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)

Monday, June 5, 2017

OECD publishes second report detailing country-by-country planning processes

Earlier this month, I blogged about OECD's excellent new report, The Governance of Land Use in OECD Countries.  OECD has also published a companion volume, Land-use Planning Systems in the OECD, that provides a background on the land use governance systems of each of the 32 OECD countries in the report.  It is a great comparative document that summarizes the land use planning systems of mostly western, developed countries.  

 

 

 

June 5, 2017 | Permalink | Comments (0)

Friday, June 2, 2017

Vermont Law's Hot Topics in Environmental Law Lecture Series - Available by livestream throughout the summer

Vermont Law School’s Environmental Program is once again offering a full lineup of 17 notable speakers in the Hot Topics in Environmental Law Lecture Series. These talks offer a range of timely issues including human rights and the environment, ocean and wildlife, energy, environmental enforcement, and international issues. The talks take place every Tuesday and Thursday at noon throughout the summer, and are free and open to the public with CLE credit available.

View the online brochure (see p.2): http://www-assets.vermontlaw.edu/Assets/summer/Summer%202017/VLS.204.17_HOT_TOPICS_2017_POS_P3.pdf

To watch these talks, go to the VLS Livestream channel: http://vermontlaw.edu/live

June 2, 2017 | Permalink | Comments (0)

Wednesday, May 31, 2017

The Loneliest Battle:  Fighting for Procedural Integrity in Land Use Decisions:  A Case Study from Boise, Idaho

In addition to my work as a law professor, from time to time, I am asked to enter the fray in local land use decisions here in Boise.  Typically, this happens through the means of a request to a local neighborhood association to weigh in on a matter.  As a board member on a neighborhood association, I often assist in these land use issues.  Previously, I served about 20 months on Boise’s planning and zoning commission, as well, a post I left largely because of some of the issues I will discuss below.  In any case, I thought I would share some of what has been going on here in Boise, in large part because I have never encountered anything like it before, and it strikes me as an important case study in the importance of process in making land use decisions work.  As I note in the title, fighting for good process in land use decisions may be one of the “loneliest battles” anyone can undertake.  But as I’ll hope to illustrate below, where there is bad process, the whole planning apparatus can quickly devolve into a sham.  In Boise, what purportedly applies in outward facing principles—such as those announced in the comprehensive plan and other city documents—is vastly different from what happens in practice.  When stated law and practiced law diverge as greatly as they do in Boise, there is significant room for mischief to enter.  Justice Scalia once put this in stark relief:

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, 375, 118 S. Ct. 818, 827, 139 L. Ed. 2d 797 (1998).  When I teach administrative law, I always linger over this passage by Scalia because, regardless of your political proclivities, he is right on this one:  where a decision diverges from its stated standards and, with subterfuge, works to implement another standard, there is an “evil” there that upends the entirety of the decisionmaking process.  In the land use context, I suggest that there is another problem:  where such divergence occurs, there can be a loss of faith in government, suspicions of corruption, and ultimately, either a resolve to “kick the bums out” or an apathetic retreat from institutions altogether.  But I get ahead of myself.  Here is what goes on.

Background on Boise’s Planning Process

On the surface, Boise’s planning process looks like almost any other Euclidean-based zoning code in the country.  There is a modestly progressive comprehensive plan that exclaims a desire to make Boise “the most livable city in America,” a land use map and zones that implement the plan (conformity requirement in Idaho, but nothing more), and the usual dose of discretionary entitlements such as conditional use permits and planned unit developments. 

But it is how the process is managed that the structural problems begin to seep in.  Here is the general gist.  Every project application that goes before the planning and zoning commission gets an “approve” recommendation from staff in the staff report.  The staff report is also problematic because, on a prefatory page, there is a summary paragraph that is referred to as the “Reason for the Decision.”  Then, on the second page of the file, there is a title called “Planning Division Project Report,” which is followed by a table of contents, which includes two important sections”  “Analysis/Findings,” and “Recommended Conditions of Approval.”  More on the interplay between the “Reason for the Decision” and the “Analysis/Findings” in a moment (though the administrative law junkies out there are likely to see problems emerging:  a reason for the decision that is separate from the findings…what?!). 

The staff report is delivered to the public and the planning and zoning commission at the same time, about 10 days before the hearing.  The commission never holds working groups, and because Idaho has strict ex parte laws, there is no communication between commissioners and the project sponsors or opponents.  The project description is strictly a one-time “on the record” proceeding.  Staff expressly tell the commission not to defer but instead to vote up or down.  Staff also strongly oppose the commission making any of their own conditions of approval.  Because Idaho has no environmental review and its state land use law does not otherwise dictate it, there is never a project alternative provided by the project applicants.  So, what happens is that the staff report essentially dictates the terms of the approval and the commission just votes yes or no.  Almost all of the time, the commission votes yes.  If there is no appeal on an approval, the project sponsor goes forward and builds and that is that.

Community involvement is elaborately stage-managed to be ineffective.  The application for almost any project goes live in a computer-based system about a month before the project is heard at the commission.  There is also very circumscribed notice; the city refuses to provide notice to anyone but for close neighbors and the immediate neighborhood association.  Project applicants must have a neighborhood meeting; however, they almost always come with the completed plan, tick off the meeting, and then proceed with their plan anyway or offer some very minor change.  There is hardly ever a real effort to engage the community prior to design.  In addition, the city takes the perspective that it does not have to respond to any of the community testimony or alternatives other than “objective facts” so long as their position is supported in the record.  It is unclear what the city considers to be an objective fact, but I have never seen the city believe that it has encountered one presented from the community.  Instead, any community opposition or proposed alternative is universally derided.  Presumably, an “objective fact” would be an alternative study conducted by an expert.  But again, consider the time frame:  because the city has sped up the discretionary permitting clock, there is not really time to even hire and conduct a alternative expert study.  As a result, the process stacks the deck against the community in input.  The courts have also conspired against meaningful process through an elaborate standing doctrine; as an example, the Idaho Supreme Court just recently held that one of the largest farmers in a fast-developing county, whose family had farmed in that county continuously since the late nineteenth century, did not have standing to challenge comprehensive plan updates.  (Case available here:  https://isc.idaho.gov/opinions/42756.pdf). 

When the commission votes to deny a discretionary permit, the city traditionally wrote up a brief, several sentence description of the oral hearing and then sent that as the “reason for the decision” to the project sponsor.  Developers’ attorneys had a field day with this.  Notably, Idaho law requires the commission to make the findings, and here the findings were written by the staff and never approved by the commission.  In large part because of my objection to this process, the staff now get the commission’s approval of the “reason for the decision,” but it remains a several sentence rambling description of what happened in the meeting.  Of course, developers attorneys continue to have a field day with this:  any student who has passed through an administrative law class knows that there are requirements for findings that are embedded in the legal standards that apply to quasi-judicial decisionmaking.  For some reason, Boise refuses to acknowledge this.  And so, whenever a project is denied, the developers’ attorneys, who appear to be the only ones in Boise who took administrative law, line up and make all the right arguments about the paucity of findings, a lack of substantial evidence and the arbitrary and capricious nature of the decisionmaking.  The city council, seeing a clear violation and attorneys fees coming out of general fund coffers, almost always back down and approve the project.

So, let us summarize.  A project sponsor wants a discretionary permit.  The staff write a staff report with a “reason for the decision” and “findings.”  The staff recommendation is always “approve.”  The commission, largely kept in the dark about the project and told to vote just yes or no, almost always votes yes.  When the commission votes no, the staff draft a legally insufficient “reason for the decision,” developers’ attorneys pounce, and the city council retreats fearing a loss and approves.  In short, one way or another, no matter what the comprehensive plan says, no matter what the community says—and note how law is used to isolate the community—every project is either approved, or because of sloppy process, ultimately gets approved after an initial denial.  In the words of Scalia, here we have the “evil of a decision that applies a standard other than the one it enunciates.”

Procedural Appeals of Land Use Decisions in Boise:  Does Anyone Understand What Is Going On?

I just filed my first appeal of a commission decision and it goes before the city council next week.  Obviously, my hope is that the city council will simply reverse the decision of the commission—in this case, a highly suburbanized school design for one of Boise’s urban neighborhoods—but I have also been somewhat shocked by how both the city, as well as a leading attorney hired by the school district, have displayed their knowledge of land use administrative procedure.  In both instances, it is so shockingly incorrect, I cannot decide if it is a purposeful misrepresentation of the law, or if really no one understands what they are supposed to be doing.

Tracking the applicable standards of land use appeals in Idaho is actually quite easy for a national audience.  Idaho’s land use planning enabling act incorporates the judicial review provisions from the Idaho Administrative Procedure Act, or “IDAPA.”  The most common of standards of review in quasi-judicial decisions are familiar to most land use lawyers:  lack of substantial evidence; arbitrary and capricious decisionmaking; and procedural error. 

Both the city’s memo in response to my appeal, and the school district’s attorney, seem to have no familiarity with these standards, much less what they stand for.  This is made even weirder by the fact that Idaho has largely “federalized” these standards:  state court opinions have largely adopted federal interpretations of how these standards operate within the context of federal administrative law and made them applicable to Idaho state law.  This makes sense for a small state without much litigation, but it seems to have largely confused the local bar.

Take, for instance, this sentence from the school district’s attorney:  “The appellants allege that the Commission’s decision was not supported by substantial evidence in the record making the Commission’s decision arbitrary.”  Is anyone else cringing?  In other words, the school district’s attorney conflates the two major standards of review into one.  Of course, that is completely incorrect, which is why “substantial evidence” and “arbitrary and caprious” review are two separate standards of review.  Things go downhill from there.

Similarly, the city’s memo in response to my own seems to lack basic understanding of the administrative process.  The city attorney gets hung up on a provision in the land use planning enabling act that requires a “reasoned statement” (I.C. § 67-6535 (2)).  True, that is what the planning act references; but the city attorney seems to have no idea of the standards to which such a statement will be held in court.  Moreover, the city attorney chastises my reference to the need for “findings” because that term is not used in the statutory section of the land use planning act requiring the reasoned statement.  Apparently they are unaware of the provisions governing judicial review to which that statement must ultimately be accountable.

Here, I think, is where the incorporation of the IDAPA standards has confused both the city and the school district attorney.  Because neither seem to have even a passing familiarity with the requirements of the substantial evidence standard or the arbitrary and capricious, or “reasonableness” requirement.  Of course, the substantial evidence test is there to ensure basic fact-finding, while the arbitrary and capricious test is there to ensure analytical reasoning comports with statutory requirements and basic requirements of reasonableness.

For the uninitiated, Idaho case law has largely imported the Universal Camera definition of “substantial evidence.”  Here is how the Idaho Supreme Court summarized it:

[i]n deciding whether the agency's findings of fact were reasonable, reviewing courts should not “read only one side of the case and, if they find any evidence there,” sustain the administrative action and ignore the record to the contrary. Universal Camera, supra, 340 U.S. at 481, 71 S.Ct. at 460; quoted in Local 1494, supra, 99 Idaho at 634, 586 P.2d at 1350. Certainly reviewing courts should not “displace the [agency's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” [Citations omitted.] Nevertheless, reviewing courts should evaluate whether ‘'the evidence supporting that decision [under review] is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the [agency's] view.” Universal Camera, supra, 340 U.S. at 488, 71 S.Ct. at 464; quoted in Local 1494, supra, 99 Idaho at 634, 586 P.2d at 1350; accord, Local One, Amalgamated Lithographers v. National Labor Relations Board, 729 F.2d 172, 175 (2d Cir.1984).

Idaho State Ins. Fund v. Hunnicutt, 110 Idaho 257, 260–61, 715 P.2d 927, 930–31 (1985) [note:  because Idaho imports this IDAPA provision to local land use decision review, much of the case law references agencies but is also relevant to local governments in land use decisions].  What this basically means is that an agency essentially gets deference to its fact-finding but there must be some findings of fact that address the whole record including that which is “contrary” to the decision.  This requires findings.  Maybe the best known statement of this is the “basic facts”—what the project is—into “ultimate facts”—the project as compliant within the terms of the statutory findings--requirement of Saginaw Broadcasting, another federal case adopted by Idaho courts.  That is more than a rambling "reason for the decision."

Of course, this standard is where things get weird for the city.  The “reason for the decision” clearly doesn’t meet this standard,” but on the other hand, the findings in this particular report express equivocal analysis and, in fact, many reasons why the school district should not have been given the permit.  In other words, the “reason for the decision” is not findings as required for substantial evidence, but the findings actually illustrate that there was severe reservation by the planning department.

Another confusion both the city and the school district make is that, now, they want to point to other evidence in the record as support for the commission’s finding.  But the whole point of the findings requirement is that the commission has to clearly state what facts they relied upon in making the decision.  They don’t do that in this case and, bizarrely, the city does not believe it has to do so.

Another confusion is that the bargain for deference in the substantial evidence test is that the zoning board needs to address what is “contrary,” or in the words of Universal Camera, “detracts from” the holding.  This is a very modest requirement—Universal Camera calls for “more than a scintilla”—but it can’t be nothing.  Here, my memo points out numerous provisions of the comprehensive plan that clearly are violated by the project; however, the city and the school district claim that there is no need to address these contrary matters. 

The city and the school district also do not seem to realize that the “reasoned decision” requirement is based upon the reasonableness requirement of case law, both Idaho specific and federal law that has been brought into Idaho law.  This reasonableness requirement is stated in one way here: 

For “effective judicial review of the quasi-judicial actions of zoning boards, there must be ... adequate findings of fact and conclusions of law.” Workman Family P'ship v. City of Twin Falls, 104 Idaho 32, 36, 655 P.2d 926, 930 (1982). Conclusory statements are not sufficient; instead “[w]hat is needed for adequate judicial review is a clear statement of what, specifically, the decisionmaking body believes, after hearing and considering all of the evidence, to be the relevant and important facts upon which its decision is based.” Id. at 37, 655 P.2d at 931 (quoting S. of Sunnyside Neighborhood League v. Bd. of Comm'rs, 280 Or. 3, 21–22, 569 P.2d 1063, 1076–77 (1977)). . . .

Cowan v. Bd. of Comm'rs of Fremont Cty., 143 Idaho 501, 511, 148 P.3d 1247, 1257 (2006).  Another Idaho case states the reasonableness requirement as requiring the action to be supported by a rational basis with regard to the facts and circumstances presented with adequate determining principles.  “Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.”  Enter., Inc. v. Nampa City, 96 Idaho 734, 739, 536 P.2d 729, 734 (1975).  Both the city and the school district do not seem to realize that this is a separate reasoning requirement, which requires the commission to articulate its decision.

The city and the school district also do not believe that they need to address any proposed alternatives provided by the community.  State Farm, anyone?

Perhaps even more remarkably, the city argues that a reliance on comprehensive plan policies is “subjective.”  However, it is a discretionary permit and the key question in a discretionary permit is almost always whether it complies with the comprehensive plan.  This is a fundamentally subjective analysis, but that is the analysis that is called for by the city’s permit.

Where Do We Go From Here?

What this initial foray into appeals in Boise has taught me is that there is either not a strong understanding of the basics of administrative law that undergird land use decisionmaking, or there is such a disconnect between the applicable standards as announced, and as practiced, that the land use law in Idaho is without any meaningful mooring as practiced.

I don’t know where this goes, and how much further I will pursue it, but I have found the experience troubling.  It evinces to me a department, and a planning culture, that fundamentally does not believe in—and does not even care to—understand the procedural rules by which the game is played.  The process, of course, is there to keep decisionmaking honest.  Scalia again:  “’Substantial evidence’ review exists precisely to ensure that [a government] achieves minimal compliance with this obligation, which is the foundation of all honest and legitimate adjudication.”  Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 378–79, 118 S. Ct. 818, 829, 139 L. Ed. 2d 797 (1998).  My fear, in Boise, is that we are so far beyond honest and legitimate adjudication that even basic application of the rules won’t happen without sustained litigation to force it.  That saddens me, but it makes me wonder how common this is in other places.  These administrative law standards that apply to land use decisions are tricky and complicated.  How realistic is it to expect local governments out on the sagebrush steppe to comply with them?  But if they are too complicated for a remote place like this, what are the processes that keep honesty and legitimacy at the fore, and keep people believing in their local governments?  What keeps people from apathy in the decisionmaking process, and believing that the whole lot of them are against the people, or even worse—bought off and corrupt?  

What is there to build a sustainable future with if the law is not enforced as it is written?

May 31, 2017 | Permalink | Comments (1)

June 13 - National Preservation Law Conference - Georgetown Law & National Trust for Historic Preservation

From Peter Byrne:

National Preservation Law Conference 

Conference Agenda
Tuesday, June 13. 2017

*Optional 2-hour stand-alone webinar, Preservation in a Nutshell (Peter Byrne; Sara Bronin; Ryan Rowberry)

8:25 a.m.—Welcome

Peter Byrne, Professor, Georgetown University Law Center

Paul Edmondson, General Counsel, National Trust for Historic Preservation

8:30 a.m.—Leveraging Historic Preservation in Real Estate Development

Tax Credits

  • Economic Benefits of the National Historic Rehabilitation Tax Credit
  • Recent IRS Guidance

New Tools

  • Form-Based Codes as Historic Preservation Tool
  • Using GIS as a Data Visualization Tool for Preservation Law
  • Adaptive Reuse, Tax Credits, and Special Use Districts: Success Stories from Baltimore

Sara C. Bronin, University of Connecticut School of Law

Merrill Hoopengardner, National Trust Community Investment Corporation

Reina Murray, GIS Project Manager, National Trust for Historic Preservation

Ernst Valery, President, Ernst Valery Investment Corp.

10:00 a.m.—Preservation on the Federal Level

  • National Trends
  • ACHP Engagement Section 106 Litigation
  • Advocacy Update
  • Legislative Update

Will Cook, Associate General Counsel, National Trust for Historic Preservation

Javier Marques, General Counsel, Advisory Council on Historic Preservation

Betsy Merritt, Deputy General Counsel, National Trust for Historic Preservation

Hilary Tompkins, Hogan Lovells

11:00 a.m.—Break

11:15 a.m.—Preserving America’s Cities

  • Historic Districts and Urban Economics
  • Lessons from Foreign Cities
  • Amendments to local preservation ordinance
  • Damages award for illegal demolition of historic buildings

            Moderator:

David Lewis, Goulston & Storrs

Panelists:       

Chris Bowers, Miklos Law PLLC

Caroline Cheong, University of Central Florida

Omar Izfar, Former Houston City Attorney

Mark Silberman, Counsel, NYC Landmarks Preservation Commission

12: 15 p.m.—Lunch  

  • The Baltimore Food Hub: Using Historic Preservation Tax Incentives to Support the Food Innovation Economy

China Boak Terrell, American Communities Trust

1:15 p.m.—National Monuments and Traditional Cultural Properties

  • Antiquities Act, Bears Ears, Dakota Access Pipeline
  • Using State and Federal Law to Protect Native Hawaiian Burials

Matt Adams, Dentons, LLP

Brian Turner, Public Lands Attorney, National Trust for Historic Preservation

Heidi McIntosh, Managing Attorney, Rocky Mountain Office, Earthjustice

Joel West Williams, Native American Rights Fund

2:15 p.m.—International Cultural Heritage

  • International Criminal Court Prosecutions and Cultural Heritage
  • Strategies in Preventing Illegal Looting

Leila Amineddoleh, Amineddoleh & Associates and Fordham University School of Law

Tess Davis, Antiquities Coalition and the University of Glasgow

Tom Kline, Cultural Heritage Partners, PLLC

3:15 p.m.—Break

3:30 p.m.—Managing Climate Change

  • Climate Change Adaptation and Historic Resources
  • How the National Park Service is Planning for Climate Change
  • Threats to World Heritage Sites: Climate Change & the Paris Agreement and Road to the Conference of the Parties 22
  • Confronting Sea Level Rise: Hazard Mitigation Planning & Implementation

Peter Byrne, Faculty Director, Georgetown Climate Center

Lisa Craig, Chief of Historic Preservation, City of Annapolis

Marcia Rockman, NPS Climate Change Planner

Jess Phelps, United States Department of Agriculture, Office of General Counsel, Natural Resource & Environment Division

Andrew Potts, Nixon Peabody, Former Executive Director, US/ICOMOS

4:45 p.m.—Conclusion

  • Challenges and Opportunities for Historic Preservation

Tom Mayes, National Trust for Historic Preservation

5:15 p.m.—Reception

 

Download NTHP Georgetown Law Conference 2017

About the organizers:

Preservation Leadership Forum

The Preservation Leadership Forum of the National Trust for Historic Preservation is a network of preservation professionals. Forum is the single place where preservation leaders— professionals, students, volunteers, activists, experts—can keep up with what is happening in the preservation world, as well as share and network with one another. Member benefits include exclusive access or deep discounts on high-quality publications, regular communication pieces, conferences and trainings, events for networking or educational purposes, and grant opportunities for organizations. The Preservation Leadership Training (PLT) training series provides cutting-edge information and training for preservation leaders, covering topics such as law, real estate, technology and advocacy. Visit Forum.SavingPlaces.org for more information.

About Georgetown Law

Georgetown University Law Center is one of the world´s premier law schools. It is pre-eminent in several areas, including constitutional, international, tax and clinical law, and the faculty is among the largest in the nation. Drawing on its Jesuit heritage, it has a strong tradition of public service and is dedicated to the principle that law is but a means, justice is the end. Visit www.law.georgetown.edu for more information.

Georgetown Law CLE

Georgetown University Law Center Continuing Legal Education provides high-quality continuing legal education programs and materials to meet the ever-changing educational needs of the legal profession. Our speakers consist of experienced legal professionals who share in our commitment to deliver highly relevant, timely, and practical information. Our programs address the specific interests of practicing attorneys and help to develop their critical competencies, while also meeting the mandatory CLE requirements of state bars associations. Visit www.law.georgetown.edu/continuing-legal-education for more information.

May 31, 2017 | Permalink | Comments (0)

Thursday, May 25, 2017

"Act Locally, Reflect Globally" report from Sabin Center offers checklist for local govs on climate change

Susan Biniaz, former lead climate lawyer for the Department of State and now an adjunct at Columbia and Yale, has published ACT LOCALLY, REFLECT GLOBALLY: A CHECKLIST OF OPTIONS FOR U.S. CITIES AND STATES TO ENGAGE INTERNATIONALLY IN CLIMATE ACTION, in cooperation with the Sabin Center at Columbia.  It's a good list for cities looking for engagement.

May 25, 2017 | Permalink | Comments (0)

Wednesday, May 24, 2017

Hillside homes, slip-slidin' away

The foothills around Boise are teeming with newly built mansions, and there seems to be an insatiable market for them.  The problem is:  while Boise has a foothills planning ordinance, it is riddled with loopholes and the city has been under significant pressure to streamline (read:  neuter) its development process.  It has essentially made the process a sham, which is why I left the planning and zoning commission here.

And since Idaho is a state without meaningful environmental review standards, that means that much of the development in the city goes on with no real oversight.

What could possibly go wrong?!  

Well, a lot, actually.  A project of mansions was approved in the middle of a well-known landslide area and, whattya know, the land slid.  Below is a vivid video of what can happen when cities fail to properly take into account environmental factors in their planning processes.

More about the story, and ensuing litigation (which would make for a nice teaching exercise, by the way) here.  Further, the city is now telling the homeowners that they must tear down these homes, at the owners' expense.    

 

 

May 24, 2017 | Permalink | Comments (0)

Tuesday, May 23, 2017

OECD publishes major report on land use planning in member countries

Earlier this month, OECD published The Governance of Land Use:  Policy Analysis and Recommendations, which can be viewed freely on its website (and embedded below) or purchased here.  The document is a remarkable synthesis of international land use law and policy across many of the developed-world countries.  (Disclosure:  I served as a background expert on the report, but did not write any of it.)

A summary policy brief is also available here.

 

 



 

May 23, 2017 | Permalink | Comments (0)

Monday, May 22, 2017

Somin et al.: Eminent Domain: A Comparative Perspective

 

Ilya Somin, Iljoong Kim, and Hojun Lee have published Eminent Domain:  A Comparative Perspective,  Here is the abstract:

The taking of private property for development projects has caused controversy in many nations, where it has often been used to benefit powerful interests at the expense of the general public. This edited collection is the first to use a common framework to analyze the law and economics of eminent domain around the world. The authors show that seemingly disparate nations face a common set of problems in seeking to regulate the condemnation of private property by the state. They include the tendency to forcibly displace the poor and politically weak for the benefit of those with greater influence, disputes over compensation, and resort to condemnation in cases where it destroys more economic value than it creates. With contributions from leading scholars in the fields of property law and economics, the book offers a comparative perspective and considers a wide range of possible solutions to these problems.

Here are screenshots of the table of contents:

 

Somin_Page_1

Somin_Page_2

 

May 22, 2017 | Permalink | Comments (0)

Friday, May 19, 2017

Just published! 9th edition of Nolon, Salkin, Miller & Rosenbloom's Land Use & Sustainable Development Law now available

I am very pleased to announce the publication this week of the 9th edition of West's Land Use and Sustainable Development Law, a casebook that I was lucky enough to join this year along with John Nolon, Patricia Salkin, and Jonathan Rosenbloom.  This new edition continues to provide the basics of land use law; at the same time, the book also re-envisions content in light of the significant changes in practice that future land use lawyers must be prepared to navigate.

It was really a treat to work with this group in thinking through how to revise this edition.  As we worked through the material over the last year or so, we had a number of conversations about our respective approaches to teaching land use law that we plan to bring to the blog--and hopefully start a dialogue on--in the months to come.  

In the meantime, if you are teaching land use law in the fall, we hope you'll give this casebook consideration, and feel free to reach out to any of us personally if you'd like to discuss what it would mean to adopt the book and how it might work for your teaching style.

 

Pages from Nolon Land Use and Sustainable Development Law 9e

 

 

May 19, 2017 | Permalink | Comments (0)

Thursday, May 18, 2017

C.P. Cavafy's "The City"

Maybe you need a city-themed poem today.

 

"The City" | C. P. Cavafy

You said: “I’ll go to another country, go to another shore,
find another city better than this one.
Whatever I try to do is fated to turn out wrong
and my heart lies buried as though it were something dead.
How long can I let my mind moulder in this place?
Wherever I turn, wherever I happen to look,
I see the black ruins of my life, here,
where I’ve spent so many years, wasted them, destroyed them totally.”
 
You won’t find a new country, won’t find another shore.
This city will always pursue you. You will walk
the same streets, grow old in the same neighborhoods,
will turn gray in these same houses.
You will always end up in this city. Don’t hope for things elsewhere:
there is no ship for you, there is no road.
As you’ve wasted your life here, in this small corner,
you’ve destroyed it everywhere else in the world.

 

Hat tip: Anya Bernstein

May 18, 2017 | Permalink | Comments (0)

Wednesday, May 17, 2017

Tim Iglesias: Two Competing Concepts of Residential Integration

Tim Iglesias (USF Law) has just published "Two Competing Concepts of Residential Integration" in Social Equity in a Time of Change: A Critical 21st Century Social Movement, edited by Richard Greggory Johnson III.  The abstract is available at SSRN and reproduced below:   

This book chapter identifies two popular--but competing--concepts of residential integration, demonstrates their distinct practical consequences, and calls for a frank conversation among social equity activists regarding which concept do we want to pursue. 

One concept, dubbed the “traditional integration model,” concerns the nature or quality of a community. It focuses on the complexion of a community as a geographical unit and the social relationships among members of different income groups or racial groups within it. This concept asks: Who lives there and how do they relate to each other? 
The second concept, “the individual access to the opportunity structure model,” focuses on how the physical location of a household relates to the opportunity structure of a community (e.g. good schools, good jobs, decent shopping, healthy neighborhoods). The primary focus of this model is maximizing the access of new residents to opportunities so that they can improve their lives. It does not inquire into the relationships among the members of the households who live in a community, but rather on the economic and social success of the individuals and families.

May 17, 2017 | Permalink | Comments (0)

Monday, May 15, 2017

Perspectives on Abandoned Houses in a Time of Dystopia: Part 3: A Series by Kermit Lind

[This is the third in a series of essays by Kermit Lind, Clinical Professor of Law Emeritus, Cleveland-Marshall College of Law, Cleveland State University.]

Various observers see different things when they look at houses and buildings abandoned during the mortgage crisis. From different, sometimes competing, points of view, communities need a sustained collaboration of perspectives—local public officials from different departments and agencies, civic and public interest groups, community advocates--using all relevant data and strategic solutions to deal with new threats to residential neighborhoods. This blog post continues an on-going look at a few examples of what different people see in blighted dwellings.

The first blog post in this series is available here.  The second blog post is available here.

Modernization of obsolete code compliance policies and procedures is a critical need for dealing with the surge of abandoned housing. Financially able owners and parties legally responsible for housing conditions should not be able to escape their legal obligation to maintain the condition of their real property and to comply with court orders requiring compliance after conviction or judgment. Creditors with the legal means to control and maintain their collateral should ensure that the collateral’s condition does not destroy the value of neighboring houses or other lenders’ collateral.

Enforcement officers need to act strategically to obtain maximum compliance with the limited resources available. Focusing on repeat offenders with the highest volume of violations will lead to more benefit for neighborhoods than random or complaint-driven enforcement.

Effective role models are available—most notably, with a sustained collaboration between civic groups and public managers at the local community level, a coalition of the willing and determined.  A familiar model is the Vacant Abandoned Property Action Council in Cleveland, Ohio, started in 2005. Recently, a property blight abatement movement in Memphis TN was launched in 2016 with a Blight Elimination Charter fashioned by a coalition of city, county and community leaders.  The Charter coalition is now directing a strategic campaign to abate and prevent housing and neighborhood blight.  Public policy and law is being upgraded at both the local and state levels, a new regional land bank was started, a real property parcel-based “data hub” is being developed for both government and nonprofit use, and perhaps most important of all, the community is rallying to support the campaign.  The results are stimulating more private investment and focusing critical public resources on property blight recovery with nuisance abatement and neighborhood renewal. 

In these and other examples, senior and managerial staff of public safety, municipal law enforcement, community development and civic agencies joining to lead the reform needed to cope with local neighborhood housing disasters. When a determined coalition of policy and program managers communicate regularly across organizational boundaries and bureaucratic silos, they can avoid unintended conflicts with each other, coordinate policy advocacy, partner in program planning, and work strategically toward common objectives.

Sustainable neighborhood community development ultimately requires the coordinated engagement of well-organized and civically informed community residents collaborating with their local government agencies.  Good codes and government code enforcement for houses and neighborhoods are critical; but neighborhood sustainability also requires social justice, inclusion of diversity, neighborliness, and a commitment to the common good of the neighborhood now as well as for its future.  Yes, neighborhood sustainability ultimately depends upon codes of moral social conduct that require deference to the shared values of a community of property owners and residents.  It is only by standing together that neighbors and communities can withstand the dystopia that now threatens aging neighborhoods.

This is a revised and shorter version of the paper published in Probate & Property, Vol. 29, No. 2, (March/April 2015) (American Bar Association): pp. 1-9, and available here.

May 15, 2017 | Permalink | Comments (0)

Monday, May 8, 2017

Perspectives on Abandoned Houses in a Time of Dystopia: Part 2: A Series by Kermit Lind

[This is the second in a series of essays by Kermit Lind, Clinical Professor of Law Emeritus, Cleveland-Marshall College of Law, Cleveland State University.]

Various observers see different things when they look at houses and buildings abandoned during the mortgage crisis.  From different, sometimes competing, points of view, communities need a sustained collaboration of perspectives—local public officials from different departments and agencies, civic and public interest groups, community advocates--using all relevant data and strategic solutions to deal with new threats to residential neighborhoods.  This blog post continues an on-going look at a few examples of what different people see in blighted dwellings.

The first blog post in this series is available here.

Conflicting perspectives must be reconciled. Home owners, lenders, investors, speculators, creditors, debt collectors, neighbors, community advocates, local officials, state officials, federal officials, and public agencies are pursuing different, and often conflicting, objectives in relation to real property abandonment. Governments at various levels have different agendas, as do courts, prosecutors, and policing agencies, even those within the same jurisdiction.

Government-sponsored enterprises, global financial institutions, real estate investment trusts, and their servicing agents also do not share the same vision. Each businesss’s individual interests compete for profit with procedures that undermine the success of the business plans of the others.

The risks resulting from the asymmetrical battle between the perspectives of housing consumers and those of global financial, investment, and real estate businesses makes home ownership less possible and less attractive for young families than at any time during the last century.

Responsible maintenance of dwelling places is the legal and equitable obligation of those who own or control housing. It is also essential to the long-term viability of a housing finance industry that both consumers and investors can trust. Those harmed when property maintenance responsibilities are abandoned include the creditors and investors in neighboring dwellings whose paying debtors may default on their mortgage loans and maintenance when their home’s value plummets. Maintenance issues are omnipresent in the scenario of the concentration and spread of subprime loans, rapid defaults, rising foreclosures, low-value sheriff sales, and the dumping of bank “real estate owned” properties to speculators. Maintenance is abandoned early in the sequence, and the possession of dwellings is subsequently abandoned. The breakdown of maintenance begins a decline toward blight from which recovery is costlier than the value of the property.

Better housing and neighborhood environmental code compliance is essential for stopping rampant abandonment and dystopia. Unfortunately, the code compliance apparatus as currently constituted in most communities is not capable of dealing with abandoned, worthless housing. The various local government compliance and enforcement agencies exercising police power in cities operate in separate silos and often at cross-purposes.  Laws and law enforcement policies are obsolete in the context of new fangled housing marketing and financing.

Code compliance is also thwarted when each agency pursues its limited mission without regard to the residents who depend on effective law enforcement for a healthy, safe, and secure residency. There is insufficient coordination in public safety operations to constitute a reliable system able to ensure compliance with neighborhood housing, health, and safety laws, especially compliance by absentee owners and controlling lien holders.

The article will continue next week with Part 3 in this 3 part series.

This is a revised and shorter version of the paper published in Probate & Property, Vol. 29, No. 2, (March/April 2015) (American Bar Association): pp. 1-9, and available here.

May 8, 2017 | Permalink | Comments (0)

Monday, May 1, 2017

Perspectives on Abandoned Houses in a Time of Dystopia: Part 1: A Series by Kermit Lind

[This is the first in a series of essays by Kermit Lind, Clinical Professor of Law Emeritus, Cleveland-Marshall College of Law, Cleveland State University.]

Various observers see different things when they look at houses and buildings abandoned during the mortgage crisis.  From different, sometimes competing, points of view, communities need a sustained collaboration of perspectives—local public officials from different departments and agencies, civic and public interest groups, community advocates--using all relevant data and strategic solutions to deal with new threats to residential neighborhoods.  Let’s look at a few examples of what different people see in blighted dwellings.

Home owners who abandon their homes are often financially broke, desperate, hounded by debt collectors, often naive or misinformed, and unable or unwilling to continue the responsibilities of home ownership. Worse yet, many cannot voluntarily divest their ownership by sale or donation because the title is encumbered with liens exceeding the current market value. Although creditors may get no financial benefit from asserting their rights, they can still hold empty houses hostage in the debtor’s name, speculating on an improbable solution; or they can sell the debt secured by a lien on the house at a discount.  But for home owners in distress, there is extreme stress and uncertainty seeing their home being lost.

Absentee owners and commercial housing investors, on the other hand, see their vacant houses as either productive or nonproductive commodities, if they look at them at all. Their interest is in profitable transactions. Paying for upkeep and property taxes on their investment is justified only by expectations of profit. Unprofitable and unmarketable houses are a liability and treated as waste. Corporate and trustee owners, along with their servicers, find little risk in ignoring their legal responsibilities for maintenance of residential properties owned or controlled by their lien rights. They may ignore local housing and environmental laws and law enforcement as part of their property investment plan.

Judges, sheriffs, bankruptcy trustees, and other officials who preside over legal transactions related to involuntary deed transfers, taxation, liens, and record registration see only documents that track transactions and claims affecting the legal title. Nothing damages ordinary houses more than foreclosures. This institutional fragmentation and myopia enables owners and creditors alike to neglect property maintenance with impunity and defer the resulting costs to hypothetical future owners.

Buyers, rehabbers, and speculators see an income prospect in abandoned houses. Blighted houses for sale “as is” are viewed as money-makers by various types of buyers.  Some are doing good work benefiting the community.  There are some, however, who ignore their legal maintenance responsibilities. Flipping defective houses for fast profit has become an industry propelled by textbooks, lectures, and get-rich-quick TV infomercials. These houses are sold to people who shop deals on the Internet and “invest” without a single glance at the actual property or the neighborhood. These buyers and sellers see dreams of potential easy profit.

Taxpayers and neighboring owners, ultimately, are forced to subsidize the home owners and businesses that abandon their legal obligation to keep their properties from harming other people and other’s property. The harm to health and safety impacts neighbors of empty abandoned dwellings—long-term harm without compensation. To get a sense of the public costs, consider that in October 2014, the city of Cleveland, Ohio, reported it had 12,000 abandoned buildings, 6,000 of them already condemned and waiting demolition. It anticipated needing $120 million to demolish its current inventory of abandoned houses in a city of fewer than 400,000 people. Its inner-ring suburbs also have a rising inventory of abandoned houses to dispose of. To pay for this problem, the county issued a $50 million bond for demolition.

The article will continue next week with Part 2 in this 3 part series.  

This is a revised and shorter version of the paper published in Probate & Property, Vol. 29, No. 2, (March/April 2015) (American Bar Association): pp. 1-9, and available here.

 

May 1, 2017 | Permalink | Comments (0)

Thursday, April 20, 2017

FEMA Region 10 webinar series on planning for natural hazards

FEMA Region 10 has been holding a series of valuable webinars on natural hazard planning and mitigation.  The next is this Friday and details are below.  Links to the previous webinars are also below.

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2017 FEMA Region 10 Natural Hazards Mitigation Planning Coffee Break Webinar Series

Strengthening tribal, state, and local natural hazards mitigation planning program capabilities

Topic: “Developing FEMA Mitigation Planning Grants”

Friday, April 21

10am-11am (PST)

Join us to learn about:

  • FEMA planning grants offered through the Hazard Mitigation Assistance program
  • Best practices in developing a planning grant scope of work
  • Fundable planning activities
  • Process to developing and applying for a FEMA planning grant, whether through the Hazard Mitigation Grant Program (HMGP) or Pre-Disaster Mitigation (PDM) grant program.

Guest Speakers

  • Steven Randolph, FEMA Region 10 Hazard Mitigation Assistance Senior Specialist
  • Angie Lane, Oregon State Hazard Mitigation Officer
  • Susan Cleverley, Idaho State Hazard Mitigation Officer

 

Registration (Free)

Go to   https://urldefense.proofpoint.com/v2/url?u=https-3A__atkinsglobalna.webex.com_atkinsglobalna_k2_j.php-3FMTID-3Dtbe6bf3b813828f6d3219b6f5757ee6a3&d=DwMGaQ&c=cUkzcZGZt-E3UgRE832-4A&r=FpCe8y2mLuT4QANMuAMKFJmE-hYfWNErE5-Zhb6RH5I&m=Z9KxurEyOa4SGZQNg67yaihcBx26  and register (Remember, your registration is unique to you. Don’t share it. Encourage others to individually register)

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Visit the FEMA Region 10 Mitigation Planning Coffee Break Webinar Series Portal

Past monthly webinars, future online training, resources, and upcoming in-person training are located at http://www.starr-team.com/starr/RegionalWorkspaces/RegionX/mitigationplanning/SitePages/2017_Coffee_Break.aspx.  

Month

Topic

Recording

Materials

January

Introduction to Natural Hazards Mitigation Planning

January Recording

January Materials

February

Building the Mitigation Planning Team

February Recording

February Materials

March

Effective Public Engagement in Mitigation Planning

March Recording

March Materials

April 20, 2017 | Permalink | Comments (0)

Wednesday, April 19, 2017

APA Planning & Law Division announces its 34th Annual Smith-Babcock-Williams Student Writing Competition

From Alan Weinstein:

The Planning & Law Division of the American Planning Association announces its 34th Annual Smith-Babcock-Williams Student Writing Competition. The Competition, which honors the memory of three leading figures in American city planning law (R. Marlin Smith, Richard Babcock, and Norman Williams) is open to law students and planning students writing on a question of significance in planning, planning law, land use law, local government law or environmental law. The winning entry will be awarded a prize of $2,000 and submitted for publication in The Urban Lawyer, the law journal of the American Bar Association's Section of State & Local Government Law. The Second Place paper will receive a prize of $400 and one Honorable Mention prize of $100 will also be awarded. The deadline for submission of entries is June 5, 2017 and winners will be announced by August 22, 2017. Please refer to the enclosed official rules for further details. Our past experience has shown that teachers in planning, planning law, land use law, local government law or environmental law are in an ideal position to stimulate student interest in research and writing and to encourage participation in the Competition. Each year, many of the entries appear to have been prepared initially for various courses or seminars. We hope you will add your support to the Smith-Babcock-Williams Student Writing Competition by encouraging your students to submit entries.

Download APA-PLD Student Writing Competition 2017

April 19, 2017 | Permalink | Comments (0)

Friday, April 14, 2017

Princeton-Mellon Initiative in Architecture, Urbanism, and the Humanities - Call for Fellows, 2017-18

From Sarah Schindler:

 

Princeton-Mellon Initiative in Architecture, Urbanism, and the Humanities - Call for Fellows, 2017-18

The Princeton-Mellon Initiative in Architecture, Urbanism, and the Humanities is pleased to announce a call for fellows for the 2017-18 academic year. Two fellows will be appointed; one fellow will focus on Architecture and Humanities and the other on Urban Adaptation to Climate Change.

For questions, please email arc-hum@princeton.edu.

Architecture and Humanities Fellow

The Princeton-Mellon Initiative in Architecture, Urbanism and the Humanities and the Council of the Humanities at Princeton University seek to attract a fellow whose work is grounded in the humanities to collaborate with both programs. Applicants with outstanding intellectual, literary, and visual talents who demonstrate an abiding interest in multi-disciplinary work focused on the intersection of architecture, urbanism, and the humanities are strongly encouraged to apply. The fellow may be expected to team-teach a new interdisciplinary design studio for undergraduates that will be required for Urban Studies certificate students, or a seminar on urbanism and the environment, with a member of the design faculty in the School of Architecture at Princeton (contingent upon sufficient enrollments and approval from the Dean of the Faculty).

Please submit a cover letter (including your teaching interests), CV, 1,000 word description of a proposed research project, and a brief (chapter or article-length) writing sample, and contact information for three references by May 12, 2017 for full consideration.

For applicants taking a sabbatical year., please apply here.

For applicants seeking a postdoctoral position, please apply here.

Urban Adaption to Climate Change

The Princeton-Mellon Initiative in Architecture, Urbanism, and the Humanities, together with the Climate Futures Initiative at Princeton University, are seeking fellowship applications in urban adaptation to climate change for the 2017-18 academic year. 

We seek to attract a Fellow engaged in bridging the environmental sciences, social sciences, planning and architecture and/or the humanities. Fields of specialization might include planning and architecture, cultural studies, geography, history, philosophy, politics, or public policy. We welcome research projects contemplating any given dimension of the relationships between built and natural environments. These could include scholarship on the impact of different urbanization models (e.g.: density vs. sprawl); ethical questions (who wins and who loses in various adaptation scenarios); models of deliberative governance; the arts in the 'anthropocene'; or design solutions to cope with the consequences of climate change. The individual will be required to team-teach an undergraduate course on urban adaptation to changing environmental conditions (contingent upon sufficient enrollments and approval from the Dean of the Faculty), and expected to participate regularly in the events and activities of both the Princeton-Mellon Initiative and the Climate Futures Initiative.

This position is funded through the support of the Princeton Environmental Institute's Urban Grand Challenge, which fosters productive exchanges between students and scholars working in a variety of fields to create an innovative program that combines the study of the natural and built urban environments with a goal of identifying solutions that are sensitive to environmental issues including global change, water resource management, energy efficiency, technology innovation, human and environmental health, as well as equity and fairness, poverty and jobs creation, race, ethnicity, and more intangible notions of belonging.

Please submit a cover letter, vita, 500-word description of a proposed course, brief (chapter or article-length) writing sample, 1,000 word description of a research project that he/she would undertake as a fellow, and contact information for three references by May 12, 2017.

For applicants taking a sabbatical year., please apply here.

For applicants seeking a postdoctoral position, please apply here.

April 14, 2017 | Permalink | Comments (0)