Thursday, October 27, 2016
New York and Airbnb head back to court over illegal short-term rentals, and it may all come down to the Communications Decency Act
In a spate of cases across the country, Airbnb is opening up a line of attack that pits Internet freedom against land use regulation. The shield Airbnb seeks to use these days is primarily the Communication Decency Act Section 230, which provides that, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Airbnb is arguing that this broad provision protects it against a host of regulations and fines.
For an analysis of some of the broader implications of how CDA is applying to short-term rental regulation, you might check out a podcast I did last month with Jamila Jefferson-Jones (UMKC) for the ABA Real Property Trusts and Estates Section, which is available here for RPTE Section members.
The latest salvo in this series of cases is Airbnb's new lawsuit against New York City. From the NYT:
Hours after Gov. Andrew M. Cuomo of New York signed a bill that would impose steep fines on Airbnb hosts who break local housing regulations, Airbnb filed a federal lawsuit contending the new law would cause it “irreparable harm.”
The heightened battle in New York follows lawsuits that Airbnb has filed against its hometown San Francisco and in Santa Monica, Calif., which have both moved to fine the company for illegal listings.
The company, which operates in a regulatory gray area around the globe, is also fighting tough battles in Amsterdam and Barcelona, Spain, which penalizes hosts who list illegal rentals, and in Berlin, which has banned most short-term rentals.
The new law in New York allows authorities to fine hosts up to $7,500 if they are caught listing a property on a rental platform such as Airbnb.
“New York is taking a bold step that will hopefully set a standard for the rest of the country and other countries in the world that are struggling with the impact of Airbnb on affordable housing,” said Assemblywoman Linda B. Rosenthal, a Manhattan Democrat who sponsored the bill.
Airbnb, which has tripled in value in just two years to $30 billion, is fighting hard against any regulation that would affect the number of hosts on its platform. The company cannot expand without a steadily increasing number of hosts, and its rental revenue growth could slow as more cities around the world move to push potential providers off the platform.
The New York law is particularly worrisome for Airbnb. New York City is the company’s largest market in the United States. The city’s hosts generated about $1 billion in revenue last year, and the company took a cut of that amount in fees.
In its lawsuit, filed Friday afternoon in Federal District Court in the Southern District of New York, the company contends that the law violates the company’s constitutional rights to free speech and due process, as well as the protection it is afforded under the Communications Decency Act, a federal law that says websites cannot be held accountable for content published by their users.
The new law “would impose significant immediate burdens and irreparable harm on Airbnb,” the company said in its complaint. “In order to be assured of avoiding liability, including potential criminal prosecution, Airbnb would be required to screen and review every listing a host seeks to publish.”
The lawsuit was filed against Eric T. Schneiderman, the state attorney general, Mayor Bill de Blasio and the City of New York.
New York lawmakers, including State Senator Liz Krueger, one of Airbnb’s primary legislative foes, counter that they had the Communications Decency Act in mind when they drafted the bill, which is why it holds the hosts responsible for advertising illegal listings and does not impose any fines on Airbnb.
Wednesday, October 26, 2016
From a listserv:
For the first time in 12 years, [Center on Budget and Policy Priorities] CBPP has an opening for a new Housing Policy Analyst to join our team in the DC office. I think you all know our work well enough to appreciate what a good career opportunity this could be for someone with a masters’ (or J.D.) who is interested in making an impact on housing policy. The person in this position will focus (at least initially) on funding and policy reforms for federal rental assistance, particularly the Housing Choice Voucher program, but the scope of work may expand as opportunities arise. We’re looking for a really smart, insightful analyst with excellent communications skills and a deep commitment to making poor people’s lives better. Please share this announcement with people you think would be interested and qualified (check out the job posting at http://www.cbpp.org/careers/po
licy-analyst-housing). Salary really is commensurate with experience – we’re open to mid-level people as well as those recently out of grad school. We hope to have the new analyst begin work in January.
Nov 17-19: ABA State & Local Government Law 2016 Fall CLE and Networking Conference in Phoenix, Arizona
Register for the meeting:
Please make your hotel reservation today! The room block expires tomorrow. Use the attached link to book your room at The Camby, Autograph Collection for $199.00 per night:
The meeting overview is provide below. Full conference details are also attached, for your convenience.
Thursday, November 17, 2016
12:30 p.m. to 1:30 p.m. – Young Lawyers Committee
Conference: 866.646.6488; 476.263.2730#
1:45 p.m. to 2:45 p.m. - Executive Committee Meeting
Conference: 866.646.6488; 476.263.2730#
3:00 p.m. to 4:00 p.m. - State and Tribal Attorneys General Hot Topics Roundtable
4:15 p.m. to 6:00 p.m. - Cybersecurity Table Top Exercise
6:00 p.m. to 7:30 p.m. (Pool Rooftop) - Welcome and Networking Reception
Sponsor: Dentons US LLP, Phoenix, AZ
8:00 p.m. to 10:00 p.m. - No Host Dine Around
Dinner with your colleagues at a local restaurant (choose one):
- Steak 44, 5010 N. 44th Street
- The Henry, 4455 Camelback Road
- Donovan's Steak & Chop House, 2502 E. Camelback
- Tomaso, 3010 E. Camelback
- Tarbells , 3212 E. Camelback Street
- Barrios Café, 2814 N.16th Street
- Vincent, 3930 E. Camelback Road
Friday, November 18, 2016
7:00 a.m. to 6:00 p.m. - Section Registration & Hospitality
7:00 a.m. to 8:00 a.m. – Breakfast
8:00 a.m. to 9:30 a.m. - Election Dissection: Lessons Learned from the 2016 Election
9:45 a.m. to 10:45 a.m. - Siting on Indian Lands
11:00 a.m. to 12:00 p.m. – The “Legalized” Theft of Native American and African American Lands
1:45 p.m. to 3:00 p.m. - Nurturing Innovation in Building Design and Urban Planning: How Local Government Can Encourage and Enable Advances in Green Building and Sustainable Development
3:15 p.m. to 4:15 p.m.- Towards a Permanent Tribal Homeland: The Challenge of Indian Water Rights Settlements in the West
4:30 p.m. to 6:00 p.m. - On and Off the Reservation: Mutual Trust, Sustainability, and Environmental Integrity
7:30 p.m. to 9:00 p.m.- Group Dinner: The Gladly, 2201 E Camelback Road
This is a ticketed event at $80 per person
Saturday, November 19, 2016
7:00 a.m. to 8:00 a.m. – Breakfast
8:00 a.m. to 9:00 a.m. -
Urban Lawyer Advisory Board
8:00 a.m. to 9:00 a.m. –
Membership Committee, Diversity Outreach Committee and Electronic Communications
9:00 a.m. to 10:00 a.m. – Publications Oversight Board
10:00 a.m. to 10:30 a.m. – Sponsorship Committee
10:30 a.m. to 11:30 p.m. – Land Use Committee Business Meeting
11:30 a.m. to 12:00 p.m. –Content Advisory Board
12:00 p.m. to 1:00 p.m. – Substantive Committee Business Meetings: Condemnation, Public Finance, Government Operations, International, Environmental and Energy, Ethics, Public Education, Public Contracts, Emergency Management, Diversity Law, Native American Tribal Law, International Law, Judicial, Sharing
1:00 p.m. Board buses for Tour (meet in lobby)
1:30 p.m. – 3:30 p.m. - Frank Lloyd Wright's Taliesin West Insights Tour
(Tickets are $50/person and include bus transportation)
4:00 p.m. – 6:00 p.m.
Public Service Project: Native Health Community Garden, 4221 N Central Ave.
Sunday, November 20, 2016
8:30 a.m. to 11:00 a.m. - SLG Council Breakfast Meeting
Conference: 866.646.6488; 476.263.2730#
Tuesday, October 25, 2016
Be sure to check out the new interactive collection of maps, Mapping Inequality: Redlining in New Deal America, which allows viewers to look through the original risk maps created by the Home Owners' Loan Corporation. As most readers know, these maps started with the presumably good intention of stabilizing communities during the Great Depression; however, in grading communities, and thus determining the availability of federally-back mortgages, HOLC relied heavily upon racial factors. Later termed "redlining" for the red color of the often African-American communities on these maps, racial segregation deepened because red communities on the maps had difficult times receiving mortgage assistance. Seeing this in a neighborhood you know, and the blatant terms coded onto the forms, brings home how a good idea in theory--assessing property--became one of the most harmful racial tools in American history.
It seems it would be a valuable teaching tool.
Here are several maps, one of the entire country and another screenshot from my hometown of Dayton, where the colors match up almost precisely with the racial distribution in that city during mid-century.
Saturday, October 22, 2016
Friday, October 21, 2016
Planning for Wildfire in the Wildland-Urban Interface, Part 3: Defining the Wildland-Urban Interface, and Why It Matters
[This post is part of a series on wildfire planning. View previous posts in this series at the bottom of the page. Download the full wildfire planning guide from which these posts are excerpted, here.]
The “wildland-urban interface” is a term commonly used but seldom precisely understood. There is good reason for that: the meaning of the term varies tremendously. There are at least three important ways to think about the WUI: as a policy definition; as a legal definition; and as a variable concept that changes along with development patterns over time. This variation does not indicate the term is “meaningless”; it does mean, however, that context matters and such context must be closely evaluated throughout the WUI wildfire planning process.
The WUI as a policy definition emerged primarily out of the work of demographers and sociologists that were trying to give form to a development phenomenon happening across the country. People were not just moving from the cities to suburbs, they were moving further out into agricultural lands and, in western states especially, onto the ridgelines of foothills and into areas adjacent to federal lands that previously had little habitation. Different approaches to defining the WUI emerged, which included prioritizing either a designated area on a map or a set of conditions which contributed to wildfire risk. In 2001, a federal report adopted a definition of the WUI as “where humans and their development meet or intermix with wildland fuel.” In 2006, the Forest Service adopted a similar policy definition that: “The WUI is the area where structures and other human development meet or intermingle with undeveloped wildland. Wildland urban interface is any area containing human developments, such as a rural subdivision, that may be threatened by wildland fires.” Since that time, other researchers have sought to quantify that definition, with some researchers offering alternative WUI definitions, as illustrated in the graphic below:
Independent of these policy definitions, there are additional legal definitions of the WUI that are especially important for wildfire planning. Many wildfire-related laws and regulations apply specifically to the WUI, but different laws can have different requirements for how the WUI is defined.
For instance, the Healthy Forest Restoration Act of 2003 (HFRA) provides a complicated definition of the WUI. On the one hand, if a community has adopted a WUI definition in a CWPP, federal agencies will abide by that determination. If no community has not done so, however, an alternative default definition is supplied.
This definition of WUI is very important to wildfire planning under HFRA; indeed, some funding through the law can only go to areas defined as the WUI. As a result, this legal definition of WUI has an important role to play in whether local communities are eligible for funding under HFRA. If a local community drafts a community wildfire protection plan (CWPP), that community can define the WUI for purposes of HFRA at a local level and in a manner generous to the community. If the community fails to complete a CWPP, this default definition will impose a very limited interpretation of the WUI. Take, for example, the definition of the WUI from this recently-completed Teton County, Idaho CWPP:
This CWPP map presents a legal WUI definition for Teton County that covers all of the private property—including urban areas, commercial properties, infrastructure and other community amenities—and some federal lands in the county. This illustrates that the legal definition of the WUI under HFRA can vary substantially from the default rule when a community undertakes to define the process. This map also illustrates that the legal definition of the WUI for purposes of HFRA provided by this map can also vary from policy definitions of the WUI, which would typically not include urban areas such as the cities within the county.
Further, it should be noted that legal definitions of the WUI can vary by statute or even executive order. For instance, in May, 2016, President Obama signed an executive order that required federal buildings in the WUI to meet certain wildfire standards defined by the order. However, the order also stated that, “[w]hen determining whether buildings are located within the wildland-urban interface, agencies shall use the U.S. Department of Agriculture Forest Service's, ‘The 2010 Wildland-Urban Interface of the Conterminous United States,’ or an equivalent tool.” Here is how that map defines the WUI in Teton County:
In this legal WUI definition that applies to the President’s executive order, there is only a small portion of Teton County in the WUI even though, for purposes of HFRA, all private property in the county is within the WUI.
The purpose of investigating this difference is to illustrate that legal definitions of the WUI can vary, even among legal tools. In planning for wildfire, it is important to make sure that all relevant legal considerations are addressed in defining the WUI both for compliance with federal and state laws, but also for integrating with planning, building, and fire functions of local governments. For instance, coordinating the CWPP definition of the WUI with a local government’s definition of the WUI in its comprehensive plan and development codes facilitates the alignment of federal, state and local policies. In particular, it ensures that different departments within larger local governments—such as fire departments, planning departments, and building departments—are working toward a common vision of the areas subject to WUI wildfire risk and thus necessitating additional wildfire preparedness.
Finally, it is important to remember that the concept of the WUI is a fluid one. As development occurs, an area that was once the WUI may become a bona fide suburb or even a town center of its own. Similarly, as properties undertake mitigation efforts such as hazardous fuel treatments or building construction changes, WUI risk levels can change. For this reason alone, WUI wildfire planning requires an ongoing process that responds to the pace and scale of development along the urban fringe.
 See Office of Inspector General, U.S. Dep’t of Agric., Audit Report: Forest Service Large Fire Suppression Costs i n. 1 (2006), http://www.usda.gov/oig/webdocs/08601-44-SF.pdf, archived at http://perma.cc/9YDE-LS2P; see also Urban Wildland Interface Communities Within the Vicinity of Federal Lands That Are at High Risk from Wildfire, 66 Fed. Reg. 752,753 (Dep’t of Agric. Jan. 4, 2001) (notices) (defining the WUI as “where humans and their development meet or intermix with wildland fuel”); Headwaters Econs., Solutions to the Rising Costs of Fighting Fires in the Wildland-Urban Interface 5 (2009), http://perma.cc/45TW-GLVU (In the western states, “on average 3.2 acres per person are consumed for housing in the wildland-urban interface, compared to 0.5 acres per person on other western private lands.”).
 Urban Wildland Interface Communities within the Vicinity of Federal Lands That Are at High Risk from Wildfire, 66 Fed. Reg. 752,753 (Dep’t of Agric. Jan. 4, 2001) (notices).
 Office of Inspector General, U.S. Dep’t of Agric., Audit Report: Forest Service Large Fire Suppression Costs, at i n. 1 (2006), available at http://www.usda.gov/oig/webdocs/08601-44-SF.pdf.
 Travis B. Paveglio et al, Categorizing the Social Context of the Wildland Urban Interface: Adaptive Capacity for Wildfire and Community “Archetypes,” 61(2) For. Sci. 298, 300 (2014).
 The HFRA definition is as follows:
(16) Wildland-urban interface
The term “wildland-urban interface” means--
(A) an area within or adjacent to an at-risk community that is identified in recommendations to the Secretary in a community wildfire protection plan; or
(B) in the case of any area for which a community wildfire protection plan is not in effect--
(i) an area extending ½ -mile from the boundary of an at-risk community;
(ii) an area within 1 ½ miles of the boundary of an at-risk community, including any land that--
(I) has a sustained steep slope that creates the potential for wildfire behavior endangering the at-risk community;
(II) has a geographic feature that aids in creating an effective fire break, such as a road or ridge top; or
(III) is in condition class 3, as documented by the Secretary in the project-specific environmental analysis; and
(iii) an area that is adjacent to an evacuation route for an at-risk community that the Secretary determines, in cooperation with the at-risk community, requires hazardous fuel reduction to provide safer evacuation from the at-risk community.
16 U.S.C. § 6511 (2016).
 Ex. Order No. 13728, 81 Fed. Reg. 32223 (May 18, 2016), available at https://www.whitehouse.gov/the-press-office/2016/05/18/executive-order-wildland-urban-interface-federal-risk-mitigation.
 Sebastiín Martinuzzi et al., The 2010 wildland-urban interface of the conterminous United States (2015), http://www.nrs.fs.fed.us/pubs/48642.
Previous posts in this series:
Part 2: The Price of Wildfire
Thursday, October 20, 2016
This morning I saw that the Ninth Circuit had recently decided a case about whether a city could require a resident to cut down one tree. I had to read more. Here is an excerpt of the case:
Jesse and Randee Elizondo (the “Elizondos”) appeal the district court's denial of their motion to preliminarily enjoin the City of Junction City (the “City”) from cutting down a tree located in front of their residential property....The district court also did not abuse its discretion in denying preliminary injunction on the Elizondos' Equal Protection Clause claim. The Elizondos can succeed on their claim only if they show that they were intentionally treated differently from other similarly situated property owners, and that the difference in treatment lacked a rational basis. See Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011). The evidence does not show that they were treated differently than other similarly situated property owners. As the district court noted, the situations of other property owners cited by the Elizondos were not sufficiently similar because they did not present all of the unique issues posed by the maple tree in front of the Elizondos' property, including its location on an intersection, which created a visual setback in violation of the thirty-foot requirement of the municipal code, caused the surrounding sidewalk to buckle, and obstructed the installation of an Americans with Disabilities Act-compliant ramp. Moreover, the City provided multiple rational bases for its decision. The City's decision to remove the tree was based on legitimate considerations of the high costs of alternatives and the aesthetics of maintaining a uniform street design.
The case seemed so absurd, I had to look into it. Really, a tree...all the way to the Ninth Circuit?! As is often the case, there is more to the story than initially meets the eye. It turns out it is a really old tree. Here is more info about the tree from the appellant's brief:
The City of Junction City, Oregon, through the individual named defendants, decided to cut down a tree that is over 100 years old, stating varying reasons for removing the tree. None of those purported reasons are supported by the evidence.
The tree is on plaintiffs' property, within the right of way for sidewalks.Plaintiffs have located a 1910 photograph in the local historical museum *3 which shows the tree in its infancy, in front of the home that still stands and is now owned by the plaintiffs. CR 20, ER 78 (Second Decl. of Elizondo, Ex. H). (The impression is that the tree was planted by the property owner, as there are no public plantings of trees in that photograph).The Elizondos have submitted the tree for nomination for “Oregon Champion Tree” status. CR 20, ER 79 (Ex. I).71 local residents (including 23 from Junction City itself, and 48 from other areas in Lane County, Oregon) have signed a petition supporting preservation of this 80 foot high maple tree. CR 20, ER 80-85 (Ex. J). The threatened cutting of the tree has generated a great deal of media interest as well. See CR 20, ER 86-88 (Ex. K);
The tree provides valuable habitat for hawks; migratory birds such as herons; and other birds and wildlife. CR 8, ER 67-68. In addition, the tree provides shade and aesthetic benefit to the neighborhood and to tree-lined Sixth Street in Junction City, Oregon, in particular.
Monday, October 17, 2016
This is the opening day of Habitat III in Quito. Many of the events are being live-streamed here.
Also, land use scholars will find much to think about in the New Urban Agenda, which has been preliminarily approved, and should be finally approved, in Quito in the coming days. While the whole New Urban Agenda is worth reading, land use professionals will find special interest in the summary paragraphs titled "Our shared vision," which are excerpted below:
Our shared vision
11. We share a vision of cities for all, referring to the equal use and enjoyment of cities and human settlements, seeking to promote inclusivity and ensure that all inhabitants, of present and future generations, without discrimination of any kind, are able to inhabit and produce just, safe, healthy, accessible, affordable, resilient, and sustainable cities and human settlements, to foster prosperity and quality of life for all. We note the efforts of some national and local governments to enshrine this vision, referred to as right to the city, in their legislations, political declarations and charters.
12. We aim to achieve cities and human settlements where all persons are able to enjoy equal rights and opportunities, as well as their fundamental freedoms, guided by the purposes and principles of the Charter of the United Nations, including full respect for international law. In this regard, the New Urban Agenda is grounded in the Universal Declaration of Human Rights, international human rights treaties, the Millennium Declaration, and the 2005 World Summit Outcome. It is informed by other instruments such as the Declaration on the Right to Development.
13. We envisage cities and human settlements that:
(a) fulfill their social function, including the social and ecological function of land, with a view to progressively achieve the full realization of the right to adequate housing, as a component of the right to an adequate standard of living, without discrimination, universal access to safe and affordable drinking water and sanitation, as well as equal access for all to public goods and quality services in areas such as food security and nutrition, health, education, infrastructure, mobility and transportation, energy, air quality, and livelihoods;
(b) are participatory, promote civic engagement, engender a sense of belonging and ownership among all their inhabitants, prioritize safe, inclusive, accessible, green, and quality public spaces, friendly for families, enhance social and intergenerational interactions, cultural expressions, and political participation, as appropriate, and foster social cohesion, inclusion, and safety in peaceful and pluralistic societies, where the needs of all inhabitants are met, recognizing the specific needs of those in vulnerable situations;
(c) achieve gender equality and empower all women and girls, ensuring women’s full and effective participation and equal rights in all fields and in leadership at all levels of decision-making, and by ensuring decent work and equal pay for equal work, or work of equal value for all women, as well as preventing and eliminating all forms of discrimination, violence, and harassment against women and girls in private and public spaces;
(d) meet the challenges and opportunities of present and future sustained, inclusive, and sustainable economic growth, leveraging urbanization for structural transformation, high productivity, valueadded activities, and resource efficiency, harnessing local economies, taking note of the contribution of the informal economy while supporting a sustainable transition to the formal economy;
(e) fulfill their territorial functions across administrative boundaries, and act as hubs and drivers for balanced sustainable and integrated urban and territorial development at all levels;
(f) promote age- and gender-responsive planning and investment for sustainable, safe, and accessible urban mobility for all and resource efficient transport systems for passengers and freight, effectively linking people, places, goods, services, and economic opportunities;
(g) adopt and implement disaster risk reduction and management, reduce vulnerability, build resilience and responsiveness to natural and man-made hazards, and foster mitigation and adaptation to climate change;
(h) protect, conserve, restore, and promote their ecosystems, water, natural habitats, and biodiversity, minimize their environmental impact, and change to sustainable consumption and production patterns.
Tuesday, October 11, 2016
Here is a job announcement from my school that I thought might interest some of you. I am happy to field any questions I can about the job or about living in the wonderful city of Buffalo...
We seek outstanding candidates with interdisciplinary expertise and experience in policy and planning disciplines relevant to urbanization, sustainability, resilience, climate change, and equity. The specialist will work collaboratively with faculty from different departments on campus, including those within the School of Architecture & Planning, School of Law, and others to develop and support environmental science and policy research. We anticipate that the Specialist will spend 50% time developing new research programs and 50% time working on providing support to existing research programs, including developing large interdisciplinary grant proposals to support research programs.
Minimum qualifications: Minimum educational requirements include a Master's degree in city/urban/regional planning, law, management, public policy, public administration, sociology, or a related discipline. A Ph.D., J.D., or other doctoral degree in one of these fields is preferred. Work experience of 4-5 years beyond the Master's degree or two years beyond a doctoral degree is required. A proven record or strong drive toward team research, a strong record of research publication, and proven ability to write grant proposals are all desirable skills. Research skills including statistical, geographic and qualitative analysis are highly desired. Applicants should submit a CV highlighting relevant experience and names of at least three references via the UBJobs system (https://www.ubjobs.buffalo.edu/). Review of applications will begin September 26, 2016 and will continue until the position is filled. Salary/compensation will be dependent on educational background and experience. For additional information, please email firstname.lastname@example.org.
About RENEW: The Institute on Research and Education in Energy, Environment and Water (RENEW) at the University at Buffalo (UB) aims to advance Energy, Water and Environmental Sustainability as a foundation for a regenerative economy through interdisciplinary research cutting across UB's academic organizations. The institute's interdisciplinary focus involving the faculties of the School of Architecture and Planning, College of Arts and Sciences, School of Engineering and Applied Sciences, School of Law, School of Management, School of Public Health and Health Professions, and the School of Medicine and Biomedical Sciences is designed to foster new collaborations and innovative ideas. The initiative taps the leadership and vision of deans and faculty at these seven schools and colleges. The institute engages over 100 faculty members in these seven schools. Further details can be found at http://www.buffalo.edu/renew/Employment-Opportunities.html.
Monday, October 10, 2016
[This post is part of a series on wildfire planning. View previous posts in this series at the bottom of the page. Download the full wildfire planning guide from which these posts are excerpted, here.]
In 1995, fire made up 16 percent of the U.S. Forest Service’s annual appropriated budget; in 2015, wildfire consumed more than 50 percent of the agency’s budget, a benchmark reflective of steadily rising costs. At the same time, while 91 percent of federal appropriations for wildfire management are allocated to protect federal lands, it is increasingly clear that federal funds are being used to protect private homes and other structures “adjacent to federal lands [that] can significantly alter fire control strategies and raise costs.” In a survey of Forest Service land managers, estimates were that “[fifty] to [ninety-five] percent of firefighting costs were attributable to protection of private property.” Moreover, a study conducted for the Montana legislature found that firefighting costs are “highly correlated with the number of homes threatened.” A recent study of wildfires in Wyoming found that protecting just one isolated home added as much as $225,000 to the overall cost of fighting a fire.
The rising cost of fighting fires and, in particular, those that threaten private property, has many factors including terrain, fuels, and weather. Increasingly, though, attention is being directed to the rapid growth of remote developments—especially those not designed or maintained with wildfire in mind—at the urban periphery often referred to as the “wildland-urban interface,” or WUI (pronounced “Woo-E”). There is good reason why attention is turning to these types of developments: six of the 10 most expensive fires in the past 100 years were WUI fires despite the fact that WUI fires account for just a small fraction of overall fires fought in any given year.
According to one widely used WUI definition, only 14 percent of the WUI is developed. If current development patterns continue, development in the WUI will almost certainly grow substantially, resulting in even further increases in wildfire protection costs. With the Mountain West perennially ranking as one of the country’s fastest growing regions, this WUI development is certain to grow over time. As this growth occurs, certain mismatches in process will be exacerbated. Local governments retain authority to approve WUI development through applications of local zoning, building, fire, and subdivision codes even though it is typically the federal government that bears the greatest burden in protecting—and has the greatest resources to protect—those developments from wildfire. A few local governments in the West are integrating a deep knowledge of wildfire protection policy into their planning and development processes. More collaboration is necessary to build an enduring solution to wildfire near development. Subsequent posts on the blog will focus on these pioneering communities that are trying out new approaches to planning for wildfire, and what the rest of the West can learn from them.
 U.S. Forest Service, The Rising Cost of Wildfire Operations: Effects on the Forest Service’s Non-Fire Work 2 (2015), http://www.fs.fed.us/sites/default/files/2015-Fire-Budget-Report.pdf.
 Ross Gorte, Headwaters Econs., The Rising Cost of Wildfire Protection 7, 14 (2013), http://perma.cc/W4GX-PNGF.
 Office of the Inspector General, U.S. Dep’t of Agric. Audit Report: Forest Service Large Fire Suppression Costs ii (2006), http://www.usda.gov/oig/webdocs/08601-44-SF.pdf, archived at http://perma.cc/9YDE-LS2P; see also Urban Wildland Interface Communities Within the Vicinity of Federal Lands That Are at High Risk from Wildfire, 66 Fed. Reg. 752,753 (Dep’t of Agric. Jan. 4, 2001) (notices) (defining the WUI as “where humans and their development meet or intermix with wildland fuel”).
 Headwaters Econs., Montana Wildfire Cost Study Technical Report18 (2008), http://perma.cc/D7U5-BBUA; see also Patricia H. Gude et al., Headwaters Econs., Evidence for the Effect of Homes on Wildfire Suppression Costs 14 (2011), http://perma.cc/Y9CB-R3AY (finding the same in a similar study conducted in California).
 Anna M. Scofield, Residential Development Effects on Firefighting
Costs in the Wildland-Urban Interface 3 (2015), http://wyoextension.org/agpubs/pubs/B-1268.pdf.
 William E. Mell et al., The wildland–urban interface fire problem – current approaches and research needs, 19 Int’l J. of Wildland Fire 238, 239 (2010).
 See Headwaters Econs., The Rising Cost of Wildfire Protection 1 (2013), http://headwaterseconomics.org/wphw/wp-content/uploads/fire-costs-background-report.pdf.
 Headwaters Econs., Solutions to the Rising Costs of Fighting Fires in the Wildland Urban Interface 5 (Dec. 2009), http://headwaterseconomics.org/wphw/wp-content/uploads/HeadwatersFireCosts.pdf.
Previous posts in this series:
Tuesday, October 4, 2016
Tomorrow, my colleagues and I will officially unveil our new 167-page guide entitled Planning for Wildfire in the Wildland-Urban Interface: A Resource Guide for Idaho Communities. The guide includes a novel four-step process to guide wildfire planning, over 30 examples of code provisions from throughout the West, the results of a large wildfire risk perception study, and more!
If you are in Boise, please come and join us for the unveiling of the guide in a joint presentation with Idaho Smart Growth on Wednesday, October 5 from 6 - 7:30 PM in Room 325 of the Idaho Law & Justice Learning Center (514 W. Jefferson Street in Boise).
On the blog, I plan to offer a series of posts that convey much of what we learned, and what we propose, that is applicable to wildfire planning not just to Idaho, but to communities throughout the West. Through the project, we also came to believe that wildfire planning is still very much in its infancy; for that reason, we are calling this guide a "Discussion Draft." Over the next two years, we will be engaged in a variety of outreach activities as well as several projects where we actually work with communities to try and implement the method of wildfire planning that we propose here. After those experiences, we admit that we may well revise the method we propose; at the very least, we know we will have a deeper understanding of what works, and what doesn't. We plan to incorporate that "earned knowledge" back into the guide in an updated version.
Without further ado, here is a summary of the guide, with more detail to come in future posts
Overview of WUI Wildfire Planning
The price of wildfire in the West has never been higher. Why? And what can Western communities do about it?
One way to measure the price of wildfire is the dollars spent on suppression alone. In 1995, fire made up 16 percent of the U.S. Forest Service’s annual appropriation budget; in 2015, wildfire consumed more than 50 percent of the agency’s budget, a benchmark reflective of steadily rising costs. A recent study of wildfires in Wyoming found that protecting just one isolated home can add $225,000 to the overall cost of fighting a fire. But the price of fire is also told in lost recreational opportunities, scarred landscapes adjacent to city centers, loss of wildlife habitat, presence of invasive species, and increasingly, after-effects such as flood and landslides, that can cause even greater long-term harm to a community that the initial fire.
Wildfires occur in a variety of terrain, fuels, and weather. This guide is focused on wildfires that occur in the wildland-urban interface, or WUI (pronounced “WOO-ee”). The WUI is both a sociological and legal term that is fluid based upon context; however, a common definition used is that the WUI is where “humans and their development meet or intermix with wildland fuel.” In 2006, the Forest Service adopted a similar policy definition, which states that “[t]he WUI is the area where structures and other human development meet or intermingle with undeveloped wildland.”
Although fewer wildfires occur in the WUI compared to timberlands or rangelands, they are of increasing concern for several reasons. First, WUI fires are expensive to fight. Six of the ten most expensive fires in the past 100 years were WUI fires. Further, the WUI is relatively undeveloped. By one account, just 14 percent of the WUI is developed, leaving a vast potential region of growth that, if developed without wildfire in mind, could yield staggering costs as the West grows. Finding ways to prevent “locking in” long-term, high cost development patterns, while still encouraging such development and growth, is a threshold issue facing Western property owners, taxpayers, and governments.
The amount of science and technology dedicated to addressing wildfire in the WUI issues is substantial: decades of research provide a rich array of knowledge about fire from which to draw. The missing piece of the puzzle is the planning and legal framework that would apply that knowledge to protect property and lives from fire. How can we use planning, law and incentives to implement what we already know about wildfire and keep our communities safe?
The proposal offered by this guide is a conceptual framework that local communities—governmental and non-governmental—can use over time. The framework, which this guide calls the “WUI Wildfire Planning Process,” consists primarily of a four-step, cyclical planning process that revolves around the inter-governmental National Cohesive Strategy Vision and Goals for wildfire, and is supported at all times by education and outreach.
Although little known outside of the fire community, the National Cohesive Strategy Goals are simple, but important, goals established through a five year planning process (2009 to 2014) in which federal agencies, state, tribal and local governments, as well as non-governmental parters, built a common vision of how the country could address wildfire. The three goals of the Cohesive Strategy are maintaining landscapes; developing fire-adapted communities; and developing a multi-jurisdictional wildfire response based upon risk-based decisionmaking. These Cohesive Strategy Goals are the core around which the WUI Wildfire Planning Process revolves.
The four active steps of the WUI Wildfire Planning Process are illustrated below. They are: draft and adopt a community wildfire protection plan (CWPP); regulate and incentivize the built environment at all scales; implement, maintain and enforce regulations and incentives; and respond to substantial changes such as wildfires or the passage of time. The conceptual framework illustrates a progression of planning that leads to successful and well-informed results; however, wildfire experts know well that variations on these components and order can also yield successful wildfire planning results. For purposes of beginning a dialogue about best practices for wildfire planning, the framework forms the backbone of the guide from which other discussions grow.
Community wildfire protection plans are an excellent place to begin wildfire planning for several reasons. A creature of federal law, CWPPs actually permit local communities to have a say in how wildfire on federal lands is maintained, which is a major concern for many Idaho communities. Further, CWPPs make communities eligible for federal funding opportunities; such opportunities will grow as CWPPs are increasingly integrated into county All Hazard Mitigation Plans and, if properly updated every five years, will make wildfire hazards eligible for even more funds. CWPPs are also important because they provide a framework for identifying wildfire risk at an ecological scale that permits local communities to think beyond their jurisdictional boundaries precisely because the process includes federal, state, tribal, and local government and non-governmental participants. One of the limiting factors in the success of CWPPs in Idaho in the past has been that they have been conducted solely at the county level and by a select group of fire community individuals. While county CWPPs are clearly still valuable, Idaho Department of Lands seeks to encourage the preparation of CWPPs at multiple scales, as contemplated by federal law and practiced in other Western states. For instance, a county-wide CWPP may be supplemented by a city CWPP and even a neighborhood CWPP conducted by a homeowner’s association that has a particular wildfire hazard. Each scale permits a different level of preparedness and analysis that is valuable. CWPPs could also be more valuable by increasing the scope of participation to include others that will facilitate wildfire decisions in other parts of the process. This would mean including local officials, local staff, and a proposed citizens’ advisory board, in addition to the traditional fire staff, in the CWPP process.
The second step in the process is for a local jurisdiction—a city or county—to decide on the package of regulations and incentives it will utilize to address the identified wildfire risk. Doing so requires local governments to decide whether to allow development in areas of high wildfire risk and, if they do so, to decide how to respond with local values related to regulatory versus incentive-based approaches and the successes of each in relation to the risk. The guide discusses several approaches that have worked well in other communities, which include: seeking co-benefits, such as open space, that may matter locally; seizing upon interest that often arises after a wildfire; choosing an approach that the community can support; and anticipating for wildfire’s after-effects, especially flood, landslide, aesthetic harm, and economic development issues. There is no one-size-fits-all approach to wildfire. For some communities, a simple approach could be to focus on the basics: defensible space, metal roofs, and weed ordinances to reduce fuels. This simple, effective solution can work very well in rural areas. More urban areas will likely want a solution that fits the complexity of the built environment. Regulatory tools are discussed at the community scale, such as comprehensive plans, specific plans, and land use zoning overlay districts; the neighborhood and subdivision scale; the individual site or project scale; and the building scale. Non-regulatory tools are equally important and can supplement regulatory tools, or stand-alone. They include the popular Firewise program, which is a valuable educational tool but which often yields uncertain results; insurance, which has a role to play in pricing fire risk; and homeowner’s associations, which are increasingly popular in Idaho and have served as a vehicle for local communities to provide enhanced wildfire security for their community independent of government regulation.
Once regulations and incentives have been adopted, they must be applied to specific projects and enforced over time; similarly, incentive programs must be implemented and examined to determine efficacy. This third step may be the most important—it is where ideas yield results—but it is also an especially hard step for wildfire. That is because many of the factors associated with wildfire risk reduction require maintenance—of buildings, of landscaping, of cleanliness near structures—that collides with the entitlement-driven development process that prioritizes one-time, up-front conditions of approval. This section of the guide begins by discussing the importance of communication between local government departments to address precisely this issue. The section then turns to the types of enforcement mechanisms that are being tried by some Idaho communities, but also communities throughout the West. These include homeowner association CC&Rs that make local governments the third-party beneficiaries of wildfire-related maintenance agreements; using the development agreement process to plan for wildfire upfront; using zoning to require maintenance; as well as re-tooling nuisance ordinances to address wildfire. The section also discusses some non-enforcement mechanisms, such as disclosure techniques that prioritize informing property owners of the wildfire risk on their lands, and how to mitigate it. Other approaches include cities that conduct wildfire fuel reduction work for private property owners so long as they sign a maintenance agreement for on-going upkeep of the mitigation.
The fourth, and final step in the process occurs when there is a substantial event, such as a wildfire, or even a secondary effect like a flood or landslide, that causes the local community to realize that it needs to re-evaluate, and re-visit its wildfire planning strategy. In addition to such an event, the passage of time becomes its own reason to revisit a wildfire planning strategy, if only because WUI demographics change quickly; an exurban community one year could be a bona fide bedroom community in a decade. In addition, as Idaho moves to integrate CWPPs into All Hazard Mitigation Plans, the CWPPs will need to be reviewed every year and revised every five years for compliance with AHMP regulations. The combination of wildfire events and the passage of time give local communities a number of reasons to revisit their approach to planning, determine what has worked and what has faltered, and create an amended plan going forward.
Although a community’s planning process may not follow this conceptual framework precisely, the frame provides a way to contemplate how to use all of the tools available to maximize wildfire preparedness. Along the way, education remains a vital component of wildfire planning, both to communicate the nature of wildfire risk but also what it means to be prepared to face that risk. To that end, Appendix A to the guide provides significant excerpts of codes from Idaho local governments, and some other local governments from throughout the West, to serve as models for similarly-situated communities.
This discussion is also enriched by the inclusion of a robust risk perception survey, which was conducted by surveying nearly 20,000 Idaho households in wildfire priority areas throughout the state in Fall, 2015 and Winter, 2016. The guide provides significant helpful data worthy of review. The most telling questions, however, may be those that reflect sentiment toward local regulation of fire. Approximately 55% of respondents stated that WUI codes should differ from other areas that are less fire prone. Support for more restrictive code and regulation exists with 46% answering yes, 23% maybe, and 30% no. When asked whether they would be willing to pay a premium to be more “Firewise,” about 15% stated yes, about 36% maybe, and probably not combined with definitely not are almost 49%. When asked whether they would support legislation to be more “Firewise,” about 37% stated yes, about 27% maybe, and probably not combined with definitely not are almost 35%.
A strong majority (68%) of respondents stated that they see themselves responsible to protect home and property. A small minority (18%) of respondents stated that they see the local fire department as responsible to protect their home and property. About 43% believe that the city or county government is responsible to protect home and property, whereas 37% do not believe this is the city or county’s role, and about 18% are not sure. About 63% believe that the city or county government is responsible to protect public lands, whereas 23% do not believe this is the case, and about 19% are not sure about it.
The survey data indicates that there is a political base for both regulation- and incentive-based approaches to wildfire, but local communities will have to make the case to those who are on the fence and unsure that all would be better off with some wildfire planning. This is redoubled by the fact that additional survey results indicate that many believe that their own homes are safe despite acknowledging nearby fire risk to others.
Making the case for wildfire planning requires understanding the problem and the methods we have to solve it. This guide is a place to start, but it is just a beginning. This version is labeled a discussion draft. Over the next several years, the research team will host a variety of educational engagements across the state. The guide will change in response to local feedback and the conversations that evolve about fire over time. The goal will be simple: to find local answers that keep wildfire from exacting the price that is inevitable in the status quo, something none of us can afford.
About the Project
In 2015, the U.S. Forest Service and the Idaho Department of Lands provided a grant to scholars at the University of Idaho and Boise State University to address planning for wildland-urban interface (WUI) wildfires throughout Idaho’s varied terrain and communities. In the first phase of the project, law students in the Economic Development Clinic at the University of Idaho College of Law’s Boise campus contacted all 200 Idaho cities and 44 Idaho counties to determine the status of existing wildfire regulations and incentives. In addition, the Clinic also collected and reviewed all 44 of Idaho’s county wildfire protection plans, which were generally written between 2003 and 2007, as well as updates to those plans currently underway in several counties.
At the same time, Boise State University’s Public Policy Research Center conducted a risk perception study to understand how Idahoans relate to wildfire risk. In the second and third years of the grant, the University of Idaho’s Bio-regional Planning and Community Design program will join the effort, coordinating workshops around the State to assist local communities to find locally appropriate approaches to planning for wildfire in the WUI.
Planning for Wildfire in the Wildland-Urban Interface was a collaboration and the first product of the grant; many people deserve credit. Other authors of the guide include Thomas Wuerzer, Associate Professor for Real Estate Development, Nova Southeastern University (formerly of Boise State University); Eric Lindquist, Director, Public Policy Research Center, Boise State University; Jaap Vos, Program Head, Bioregional Planning & Community Design, University of Idaho College of Art and Architecture; Molly Mowery, Wildfire Planning International; Tyre Holfeltz, Idaho Department of Lands; and two students from my Economic Development Clinic, Brian Stephens and Alexander Grad.
Wednesday, September 28, 2016
White House releases Housing Development Toolkit but fails to offer any new solutions to the housing crisis of major American cities
Earlier this week, the Obama administration released a white paper entitled, "Housing Development Toolkit." The paper has a, well, scathing review of the effects of local housing policy in major American cities. True enough. The report's analysis won't be much of a surprise to land use practitioners, but it is worth a look for its effort to frame the existing problem and offer solutions. In my opinion, while the report is a good read, many of the solutions offered in the report have already been tried for decades to little effect. Something more bold will be needed to address the housing issues in larger American cities. Here is the executive summary with a list of proposed options at the bottom (further explored in pages 14 to 19 of the report):
Over the past three decades, local barriers to housing development have intensified, particularly in the high-growth metropolitan areas increasingly fueling the national economy. The accumulation of such barriers – including zoning, other land use regulations, and lengthy development approval processes – has reduced the ability of many housing markets to respond to growing demand. The growing severity of undersupplied housing markets is jeopardizing housing affordability for working families, increasing income inequality by reducing less-skilled workers’ access to high-wage labor markets, and stifling GDP growth by driving labor migration away from the most productive regions. By modernizing their approaches to housing development regulation, states and localities can restrain unchecked housing cost growth, protect homeowners, and strengthen their economies.
Locally-constructed barriers to new housing development include beneficial environmental protections, but also laws plainly designed to exclude multifamily or affordable housing. Local policies acting as barriers to housing supply include land use restrictions that make developable land much more costly than it is inherently, zoning restrictions, off-street parking requirements, arbitrary or antiquated preservation regulations, residential conversion restrictions, and unnecessarily slow permitting processes. The accumulation of these barriers has reduced the ability of many housing markets to respond to growing demand.
Accumulated barriers to housing development can result in significant costs to households, local economies, and the environment.
Housing production has not been able to keep up with demand in many localities, impacting construction and other related jobs, limiting the requisite growth in population needed to sustain economic growth, and limiting potential tax revenue gains.
Barriers to housing development are exacerbating the housing affordability crisis, particularly in regions with high job growth and few rental vacancies.
Significant barriers to new housing development can cause working families to be pushed out of the job markets with the best opportunities for them, or prevent them from moving to regions with higher-paying jobs and stronger career tracks. Excessive barriers to housing development result in increasing drag on national economic growth and exacerbate income inequality.
When new housing development is limited region-wide, and particularly precluded in neighborhoods with political capital to implement even stricter local barriers, the new housing that does get built tends to be disproportionally concentrated in low-income communities of color, causing displacement and concerns of gentrification in those neighborhoods. Rising rents region-wide can exacerbate that displacement.
The long commutes that result from workers seeking out affordable housing far from job centers place a drain on their families, their physical and mental well-being, and negatively impact the environment through increased gas emissions.
When rental and production costs go up, the cost of each unit of housing with public assistance increases, putting a strain on already-insufficient public resources for affordable housing, and causing existing programs to serve fewer households.
Modernized housing regulation comes with significant benefits.
Housing regulation that allows supply to respond elastically to demand helps cities protect homeowners and home values while maintaining housing affordability.
Regions are better able to compete in the modern economy when their housing development is allowed to meet local needs.
Smart housing regulation optimizes transportation system use, reduces commute times, and increases use of public transit, biking and walking.
Modern approaches to zoning can also reduce economic and racial segregation, as recent research shows that strict land use regulations drive income segregation of wealthy residents.
Cities and states across the country are interested in revising their often 1970s-era zoning codes and housing permitting processes, and increasingly recognize that updating local land use policies could lead to more new housing construction, better leveraging of limited financial resources, and increased connectivity between housing to transportation, jobs and amenities.
This toolkit highlights actions that states and local jurisdictions have taken to promote healthy, responsive, affordable, high-opportunity housing markets, including:
Establishing by-right development
Taxing vacant land or donate it to non-profit developers
Streamlining or shortening permitting processes and timelines
Eliminate off-street parking requirements
Allowing accessory dwelling units
Establishing density bonuses
Enacting high-density and multifamily zoning
Employing inclusionary zoning
Establishing development tax or value capture incentives
Using property tax abatements
Friday, September 9, 2016
Sharing Economy Friday, Post 3: TUESDAY: FREE ABA Professor's Corner webinar with Miller and Jefferson-Jones on sharing economy
This Tuesday, I am doing a webinar with Jamila Jefferson-Jones (UMKC) on hot topics on regulating short-term rentals. It is free and sponsored by the ABA Real Property Trusts and Estates Section. Thanks to Chris Odinet (Southern) for the invite.
Tuesday, September 13, 2016
12:30-1:30 pm ET (11:30 am CT, 10:30 am MT, 9:30 am PT)
- Jamila Jefferson-Jones, Associate Professor, University of Missouri-Kansas City School of Law
- Stephen R. Miller, Associate Professor, University of Idaho College of Law
- Christopher Odinet, Horatio C. Thompson Endowed Assistant Professor, Southern University Law Center
Like network transportation companies and employment matching sites, sharing economy short-term rental (STR) companies are rapidly restructuring the American experience. That these sharing economy STR companies — which are typified by entities such as Airbnb and VBRO — have such impact and market share at a time during which much of their business model remains, at best under-regulated and at worst illegal, makes it one of the most important emerging areas in American law.
Our panelists will discuss recent cases and emerging issues that examine the tension inherent in regulating sharing economy STRs as cities and states grapple with issues such as: whether STRs cause gentrification and escalation of rents in highly-coveted neighborhoods; whether or how these companies should be subject to the payment of transient occupancy taxes, as well as impact fees and exactions associated with STRs; day limits on STR market use; use definitions that define STRs; licensing and permitting; forced information sharing; the application of anti-discrimination laws; takings and inverse condemnation litigation; rent control and subletting provisions in leases, as well as other litigation that will certainly arise and develop in the near future. Professors Miller and Jefferson-Jones are the authors of The State & Local Government Sharing Economy Manual:Strategies for Regulating and Managing On-Demand Services, an ABA publication forthcoming in 2017.
Professors' Corner is a monthly teleconference featuring law professors discussing recent cases or issues of interest to real estate practitioners and scholars.
Uniquely interconnecting lessons from law, psychology, and economics, this Article aims to provide a more enriched understanding of what it means to “share” property in the sharing economy. It explains that there is an “ownership prerequisite” to sharing of property, drawing in part from the findings of research in the psychology of child development to show when and why children start to share. They do so only after developing what psychologists call “ownership understanding.” What the psychological research reveals then is that the property system is well-suited to create recognizable and enforceable ownership norms that include the rights to acquire and retain ownership of property (parting with it only on terms defined by the owner), thereby also providing necessary economic incentives to share. Along the way, this article bridges the psychology research with Hohfeld’s description of the nature of rights, explaining the corresponding rights characterizations appropriate to describe each step in a child’s development of ownership understanding.
When we have a well-developed ownership regime—with a high reliability of enforcing ownership norms—we create the confidence in ownership that “ownership understanding” reveals is necessary for individuals to feel secure in sharing. So too does the development of the right to exclude and the corresponding right to include in property law track the underlying psychology to create the prerequisites in law to effect what might be called a “legal ownership understanding” that feeds the sharing economy, with sharing being simply an exercise of the right to include. The Article concludes with an ownership-sensitive definition of sharing that should prove useful to courts, regulators, and scholars alike, while remaining largely agnostic on the scope of desirable regulation of the sharing economy.
From Jessica Bacher, Chair of the Chair, Land Use Committee, ABA Section of State and Local Government Law:
Please join us today for our September Committee online meeting. The meeting will begin with a short discussion of committee business -- offering opportunities for all of our members to participate in CLE programs, book projects, speaking opportunities and periodical publications -- followed by a substantive program that you will not want to miss.
Today's FREE Webinar Sponsored by the Land Use Committee is scheduled for 2:00 pm EST, and will feature as our speaker Daniel P. Dalton, Esq., of Dalton & Tomich PLC, presenting a RLUIPA Update.
Joining us from a computer? Simply click https://zoom.us/j/6317617137<https://webmail.tourolaw.edu/owa/UrlBlockedError.aspx<https://zoom.us/j/6317617137%3chttps:/webmail.tourolaw.edu/owa/UrlBlockedError.aspx>>.
Joining us from a mobile device? Download the Zoom app and then click https://zoom.us/j/6317617137<https://webmail.tourolaw.edu/owa/UrlBlockedError.aspx<https://zoom.us/j/6317617137%3chttps:/webmail.tourolaw.edu/owa/UrlBlockedError.aspx>>.
Joining us by phone? Call either
+1 415 762 9988 (US Toll) or +1 646 568 7788 (US Toll)
and enter Meeting ID: 631 761 7137
Please also save-the-date for our upcoming online meetings:
* October 14, 2016--featuring Wendie Kellington on Drones
* December 9, 2016--featuring Jess Phelps on National Historic Landmarks
* January 13, 2017--featuring Robert Thomas on Regulatory Takings: Emerging Issues
* March 10, 2017--featuring Alexander Judd on Telecomm Law
* May 12, 2017--featuring Andy Gowder on Exactions & Impact Fees
* June 9, 2017--Speaker TBD
* July 14, 2017--Speaker TBD
Monday, September 5, 2016
Zoning’s Next Century
Why the Quiet Revolution Failed
John R. Nolon, Distinguished Professor
Elisabeth Haub School of Law, Pace University
New York’s historical failure to wrest land use control from local governments demonstrates why they remain in charge of land use planning and regulation. This may explain, as well, why federal and state efforts to assist localities and guide their policies succeed, while top down mandates so often fail. This post is taken from forthcoming article on the evolution of land use law in New York and is based on the author’s own experience.
My personal journey with New York’s land use law began over 25 years ago as we searched for strategies to achieve what was then a new concept: sustainable development. In 1993, I founded the Land Use Law Center for Sustainable Development at Pace University School of Law, now called the Elisabeth Haub School of Law. At the request of President Clinton’s Council on Sustainable Development, we began our analysis by assembling an Advisory Committee on Sustainable Development in the Hudson River Valley…. The Council asked us to project current land use trends 50 years forward, to determine whether they were sustainable and, if not, to identify the key obstacles to sustainability and the most effective strategies to remove those obstacles….
We did several studies, including one on what we called pacelization – the rate at which large parcels of land were being subdivided into smaller parcels for development. Projecting the current rate forward revealed that the amount of open land in the region would decline from 60% then to around 30% in the year 2045, that there would be a 400% increase in what transportation planners call vehicle hours of delay, and that for every one percent of population added we would urbanize seven percent more land. [This trend was clearly not sustainable.] …
The President’s Council had asked us to identify the most formidable obstacle to the sustainable development of the Hudson River Valley and the best strategy to remove that obstacle. To answer this question, we had to review the history of these matters in New York. The state’s story involves a tug of war regarding localism, regionalism, and state control of land use decisions. Every New York governor since the Great Depression has made some statement about the importance of having cogent state policies on land use to guide local decisions with little effect….
We reflected on the national experience as well. Environmental and land use study commissions, courts, and commentators long bemoaned the parochial effect of local land use decisions and their tendency to exclude affordable housing and to shift environmental and economic impacts to nearby communities. These concerns gave rise to what became known as the “quiet revolution in land use control” which was advocated by a 1971 report of the U.S. Council on Environmental Quality. The “revolution” envisioned state legislative efforts to adopt growth management legislation, establish regional land use planning agencies, and tether local decisions to state-adopted land use principles or plans. In 1968, the Douglas Commission, appointed by President Johnson, issued its Report on Urban Problems, Building the American City. The Commission recommended that each state create a state agency for land use planning and prepare state and regional land use plans. [Our search for effective state and local planning in other states was not fruitful.] For a time, New York led the nation in this direction….
The success of the Adirondack Park Agency [with its regional control of land use planning] and the hortatory language of the Douglas Commission and the Council on Environmental Quality led state planners in New York to think more ambitiously. In early 1970s, the New York legislature was presented with the Statewide Comprehensive Planning Act, which provided for the creation of state, regional, county, and local plans – all cross certified and consistent. At the time, this was the nation’s most far-reaching attempt to guide and constrain local land use decision-making. The perceived threat to local control was clear, and the political reaction was predictable, swift, and definitive. The bill was withdrawn and the New York Office of Planning Coordination – the agency that proposed it – was voted out of existence by the state legislature….
Strong regionalism has not prevailed in New York for the same reason it has not prevailed in most states. Former Speaker of the House Thomas P. O’Neill Jr., once quipped that “all politics is local.” All reform efforts aimed at constraining local control must overcome this political reality. The danger in advocating top-down, statewide land use solutions is that it identifies local control as the problem to be solved, rather than the base on which to build an intermunicipal process, responsive to regional and state needs. The challenge for advocates of a regional approach to land use planning and control is to identify effective regional processes that respect the critical role that local governments play in land use decision-making. To be politically palpable, these solutions must be perceived not as methods of imposing a state or regional body’s will on local governments but as means of communicating effectively about regional and local needs, balancing those interests, and arriving at mutually beneficial decisions over time…..
This was our experience by the time the President’s Council asked us its provocative question: What is the best strategy for removing the most formidable obstacle to the sustainable development of the Hudson River Valley? The 250 representatives of various groups interested in land development and conservation who testified at our final hearing on the matter kept reminding us of the political reality of land use: local leaders are the gatekeepers of the system. In the continuing absence of national or state-mandated solutions, attention should be paid, they said, to strengthening the system at its foundation.
Our response to the Council was that, if such significant control was to remain with local governments and if the local decision-making system is driven primarily by local leaders, most of whom are volunteers with little experience in the field, then we would recommend an aggressive program to train these critical participants in the development of plans and regulations for the future of the Hudson River Valley. [This program has demonstrated considerable success in fostering sustainable land use plans and regulations and, even, generating several intermunicipal land use councils. These few successes fall short of creating effective regional or state control.]
That said, this experiment in New York does suggest a strategic path. If local power is so resilient, then perhaps embracing local governments and urging them to collaborate with a national, state, and regional strategy that is designed to honor their concerns and is based on their participation would be a quicker route to more a comprehensive, less cacophonous approach to land use control. As Thomas Jefferson said: “I know of no safe depository of the ultimate power of society but the people themselves, and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.”
 Zoning’s Centennial (1916-2016) – The Evolution of Land Use Law in New York, forthcoming New York Zoning Law and Practice Report (Sept/Oct 2016).
Previous posts in the Zoning's Next Century are listed below:
Tuesday, August 30, 2016