Tuesday, February 2, 2016
Fascinating article from the Richmond Times-Dispatch:
Legislation working its way through the General Assembly would make it more difficult for local governments to force developers to pay for public infrastructure or change building plans, a prospect that has caused alarm among some local officials who fear it could sharply limit their ability to manage growth.
Bills have been introduced in both chambers to dramatically reshape the proffer system, which allows localities to extract cash payments and other concessions from home builders through the residential rezoning process.
The proposal applies to both cash proffers, direct payments to local governments, and architectural proffers designed to boost the quality of a project by specifying building materials, exterior colors or other design features.
The legislation would prohibit localities from making zoning decisions tied to “unreasonable” proffers; virtually eliminate localities’ ability to request changes to building materials or designs through the proffer system; and require more proof that new residents would strain services such as schools, roads or parks.
The legislation is backed by the Home Builders Association of Virginia, which says its aim is to restore fairness to a practice described by critics as “legalized extortion.”
Michael L. Toalson, the group’s CEO, said cash proffers — which range from $6,000 to $59,000 per home — have stunted the housing industry’s recovery in high-growth areas of the state.
“We just think that, given the inability of our industry to recover to any near-normal level of housing production, rebalancing this system will help,” he said. “And now’s the time to do it.”
Henrico County Manager John A. Vithoulkas said the bill diminishes the rights of local officials — and by extension, their constituents — to shape their communities.
“We feel that this bill completely removes our ability to ensure that our citizens have well-built, quality homes,” Vithoulkas said. “At the end of the day, it comes down to a question of local democracy. That is, the citizens either have a say in the zoning process or they don’t.”
Vithoulkas said Henrico’s attempts to work with the home builders association have been met with an unyielding response: “We’ve got the votes.”
“I’m not sure what kind of fuel those guys have and whatever steamroller they’re driving, but it’s pretty potent,” Vithoulkas said.
The industry group, which donated nearly $140,000 to both Republicans and Democrats in last year’s legislative elections, has seen its reform bill sail through a House of Delegates committee with just a handful of dissenting votes.
The Senate version of the bill — patroned by Minority Leader Richard L. Saslaw, D-Fairfax, and Mark D. Obenshain, R-Harrisonburg — is scheduled to be heard in committee today.
Del. C. Todd Gilbert, the patron of the House bill, said cash proffers are creating a “barrier to building affordable homes.”
Rest of the article here.
Monday, February 1, 2016
Zoning’s Centennial, Part 4: The Unintended Consequences of Euclidian Zoning: A Series by John R. Nolon
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
The Unintended Consequences of Euclidian Zoning
Following the decision in Euclid v. Ambler Realty Co. in 1926, land use lawyers and planners celebrated the advent of a new, comprehensive method of shaping human settlements and protecting investments in the built environment. Their excitement was short-lived. In 1929, the stock market crashed and land development moved at a snail’s pace until the end of World War II. The growth rate in housing units in the 1950s increased by 40% over the 1940s, putting much more pressure on the land use regulatory system at mid-century. We had to wait until this growth was absorbed to see what zoning had wrought.
The Standard Zoning Enabling Act (SZEA), as adopted by most state legislatures, seemed simple enough. It permitted local governments to separate land uses into use districts or zones within which they regulate the construction and the use of buildings or land. The Act stipulated that “regulations shall be uniform for each class or kind of buildings throughout [each] district.” This was in contrast to existing patterns of land use in the 1920s, which were disorganized and chaotic in urban areas, a consequence of the unplanned results of countless unguided private sector land use decisions.
What would neighborhoods look like after being filtered through a zoning ordinance that channeled like-kind land uses into geometric-shaped districts, governed by bulk and area standards, limiting lot sizes and coverage, and building heights and set-backs: standards that must apply uniformly to all parcels within the district? Much of what concerned zoning in its inception had to do with civil engineering, fire-safety, and related concerns, such as ensuring fire truck access to buildings during fires, designing streets and driveways to reduce accidents, and limiting house heights to 35 feet, so that they were tucked under the tree canopy of the neighborhood to preserve community character.
Euclidian zoning seemed well named, as lawyers and planners first drew the shapes this law seemed to dictate. The geometry was not flexible, due in part to the adherence of judges to Dillon’s Rule, under which courts were obliged to read literally the laws that delegate power to local governments. How much uniformity was optimal; what would the legacy of uniformly regulated neighborhoods be?
After World War II, growth pressures in suburban communities intensified due to the return of the soldiers, affordable federal mortgages, and the 1956 Federal Highway Act that allowed city dwellers to abandon cities in record numbers. This migration rapidly revealed the designs that zoning created. Much of the land in developing communities was zoned for single-family housing on relatively large lots, large enough to permit builders to use septic systems and individual wells, thereby reducing the capital infrastructure costs to the municipality. These mostly single-family homes were uniformly sized and their shape was dictated by zoning’s area and bulk requirements.
There was a certain sameness to many of these emerging neighborhoods. As they expanded outward, commutes lengthened, increasing vehicle miles travelled and CO2 emissions; impermeable lot coverage intensified stormwater runoff and flooding; open space shrunk and, with it, wetlands and habitats; housing became less affordable, creating racially imbalanced neighborhoods; the lack of workers repelled employers, reducing jobs and limiting property tax revenues; municipal services became more expensive; and the character of communities changed, not always to the liking of those who lived there. NIMBYism set in and land use lawyers and planners began to tweak the legal framework to achieve more flexibility in permitted development.
As the century progressed, zoning’s weaker sibling--land use planning--became a larger factor in land use law. The adverse effects of promulgating the Standard City Planning Enabling Act (SCPEA) after, instead of before, the SZEA were better understood. Day-to-day zoning decisions needed to be guided by a vision for the city or town’s future; adopting a comprehensive land use plan gave citizens and local officials a method of realizing that vision, in addition to mitigating the unintended consequences of Euclidian zoning. Some states stipulated that the local planning commission or a special advisory committee should formulate and adopt the comprehensive plan, insulating the planning process somewhat from electoral politics and tying zoning’s conformance to an apolitical document. Communities that took planning seriously and conformed their zoning to their plan learned that they had protected zoning from a variety of challenges, including due process and ultra vires claims. If a zoning provision accomplishes a comprehensive plan objective, it is less likely to be invalidated for failing to further a legitimate public objective or failing to be within the legal power of the locality to enact.
That zoning was to reach beyond civil engineering and fire safety was embedded in the SCPEA. As a predicate for zoning, it provided that plans will, “in accordance with present and future needs, best promote health, safety, order, morals, convenience, prosperity, and general welfare as well as efficiency and economy in the process of development….” The purposes of planning were broad. Zoning had to conform. The stage was set for the adoption of flexible zoning and land use strategies that moved beyond the rigid contours of Euclidian zoning.
The Neo-Euclidian era began as zoning turned 40, roughly a decade after the post-war experiments with the original model. Its failures led to a variety of legal remedies; all experiments in search of proper development patterns. Courts slowly moved past Dillon’s Rule and some state legislatures changed the law, calling for a liberal interpretation of the strict language of the enabling act, while others delegated new powers to localities to mitigate the unintended consequences of the Euclidian era.
For more information, see John Nolon, Comprehensive Land Use Planning: Learning How and Where to Grow, 13 Pace N.Y. L. Rev. 151 (1993-94).
Links to previous posts in the Zoning Centennial’s Series:
Friday, January 29, 2016
The 3rd annual Bread Loaf Orion Environmental Writers’ Conference is a week-long writers’ conference, based on the Bread Loaf Writers’ Conference model, that’s designed to hone the skills of people interested in producing literary writing about the environment and the natural world. The conference is co-sponsored by the Bread Loaf Writers’ Conference,Orion magazine, and Middlebury College’s Environmental Studies Program.
Friday, June 3 – Thursday, June 9, 2016. The conference will take place at the Bread Loaf Campus of Middlebury College in Ripton, Vermont.
The conference will incorporate the Bread Loaf Writers’ Conference model of small, focused workshops coupled with specialized classes focusing on the craft of writing. Workshops will be limited to ten participants so that each manuscript will receive individual, focused attention and critique. All participants will also meet individually with their workshop leader to amplify and refine what was said in the workshop itself. Established editors, literary agents, and publishers will give presentations on placing work in magazines and navigating the environmental book publishing world.
This week-long conference of workshops, classes, lectures, readings, and discussions is for writers who want to improve their writing about the environment; for writers who seek to become better advocates for the environment through their writing; for poets who are drawn to writing about the natural world; for teachers and scholars who wish to write for a more general readership; and for environmental professionals who want to bring better writing skills to bear on their work. For those who are interested in learning more about environmental and nature writing but who do not wish to workshop their writing, there is also an auditing option available.
2016 FACULTY AND GUESTS
Bread Loaf Orion will feature eight workshops with ten participants in each group. Faculty will include acclaimed nature and environmental writers Belle Boggs, Jane Brox, David James Duncan, Rubén Martínez, Robert Michael Pyle, Scott Russell Sanders, Maurice Manning, and Aimee Nezhukumatathil. In addition to their literary accomplishments, each faculty member has been specifically chosen for their skill at guiding developing writers. Click here to see the facutly and guests for 2016.
The Bread Loaf Writers’ Conference is the oldest writers' conference in America. Since 1926 it has convened in mid-August at the Bread Loaf campus of Middlebury College. Envisioned by Robert Frost, the Conference has featured eminent writers such as Willa Cather, Toni Morrison, Wallace Stegner, Eudora Welty, John Irving, Natasha Trethewey, Terry Tempest Williams, Barry Lopez, Julia Alvarez, William Kittredge, Scott Russell Sanders, and Luis Alberto Urrea. The Bread Loaf Writers’ Conference has a long legacy of commitment to the environment, dating back to early naturalist Joseph Battell who created the original Bread Loaf site as a mountain retreat in 1866.
Founded in 1982, Orion is the foremost magazine for the publication of the highest quality creative nonfiction, fiction, narrative journalism, and poetry dedicated to nature and the environment. Through writing and art that explore the connection between nature and culture, Orion inspires new thinking about how humanity might live on Earth justly, sustainably, and joyously. Orion was a finalist for the National Magazine Award in 2010 and 2013. From 2005-2013, Orion co-sponsored the week-long Wildbranch Writing Workshop, dedicated to writing about nature and the environment and this new conference builds on the successful tradition established by Wildbranch.
Dating from 1965, the Middlebury College Environmental Studies Program is the oldest undergraduate environmental studies program in the United States and one of the College's largest majors. The Environmental Studies Program brings together a community of scholars and students engaged in the study of the human relationship to the environment. Students choose from foci across the humanities, natural sciences, and social sciences. Ten core faculty members and forty affiliated faculty colleagues from 24 departments on campus together offer an interdisciplinary major and minor in which students learn to observe, explore, listen, analyze, question, discuss, and pursue answers through creative work, research, and problem-solving.
APPLICATION AND ACCEPTANCE
Applications to the conference will be accepted between November 1, 2015 and March 15, 2016. Acceptance is based on the strength and promise of the writing sample and on the Admissions Board's judgment that the applicant will benefit from the conference. The application cover letter is also considered. Two workshops will be offered in poetry (Manning and Nezhukumatathil); one in fiction (Boggs); and five in creative nonfiction (Brox, Duncan, Martínez, Pyle, and Sanders).
Acceptances will be made on a rolling basis and applicants will be notified whether they have been admitted approximately four to six weeks after they apply.
The conference is making available a limited number of $300 grants-in-aid to participants accepted into the program. In addition, there will be at least one full scholarship offered.
See the BL Orion pages for more details: Faculty & Guests, Application & Acceptance, Lodging & Logistics, and Fees & Deadlines.
Thursday, January 28, 2016
Buddy Cianci, long-time mayor of Providence, Rhode Island, has died. He had a storied career: twice convicted of federal charges, served time, but the people of Providence loved him nevertheless in no small part because he reinvented the city on his watch.
I saw this first hand. When I first visited Brown University in 1992, there were highways that criss-crossed downtown. The campus was literally cut-off from the rest of the city by those highways. I had no idea there was even a river that ran through the city. I matriculated to Brown in 1993 and was there during the period when highways were re-routed out of the city, when rivers were uncovered, and when beautiful promenades were installed at the city's core. In trips back since, I marvel at how far Providence has come, and how it came so far under the leadership of a mayor that was almost certainly on the take most of the time.
But people didn't just love Buddy because he re-built Providence. He had a common touch you seldom see. The story I still remember most about him was one I recall reading while I was at Brown in the Nineties. Tucked into the middle of the Providence Journal was a story about how Buddy was on a way to a wedding. Somehow he got word that there was a person threatening to commit suicide by jumping from a building on Federal Hill. Buddy told his driver to head there immediately. When they got there, Buddy bought a six pack of beer and asked the man on the roof if Buddy could come up and have a beer with him. Buddy went up there and shared the six-pack with the guy over the course of a couple hours. As I recall the story, Buddy convinced the guy to come down and then, moreover, Buddy drove with the man to the hospital. That story always stuck in my mind, though it wasn't unusual. Buddy was always doing something like that, which lent him a charm and earned the gratitude of his constituents, even though everyone seemed to suspect, even long before the feds came calling for him, that things weren't exactly right with the public fisc.
He also had the best spaghetti sauce of any mayor I've known. With Buddy, you took the good and the bad, and he gave both in epic abundance.
As I reported on this blog earlier this year, I am currently working on a project with the U.S. Forest Service and the Idaho Department of Lands to use land use planning to reduce the effects of wildfire in the wildland-urban interface. In that vein, I was excited to read a recent publication that came out this month from Montana-based Headwaters Economics. The report, Land Use Planning to Reduce Wildfire Risk: Lessons from Five Western Cities, provides a tremendous amount of information about how five forward-looking cities have taken great leaps forward to address wildfire while still permitting appropriate development. Here is the abstract of the report:
- Wildfires increasingly are an urban problem, often repeatedly impacting the same communities over time.
- Climate change impacts coupled with ongoing development within the wildland-urban interface (WUI) exacerbate wildfire risks
- This report profiles how five urban areas in the West are using land use planning tools to reduce wildfire risks.
- Individual case studies provide valuable examples and lessons for other communities to learn from in their efforts to mitigate wildfire risks.
Wildfires across the American West are increasing in frequency, size, and severity. The impacts from climate change, coupled with ongoing development within the wildland-urban interface (WUI), further exacerbate the risks from wildfires. In response, some urban areas in the West are addressing the growing threat of wildfires using innovative land use planning tools.
Tuesday, January 26, 2016
Ammon Bundy and those that had taken over federal buildings at the Malheur National Wildlife Refuge were just arrested with one person killed. Story here.
I have no love for the Bundys nor their neo-Sagebrush Rebellion, but in my five years in Idaho, I have come to understand some of what makes ranchers in this great expanse of sagebrush desert that covers some 11 states of the northern Rocky Mountains squirm. A lot of my students come from ranching families, and I hear the struggles people endure. It’s not an easy life. And so, in an effort to give some color to why the Bundys have a following, and also some additional context, I wanted to lay out several issues that are going on in this part of the country that are legitimate concerns for these ranchers.
First, species protection has hit this region hard. There are two big issues going on right now. The first is the sage grouse. Even though the sage grouse was not listed under the ESA, the rules put in place to prevent degradation of its habitat will be hard on some ranchers. The second is bighorn sheep. Since the late nineteenth century, domesticated sheep have been raised on federal lands in the northern Mountain West with great pride. However, the domesticated sheep have all but decimated bighorn sheep in the region, science appears to show, through disease transmittal. In one major case at the Ninth Circuit, Idaho Wool Growers v. Vilsack, a forest plan seeks to reduce grazing of sheep from 100,000 acres to 30,000 acres. If the Forest Service wins, the policy of dramatically reducing sheep runs in the Mountain West will spread to other national forests and BLM-controlled lands in just a few years. In short, the attempts to save just the sage grouse and bighorn sheep have dramatically altered grazing in the northern Mountain West.
Second, if you haven’t come to sagebrush country and talked to people, it’s hard to understand how there are families that have been farming these federal lands for generations. In the weird world of renewable, non-compete grazing permits, there are families that have grazed federal land for generations but do not own it. There is an odd tenant-farmer reality: some of these families have been here for generations but do not own any land. This creates immense hostility, especially when new conditions are placed on those permits.
Third, these families that have been here for generations have engaged in something of an open secret: there are a few very large holders of federal grazing permits. This is hard to track down, but I have been told by several reliable sources that many of the largest grazers utilize shell companies to hold their permits to obscure the true extent of their holdings. In essence, grazing on federal land is agglomerated just like so much of the rest of the food system. So, when you see ranchers out there talking about their permits, they are probably one of two types. The first is a very savvy player in a large agribusiness-type operation; the second is a hardscrabble individual who is holding on under an increasingly difficult permit system.
Fourth, the remoteness of sagebrush country feels like it is a world apart; it is, but when it's federal land, the rules of law apply in ways that are not common for a place where things are still done with a handshake. In this land, there is no state or local official that will touch you. I know local building inspectors that are fearful to issue notices of violation for building permits in these remote places. But federal law is something altogether different. It doesn’t bend like the state and local officials; it comes at you the same no matter where. That is what is hard for people born to this place to get. Even if everything is for sale at the state or local level…the feds, they actually say what they mean. They don’t play by house rules, and what appears like the general application of the rule of law to anyone who doesn’t live here feels like bald tyranny to those used to being able to intimidate their way out of enforcement by state or local officials.
Fifth, it is hard to underestimate the effects of globalization on these remote farms. My clinic visited a rancher that had 6,000 head of cattle several years ago. There is no slaughterhouse in Idaho, so he sends most of his cattle to California or Oklahoma for slaughter. His most profitable operation is a connection with a chef in Korea who pays the rancher to personally escort his best cattle to Seoul every fall. That type of globalization is just simply remarkable when you stand in this isolated sagebrush country. It also means that the pressures of the global market have come here, too. These ranchers feel it, and they struggle under that global competition.
Sixth, climate change is real here. Fires are bigger and more common, which reduces grazing. There is an ongoing drought, which also affects grazing. The increasing effects of both drought and fire will continue to make it harder to raise cattle or sheep on public lands.
This is not an encyclopedic list of every grievance that ranchers in sagebrush country have. However, I thought that it was unfair to let the Bundys stand in for the real grievances so many have here. Even for those that advocate for less grazing on public lands—I am probably among them—have to recognize that there are legitimate concerns of the ranchers that are trying to make a livelihood in these places. The Bundys have made a carnival side-show of these concerns. Even if we were to achieve some environmentally optimal result that eliminated grazing on public lands, some solution for the economies of these rural places must begin. Otherwise, the Bundys will be able to be martyrs in what is otherwise simply the enforcement of the rule of law we all expect and desire.
California is taking steps to revolutionize how transportation is analyzed in environmental review. Several upcoming webinars analyze how this will new approach apply, in particular, to infill projects. More from the press release:
The Governor’s Office of Planning and Research will host two webinars to discuss its Revised Proposal on Updates to the CEQA Guidelines on Evaluating Transportation Impacts in CEQA (Implementing Senate Bill 743 (Steinberg, 2013), released on January 20, 2016. Please note, registration for each webinar is limited to 500 participants. Each webinar will be recorded, and the same material will be presented in each. A recording of each webinar will be available for viewing on our website following the live presentation. Please *register for only one webinar* to maintain space for others who may be interested in attending:
February 1, 3-5pm: https://attendee.gotowebinar.com/register/4374882372201044225
February 9, 3-5pm: https://attendee.gotowebinar.com/register/5144112801627486977
Once you have registered for one webinar or the other, please ensure you have GoToWebinar installed on your computer before the webinar starts. Also, if you register and are unable to attend, please cancel your registration to make your space available for another attendee.
In each 2 hour webinar, we will:
- Describe the context and need for the proposed changes
- Describe the proposed changes to the CEQA Guidelines
- Describe the contents of the draft Technical Advisory
- Provide case study examples for various project types
- Provide time for questions and answers
Additional information regarding the revised proposal is available on OPR’s website: https://www.opr.ca.gov/s_sb743.php.
Monday, January 25, 2016
Call for Papers — Open until February 12, 2016
Full Details Below
The Journal of Property Law at the Texas A&M University School of Law is hosting a one-day symposium at the Law School in Fort Worth on April 22, 2016, to consider the critical concerns for sustainability in urban and rural communities.
Sustainable development is a delicate balance between the current need for economic growth and preserving the natural resources and ecosystems for future generations. Sustainability is a holistic approach incorporating environmental, cultural, economic, and social concerns and identifying how these areas intersect. With the continuing rural to urban migration, there is a critical need to incorporate innovative approaches, methods, and projects to urban city development.
Furthermore, the need to maintain rural sustainability is vital to urban development. There is a critical need to maintain agriculture integrity while managing and preserving natural resources. Agricultural integrity can be enhanced by the utilization of economic incentives, incorporation of new technologies, and the implementation of procedures that ensure adequate food safety.
This symposium, and online symposium edition, will aim to bring together scholars from a variety of disciplinary and methodological perspectives interested in advancing research on urban and rural sustainability.
Call for Abstracts
In an effort to encourage interdisciplinary dialogue, we welcome submissions from legal scholars and lawyers, environmental scholars, government officials and staff, international scholars, regulators discussing how their systems have handled these issues, and others who have a meaningful contribution on this topic. We also welcome submissions from advocacy organizations, think tanks, and other outside academia, but emphasize that this is a scholarly symposium and abstracts/papers will be held to academic standards of argumentation and support.
How to Participate:
If you are interested in participating, please send a one-page abstract of the paper you would plan to present to firstname.lastname@example.org as soon as possible, but not later than February 12, 2016. If your abstract is selected, your final paper will be due on August 1, 2016, and you will be assigned a presentation slot.
All final papers will be eligible to be published with the Journal as part of an online symposium edition. We will accept papers of all styles (e.g., law review, medical, philosophy, or policy journal, etc.), but the paper should be limited to 8,000 to 12,000 words.
Travel funding may be available to cover reasonable airfare and lodging costs, based on need, for a limited number of individuals presenting at the symposium and publishing with the Journal. Please include a request for travel funding support when sending your abstract.
Texas A&M University School of Law Journal of Property Law
1515 Commerce Street Fort Worth, Texas, 76102 law.tamu.edu
Editor-in-Chief: Hannah Elsaadi Managing Editor: Natalie Voels Executive Articles Editor: Simone White Executive Editor: David Fulton
Business Editor: Christopher Poorman Symposium Editor: Kenneth Moore
Associate Professor Gina S. Warren
Professor Gabriel Eckstein
Please contact Symposium Editor, Kenneth Moore, with any questions: email@example.com.
Pace / Yale Land Use Collaborative launches beta version of online fracking governance tool for local governments
From John Nolon:
The Land Use Collaborative is a joint project of the Yale School of Forestry and Environmental Studies and the Pace University Law School’s Land Use Law Center. With much help from a group of experts and stakeholders over the last two years, the Collaborative has held a series of workshops, developed a set of case studies on local fracking governance, and built an online resource to help empower local governments to take on the daunting task of managing hydraulic fracturing within their jurisdictions.
As this project nears completion, the Collaborative is interested in receiving feedback on the beta version of the online resource that it has created, which you can access here. (If the link does not work, you can access the database at http://bit.ly/frackingdatabase).
This database is built around a list of the uniquely local impacts of hydraulic fracturing and related activities. Importantly, the Collaborative recognizes that while this list is robust, it is not comprehensive. The goal here is to provide a list of all the impacts about which decision makers are likely to hear from citizens. Attached to each impact the Collaborative has provided the following additional resources: a brief explanation of how oil and gas exploration, drilling, and appurtenant operations may lead to each impact; literature providing further details on each impact; and examples of local measures that other governments have used to address the specific impact.
This database is designed to help local governments identify issues of concern, begin research into the details of those impacts, and find models for local action.
If you are interested in providing this project with feedback, please use this online survey: You can access that survey here. (If the link does not work, you can access the survey at http://bit.ly/1PJOMqd)
The Collaborative expects to release final materials on this project in the spring.
The Department of the Interior has put together a wonderful, interactive webpage that helps first to visualize the importance of the Colorado River to development in the western United States and then does a great job illustrating what the last fifteen years of drought in the region have done to the federal water infrastructure on the river. Well worth perusing. Here is the link.
One of the static maps of the federal system below:
Thursday, January 21, 2016
Zoning’s Centennial, Part 3: Zoning was Contagious, but was it Constitutional?: A Series by John R. Nolon
[This post is part of an on-going series on the 100th anniversary of the first zoning law. Links to previous posts in this series are at the bottom of this post.]
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
Zoning was Contagious, but was it Constitutional?
The first two blogs in this series discussed the adoption of the first zoning ordinance in 1916, and the subsequent delegation of land use control to local governments under an enabling act promulgated by the federal government in 1922. The second blog ended by describing the rapid spread of zoning under this enabling legislation, as well as a number of issues that zoning had to confront--not the least of which was whether it was constitutional.
By the mid-1920s, zoning had been challenged in several state courts with split results. A majority of the courts that considered early zoning laws agreed with State ex rel. Carter v. Harper (Wisconsin, 1923), which upheld “so-called zoning” against takings, equal protection, and due process claims. Several quotes from the case explain this result: In Harper, the court established that ”…the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society.” Further, the case held that “[t]he purpose of the law is to bring about an orderly development of our cities….Everyone who has observed the haphazard development of cities…has appreciated the desirability of regulating the growth and development of our urban communities.” Ultimately, the court raised a critical question: “When we reflect that one has always been required to use his property so as not to injure his neighbors...can it be said that an effort to preserve various sections of a city [from harmful intrusions] is unreasonable?”
Other courts agreed with Judge Offutt, who wrote in Goldman v. Crowther (Maryland 1925): “This ordinance at a stroke arrests that process of natural evolution and growth, and substitutes for it an artificial and arbitrary plan of segregation….” He further noted “…it has never been supposed in this State that the police power is a universal solvent by which all constitutional guarantees and limitations can be loosed and set aside regardless of their clear and plain meaning…. [T]hose limits must bear some substantial relation to the public health, morals, safety, comfort or welfare.” Thus, “…so much of the ordinance as attempts to regulate and restrict the use of property in Baltimore City is void.” The court found that the ordinance itself did not contain adequate provisions demonstrating that it was bottomed on legitimate public interests. On its face, the separation of land uses into zones was void in Maryland.
Such was the legal background when, in my imagination, the CEO of Ambler Realty Co. awoke one morning in the early 1920s to learn from the local newspaper that its 68-acre property in the Village of Euclid, Ohio had been divided the night before into three separate zoning districts under the zoning ordinance adopted by the Village Board of Trustees. Outraged by this unprecedented interference with his industrial development plans and the resulting substantial diminution of the value of his property, he brought suit claiming that zoning, on its face, was a deprivation of private property without due process. The affected parcel had been listed and sold for industrial development. It was situated next to a railroad and in the “path of progressive industrial development.” Yet, the new zoning law limited its use, in substantial part, to residential and retail purposes at significantly lower market values. The question, wrote the U.S. Supreme Court, was whether “the ordinance is invalid, in that it violates the constitutional protection to the right of property in [Ambler Realty] by attempted regulations under the guise of the police power, which are unreasonable and confiscatory.”
The Court noted that ”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 operations.” Invoking the law of nuisance and the “painstaking considerations” found in the reports of various planning and land use commissions and experts, which concur in the view that the segregation of different land uses serve many public interests, the Court found zoning constitutional. And, it did so by firmly establishing the standard still used today in determining whether a zoning regulation is valid exercise of local police power: “The reasons supporting the separation of land uses could not be said to be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.”
In this way, the judicial attitude toward zoning was fixed: courts would presume the constitutional validity of zoning, defer to the findings of local legislatures, and impose on the challenger a heavy burden of proving that zoning was unreasonable and arbitrary. However, when a property owner challenges zoning not on its face, as in these cases, but rather as applied to a particular parcel, it is somewhat easier to carry this burden of proof. In Nectow v. City of Cambridge (1928), the Supreme Court invalidated a zoning ordinance that subjected the petitioner’s property to use restrictions that were unreasonable. The petitioner’s burden of proof was carried when it demonstrated to the satisfaction of the Court that “no practical use can be made of the land in question,” and that the use permitted “would not promote the health, safety, convenience, and general welfare of the inhabitants of that part of the defendant city….”
These bookend principles raised countless questions, the answer to which would have to wait two decades while land use law essentially slumbered during the Great Depression and World War II. At that point, after a decade of post-war development, the consequences of what became known as Euclidian Zoning could be assessed. Was the rigid separation of land uses into discrete zones effective or, in Judge Offutt’s terms, did it arrest “that process of natural evolution and growth” to the detriment of society?
For more information, see John Nolon, Comprehensive Land Use Planning: Learning How and Where To Grow.
Links to previous posts in the Zoning's Centennial series:
Wednesday, January 20, 2016
The Wall Street Journal had a nice piece last week about GE's decision to leave its leafy office park headquarters in Connecticut and head for the bright lights of Boston:
The trend is accelerating, experts say, due to employers’ thirst for the kind of educated, technologically-savvy workers who are clustering in cities such as Chicago, San Francisco, and Seattle.
Suburban office parks are falling out of favor as companies recognize their locations affect their ability to compete for skilled workers, said Patrick Phillips, global chief executive of the Urban Land Institute, a land-use think tank. “GE is such a high-profile example that it will underscore this trend.”
Rest of the article here.
March 17-19: Missoula, MT: Bill Lane Center for the American West: Rural West Conference: People and Place in the Rural American West
I spoke at this conference last year; it's worth attending if you're in the area.
Tuesday, January 19, 2016
UCLA School of Law’s Emmett Institute on Climate Change and the Environment is now accepting applications for the UCLA Emmett/Frankel Fellowship in Environmental Law and Policy for the academic years 2016-2018. This fellowship is a full-time, two-year faculty position beginning in July 2016. The position involves policy and legal research and writing, assisting with projects such as conferences and workshops, and teaching.
The Emmett Institute on Climate Change and the Environment is dedicated to creating and advancing law and policy solutions to climate change and other environmental challenges, and to training the next generation of leaders to address these issues. The program fosters informed debate and analysis to educate the public, policymakers, business leaders, and others on critical environmental issues.
The Fellow will work on issues relating to environmental law and policy, including climate change, and will generate policy-oriented publications and other products for the Institute, in collaboration with UCLA Law faculty. The Fellow will also assist the Institute’s Executive Directors with projects relating to the Institute’s work, including organizing conferences, workshops, public education and outreach efforts, and other events. In addition to these responsibilities, which will continue year-round, the Fellow will take on teaching responsibilities in environmental law topics.
Candidates should possess a J.D. (or equivalent law degree), earned within the past several years or expected in the spring of 2016; a strong academic record; excellent analytical and writing skills; and demonstrated interest and background in environmental law or policy. Previous experience in law practice or clinical instruction is preferred but not necessary. The salary is anticipated to be approximately $67,000 per year plus a competitive benefits package. UCLA School of Law has a special interest in enriching its intellectual environment through further diversifying the range of perspectives represented within the faculty.
Applicants should apply at https://recruit.apo.ucla.edu/apply/JPF01930. Please submit online a letter discussing qualifications and interests, a resume, a law school transcript, and contact information for three references.
Applications will be accepted on a rolling basis through February 26, 2016 or until the post is filled.
Visit our website at www.law.ucla.edu/emmett for more information about our program.
The University of California is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, age or protected veteran status. For the complete University of California nondiscrimination and affirmative action policy, see: UC Nondiscrimination &
Affirmative Action Policy.at http://policy.ucop.edu/doc/4000376/NondiscrimAffirmAct.
Monday, January 18, 2016
Sunday, January 17, 2016
The Library of America has a free subscription e-mail list that delivers a weekly story or article from its collection. This week, the story was a piece of reportage about a black family moving into Levittown, Pennsylvania. The short article is remarkable and tells the haunting story of the first black couple that moved into a Levittown. It might pair well in with teaching Shelley v. Kraemer.
The full story is here: http://storyoftheweek.loa.org/2016/01/ordeal-in-levittown.html.
Saturday, January 16, 2016
I wrote an op-ed yesterday in the Idaho Statesman about Boise's failure to integrate land use and transportation planning. Boise is a rare city in that its roads are owned by a regional agency, the Ada County Highway District, which might be the poster child for what can go wrong with regionalism. An excerpt is below:
Here is the crux of the problem. [The Ada County Highway District] purports to have “exclusive jurisdiction” over all the roads. However, when ACHD does its transportation analysis, all it considers is how many vehicles are going down that road as compared to how many vehicles it believes that road can handle. It seldom considers pedestrians and bikes, and never considers noise, effects on neighboring property values, or how other nearby landowners and their property rights are affected by the transportation from a particular project. In the language of planning, those are the “land use effects of transportation,” and in ACHD’s mind, that is the purview of the city. However, at the city, staff, the developers and everyone else will tell you that the city does not own the roads, and thus, the city cannot impose any mitigations on those roads owned by ACHD. In short: None of the land use effects of transportation are ever mitigated because of this broken system.
This result is bad for all. It is bad for the agencies because developers play ACHD and the city off each other; at ACHD, they say that land use effects of traffic are for the city to decide, but at the city, they say that the city has no jurisdiction over roads. It is bad for developers because the city can require a traffic mitigation as a condition of approval that ACHD refuses to implement, which leaves a developer without a usable entitlement. It is also bad for the community because the land use effects of transportation are the ones that affect the community the most.
The whole op-ed is here.
Thursday, January 14, 2016
Zoning’s Centennial, Part 2: The Delegation of Legal Authority to Adopt Zoning: A Series by John R. Nolon
[This post is part of an on-going series on the 100th anniversary of the first zoning law. Links to previous posts in this series are at the bottom of this post.]
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
The Delegation of Legal Authority to Adopt Zoning
January 18, 2016
In my last post, I explained that 2016 is zoning’s centennial and discussed the circumstances of its adoption in New York City, ending with a comment on the need for state-adopted zoning enabling acts to empower local governments to enact land use regulations. Following New York City’s action, zoning spread quickly. By the mid-1920s, over 500 local governments had adopted comprehensive zoning laws. Their authority to do so was granted by enabling acts originally drafted by the federal government and then adopted by their state legislatures.
Although the federal government has limited power to regulate local land uses, it has an important role to play in enabling, guiding, and assisting local governments to exercise their delegated power wisely. Zoning’s story illustrates the powerful influence that the federal government can wield if it plays this facilitative role strategically. In the case of zoning’s adoption, the story involves the federal Department of Commerce.
As Secretary of Commerce under presidents Harding and Coolidge in the 1920s, Herbert Hoover paved the way for the rapid adoption of zoning. Hoover noted “Our cities [do] not produce their full contribution to the sinews of American life and national character” and these “moral and social issues can only be solved by a new conception of city building.” His response was to appoint two advisory committees: one to write a standard building code and another to draft model zoning and planning statutes to be adopted by the states, in their discretion.
The latter committee was called the Advisory Committee on City Planning and Zoning; it appointed a subcommittee on laws and ordinances, which produced a final draft of a 17-page enabling statute called A Standard State Zoning Enabling Act Under Which Municipalities Can Adopt Zoning Regulations (“SZEA”). The draft was released by the Commerce Department on September 15th, 1922. It contained nine sections, including the grant of zoning power to local governments; a provision that the local legislature could divide the city into districts, or zones; a statement of zoning’s purposes; the creation of a zoning board of appeals, and procedures for establishing, waiving, and amending those regulations. By the end of 1927, over half of the states had adopted some form of the SZEA.
The success of the SZEA paved the way for another act, A Standard City Planning Enabling Act (“SCPEA”), intended as a companion to the SZEA, which requires that zoning conform to a comprehensive plan. The SCPEA was to provide for the creation of such plans and to effect the coordinated and harmonious development of cities. It covered several major topics:
- the adoption of and recommended content of a “master” plan;
- the creation and operation of a planning commission;
- the adoption of a street plan, or official map;
- involvement of the planning commission in approving public improvements;
- planning for the subdivision of land into marketable parcels; and
- the voluntary creation of a regional planning commission and a regional plan.
After its publication in 1928, the SCPEA was not as widely implemented by state legislatures as was the SZEA. Some felt that a city-wide zoning ordinance embodied a sufficient comprehensive plan and that a separate plan was not needed and then, of course, land development and land use planning largely ceased from the stock market crash in 1929 to the end of World War II in the mid-1940s.
All 50 states have adopted some form of the SZEA and most have adopted a version of the SCPEA. In many of these states, the initial enabling acts were virtual verbatim versions of the Commerce Department’s drafts and a surprising number of them retain a significant amount of that original content today. The standard acts recognized the political nature of controlling private land use and the great diversity among municipalities in every state; as a result their provisions are largely voluntary. Under their terms, zoning and comprehensive plans may be adopted. The American land use system today largely retains this opt-in feature.
The original approach to zoning and planning raises many questions:
- how can a system of law that relies on localities with limited geographical jurisdictions properly serve the needs of larger regions;
- was it wise to separate land uses into prescribed districts, within which standards must be uniform;
- did such uniformity unduly constrain the organic process of growth and produce an artificial settlement pattern;
- how can the flexibility needed to respond to unique market and geographical conditions be realized under such a rigid system of law;
- did zoning protect the urban poor and public health by preventing congestion, overcrowding, and blight, or is it overly protective of property investment and values;
- was is it prudent to empower locally-elected legislators to adopt land use regulations without mandating the adoption of a comprehensive plan prepared by a less political body; and, of course,
- was the separation of land uses into districts constitutional: did it violate landowners’ due process or equal protection rights or was it a taking of property without just compensation?
There was much to be worked out as zoning entered its second decade in 1926, when the latter question reached the U.S. Supreme Court.
For more information, see Historical Overview of the American Land Use System: A Diagnostic Approach to Evaluating Governmental Land Use Control, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1345450.
Links to previous posts in the Zoning's Centennial series:
Wednesday, January 13, 2016
A California appellate court ruled today that a rent-controlled tenant engaging in Airbnb short-term rentals violated terms of a lease that required compliance with all laws, and thus the tenant could be evicted, where such short-term rentals were illegal in the tenant's Los Angeles zoning district. The case, Chen v. Kraft, is available here.
Hat tip to Robert H. Thomas, who alerted me to the case.
Georgetown is seeking a transactional attorney to supervise students as a Fellow in its Housing and Community Development clinic. I am including below the ad we have posted. If you are interested or know someone who might be, please contact me.
Fellow ‑ Georgetown University Law Center-Housing and Community Development Clinic. 2‑year fellowship at Georgetown University Law Center leading to an LL.M. in advocacy; the stipend for 2016-2017 is at least $53,500 (taxable) plus health and dental benefits. The Fellow will supervise 2nd and 3rd year law students working on affordable housing transactions, including acquisitions and renovations. The Fellow will also assist in the teaching of a weekly seminar. Required: minimum 2 yrs. legal experience with background in transactional housing and/or business matters. Spanish language ability is a plus. Admission, or ability to waive into the DC Bar is required. Send letter of interest and resume by 2/15/16 to Professor Michael Diamond, Georgetown University Law Center, 600 New Jersey Avenue NW, Suite 102, Washington., DC 20001 or by email to firstname.lastname@example.org <mailto:email@example.com> . Applications will be reviewed as received.