, building energy efficiency, water conservation programs, and solid waste diversion.” A regional planning agency like SANDAG, charged with assisting the implementation of the state's climate goals, must straightforwardly address in the relevant environmental review documents whether its regional transportation plan as a whole is in accord with those goals. Its capacity to do so will likely improve over time.
*11 Furthermore, after briefing was submitted in this case, the Legislature in 2016 enacted Senate Bill No. 32 (SB 32) (2015–2016 Reg. Sess.), adding Health and Safety Code section 38566, which adopts a goal of reducing greenhouse gas emissions by 40 percent below 1990 levels by the year 2030. This 40 percent reduction is widely acknowledged as a necessary interim target to ensure that California meets its longer-range goal of reducing greenhouse gas emissions to 80 percent below 1990 levels by the year 2050. (See Governor's Executive Order No. B–30–15 (Apr. 29, 2015) [explaining the significance of the 40 percent reduction].) SB 32 thus reaffirms California's commitment to being on the forefront of the dramatic greenhouse gas emission reductions needed to stabilize the global climate. The legislation directs CARB to craft regulations to implement its goal. (Health & Saf. Code, § 38566.) These regulations may further clarify the way forward for public agencies to meet the state's 2050 climate goals. This regulatory clarification, together with improved methods of analysis, may well change the manner in which CEQA analysis of long-term greenhouse gas emission impacts is conducted.
In sum, nothing we say today invites regional planners to “shirk their responsibilities” under CEQA or other environmental statutes. (Dis. opn., ante, at p. 16.) To the contrary, we affirm that planning agencies like SANDAG must ensure that CEQA analysis stays in step with evolving scientific knowledge and state regulatory schemes.
 
CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs & Appellants, v. SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants & Appellants; THE PEOPLE, Intervener & Appellant. CREED-21 et al., Plaintiffs & Appellants,, No. S223603, 2017 WL 2980146, at *10–11 (Cal. July 13, 2017).
 
In short, SANDAG won, but they may not win next time, and no one can rely on this decision.  After the years of waiting for the decision, whether California will take land use and transportation planning seriously, and its commensurate effects on climate change, remains an open question.  
 

July 14, 2017 | Permalink | Comments (0)

Thursday, July 13, 2017

Request for Proposals: RMLUI Annual Western Places / Western Spaces Conference: Disruption, Innovation, and Progress


  
RMLUI Annual Western Places/Western Spaces Conference
Request for Proposals

Each year, the Rocky Mountain Land Use Institute (RMLUI) convenes land use experts and practitioners at the Western Places/Western Spaces conference to discuss the biggest issues facing communities across the Rocky Mountain West. We cover everything from tiny homes to large landscape conservation, urban planning to rural economies.

Request for Proposals
As land use practitioners—legal, planning, academic, or non-profit—you know the challenges we're facing first-hand, so who better to guide the content for the conference?

We are currently seeking proposals for the 2018 Western Places/Western Spaces conference, which will be held March 8 & 9 at the University of Denver. Please read on to learn more about this year's event.

 

 

Western Places/Western Spaces:
Disruption, Innovation, and Progress

How do we plan for the future when we don’t know what it holds? This is a common dilemma for planners and land use practitioners everywhere. Despite the best-laid plans, new practices or technology can disrupt the entire process. Cities are experimenting with smart technology and driverless cars. The suburbs are facing a changing landscape as the rise of e-commerce is leading to the closure of both the big box stores and Main Street shops. In rural areas, landscape managers are tracking livestock and grazing patterns using drones. In addition to all the change being brought about by technology and innovation, communities also have to contend with the disruptions brought on by natural processes.

In a world full of disruptions, how do we build infrastructure and craft policies that not only meet our present-day needs, but also have the flexibility to adapt to future scenarios? These questions will help frame our discussions at the 2018 Western Places/Western Spaces conference.

 

Submitting Your Proposal
The deadline to submit proposals is Friday, August 25. Please visit the RMLUI website to learn more about the conference theme and topics, as well as instructions on submitting your proposal. You will be able to download the Session Guidelines, which contains a description of the themes and tracks for the 2018 conference, as well as information about the conference, guidelines for crafting your proposal, and the criteria used to select sessions.

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 Daggett
Executive Director
Rocky Mountain Land Use Institute


Lisa Loranger
Program Coordinator
Rocky Mountain Land Use Institute

New to the RMLUI Annual Land Use Conference?
Each year, RMLUI attracts 500 land use professionals and practitioners from the Rocky Mountain West to the University of Denver campus. Now in its 27th 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 the RMLUI website.

Videos from the 2017 Western Places/Western Spaces conference, Creating Inclusive Communities, are available to download through the Home Study Program.


Contact Us

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

 

 


Sponsorship & Promotional Opportunities

Our conference is not possible without the generous support of our sponsors. These financial contributions help fund our programs and conference activities, including providing top-notch keynote speakers, plenary lunch events, and tours. Conference sponsorship provides visibility and underscores your company's commitment to sustainable communities and informed and ethical land use and development practices. For more information, please contact Susan Daggett.

 




 

 

July 13, 2017 | Permalink | Comments (0)

Monday, July 10, 2017

Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 2: Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, beginning with Chapter 1. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John NolonPatricia SalkinStephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act

by Jonathan Rosenbloom

In this series of four blog posts, we ask:

Do you teach the 1916 NYC zoning ordinance (NYC ordinance) and/or the Standard State Zoning Enabling Act (SZEA) and, if so, what do you want the students to understand?

While these two pieces of legislation provide an abundance of teaching opportunities, in this short blog I’d like to explore them as opportunities to hone students’ ability to analyze land use laws.

Throughout law school, students have significant exposure to cases and case analysis. They often have less exposure to legislative interpretation and even less exposure to state and local legislative interpretation. Many land use lawyers’ practice, however, is focused on interpreting local land use codes and the relevant state statutes, often for purposes of presenting before boards and commissions or negotiating with local governments. The NYC ordinance and the SZEA offer students a great opportunity to hone critical legislative interpretation skills necessary for any land use attorney.

Because we cover the NYC ordinance and SZEA in Chapter I, the students have an opportunity for land use legislative interpretation very early in the course. In our casebook, we cover the NYC ordinance and SZEA (as well as the Standard City Planning Enabling Act) immediately after nuisance. The text of the ordinance helps bridge the gap between zoning and nuisance. It states:

In a business district no building or premises shall be used, and no building shall be erected, which is arranged, intended or designed to be used for any trade, industry or use that is noxious or offensive by reason of the emission of odor, dust, smoke, gas or noise; but car barns or places of amusement shall not be excluded.

This provides an opportunity to elucidate some of the short-comings of nuisance law and the differences between nuisance and zoning. It also provides a reason to delve into the text and discuss legislative interpretation.

The text of the NYC ordinance and SZEA also provide an opportunity to discuss legislative interpretation in the context of state authorization. Keeping the excepts concise, we provide enough of the SZEA to illustrate how state statutes authorize local governments to zone. For example, the excerpted portion of the SZEA authorizes local zoning of height, area, and use. Building off the SZEA provisions, the students can be asked whether the NYC ordinance would comply with the SZEA. As the excerpt in our book illustrates, the NYC ordinance provides classic Euclidean zoning (before it was Euclidean zoning), consisting of use restrictions (section 2), height limitations (section 8), and area restrictions (section 10).

The text of the SZEA also helps establish a foundation to understand and study more recent changes in zoning later in the course. In Chapter 7, for example, we discuss Smart Growth, New Urbanism, Form-based Zoning, and others. As we cover these newer approaches, it is helpful to ask the students whether they would fall within local authority as laid out in the SZEA; and what, if any, additional authority local governments would need to pass such new forms of zoning and what that authority might look like.

Following the NYC ordinance and SZEA we discuss the police power and power to zone in Carter and Goldman and, most notably, in Euclid and Nectow. While these cases help describe the basics of zoning and its legality, covering the NYC ordinance and SZEA first help contextualize the cases. They help paint a more complete picture of the laws at issue before evaluating their legality.

The  ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

July 10, 2017 | Permalink | Comments (0)

Tuesday, July 4, 2017

Flying Flags on Harrison: Gay Pride, Liberty, and Reaching across the Divide

 I am on a local neighborhood association board here in Boise.  About fifteen years ago, some enterprising members of the association went through the complicated process of getting the appropriate licenses to place flag holders on historic street lamps on Harrison Boulevard, the most prominent residential street in the city.  For most of that time, when volunteers were available, the association flew the American and Idaho flags on several occasions, primarily Memorial Day, Independence Day, and Labor Day.  It was always a volunteer effort, and it didn't always happen, but when it did, it was beautiful.

 Last month, we received a request to fly the gay pride flag during Boise's pride week.  The neighborhood association unanimously approved.  But no sooner had the flags gone up, than a counter-movement began.  Flag Day, it so happened, occurred during Boise's pride week.  Here are some of the e-mails we received:

I live on Harrison Blvd. why didn't I get information about the gay pride flags on my street? Don't we have any say on matters that affect us, sure thought we did. I am a 100% disabled veteran, where are the American flags for flag day ?

***

We are North End property owners and have in the past been so appreciative of the Association’s efforts to display the appropriate state and national emblems on special occasions. Kudos to those responsible.

We recently noticed the many rainbow flags on the intersections on Harrison Boulevard. This was totally unexpected and surprising to us, given the history of patriotic pride usually on display.

Assuming we all know what these current flags are about, I am still hoping that they will not be in evidence during the annual June 14thcelebration of Flag Day, honoring the stars & stripes of our country.

Please replace the  current emblems with the star spangled banner being honored nationwide on Flag Day.

 

***

Rainbow flags:  I hope these flags will be removed by Wednesday -- Flag Day.  I want to see the American flag!!!

***

And that is just some of the responses we got.  Clearly, the intent was to force a removal of the rainbow flags through an appeal to patriotism.  Notably, none of those insisting that the association fly the American and Idaho flags had ever volunteered previously and the flags had never been flown on Flag Day in this volunteer effort.

But I write this story on Independence Day to highlight the admirable folks in my association.  Because they did not give in to the effort to remove the rainbow flags, but they also did something that so often seems missing in our national politics.  They found a third way:  quite literally.  Late, on the night before Flag Day, two of the association members went out, standing on a ladder in the back of a pickup truck in the dark, and placed American flags in a third holder in the posts that typically goes unused.  They did it to make people happy who had, well let's be honest, picked a fight.  And so, on  Flag Day, there were two pride flags on each light fixture, and one American flag.  The night after Flag Day, the same two volunteers went out with the pickup truck and the ladder, and they took down the American flags once Flag Day was over.  The pride flags stayed the rest of the week.  

It was an incredible amount of work on their part.  But it said something remarkable.  It said that we weren't going to back down on the pride flags, but we also took the others who wanted to see the American flag on Flag Day seriously.  We held firm to our values, but we also did what we could to make others feel like they were recognized on a day that mattered to them.  At the end of the day, it's really about how we relate to people who aren't like us that live in the same places we do.  Today's hyper-partisanship seeks to build a world where such third ways can't ever happen, but if we move beyond ideology, most of what divides us is a lot like the flags we fly, and many times, those flags look good together.

 

 

July 4, 2017 | Permalink | Comments (0)

Monday, July 3, 2017

Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, beginning with Chapter 1. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 1:  Teaching the Crossroads Where Nuisance & Zoning Meet

by Stephen R. Miller

In rounding out this discussion of how to teach the interplay between nuisance and zoning, I thought I would focus on the case of Shore v. Maple Lane Farms (p.14), a 2013 Tennessee Supreme Court case that is probably the least well known case in this chapter.  I may be the biggest proponent of this case in the country:  according to Westlaw, the case has only been cited twice in academic literature, and both times by me.  I want to explain why I think it is such a good teaching case.

First, I like Maple Lane Farms because, unlike many nuisance cases, the facts are simple, fun, and I find my students relate to them easily.  The basics of the case are essentially this:  an elderly woman moves from the hubbub of the city and settles in what she believes is the bucolic Tennessee countryside.  However, the farm next door, in an effort to supplement its income from traditional agricultural operations, begins operation of a pumpkin patch.  That operation became increasingly popular over the years and, in time, the diversified agritourism operation is accompanied by weekend amplified music concerts that are so loud that Ms. Shore must leave her home when they occur.  These facts invite a discussion of suburban and exurban development issues.  Teaching in a rural, fast growth state, every time I have taught the case, students have loved the facts and supplemented class discussion with their own experiences of the externalities of living near agricultural uses that are often noisy, smelly, and not always bucolic.  (Many times, my students are sons and daughters of farmers and ranchers that can speak firsthand to the complexity of farming and ranching adjacent to residential areas.)

Second, I like the case because it is a tour de force of nuisance doctrine.  The excerpt in the casebook, which was expertly edited by Jon Rosenbloom, provides just the highlights.  But it must be said that the Tennessee Supreme Court outdid itself in clearly presenting the basic tenets of nuisance law.  There is plenty of Prosser and Keeton, Restatements, and even a shout-out to Dean Salkin’s treatise on zoning.  If you want a black letter definition of nuisance, which is really how we use the case here, Maple Lane Farms is a great option.  In addition, Tennessee nuisance law hews close to national norms.  This is helpful for me because Idaho nuisance law is filled with some quirky provisions.  Maple Lane Farms is a useful comparison to illustrate the general rules from which I can then discuss the idiosyncrasies of local law.  I supplement with Idaho law in class and we discuss how certain provisions of local law differ from the norms stated in the Tennessee case.

Third, I like this case because it involves the interplay between common law nuisance and state right to farm statutes.  Most, if not all, states have adopted a right to farm statute, and the Tennessee statute at issue in this case is the model language that was adopted by most states.  These right to farm statutes are generally believed to protect farmers from nuisance claims, but the facts of this case present a chance to closely read a statute with relation to common law.  Close investigation discovers that the statute only provides a “presumption” of an agricultural operation not being a nuisance, and moreover, that the presumption only applies to those activities that relate to the “land, buildings and machinery” used in “farm operations.”  Is an amplified music concert a “farm operation”?  The court here holds no, which permits the common law nuisance claim to proceed.

But the Tennessee Supreme Court’s decision to permit the nuisance claim to advance invites other questions about “use” that take us into the question of what constitutes “zoning,” which is the fourth reason I love this case.  What is “agriculture” in the state right to farm statute, and what is “agriculture” as it might be defined by local zoning codes?  For instance, many agricultural nuisance cases discuss noise, but they typically have to do with farmers getting up early and using their tractors at hours when most residential dwellers are asleep.  In this case, if the noise were generated from tractors or the agricultural operation, it would clearly be preempted by the right to farm statute.  But we are not simply regulating “noise,” but a “use.”  Here, the noise comes from an amplified music concert.  That difference in the use matters because it explains why the nuisance claim is not preempted by the right to farm statute.

There is another aspect of “use” at issue here.  The lower appellate court had held that amplified music concerts were “farming operations” sufficient to permit protection under the right to farm statute.  The appellate court noted that the changing nature of agriculture meant that most farmers did not make their livings anymore exclusively from traditional farming.  Indeed, Maple Lane Farms made 75% of its income from its agritourism operations.  If non-traditional operations are necessary for most farmers to survive financially these days, should we come to view such operations as tantamount to an “agricultural use,” or are these “accessory uses,” or are they wholly incompatible uses that should not be permitted here?  What is the relationship between regulating uses and changing business models of traditional industries?

In short, Maple Lane Farms provides a professor the chance to open numerous avenues of discussion that will be picked up later in the course with greater detail.

Note:  in another part of the case not excerpted in the casebook, the Tennessee Supreme Court also interprets the local county zoning code and determines that amplified music concerts do not fit within the definition of “agricultural” uses in that code.  The analysis is similar and virtually redundant to the right to farm statute analysis, which is why it is not provided.  However, a professor that wanted to illustrate uses in the zoning code could also supplement the excerpt with that section of the case.

The  ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Pages from Nolon Land Use and Sustainable Development Law 9e

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

 

July 3, 2017 | Permalink | Comments (2)

Thursday, June 29, 2017

Library of Congress begins digitizing its Sanborn Maps

You know you are a true land use junkie if the idea of an old Sanborn fire map gives you goose bumps (guilty, as charged).  If you haven't had the pleasure, Sanborn maps present extraordinarily detailed records of building conditions in almost every major--and most smaller--American cities.  The purpose, of course, was to determine relative fire risk.  From a perspective of history, they are invaluable tools that tell the story of how our cities evolved.  Just recently, the Library of Congress began digitizing its Sanborn Maps, and it plans to eventually digitize all of them.  You can view the current online collection here.  Below is a sample page from the New York City Sanborns.

Sanborn

June 29, 2017 | Permalink | Comments (0)

Monday, June 26, 2017

Patricia Salkin on Contemporary Issues in Teaching Land Use: Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, beginning with Chapter 1. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 1:  Teaching the Crossroads Where Nuisance & Zoning Meet

by Patricia Salkin

Jonathan Rosenbloom posed the first question: “What do you consider to be some of the most important lessons stemming from the materials on the migration from nuisance to zoning and what do you want the students to understand?”

My favorite case in Chapter One is Boomer v Atlantic Cement Company from New York because it portends so many issues later chapters in the casebook discuss, and quite frankly if time permitted this case could take the entire class period (but alas, that is luxury not afforded the typically 3-credit class). For example, it demonstrates judicial activism in the land use area.  Where there is no useful regulatory solution and where existing case law is not developed to arrive at what the court believes is a “just result,” a court may craft solutions that address evolving community or societal challenges (for example in the area of affordable housing, the Mt.Laurel case from New Jersey).  Boomer was decided in 1970 just as the notion of environmentalism and the need for governmental regulation in the areas of clean air and clean water were beginning to be seriously debated at national and state levels. It can also segue into the later discussion in Euclid on the separation of incompatible land uses.   

A second take-away from Boomer is the role courts play in balancing various interests in the land use context.  Without government regulation to protect the air we breathe, here the court was left to balance the public health concerns of neighboring property owners with the greater community-wide benefits of an industrial factory that is an economic engine for the region in terms of jobs/employment and the fact that the product manufactured was needed for ongoing construction and development (which activities also produce jobs and fuel the economy).   The economics of land use regulation is more formally introduced to the students in Chapter Two and it is a critical foundational concept for the students to grapple with especially for the takings material in Chapter Five.

A third point of discussion with students is the dissent’s compelling argument that the majority does not go far enough to protect the public health. This discussion is a prequel to the environmental and social justice movement of today.  Is it reasonable to simply mandate that the polluter responsible for negatively impacting public health be solely responsible for paying permanent damages one time to the neighboring property owners?  In the full opinion the dissent queries whether the public health is for sale.  We should ask our students what happens when the property owners receive their payment and then move on to a healthier community and less affluent people move in to ongoing polluted area because it is what they can afford (presumable the market makes the housing less expensive).  The Company is no longer required to make payments to new people who may be coming to the nuisance.  Is it acceptable that new homeowners are assuming the public health risk or now almost fifty years later given the weight of the social justice movement would the balance achieve a different outcome (removing the fact that environmental regulation has since stepped in)?  Was or should notice be required to be given to new purchasers of property where there may be significant health concerns? This can be juxtaposed with more recent statutorily required notices in the right-to-farm protections raised in the notes in Chapter Six.

The Boomer case helps to bring students of land use regulation to the important questions of balancing property rights, economic protection, public health concerns and notice.  These concepts are necessarily threaded throughout the casebook and I find that many times during the semester I am referencing “the Boomer case we read at the start of the semester.”

The  ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Pages from Nolon Land Use and Sustainable Development Law 9e

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

June 26, 2017 | Permalink | Comments (2)

Thursday, June 22, 2017

Zach Arnold: Preventing Industrial Disasters in a Time of Climate Change: A Call for Financial Assurance Mandates

Zach Arnold (Independent) has just published "Preventing Industrial Disasters in a Time of Climate Change: A Call for Financial Assurance Mandates" in the Harvard Environmental Law Review.  The piece is available at HELR here and SSRN here.  The abstract is below:


In the current era of accelerating climate change, rising sea levels, and increasingly extreme weather, coastal industrial disasters pose a large and growing risk to society. The private sector and public officials are both failing to adequately respond to this risk, and the familiar regulatory tools in this context, such as design mandates and adaptation subsidies, have significant drawbacks. This paper proposes a novel policy framework to prevent coastal industrial disasters. I argue that financial assurance requirements (FAMs), such as insurance mandates, can induce coastal industry to adapt to the coastal impacts of climate change and can ensure that the public will be fully compensated for any disasters that nonetheless occur. FAMs can mobilize the considerable expertise of third-party financial assurance providers and provide efficient incentives for private adaptation. Moreover, they are relatively simple to implement, making them especially suitable for state, regional, and municipal policymakers facing locally concentrated climate impacts, tight resources, and federal gridlock. FAMs are a promising remedy for a significant and increasingly urgent danger.

 

 

 

June 22, 2017 | Permalink | Comments (0)

Monday, June 19, 2017

Contemporary Issues in Teaching Land Use: Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet, by John Nolon

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, beginning with Chapter 1. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 1:  Teaching the Crossroads Where Nuisance & Zoning Meet

by John Nolon

Our casebook reviews the law of nuisance and the advent of zoning in the same chapter for a reason.  In Euclid, the Court notes that zoning is rooted in the police power of the state, which is exercised to protect the public welfare. The scope of legitimate zoning regulation, the Court states, can be discerned by consulting the law of nuisance for "the helpful aid of its analogies in the process of ascertaining the scope of... the power." 

In introducing nuisance law on p. 5 of Chapter 1, we write: "Offensive intrusions included the effects of smoke, dust, noise, odors, heat, or other discernable effects that interfered with or diminished the normal uses of nearby property."  In Euclid, the Court justifies the separation of land uses, particularly multifamily buildings from single-family uses, by noting that apartments interfere with the free circulation of air, monopolize the rays of the sun, bring disturbing noises, cause traffic congestion, and thus detract from safety, depriving children of the privilege of quiet and open spaces for play, until the residential character of the single family neighborhood is utterly destroyed.  "Under such circumstances, apartment houses...come very near to being nuisances."

The Chapter also makes a useful point about the evolution of the law as circumstances change. The Euclid Court states that regulations that would be invalidated as arbitrary and oppressive a half a century ago "are now uniformly sustained."  "And in this, there is no inconsistency, for while the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.  In a changing world, it is impossible that it should be otherwise." 

This same principle arises in the nuisance cases in the Chapter, as does the continuing viability of nuisance law.  In Prah v. Marietti, the Wisconsin court holds that interference with solar access can be an actionable nuisance, reversing settled law because it was based on principles that "are no longer fully accepted or applicable. They reflect factual circumstances and social priorities that are now obsolete."  Today, in Wisconsin, nuisance law can be used to support the viability of solar power systems just as our society is turning toward renewable energy resources as a critical method of mitigating climate change. That nuisance law is still viable is demonstrated by the fact that, under Prah, nuisance remedies can trump land use regulation.  The neighbor, who proposed building in the plaintiff's solar space, was in full compliance with zoning and site plan regulations, yet, under the holding, could be subject to a court-ordered revision of the approved building plans.

The  ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Pages from Nolon Land Use and Sustainable Development Law 9e

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

 

 

June 19, 2017 | Permalink | Comments (1)

Monday, June 12, 2017

Contemporary Issues in Teaching Land Use: Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet, by Jonathan Rosenbloom

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, beginning with Chapter 1. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 1:  Teaching the Crossroads Where Nuisance & Zoning Meet

by Jonathan Rosenbloom

One land use “coming-to-age” moment is the conceptual and legal shift from nuisance to zoning. This shift provides numerous teaching opportunities and valuable lessons concerning land use and the law generally. Thus, the first question in our series on teaching land use is:

What do you consider to be some of the most important lessons stemming from the materials on the migration from nuisance to zoning and what do you want the students to understand?

On one level, there are valuable lessons that can be gleaned by comparing the legal approach of zoning versus nuisance, including a discussion of proactive action (zoning) versus reactive action (nuisance), district-wide regulation (zoning) versus single lot(s) regulation (nuisance), and executive decision-making (zoning) versus judicial decision-making (nuisance).

However, in this brief blog I’d like to consider a more generalized educational moment. The nuisance/zoning materials provide a good opportunity to make clear that land use law has a concrete and significant impact on the physical conditions that form communities. While this seems like an obvious point, students can easily get lost in text and disassociate the law (cases, ordinances, statutes) from the physical manifestation of the law that really makes-up the community and its ecology.

In few topics is this more important than land use, as the law directly dictates physical form, structure, movement, and others. The nuisance/zoning materials are helpful to bring this point to the fore as they partially explain the value zoning adds and where nuisance is unable to address confrontations occurring in communities. In this regard, the nuisance/zoning materials present a great opportunity to explore how the law translates directly into the landscape we see around us. It is also a good chance for the students to begin to get out of the classroom and into the community to see the power of land use laws. As a topic that can be taught at the beginning of the semester (we have these materials in Chapter 1), this is a critical lesson that can be revisited throughout the course in more complicated ways, including asking the students to consider the ramifications of judicial decisions and ordinances on their community.

The  ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Pages from Nolon Land Use and Sustainable Development Law 9e

Future posts in this series will be archived 

June 12, 2017 | Permalink | Comments (2)

Thursday, June 8, 2017

Anatomy of a Land Use Hearing: You've Got Law and Urban Design on Your Side, But They've Got Matching T-Shirts and the Numbers

 

In an effort to promote the rule of law and principles of urban design and environmental stewardship, I found myself the enemy of about 150 parents and teachers on Tuesday night.  I came with the law and principles of school site design on my side; they came with coordinated t-shirts and a united sense of spite against me and a small band of smart growth advocates.  Anyone with experience in land use decisions knows how that decision ends at a city council.  They won the vote.  But in my opinion, admittedly biased, they lost the battle for a better school. 

The school district gave the parents and students in a “busting-at-the-seams” school for low income children a Faustian bargain:  a cheap-to-build school now or uncertain prospects for something better at a later, far-delayed time.  Faced with crushing overcrowding, the parents and teachers took the bird in the hand, even if they would privately admit their own misgivings. 

After a day’s reflection, I am writing this blog post to talk a little bit about how things went to remind all of us just how complicated it is to get cities right, even when law and policy would otherwise guide us towards urbanism and sustainability.  In the end, I am upset at none of the parents or students, and bearing the spite of 150 of my neighbors is part of what any land use lawyer has to accept upfront. 

I will admit that I am dismayed at the school district, an educational institution that chose to pit neighbor against neighbor rather than organize any meaningful effort at teaching or engaging the community about urban planning.  It was a lost opportunity to engage in a democratic, collective process aimed at making a better decision; instead, the school district took the road too common in today’s culture:  divide and conquer.

As background facts, the Whittier school in Boise serves primarily low income students, as well as a dual-language immersion program.  It was built for 300 students but now has 500.  The neighborhood is urban, near Boise’s downtown, though many of the students are currently bused in, a fact that wasn’t true a decade ago, and likely will change again in the course of the new building’s use.  A recent bond was passed allocating funds for a new Whittier school that would have room for up to 700 students.  That money was specifically earmarked for the Whittier school:  it could be used for no other purpose. 

The school district hired an architect who proposed a suburban campus for the location, which would pave over 46% of a 6-acre site.  In its original iteration, there was so much pavement that they could not even fit a soccer field; currently, there are three soccer fields on the site.  After initial opposition from me and several others, the school district moved the proposed new school slightly to permit one soccer field…if they tore down all of the mature trees on the southern end of the site.  The school was to be built to current energy standards in Idaho, which are notoriously among the lowest in the country.

We asked for something different.  Here were our proposed principles of school site design:

  • Protect park-land and student outdoor play area on the interior of school sites.
  • Keep parking on the exterior of sites to reduce potential conflict points with pedestrians and bicyclists and make better use of the land.
  • Prioritize walking and biking to school (bulb-outs, curb cuts, striping, etc.).
  • Build for life-cycle cost savings today (reduce long-term operations costs to save taxpayers money).
  • Preserve history of Boise’s schools.
  • Preserve mature trees.
  • Involve the community early in the decision-making, including Neighborhood Associations, neighbors, teachers, and students, prior to the creation of a site plan.
  • Follow Blueprint Boise, the City’s Comprehensive Plan.

All of these principles are supported by Boise’s comprehensive plan.  We purposefully made no effort to address the functioning of the school building itself, which we considered to be the prerogative of the educational mission of the school.  It seemed that ascribing to these principles were all kind of no-brainers.  But we were wrong.

The school district dug in.  They held several meetings presenting their proposed plan with neighborhood groups, but made only nominal changes.  They expressly refused any upgrades to energy efficiency, even though it was pointed out multiple times that it would actually lessen long-term costs of the district and taxpayer expenditures over time.

Moreover, the school began to spin a narrative of us-versus-them.  The “us” was the Whittier community, which simply wanted a new school.  The “them” were folks like me, who were standing in the way.  They managed to paint us as bad guys holding up a good thing long delayed to low income students. 

Of course, in fact, we were trying to stand up for those low income students who, we realized, were getting the “low bid” school.  We were trying to make it something better for them, but it fell on deaf ears.

We also tried to encourage a more robust engagement process that would model, both for the families and the students, a robust and community-centered planning process. We suggested working groups with facilitators.  I personally offered to fund and bring in facilitators from Growing Up Boulder, which works with students to help them understand urban decisionmaking and involve them in the process.  The school district never replied to either of those ideas.

In addition, I have had an ongoing effort to facilitate better legal procedure in the planning process here in Boise.  In my comments, I explained the origins of the substantial evidence test and the arbitrary and capricious test, as they apply here.  With no offense to the Boise city attorneys, they simply are not trained to handle these kinds of matters or advise decisionmakers on them.  In Idaho, local attorneys only utilize these standards in land use decisionmaking.  Most Idaho city attorneys grow up through the ranks as criminal attorneys, and it is a promotion to join the civil side.  But truth is, they receive little training in administrative law matters, and because the land use procedure in Idaho is imported from state agency law for just the purpose of land use decisions, the city attorneys do not really get it. 

For instance, the boilerplate language for land use memos the city uses speaks of “objective facts” and “subjective facts,” which is a distinction in Idaho criminal law, but is not a distinction used in any Idaho administrative proceeding, much less a land use hearing.  Similarly, the city attorney and the school district’s attorney both ardently proffered that “substantial evidence” was any information in the record; rather, Idaho case law clearly shows that the test focuses only on the written findings of the planning and zoning commission.

As someone who teaches administrative law in addition to land use, it is really hard for me to see the slippage between law on the books and law as practiced.  It is especially hard when, as here, it played an important part in the decision.  For instance, two council members expressly noted that they thought their review was limited to simply a finding of error.  It is, in a technical sense, but on a conditional use permit, which requires findings of compliance with the comprehensive plan, such a finding of error can simply be a failure to not consider other elements of the comprehensive plan in written findings, which would violate the substantial evidence test.  I, and others, had expressly shown about twenty sections of the comprehensive plan with which the plan did not comply, which would have certainly been sufficient for a finding of error.  But with a poor understanding of the law, the council members openly said they did not like the plan, but felt they were forced to vote in favor of it because they could not find error with the commission’s decision.  What frustrates me, in that case, is not that I lost their votes, but that I lost their votes because of a misunderstanding of law.

After the hearing, I could not sleep that night.  It was not that the school district had managed to vilify me; frankly, it was good to be back in the saddle arguing a case in that kind of a heated situation.  Moreover, some of my students came out for the hearing, and I think it gave them great pleasure to see a professor in action, not just as an academic, but as an advocate in a real setting for the rule of law.  But it was precisely the effect that the nature of the decision would have on my students that concerned me most.  When I teach administrative law and land use law, I take great pains to make sure students understand the details, and that we make sense of the parameters of these seemingly mushy standards—substantial evidence and arbitrary and capricious—that sound colloquial but in fact are quite technical.  My concern was that the hearing, and the clear violation of everything we’d talked about over that semester, would make them lose faith  that law, which reigns in the court, could ever be followed in an administrative proceeding.

I know there remains actionable legal claims in this case because of the numerous procedural errors in the proceeding.  But I will not litigate here, mostly because, by the time the school district has managed to convince 150 people to buy matching t-shirts and show up and talk about how bad the school is now, I realize that I have lost the battle for hearts and minds.  Despite the express funding in the bond for this school, the school district had convinced the parents that they could end up with nothing if they dared to ask for more than the bare bones.  Yes, they’ll give the low income kids a new school, and no doubt, it will be better than what they’ve got.  But now there will be 500 kids, and ultimately up to 700 in the new build out, with just one soccer field to play on instead of the current three (and there were no soccer fields in the original plan before I and others got involved).  Yes, there will be separated bus and car drop-off, but there will be 9 new points of pedestrian-vehicle conflict.  Yes, the school will meet decade-old energy minimums, but it won’t have a single solar panel or efficiency component that might be a way to engage students in a discussion of climate change.

And maybe most important, I worry about what this process has taught the students about civic engagement.  On the one hand, it did get them to mobilize for their school; they got out to a public hearing en masse and fought for what they thought was right.  I give them credit for that.  But I also worry that what students saw was the us-versus-them choice:  either we beat back this awful Miller guy and his smart growth cronies or we get nothing.  They probably don’t know that I wanted to bring in folks to engage them in learning about planning.  Their parents probably don’t know I wanted working groups to find alternative design solutions that wouldn’t create the problems the current proposal ensures.  Of all of the tens of folks that testified at the hearing, not a single one spoke about how to improve the design, their experience with the current school that might affect the design, or anything else related to improving what many, in private, would concede was not their ideal.  Their engagement was limited to ensuring they got something over nothing, which is how the school district played it out.  I think that is an unfortunate local version of the national polarization that our country now suffers:  all opposition is bad, even if it argues for a middle ground that could improve all lots.

It has been a remarkable few months back being an advocate.  The occasion does not have much to recommend it, unless you either you remain committed to ideals of law and urban design, or are a glutton for punishment and the vitriol of your neighbors.  Case in point, I was booed and given the thumbs down by a woman and her two sons as I walked from the meeting chambers to the restroom.  My response to her was simply, “I’m here for the civic engagement and a better school for your kids.”  She said, “I know, but…”  The elevator came, and she didn’t finish.

And so, the school will be built, and I hope it gives the parents and students what they want.  I had hoped it would give them something more, but maybe that was just naïve idealism.  We will all scatter back to our lives.  We will all take with us the experience and what it means for how we think of government and its processes.  Despite the loss, which was 5 votes against me to 0 for me, I remain committed to the ideals of law and urban design for which I fought, and I accept the pummeling as part of the good fight for the future. 

I will continue to teach the ideals of law, as well, to my students, no matter how little they are followed in practice, because done right, these standards are the guardians of democracy in the administrative state.  As I’ve quoted before, Scalia again on substantial evidence:

“Substantial evidence” review exists precisely to ensure that [a government] achieves minimal compliance . . . , which is the foundation of all honest and legitimate adjudication.

And on the arbitrary and capricious standard:

Reasoned decisionmaking, in which the rule announced is the rule applied, promotes sound results, and unreasoned decisionmaking the opposite. The evil of a decision that applies a standard other than the one it enunciates spreads in both directions, preventing both consistent application of the law by subordinate agency personnel . . . , and effective review of the law by the courts.

Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359 (1998).

Good process matters at the Supreme Court; it matters equally in the chambers of a city council out on the sagebrush steppe.

As a valedictory to the episode, I take some satisfaction that I and the other project appellants retained at least one soccer field for the students and ensured that a mid-century modern building will remain and become a community center.  It's something, even if the students deserved more.

 

 A picture of the hearing:

 WhittierHearing2

 Another picture of the hearing:

WhittierHearing1

 The final site plan:

Whittier elementary 1

 A promo video from the school district focusing on over-crowding:
 

 

 

 

June 8, 2017 | Permalink | Comments (0)