Sunday, February 1, 2015
As expected, the United States District Court for the District of New Mexico, struck down Mora County, New Mexico's ban on hydraulic fracturing. In the case styled SWEPI, LP v. Mora County, New Mexico, the court's 199-page opinion on SWEPI's Motion for Partial Judgement on the Pleadings did not rule in SWEPI's favor on all matters, but comprehensively and completely rejected the notion, advanced by the defendants, that local governments could supersede state and federal law, as well as the attack on the established principle that corporations do not hold rights in the United States. Although I have not been able to digest the entire opinion, for obvious reasons, the court delivered a well-reasoned opinion that strikes another blow to the Community Environmental Legal Defense Fund's (CELDF) effort to advance "novel" legal arguments to block a variety of Locally Undesirable Land Uses (LULUs).
CELDF advances "Rights-Based" ordinances that assert the rights of local governments to override state and federal law. The group also opposes Dillon's Rule by advancing an incorrect understanding of Home Rule. For a more thorough and nuanced understanding of Dillon's Rule and Home Rule, see my monograph, written for the Brookings Institute.
In brief, the court granted the Motion in part and denied it in part, and invalidated the Ordinance. SWEPI, LP has standing to bring each of its claims, because it has suffered an injury in fact. Because the Mora County has already enacted the Ordinance, andbecause SWEPI, LP would suffer harm if the Court delayed considering its claims, each of SWEPI, LP‟s claims are ripe, except for its claim under the Takings Clause. Because SWEPI, LP has not sought just compensation through a state inverse condemnation action, its takings claim is not ripe. SWEPI, LP may bring its claim under the Supremacy Clause, because it could bring independent claims, through 42 U.S.C. § 1983, under the constitutional provisions that it asserts trumps the Ordinance. Additionally, the Ordinance violates the Supremacy Clause, because it conflicts with federal law. The Ordinance does not, however, violate SWEPI, LP‟s substantive due-process rights or the Equal Protection Clause, because the Defendants had a legitimate state interest for enacting the Ordinance. The Ordinance violates the First Amendment by chilling protected First Amendment conduct. Because the Defendants lack the authority to enforce zoning laws on New Mexico state lands, they may not enforce the Ordinance on state lands. Also, because there is room for concurrent jurisdiction between state and local law, New Mexico state law does not preempt the entire oil-and-gas production field. The Ordinance conflicts, however,with state law by prohibiting activities that state law permits: the production and extraction of oil and gas. Finally, the invalid provisions are not severable from the valid provisions, making the Ordinance, in its entirety, invalid.
The court, therefore, concurred with my assertion, in "Local Regulation of Hydraulic Fracturing", 117 W.Va. L. Rev 593 (2014), that a ban is distinguishable from regulation of an activity. New York remains the outlier in this regard. Also, as argued in that article, the court reaffirms that local governments hold concurrent jurisdiction with states to regulate hydraulic fracturing, but that local regulatory authority falls short of a ban. My article lists other tools, such as impact fees and reasonable setbacks, that are appropriate for local government land use regulation.
The court's rejection of a provision in CELDF's ordinance that purports to prohibit challenges to the ordinance, and which the court repeated from an earlier ruling in the SWEPI case, bears repeating hear as well:
The Ordinance, thus, appears to state that no one can challenge it, or any other
Mora County ordinance, as long as the ordinance concerns the health, safety, or
welfare of its residents. See Ordinance § 5.6. The Intervenor-Applicants‟
argument is that SWEPI, LP, cannot challenge the Ordinance‟s constitutionality,
because the Ordinance deprives SWEPI, LP, of its constitutional rights. If this
argument has validity, it would signal the end of all civil rights that the Constitution
protects. A county could pass an unconstitutional ordinance, but then say that
anyone who challenged the ordinance lacks constitutional rights to support the
challenge. The county could enforce its unconstitutional ordinance free of
constitutional restrictions, because no one could challenge the validity of the
ordinance. The consequences of such an outcome could be devastating to the
Union as the Nation has known it since the Civil War. Some counties could
prohibit speech on certain viewpoints. Others could deny basic rights to members
of certain racial ethnicities. Still others could prohibit religious practices; others
could require participation in religious services. The Constitution would be
applied in a cookie-cutter fashion across the United States with such inconsistency
from place-to-place that it would cease to be a Constitution of the United States at
SWEPI, LP v. Mora County (page 133), citing SWEPI, LP v. Mora Cnty., 2014 WL 6983288, at *48.
Rights-based ordinances are being passed across the country to attempt to ban land application of biosolids, hydraulic fracturing and other LULUs. In addition, some communities are using rights-based ordinances to promote "food sovereignty". The latest ruling in SWEPI, LP v. Mora County provides more evidence that this approach is not only wrong, but can prove to be devastating to the enacting localities. The fact that many of these localities are poor, meaning that they must turn to CELDF instead of costly, but well-qualified, consultants, exacerbates environmental justice concerns.
Meanwhile, Conestoga Township, PA recently rejected a rights-based ordinance. One supervisor offered an eloquent rationale for his rejection of the ordinance. More local governments should follow the Conestoga example.
Thursday, January 22, 2015
A bill has been introduced into the Michigan legislature to allow urban dwellers to keep a "reasonable" number of livestock on their property. This article refers to the bill as guaranteeing the "basic human right" to farm your lawn. Really?
As many of you are probably aware, many cities across the country are confronting the dilemma of what to about allowing "urban agriculture" (an oxymoron in my mind- perhaps "urban gardening" is more appropriate) in light of state right to farm laws. Each of the 50 states have right to farm laws, prompted by the decision by the Supreme Court of Arizona in Spur v. Del Webb, 108 Ariz. 178, 494 P.2d 700 (1972). These laws were enacted to address housing developments leapfrogging, or even slowly growing, out into rural areas and basically makes "coming to the nuisance" a true defense, in certain circumstances.
There are many health and planning reasons to bar livestock in urban areas. However, there are also many very passionate fans of keeping livestock in urban areas. I come down on the side of banning livestock in urban areas, but allowing vegetable gardens. I hope I don't receive any threats. Should I mention raw milk to evoke more emotional responses?
Right to Farm laws, already heavily criticized and having been found to be a taking of private property for private use by at least two courts (Iowa and Washington) need to be amended to exclude urban agriculture from the protections of the act. The acts were passed to address a totally different context.
For those of you who have not already figured out exactly how land use planning officials are expected to proceed in the wake of the U.S. Supreme Court's 2011 decision in Koontz v. St. Johns River Water Management District, Lee Fennell (Chicago) and Eduardo Peñalver (Cornell) have posted Exactions Creep, __ Sup. Ct. Rev. ___ (forthcoming). Rather than deny that the Court has aggravated the uncertainty faced by local governments, Lee and Eduardo explore the nature of the confusion in the Court's exactions jurisprudence and call for a significant revision. Here's the abstract:
How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.
January 22, 2015 in Affordable Housing, Conservation Easements, Constitutional Law, Development, Impact Fees, Local Government, Planning, Property, Property Rights, Property Theory, Scholarship, Subdivision Regulations, Takings, Zoning | Permalink | Comments (0)
Wednesday, January 21, 2015
In my recent article, Local Regulation of Hydraulic Fracturing, 117 W.Va. L. Rev. 593 (Winter 2014), I review recent case law in New York, Pennsylvania, Colorado and West Virginia that delves into the extent of local authority to regulate hydraulic fracturing. I also list zoning and planning regulations and tools that may properly be implemented by local governments, and tools that should be reserved to state governments.
I conclude that the New York and Pennsylvania courts miss the mark. New York courts fail to distinguish between reasonable regulation of hydraulic fracturing and outright bans of the practice. Some questionable precedents in that state, one of which even a lower court labeled as "flawed", but felt obligated to follow, have skewed the results. New York also fails to acknowledge that bans are likely preempted, particularly where state statutes seek to prevent waste and protect correlative rights. Bans contravene both of those goals.
Pennsylvania oddly perverts the notion of Dillon's Rule to strike down a state regulation limiting local government action. My colleague, Joshua Fershee, perceptively breaks down the Robinson decision in "Facts, Fiction and Perception in Hydraulic Fracturing: Illuminating Act 13 and Robinson Township v. Commonwealth of Pennsylvania, 116 W.Va. L. Rev. 819 (Spring 2014). My analysis focuses on the Dillon's Rule issue, which the dissenting opinion correctly explains. Professor Fershee delves more deeply into that case, for those that are interested.
I conclude that, while local governments should not be able to ban hydraulic fracturing, many tools exist for local governments to employ. These tools include setbacks, common in zoning ordinances, impact fees and “adequate public facilities ordinances.” Zoning ordinances cover issues like noise, light and other visual impacts, road damage, blasting, dust, traffic, compatibility of the activity to nearby property uses, impact of the activity on property values in the area, adequate off-site infrastructure, adequate services (such as police and fire protection), affordable housing, the general health, the safety of the community, odors, potential groundwater contamination, methane emissions, habitat fragmentation, and degradation of environmentally sensitive areas. Local governments should not overreach their authority and infringe upon legitimate state interests, however.
I am presently working on a follow-up to that article, examining the environmental justice ramifications of the present state of affairs. Specifically, wealthy communities, like Santa Fe County, New Mexico can hire costly consultants to draft ordinances that purport to allow hydraulic fracturing, but present so many hurdles that the practice is essentially banned. On the other hand, poor communities, like Mora County, New Mexico, must rely on activist organizations that draft "Rights-Based Ordinances" that ban hydraulic fracturing, and are highly unlikely to withstand legal challenge. Although these organizations draft the ordinances free of charge, and sometimes will even represent the community in the court challenge, the communties are not protected from possible sanctions for frivolous court pleadings. In the end, wealthy communities can exclude LULUs like hydraulic fracturing, while poor communities will bear the burden. Although this circumstance is not new, the contrasts seem to be especially dramatic with respect to hydraulic fracturing.
Monday, January 12, 2015
The Land Use and Sustainable Development (LUSD) Law Clinic at West Virginia University's College of Law has been at full strength for a little over two years. One of only a handful of land use law clinics in the country, the LUSD Clinic staff includes five attorneys (one of whom is an AICP land use planner), and an additional AICP land use planner. We are also fortunate to have our first LLM Fellow this year, Ann Eisenberg, a Cornell Law School graduate. West Virginia University College of Law established a LLM degree program in Energy and Sustainable Development Law in the Fall of 2014. The LUSD Law Clinic class includes 6-12 J.D. students each year, and the students work with the staff and clients across the state.
Three main areas form of the focus of the clinic. The clinic director, Katherine Garvey, formerly with the Environmental Law Clinic at Vermont Law School, heads up the wastewater portion of the clinic. Nathan Fetty, the Managing Attorney, and Jason Walls, Land Conservation Attorney, spearhead the land conservation work conducted by the clinic. Last, and certainly not least, Jared Anderson, J.D., AICP, Supporting Land Use Attorney, Christy DeMuth, AICP, and I, as the Lead Land Use Attorney, guide the land use law activities of the clinic. The land use mission of the clinic includes, in addition to representing local governments across the state, education of local land use leaders in West Virginia. Although this education takes many forms, the clinic's Mountain State Land Use Academy holds two major educational workshops each semester. Although the clinic staff includes these three teams, the clinic as a whole operates as one team, working together to address these interrelated issues.
The clinic was established, in part, to aid in putting West Virginia on equal footing with surrounding states in terms of the land use and land conservation issues. West Virginia has lacked such a resource for a very long time. The LUSD Law Clinic seeks to remedy that long-standing lack of resources and has already helped many communities in the state make incredible progress.
During the 2013-2014 academic year, the clinic worked with with 18 local government clients, helping develop comprehensive plans and zoning ordinances, and facilitating over 50 public meetings. For example, the City of Wellsburg successfully adopted a comprehensive plan written by Clinic planners, attorneys and students. The next step is for the LUSD Law Clinic to assist the Wellsburg Urban Redevelopment Authority with redevelopment plans for identified slum and blighted areas in the community.
In the area of land conservation, the LUSD Law Clinic worked with non-profits and government agencies on land transactions aimed at protecting over 25 different properties. For example, the Clinic helped permanently protect 665 acres of land which fronts six miles of the Gauley River. Working in five counties, legal services included title examinations, contract drafting, drafting of title opinions and negotiations.
In partnership with the Northern Brownfields Assistance Center, the LUSD Law Clinic started a program to provide legal resources to local governments to address abandoned and neglected properties. The Clinic interviewed stakeholders such as building inspectors and municipal attorneys throughout the state to identify local concerns. A future blog post will provide more information on this exciting and transformative initiative.
I look forward to continuing to work with my wonderful colleagues, professionals across the country and the wonderful citizens of the great state of West Virginia for many years to come. West Virginia is a beautiful state with a committed and dedicated citizenry. I am very priviledged indeed to have the opportunity to work here.
Thursday, December 11, 2014
Brent White (Arizona) , Simone Sepe (Arizona) and Saura Masconale (AZ-Gov't & PP) have published Urban Decay, Austerity, and the Rule of Law, 64. Emory L.J. 1 (2014). In the article, the authors offer a "make 'gov', not war" alternative to the Broken Windows Theory (BWT) and its support for order-maintenance policing. Building upon an intuitively compelling social contract theory insight, the article sets out the theoretical and empirical cases for the authors’ contention that sustained investment in highly visible, essential local public goods provides crucial support for rule of law. Focusing on the refusals of the U.S. and Michigan governments to bail out Detroit and avoid the need for it to file for bankruptcy, the authors use their Urban Decay Theory (UDT) to support their proposal that all municipal governments receive at least some level of fiscal insurance to sustain continuous investment in urban infrastructure, which, according to the UDT is predictive of citizen commitment to rule of law.
At the invitation of the editors of the Emory Law Journal, I wrote a response to Urban Decay for the Emory Law Journal Online. In "All Good Things Flow . . .": Rule of Law, Public Goods, and the Divided American Metropolis , 64 Emory L. J. Online 2017 (2014), I welcome the article’s introduction of the rule of law paradigm to domestic urban policy, find fault with its selection of public goods that purportedly influence rule of law, and contend that the UDT has far greater potential than the poor support it can offer the authors’ flawed policy proposal. By conceptualizing the domestic urban policy goal as rule of law rather than order, the authors open measurements of success to go beyond crime rates and majoritarian perceptions of personal safety. Without losing the groundedness necessary for empirical investigation, rule of law can incorporate ideal aspects of lawful order that address sustainability and inclusion of minority perceptions of legitimacy. While the White/Sepe/Masconale article does not succeed in constructing as compelling an understanding of the most salient public goods, an improved analysis of the root causes of the fiscal degradation of America’s legacy cities can unlock a potentially valuable reframing of urban, metropolitan, and regional policy debates.
In focusing their policy proposal on fiscal guarantees for municipal creditors, the authors, from my perspective, have missed the role that the urban-suburban divide has played in the inability of city governments to provide basic public goods. But, their expansion of the public policy goal to rule of law allows us to get a more holistic picture of the foundation of a truly inclusive, flourishing community. All in all, I think that, by altering the paradigm from order maintenance to rule of law, the authors have, in formulating the Urban Decay Theory, offered a useful complement to the Broken Windows Theory rather than a truly competitive alternative to it.
December 11, 2014 in Community Economic Development, Crime, Detroit, Federal Government, Financial Crisis, Local Government, Race, Scholarship, Smart Growth, State Government, Urbanism, Zoning | Permalink | Comments (0)
Sunday, November 30, 2014
For my last guest post this month, I want to return to my primary area of research to date: American Indian land tenure. As I’ve written about here already, one of my primary interests is in thinking broadly about the many varied factors that influence landowners’ decision-making about how they use their lands. Our essential land tenure institutions are foundational in this sense and directly impact land use decision-making before anything like zoning or other direct regulation of land use even has a chance to take effect. Nowhere is the influence of the design of foundational property rights more apparent than in the land tenure relationships in the modern American Indian reservation, where significant swaths of Indian-owned lands are currently not used by Indian landowners themselves but instead sit idle or are leased to non-Indian users. In fact, I have a hard time imagining a property system better designed to discourage Indian prosperity on Indian land than the top-down system of property imposed on indigenous people in this country today.
In this post, I want to give at least an overview of some of what I think are the most important and influential aspects of American Indian land tenure and then talk just a bit about why I think further scholarly engagement in this arena would be incredibly valuable in a range of settings.
I. The Indian Land Tenure Challenge
To start, I appreciate that there is a wide spectrum of knowledge regarding the nuances of modern American Indian land tenure. For some of us, it’s just a mystery how land is owned and held within reservation boundaries. For others, the system is so complex that once we start to study it at all, conversations and work regarding indigenous land rights devolve into a level of generality that isn’t as productive as it could be. Thus, a significant part of my current research agenda is trying to do the deep work required to develop a really rigorous understanding of the modern property rights framework within this very complex reservation setting. This post won’t be able to do all of this work justice. Nonetheless, here is a brief overview.
Two of the biggest and most widely recognized challenges for Indian landowners are the federal trust status on many Indian-owned lands and the fractionation (or extreme co-ownership) conditions within many of those same properties.
Many, but not all, Indian-owned lands within federal Indian reservations are held in a special trust status over which the federal government acts as trustee for the benefit of the individual or tribal landowner. This trust status’s history is complex, but the important point for this purpose is that the trust status has been extended indefinitely and, to many eyes, appears to be perpetual.
This federal trust status certainly has some legal advantages—as evidenced, for example, by ongoing efforts by many Indian tribes to have additional lands taken into trust. The primary benefits include cementing a stronger case for exclusive federal/tribal (as opposed to state) jurisdiction over the space and also clarifying that state property taxes may not be imposed on that trust land. (The property tax issue is not quite that black and white. Many tribes still make special payments in lieu of taxes to state and local government in exchange for services and to help eliminate conflicts over fee-to-trust conversions.)
The trust status, however, also has significant disadvantages for Indian landowners. It is restrictive and extremely bureaucratic. The federal government exercises significant land management control, and most Indian-owned trust lands cannot be sold, mortgaged, leased, or otherwise developed or used without a formal approval from the Department of Interior after a cumbersome process of appraisals, oversight, and multi-level review. This trust system very dramatically increases the transaction costs for any land use and is often inefficient and even demoralizing for Indian landowners (not to mention extremely expensive for the federal government to maintain).
The second problem, fractionation, is closely related to the trust status issues. Fractionation refers to the fact that many individually owned Indian trust lands (often called allotments) are now jointly owned by many, many co-owners—sometimes as many as several hundred or more. Fractionation makes any kind of coordinated decision-making among all of these co-owners practically difficult and, as an individual co-owner’s interest size diminishes, reduces the likelihood that the co-owners will so cooperate. This then increases co-owners’ reliance on the federal government’s ongoing trust management role over these lands. All of these tiny interests, in turn, overwhelm the federal trust system, as evidenced by the recent Cobell class action litigation which uncovered the federal government’s gross inability even to account accurately for all of these small interests.
The federal government has explicitly acknowledged that this fractionation problem is a direct consequence of its own failed federal policies on Indian lands. For example, historic prohibitions on will writing for Indian landowners and the modern alienation restraints on Indian trust land have all exacerbated fractionation. Implementing any kind of solution to consolidate these small interests has been exceedingly difficult. This is true both because of the general idea that it’s much harder to reassemble property than it is to disassemble it and because of a host of other political, legal, economic, and even moral issues. Possible solutions do exist, and part of the Cobell settlement funds are currently going to fund a limited buy-back program that will purchase some individual small interests from willing sellers and re-consolidate them in tribal ownership. However, the general trend has been that any such effort at a solution moves so slowly and addresses such a small proportion of the problem that new tiers of fractionation outpace any improvements, with exponentially more small interests continually being created through further subdivision of already small interests over new generations of heirs.
While these two issues—the federal trust status and the fractionated ownership patterns—are complex enough, I don’t think they give a complete picture of all of the issues going on in American Indian land tenure. For example, in a piece called No Sticks in My Bundle: Rethinking the American Indian Land Tenure Problem that I’m currently wrapping up edits on for the Kansas Law Review, I argue that a third significant problem for Indian land use is the gradual elimination over time of any informal use and possession right for co-owners of Indian trust land. Although co-owners in any non-Indian tenancy in common would have a default right to use and possess their own jointly owned land presumptively and informally and without any prior permission from their other co-owners, that is not the case in fractionated Indian lands. Modern federal regulations have recently evolved to require Indian co-owners to get permission or a formal lease from co-owners before taking possession of their own land and also to pay those co-owners rent. I think preserving some route for direct owner’s use of jointly owned land is important and valuable, even in highly fractionated properties, and as noted, I am writing about this more here.
In addition, in another piece I’m currently writing and calling Emulsified Property, I am exploring the problem of uncertain and sometimes overlapping jurisdictional authorities within Indian Country as it relates to land use. This piece explores new dimensions of these property-related jurisdictional issues, but at a high level, the fact is that modern Indian reservation are uniquely plagued by a mind boggling array of unsettled, case-specific, or otherwise unresolved jurisdictional questions. Part of this stems from the fact that most reservations include not only Indian-owned trust lands but also fee lands, which might be owned by non-Indians, Indians of another tribe, tribal citizens, or the governing tribe itself. The state or local government is likely to assert jurisdiction at least over the non-Indian fee properties, but where that state and local jurisdiction ends, and when and if it overlaps with tribal or federal jurisdiction as well, turns on a complex balancing of multiple factors, depending on the type of jurisdiction being asserted. It continually shocks me (and my research assistants) how many unresolved questions there are in terms of who governs what in Indian Country. In my property law class, we often talk about the importance of certainty in property rules. So many of our social and economic institutions rely on having clearly established, easily communicated entitlements and responsibilities with respect to a given thing. In Indian law, there is often very, very little of that certainty.
This just scratches the surface of the American Indian land tenure paradigm, but it is already easy to see why land use is such a challenge in Indian Country. Despite significant reserved lands and natural resources, Indian people suffer some of the worst poverty in the United States.
II. Why It Matters
Now for my plug for why I think more of us should be engaging in this important work around Indian property and land use. Of course, immediately and most importantly, there is the compelling problem of justice and fairness for indigenous people, who suffer the consequences of these failed property systems most directly. The Harvard Project on American Indian Economic Development has found repeatedly that Indian people having the power and the liberty to make their own decisions with respect to their resources and their futures is the best and most effective solution to the persistent problems, including persistent poverty, in Indian Country. In many respects, it is the law that stands most in the way of this, and it will take legal minds to dismantle the current ineffective system. And legal minds who are uniquely interested in the transformative potential of property institutions are especially well suited to begin this task.
On another practical note, the problem of American Indian land tenure also matters economically for all of us. The federal government has acknowledged again and again that it using (wasting) incredible resources continuing to maintain this broken property system.
However, as land use legal scholars, there are other important reasons to work in this rich area. I believe a sustained and careful understanding of these unique Indian property institutions, and the evolution of these property relationships through various federal land reforms over time, can help us address property and land use challenges not only in Indian Country but in other venues as well. Other scholars have sometimes analogized to Indian land tenure issues for this kind of purpose, but that work has sometimes lacked a real detailed and deep understanding of how complex Indian land tenure issues actually are. However, with more careful analysis, there could be very fruitful comparative work. Let me give just two immediate examples, both of which I'm just beginning to work on.
First, the co-ownership institutions in Indian Country are unique, but the fractionation (or heir property) issues are not. Paying attention to the default co-ownership rules for individually owned Indian lands can help us learn about and address co-ownership challenges in other settings—such as the role of default co-tenancy rules in balancing flexible use arrangements with land preservation strategies for at-risk communities. It can also inform property theory and practice on how co-ownership institutions can best be designed to promote coowner cooperation and efficient use of resources more generally, how anticommons properties actually work, and what methods are most useful to re-aggregate overly fractionated property rights.
Second, I am also excited about how learning from indigenous land planning practices across multiple potential stakeholder jurisdictions within a given reservation (i.e., local municipalities and county governments, state governments, federal governments, and the tribe itself) may translate to inform other work on moving land use planning more generally to more regional, cross-jurisdictional models. Cooperation among multiple levels of government is a persistent challenge in efforts to plan more broadly on a regional, resource-based, or ecosystem level, and yet almost any natural resources or planning person would tell us that this is the kind of decision-making we must do. These kinds of jurisdictional conflicts are being addressed at the reservation level on an ongoing basis, and work on indigenous planning may teach us a lot about how we can plan across jurisdictional boundaries in wider settings. (This is not to suggest that there is a broad literature on indigenous planning or land use issues within reservation legal settings that already exists. There is not. However, for anyone looking to start to review the literature, I recently read an interesting dissertation on comprehensive planning on American Indian reservations and on the Oneida reservation in Wisconsin specifically by Dr. Rebecca Webster, a former law school classmate of mine, that provides a nice place to start and can be found here.) The challenges of planning within a reservation are different and, in some ways, arguably even more complex than the challenges of regional planning generally. Notably, within reservation boundaries, jurisdictional uncertainty may increase concerns about any decision that would jeopardize a future case for asserting jurisdiction, and there are long conflicted histories between neighboring sovereigns. Still, it is a comparison I hope to continue to explore.
This long post only barely skims the surface of all the rich and fascinating land use issues at play in American Indian land tenure. Please consider this an invitation to reach out any time for further discussions on this subject. I would love to continue to engage with more colleagues in this critical subject area and to build more critical learning connections across subject areas and disciplines.
Thanks again for the opportunity to discuss this and other issues here this month.
- Jessica A. Shoemaker
November 30, 2014 in Community Economic Development, Comparative Land Use, Comprehensive Plans, Economic Development, Federal Government, History, Local Government, Planning, Property, Property Rights, Property Theory, Race, State Government, Zoning | Permalink | Comments (0)
Tuesday, November 18, 2014
On this theme of public participation in land use planning and creating community-driven solutions to ecosystem-level challenges, I want to take this post to share a bit more about a particular tool that I have been working on developing called Plainsopoly. Plainsopoly is a land use simulation “game.” Participants engage around a large game board made up of an image of a hypothetical landscape that looks similar to, but is not exactly, a real space within the Great Plains region. We call the hypothetical space of the game the “State of Plains.” The State of Plains is depicted on the board by an amalgamation of aerial images including the edge of a large city, several small towns, both irrigated and dryland farming areas, the foothills of a larger mountain range, sensitive sandhills habitat, a winding river, and a recognized federal Indian reservation. Participants play the game in small, randomly assigned groups of four to six people and are assisted by a table facilitator. Players roll the dice, move the game piece to a correspondingly numbered geographic square on the game board, and then answer and discuss an open-ended question that poses a specific land use challenge for that particular space.
The questions are intentionally wide-ranging. I developed the question set last year with invaluable input and feedback from a great and generous interdisciplinary group of law students, graduate students, professors, and other experts from across the University and beyond. We incorporated a range of disciplines, including law, planning, natural resources, applied ecology, business, and economics, and as a group, we worked hard to make sure the most difficult and provocative current land use challenges in the Great Plains are incorporated into the game. (Two of my students, Jerry Jefferson and Preston Peterson, were particularly instrumental in this process.) In the current question set, there are questions and challenges relating to urban growth; rural depopulation; infrastructure needs; drought and other climate issues; tourism; new energy siting, including fracking, renewables, and transmission line expansion; invasive species control; water quality and quantity; jurisdictional conflicts; and many other topics.
In addition to covering a wide spectrum of substantive issues, the questions are designed to touch on four bigger themes: (1) Values (values choices as reflected in land use), (2) Making Connections (who should make decisions about land use and land use planning and at what level), (3) Ecosystem Services (how public benefits from private land, especially environmental benefits, are valued and accounted for in land use ordering and landowner decision-making), and (4) Temporal Perspectives (which timeframe land use planners and landowners should consider in assessing the consequences of any land use decision). These four themes are not explicitly addressed during game play; however, the questions are designed implicitly to provoke thinking and dialogue around these larger issues.
This Plainsopoly project came about only because of Professor Alister Scott and his group’s original idea for a land use planning, decision-making, and visioning game that they call Rufopoly. Rufopoly is a game focused on the unique landscapes of the rural-urban fringe spaces of Europe, and the themes of our questions grew out of Professor Scott’s work with stakeholders in this context. In developing Plainsopoly, we collaborated closely with Professor Scott of the Birmingham School of the Built Environment in the United Kingdom and Professor Richard Wakeford, who is currently directing the Kazan Centre in Russia and was previously the Chair of the Organization for Economic Cooperation and Development’s Rural Working Party.
As many readers of this blog may know, the use of games or other simulation exercises is an area of increasing scholarly interest in a range of disciplines, including public engagement and political science studies, natural resource management and applied ecology, psychology, business, and behavioral economics. (For a few brief examples, particularly in the natural resources sector, you might look here and even here.) Although our Plainsopoly tool has been used purely for informal discussion facilitating at invited events to date, it may also have broader potential. My sense is that the game could be used to speed participants’ learning about complex land use interactions and may provoke a valuable period of self-reflection regarding resource and planning challenges across the region. As one participant in one of the Plainsopoly games at the Rural Futures Conference last year said, the game forced him to think not only about his “little piece of land” but also about everyone else’s lands around him: “I was forced to give opinions on what somebody else should do with their little piece of land. You have to challenge yourself at that point and say, if it’s good for them, maybe I have to relook at my opinion about others giving opinions about my land. It’s a very interesting way of taking a landowner and suddenly forcing me to reevaluate my position regarding my piece of ground.”
I have also found that the experience of engaging in a shared, civil dialogue around the game table on hypothetical (but still very realistic) topics that are otherwise highly charged and sometimes difficult to discuss (like private property rights, community planning, and actual land use conflicts) may have significant value in and of itself. There is something very provocative about talking about these actual resources issues in the context of just a slightly modified hypothetical game setting that seems to really liberate people to have a much more open and comfortable conversation on these issues. If we could effectively shape and harness this, I think games like Plainsopoly and Rufopoly could have very useful applications in assisting particular groups in solving real-world problems or developing consensus around specific planning challenges, and in an action-research model, these games might be used to help inform future policy making.
I’ve noticed two big themes in the few times we have played Plainsopoly to date. First, overwhelmingly, participants envision a land use future focused on a very long-term view of sustainability and a vast appreciation for the non-economic values of natural resources. At least in this hypothetical space, a vast majority of participants seem to prefer decisions that are not made based on short-term economic gains and that consider not just one square parcel of property but rather look to an entire region’s interlocking resource dynamics. Of course, in this game space, immediate things like grocery bills and retirement savings accounts do not exist, and the transaction costs of considering issues at a regional level are dramatically reduced. But still, how do we, or could we, translate what appear to be relatively broadly shared values like this into more actual community action?
The second major notable point of interest for me, so far, is implicit in how we designed the game, but it also comes up very often in participants’ reactions to the questions. This relates to the extreme breadth of the range of factors that potentially influence an individual landowner’s decision-making about how he or she uses his or her land. Often, we might think more simply of land use planning and zoning as the relevant forces; however, the game reminds us that so many different law and policy instruments influence landowners—including, as just a few examples, our crop insurance structures, property tax systems, and energy markets. A much harder issue is not only how do we develop a shared vision for the future of these shared spaces but, more importantly, how do we execute it? A persistent theme emerging anecdotally from the game play to date is the way in which top-down strategies have a host of unintended and mix-matched interactions that complicate decision-making and implementation at the ground level. How do we better coordinate these influences?
Happily, we have the opportunity to explore the potential of games like Plainsopoly and Rufopoly to address these and other issues in a more concentrated way over the next year or so. We are just embarking on a new partnership with Professor Scott and several others on a Knowledge Exchange Opportunities grant that we just recently learned has been approved from the Economic and Social Research Council (ESRC) in the UK. The goal of the new grant is to learn from the existing models of Rufopoly and Plainsopoly and another sister game in Sweden and think intentionally about all of the possibilities of this kind of planning, visioning, and decision-making tool. One end goal is to try to develop a flexible resource kit that maximizes the potential of these tools to assist in planning processes and that hopefully is adaptable to a range of settings.
As I am entering this new work, I’ve become an eager student of some new areas of scholarship. For example, I’ve been doing some great reading on critical planning theory as it relates to whether we currently include all of the relevant voices in our typical planning processes and how, if we did achieve greater inclusiveness, such careful collective decision-making about the future of our shared spaces may be powerfully transformative. I have also been looking at the work of others on effective and innovative new governance models. This list includes, for example, Professor Beth Noveck and The Governance Lab at NYU; the procedural justice and group engagement work of Professor Tom Tyler; and the thinking on deliberative democracies and the capacity for informed “bottoms up” decision-making by Professor James Fishkin and the Center for Deliberative Democracy at Stanford. It’s all fascinating stuff, which I also read with a healthy and growing awareness of the potential framing influence of the person who poses the questions – as reflected, for example, in the “nudge” work of Professors Cass Sunstein, Richard Thaler, and others.
I would more than welcome any other thoughts, comments, or ideas as we embark on further work on this endeavor. I’m eager to see where it takes us.
(This last picture has nothing to do with the game, per se, but it's my little girls running in a preserved prairie not too far from our house. One of many special places in the Great Plains worthy of some intentional thinking for its future.)
- Jessica A. Shoemaker
The municipal elections concluded in British Columbia on Saturday night. As I watched the results roll in for my region of Greater Victoria where we have 13 municipalities and a large unincorporated rural area I was unconsciously tallying what kind of leadership would be at the table over the next four years (this will be the first four year local government election cycle in B.C.) to champion the adoption and implementation of the new Regional Growth Strategy (RGS). The current regional plan, renamed for the current process as the Regional Sustainability Strategy, has been surprisingly successful over the past decade - over 90 percent of new development has occurred within the awkwardly named Regional Urban Containment and Servicing Area - due to a number of factors that include a relatively low rate of growth (just over 1 percent), a provincial agricultural land protection regime that limits development on farmland, rural areas that want to stay rural, urban areas that agree to densify to an extent, and available land within the urban containment boundary for a variety of new uses. Metro Vancouver's Livable Region Strategic Plan and new plan Metro Vancouver 2040: Shaping Our Future mirrors this success in a much faster growing region that is more significantly geographically constrained by oceans, mountains and the agricultural land reserve.
Part 25 of the Local Government Act, enables the local government growth management regime in B.C., the centrepiece of which are these RGS's. As I describe the purpose and effect of RGS I am sure you have heard if before: a regional board may adopt a RGS to guide decisions on growth, change and development. The purpose of a RGS is to “promote human settlement that is socially, economically, and environmentally healthy and make efficient use of public facilities and services, land and other resources” (section 849). A RGS must cover a twenty-year period and must include a comprehensive statement on the future of the region, including the economic, social, and environmental objectives of the governing board in relation to projected population requirements for housing, transportation, regional district services, parks and natural areas, and economic development. It is an agreement between the local governments (municipal and regional) in a region and should work towards a wish list of smart growth goals: avoiding urban sprawl, ensuring development takes place where adequate facilities exist, settlement patterns that minimize the use of the automobile and encourage walking, bicycling and public transit, protecting environmentally sensitive areas, etc. (s.849). Individual municipalities bring their comprehensive plans, called official community plans (OCP), into conformance with a RGS by including a regional context statement in the OCP stating how it will become consistent with the RGS over time (s.866). The bottom line is that these are voluntary plans that have a circuitous impact on local comprehensive plans, which means they are tenuously binding. [And I will not go into the courts' recent treatment of whether or not bylaws are consistent with local and regional plans in this post. I will save that for my next post on the Death of Community Plans].
However, interestingly last time I looked all RGS' in B.C. have urban growth boundaries. They may not be in the right place from a planning perspective, they may simply follow the lines of our provincial agricultural land protection zone, or they may mirror the jurisdictional boundary between private and Crown land, but it seems that the language of urban containment is alive and well in B.C. A line on the regional map that is adopted into each municipal official community plan is also the best type of policy to have in the RGS because it is clear and there is no discretion in its interpretation. Municipalities agree not to extend water or sewer service beyond that urban containment line except where needed to address public health or fire suppression needs.
In contrast, the relatively recent Ontario regime called "Places to Grow" involves provincially-imposed land use plans that were motivated by untenable increases in infrastructure, primarily road, costs in the Greater Toronto region around Lake Ontario. The foundation is the Places to Grow Act, 2005 that allows for the identification and designation of growth plan areas and the development of strategic growth plans. The Growth Plan for the Greater Golden Horseshoe 2006 establishes the modest goal of 40 percent of all residential development occurring annually within designated built up areas, and meeting intensification targets for density based on predicted growth rates for each municipality. Municipalities must achieve intensification and meet intensification targets through their official plans and other documents. The Minister of Public Infrastructure Renewal has established a built boundary for each municipality, and urban growth centres are identified to take much of the new growth.
The growth management regimes in B.C. and Ontario are an interesting long term study in different legal approaches. In B.C. each RGS is an awkward negotiation between urban and rural municipalities that is facilitated by a regional government. One could argue that such a structure would lead to agreement on the lowest common policies. However, whether unwittingly or not, several of the RGS have proven to be remarkably effective in relation to urban containment. In Ontario the provincial government controversially imposes intensification targets and built boundaries in very large regional plans (the Greater Golden Horseshoe is many hundreds of kilometres deep and wide). Although mandatory and imposed by the provincial government, which raises the ire of local councils, the growth management targets are modest. Perhaps I am spoiled with our 90 percent urban containment rate here in Greater Victoria, but in a North American context intensification of 40 percent is seen as a gold standard as evidenced by the American Planning Association awarding the Daniel Burnham Award for a Comprehensive Plan to the Growth Plan for the Greater Golden Horseshoe (apparently the first time the award has been presented to an organization outside the United States).
Tuesday, November 4, 2014
Land Use in Canada - Where "Extensive and Restrictive Land Use Regulation is the Norm" by Deborah Curran
Greetings from Canada where most of the water flows north and there is no Canadian equivalent to the Fifth Amendment. Arguably the biggest difference in land use law between Canada and the U.S. is that we have no constitutionally protected property rights in Canada. Of suprise to many of you and, indeed, to many landowners in Canada, this approach to land use regulation allows provincial and local governments to restrict virtually all use of land without compensating the property rights holder for loss of land value as long as the regulation is in the public interest. As Justice Cromwell of the Supreme Court of Canada reasoned in Mariner Real Estate Ltd. v Nova Scotia (Attorney General), (1999) 177 D.L.R. (4th) 696, 178 N.S.R.(2d) 294 (NSCA) when he was a judge of the Nova Scotia Court of Appeal in a judgment that thoroughly canvassed this area of law (at paras. 41-42):
These U.S. and Australian constitutional cases concern constitutional limits on legislative power in relation to private property. As O'Connor, J. said in the Unites States Supreme Court case of Eastern Enterprises v Apfel 118 S. Ct. 2131 (U.S. Mass. 1998), the purpose of the U.S. constitutional provision (referred to as the "takings clause") is to prevent the government from "...forcing some people alone to bear public burdens which, in all fairness and justice, should be born by the public as a whole." Candian courts have no similar broad mandate to review and vary legislative judgments about the appropriate distribution of burdens and benefits flowing from environmental or other land use controls. In Canada, the courts' task is to determine whether the regulation in question entitles the respondents to compensation under the Expropriation Act, not to pass judgment on the way the Leiglature apportions the burdens flowing from land use regulation.
In this country, extensive and restrictive land use regulation is the norm. Such regulation has, almost without exception, been found not to consitute compensable expropriation.
However, the principle that a government or expropriating entity must pay compensation when expropriating an interest in property is alive and well in Canada. Its foundation rests in the royal perogative, powers bestowed on the Crown or government from the common law, and the common law principle that unless a statute explicitly provides, it is not to be construed as taking away property without just compensation (Attorney General v DeKeyser's Royal Hotel  A.C. 508 H.L.). As a common law principle for which the courts have set a high bar when testing whether regulatory behaviour equals regulatory or de facto expropriation. The claimant must prove that:
1. The legislation or government action must so restrict a landowner's enjoyment of property as to constitute confiscation an interest in property; and
2. That interest in property must be acquired by the Crown (government).
It is the second part of the test that is the hardest to meet. Courts have found that simply benefitting Crown land such as a park is not sufficient to prove acquisition by the Crown.
In many provinces this common law rule is codified in a modified form in provincial land use law. For example, sections 914 of the Local Government Act in British Columbia and 621 of the Alberta Municipal Government Act state that no compensation will be paid for changes in the value of land caused by specified decisions made under a land use bylaw or permitting function. It is only when regulation takes away virtually all incidents of private ownership that the regulation will be found to be improper. The precise wording in British Columbia under s.914 is:
(1) Compensation is not payable to any person for any reduction in the value of that person's interest in land, or for any loss or damages that result from
(a) the adoption of an official community plan or a bylaw under this Division [zoning and other development regulation] or the issue of a permit under Division 9 [development permit] of this part,
(2) Subsection (1) does not apply where the bylaw under this Division rstricts the use of land to a public use.
These regulatory or de facto expropriations are few and far between in Canada. Although we hear about successfully argued "takings" cases in the U.S. courts, in Canada a court has never found land use regulation by a local government to result in a regulatory expropriation for which compensation is owed. See Mariner Real Estate Ltd. v Nova Scotia (Attorney General) 1999 CanLII 7241 (NSCA) for an excellent discussion of this area of law, and Canadian Pacific Railway Co. v Vancouver (City)  1 SCR 227, 2006 SCC 5 for the most recent Supreme Court of Canada discussion in the municipal land use context. Courts have ruled that significantly curtailing development on land that is environmentally sensitive, freezing development, development moratoria, and requirements to plant a vegetated buffer adjacent to a watercourse to protect a drinking water source do not require compensation.
The cases where courts have awarded compensation for loss of an interest in property centre around federal or provincial regulation that essentially prohibits an otherwise existing lawful activity or prevents access to a property right. Several cases in British Columbia award compensation for mineral rights that the provincial government rendered inaccessible upon creating a provincial park [R v Tener [1985 1 SCR 533; Casamiro Resource Corp. v British Columbia (Attorney General), 1991 CanLII 211 (BCCA)]. The classic case is Manitoba Fisheries v The Queen  1 SCR 101 where the court found a de facto expropriation by the federal government when it enacted legislation that created a monopoly in favour of a Crown corporation dealing with a freshwater fishery that removed all economic viability, including the goodwill, of one business.
Before I seal your view of Canada as the quiet socialist neighbour to the north ("What? No constitutionally protected property rights?") I must add that in practice land use regulation by local governments works much the same in Canada as in most parts of the U.S. Zoning typically awards development potential or development rights, and once an application is submitted to a local government that zoning and other regulations vest. Few local governments attempt to curb growth in any comprehensive way. There is little coordination at a regional scale about where new development will occur, and most cities are challenged with revitalization of a formerly industrialized water front or downtown core that has to compete with the big box periphery. Proposals for a slight increase in residential density in existing neighbourhoods result in an eight hour public hearing, and there is, of course, no accounting for municipal bad taste in what was kind of development council believes is in the public interest. Although we have somehow resisted building freeways through most of our urban centres and do have a few somewhat successful provincial growth management or agricultural land protection law in place (more on that this month), the local politics of land use law often favours individual property rights.
If we conducted a poll I would be willing to wager that most Canadians and, in particular, municipal elected officials believe that compensation is owed if development "rights" are taken away by regulation. Most intersting is the fact that the Canadian law of regulatory expropriation has remained unchanged since land use regulation came into vogue yet it is popularly trumped by the law of eminent domain from the U.S. Perhaps telecommunications law has more impact on land use than land use regulation itself.
Monday, October 27, 2014
Cambridge University Press has just announced the release of Robin Paul Malloy's new book, Land Use Law and Disability: Planning and Zoning for Accessible Communities (2014). In it, Robin argues for a new generation of inclusive design standards to foster more housing opportunities for persons living with mobility impairments. Robin's scholarly work in this area has further developed land use law as a basis, independent of civil rights statutes and constitutional guarantees, for inclusionary claims made by marginalized persons.
Thursday, October 9, 2014
This is (hopefully) the last in a series of three posts, again cross-posted from Concurring Opinions. In the first, I asked why more land use professors are not libertarians, considering the strong leftist critique of local government. In the second, I suggested that one reason for the leftist commitment to local government (and specifically to local government land use control, albeit often in the guise of “regionalism”) is that the relevant libertarian alternatives – namely, the marketplace and the common law of nuisance – are far worse. Nevertheless, I conceded that this answer was unsatisfactory, considering that many leftists – myself included – betray a Tocquevillian optimism about local government that is difficult to square with the position that local governments are merely the least bad of all the alternatives. So I am left here, in this third post, with the hardest question: How can left-leaning local government scholars have any optimism about local government in light of the abusive local government practices we have witnessed (and documented)?
State Structuring of Local Governments
Alright, here goes… While there is no denying the manifold abuses of which local governments are guilty (see my initial post), the blame for these abuses really falls upon state governments, not local governments. The reason local governments act in the parochial fashion they do is because states have empowered and constrained local governments in such a way that effectively forces local governments to be parochial. In a variety of ways, states have facilitated and encouraged the proliferation of small local governments within metropolitan regions, each of which is thus coerced into a zero-sum competition with the others for scarce revenues. States have, at the same time, dumped all kinds of unfunded and underfunded mandates on local governments, which they must meet with whatever revenue they raise locally. Yet, there is one saving grace for local governments: states have given them an awesome power — the land use power. Is it any surprise that local governments use the biggest power states have given them to solve the biggest problem states have saddled them with –an ongoing obligation to provide costly services with limited funds? The local government abuses I mentioned in my initial post, including the “fiscalization” of land use, exclusion of undesirable land uses (and users), strategic annexation and incorporation efforts, and sprawl are thus not things local governments do because they are inherently corrupt; they do so because the state has structured local government law so as to make these abuses inevitable.
That’s not even the interesting part. This is: Why have the states created a system in which local governments have such perverse incentives? According to Jerry Frug, states created the modern system of local government law because they were threatened by cities. Cities’ openness and spirit of participation stood in contrast to the bureaucratizing tendencies of the state. States created a system of local government law designed specifically to emasculate and frustrate cities’ ambitions. In other words, local government represents a vital aspect of human experience that has been actively suppressed by the state. Frug and many others have argued ever since that in order to recover the essence of the local, we need to recalibrate local power and change cities’ incentive structures.
Local Governments and Participatory Democracy
Frug wrote in the tradition of the New Left, with its emphasis on participatory democracy, and in the aftermath of a period in which cities had been devastated by riots, white flight, urban renewal, disinvestment, and outright hostility from state and national political figures. During the late 1960s, there had been a moment when cities appeared to be on the brink of realizing their potential as fora for public participation – a heady time of citizens’ councils and “maximum feasible participation” – but this potential was quickly squashed by nervous elites.
Frug’s argument echoes theorists of participatory democracy such as Hannah Arendt. Arendt writes that, despite the bureaucratization of modern life, there periodically erupt spontaneous displays of citizen activism that demonstrate a latent human desire for political participation. These moments, of which she includes the Paris Commune of 1871, the Hungarian Revolution of 1956, and others, are quickly snuffed out when powerful interests feel threatened. Nevertheless, Arendt sees participatory democracy as lying at the core of the human condition, and the quest to recover the lost tradition of spontaneous citizen activism as a noble calling, which she refers to as “pearl diving.” This “pearl diving,” this quest to recover the vital potentiality of the local, is I think what motivates many leftist local government scholars, and fuels our optimism.
A False Utopia?
Before we all choke on the sentimentality of the last paragraph, I should note that the nostalgia for the pre-Progressive era city is somewhat discomfiting. The Gilded Age city was no enlightened democracy; even before the political machines turned cities into cesspools of corruption, as legal historian Robin Einhorn writes, cities were highly privatized, “segmented” entities that almost exclusively served the will of propertied interests. Going back further in history, certainly very few of us would like to live in the “free” cities of the middle ages, which were basically totalitarian communes, or the Athenian polis, which was rooted in the exploitation of slave and female labor.
Moreover, it is hard for cities to fulfill their potential as fora for participation when they are so embroiled in the quotidian business of governing at the local level. While states have the freedom to delegate hard decisions and devote their energies to ideological struggles, cities have to deal with the pragmatic daily chore of picking up the garbage, literally and figuratively. On a nearly daily basis, cities must address intractable issues such as homelessness, affordable housing, climate change, education, health care, security, immigration, and more, issues that, in an era of globalization, are only likely to intensify the pressure on cities as states and national governments recede in influence. Managing all these issues will require shortcuts, and city governments will be forced to make unpopular decisions that are sure to anger significant segments of the community; these issues cannot possibly be addressed if we see urban politics as merely, or even principally, a forum for democratic deliberation.
But everything I have just said also explains why we leftists insist on putting all our eggs in the local government basket. Like it or not, cities are, and for the foreseeable future will be, the primary means of dealing with the messy everyday problems we confront. In some cases, as with the provision of clean water (see my earlier post on cities in the developing world) they have succeeded spectacularly. In others, such as the provision of affordable housing, they have failed miserably. But even where they have failed, as in the case of affordable housing, we can often point the finger at the way states have empowered local governments, rather than some inherent flaw in local government. In any event, as I mentioned in my previous post, we have few viable alternatives to local government. For reasons both practical and utopian, it figures to think that cities represent our best hope for the future, and to rest our efforts on improving urban governance rather than displacing it.
Tuesday, October 7, 2014
This post is, again, cross-posted fom the Concurring Opinions blog.
In my previous post, I asked why more land use/local government law professors do not identify as libertarians, considering the role many of us have played in exposing the dysfunctional workings of local government.
If there is an obvious argument in favor of the status quo in land use/local government regulation, it is that all the alternatives seem worse. Let us consider some of the candidates:
An unimpeded free market in land use development would apparently be the worst of all worlds, as there would be no way to prevent open space from being gobbled up by new housing, roads and schools becoming impossibly congested, or a refinery locating next to a single-family home (or, perhaps more likely, a landowner threatening to build a refinery in order to extort his neighbor, a common scenario in pre-zoning Chicago). In a densely populated society, we need some way of ensuring that landowners consider the impact of their land use on neighbors. The good people of Oregon realized this after an ill-advised ballot initiative a few years ago effectively wiped out zoning, and suddenly a single landowner could, for example, subdivide his parcel into 100 lots for single-family homes with no regard for the impact the development would have on local services or infrastructure. The ballot initiative was repealed by a subsequent initiative a few years later.
In my previous post, I mentioned Houston as a possible alternative to most places’ current system of land use regulation. Houston is often touted for its lack of zoning, and corresponding low home prices. I should point out, however, that Houston is not quite a free-market paradise. Houston has a full complement of land use laws, including subdivision regulations (to prevent the aforementioned 100 lot problem) billboard regulations, and the like. The city even enforces restrictions contained in private covenants. As my friend and Houstonian Matt Festa points out, Houston has a quirky city charter that prohibits zoning without a voter initiative, so the city does lots of land use regulation but simply calls it something other than zoning. And, while I’m on the subject, does anyone really think the reason Houston has lower land prices than San Jose is because of zoning?
The common law of nuisance, a favorite of libertarian land use scholars, would appear to solve some of the problems of a free-market system, such as the refinery locating near a single-family home. But what if, instead of a refinery, it’s a bowling alley? A tavern? A cemetery? Are any of these nuisances? On that note, is subdividing my property into 100 new lots a nuisance? In all of these cases, the answer is … maybe. It depends on the severity and nature of the impact on my neighbors, the existing precedent on nuisance law in the particular state, and, most importantly, how the judge assigned to the case chooses to balance the interests involved.
This, of course, is exactly the problem. If local government land use control has been criticized for subjecting landowners to uncertainty about permissible uses of their property, for forcing developers to go through an expensive and time-consuming process to get permits, for picking winners and losers based on crass political concerns such as campaign contributions, the process of “judicial zoning” through nuisance law is little better. First, nuisance law is, if anything, more uncertain and expensive than local government land use control. Nuisance doctrine is so ambiguous that no landowner can ever know with certainty what his or her rights are without resorting to a highly fact-intensive litigation, which will inevitably involve a massive expenditure of time and money. (And Coasean bargaining won’t work if people don’t know their rights.) Second, judges inevitably pick winners and losers in nuisance cases, and while we might expect a judge – even an elected one – to rule on the legal merits of a nuisance case rather than political considerations, the nuisance inquiry is so vague and policy-driven (e.g., harm v. utility) that judges necessarily end up making value judgments about what land uses they find desirable and undesirable. Moreover, though judges – again, even elected judges – are surely less influenced than legislators by political concerns like campaign contributions, public choice research has shown that the judicial decision-making process shares many of the abuses that plague the political process – such as the dominance of repeat players and the ability of small, well-organized interests to exercise disproportionate influence.
To go a step further, the fact that local government decisionmaking is “political” whereas judicial decisionmaking is not (at least in principle) is precisely what makes local government land use control superior. When local officials make land use decisions, members of the community will at least have the opportunity to influence them through the political process. By contrast, a judge hearing a nuisance case is likely to be far less sensitive to the full array of interests affected by its decision, both because the adversarial nature of common-law litigation precludes anyone but the parties from being heard, and because judges, even when elected, are generally (and hopefully!) less amenable to pressure from voters than are local politicians.
The question, as my favorite economist Bill Fischel puts it, is whether we would rather be ruled by judges or by legislators. Though the choice, as I have presented it here, is an unpleasant one, the balance of the evidence seems to favor legislators. Judges have long understood this, and they have consciously assumed a passive and deferential role in the land use process from the beginning (Indeed, it is notable that the foundational 1926 case upholding the constitutionality of zoning, Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), was authored by perhaps the most libertarian justice of all time, George Sutherland. Sutherland’s opinion made a point that zoning was necessary because nuisance law had become an inadequate means of dealing with modern land use problems.)
Nevertheless, there is something unsatisfying about this justification for local government land use control, even for leftists. The leftist vision for local government is an optimistic one, rooted in the belief that local government offers an opportunity to realize our highest aspirations for democratic self-government. The local-government-as-least-of-all-evils argument is for us an unacceptably pessimistic view of government, and its insistence on a merely quantitative accounting of the relative demerits of various systems of land use control invites every armchair empiricist to place a thumb on the scale in favor of his or her own preferred arrangement. On the other hand, given the unsparing descriptive account of local government detailed in my previous post, how can leftists be so optimistic? I will address that question in my next post.
Monday, October 6, 2014
In case you missed it, I am cross-posting something I initially posted to Concurring Opinions, that may be of interest to our readers here. Parts II and III to follow:
Many professors who study land use and local government law, myself included, consider ourselves leftists rather than libertarians. That is, we have some confidence in the ability of government to solve social problems. Nevertheless, were you to pick up a randomly selected piece of left-leaning land use or local government scholarship (including my own) you would likely witness a searing indictment of the way local governments operate. You would read that the land use decisionmaking process is usually a conflict between deep-pocketed developers who use campaign contributions to elect pro-growth politicians and affluent homeowners who use their ample resources to resist change that might negatively affect their property values. Land use “planning” – never a great success to begin with – has largely been displaced by the “fiscalization” of land use, in which land use decisions are based primarily on a proposed land use’s anticipated contribution to (or drain upon) a municipality’s revenues. Public schools in suburban areas have essentially been privatized due to exclusionary zoning practices, and thus placed off limits to the urban poor, whereas public schools in cities have been plundered by ravenous teachers’ unions.
Friday, September 26, 2014
Check out EPA's Greening The Apple blog, which reported today on a collaboration between Touro Law Center's Land Use & Sustainable Development Institute and the Long Island Smart Growth and Resiliency Partnership (LISGRP): Turning Lemons into Lemonade: Resilience, Smart Growth and Equitable Development on Long Island | Greening The Apple. LISGRP is partnership of EPA, FEMA, New York State Department of State, Suffolk County, Nassau County and the Metropolitan Transit Authority (MTA) formed shortly after Super Storm Sandy to help Long Island rebuild in a smarter, stronger and more resilient fashion.
Among other projects that focus on the intersection of climate resiliency and smart growth, LISGRP is working with Touro Law Center to place law students with the City of Long Beach to support sustainable rebuilding. Consistent with priorities identified in the City's recently completed NY Rising Community Reconstruction Plan, the City is implementing recommendations from a Global Green Technical Assistance project (funded through a grant from EPA’s Building Blocks for Sustainable Communities program) and a New York University study on green infrastructure and storm water management.
Thus, according EPA Greening the Apple bloggers Joe Siegel and Rabi Kieber, LISGRP and its collaborators are "turning lemons into lemonade" in the wake of the devestation of Super Storm Sandy.
...Long Island Smart Growth Resiliency Partnership has turned lemons into lemonade by incorporating not only climate change resilience but smart growth and equitable development into long term planning on Long Island. The groundbreaking work of the Partnership will no doubt serve as a model for other recovery efforts in Region 2 and beyond.
Posted by Professor Sarah J. Adams-Schoen, Director of Touro Law's Land Use & Sustainable Development Law Institute. You can follow the Institute's blog here, and contact Professor Adams-Schoen by email or phone (firstname.lastname@example.org, (631)761-7137).
September 26, 2014 in Beaches, Climate, Coastal Regulation, Community Economic Development, Federal Government, Green Building, Local Government, Planning, Smart Growth, State Government, Sustainability, Zoning | Permalink | Comments (0)
Tuesday, September 16, 2014
As the implementation phase of last year’s Illinois medical marijuana statute gets underway, the real action now is happening at zoning boards and city councils around the state. Famously the nation’s strictest medical cannabis law of the twenty-four enacted to date, Illinois’ statute allows for the licensing of up to 22 marijuana cultivation sites and up to 60 dispensaries, distributed among specified geographic regions throughout the state through a competitive licensing process. Applications for cannabis entrepreneurs became available on August 14 and are due next week.
Among the application requirements are a showing that the proposed cultivation facility or dispensary complies with all local building and zoning codes. In addition, an applicant can earn bonus points for putting in place a Community Benefits Plan and for a showing of local support for the proposed location. While municipalities cannot ban cannabis facilities outright, they may limit them to specific districts or impose reasonable conditions on their permits. The State’s own prohibition on dispensaries within 1,000 feet of a school or nursery renders it very unlikely that tony chiefly-residential suburbs will ever see cannabis facilities in their towns; nevertheless, these towns (reluctantly) amended their zoning codes to allow for the possibility. Other jurisdictions allow cultivation facilities as of right in agricultural areas but subject dispensaries to permit conditions—measures typically aimed at addressing the additional security concerns of businesses potentially housing large quantities of drugs and cash. In Chicago, despite some initial efforts on the part of at least one alderman to confine dispensaries to manufacturing districts, dispensaries are now allowed in almost any business, commercial, mixed use, or downtown service district.
Now that the fierce competition for licenses is genuinely underway, municipalities are busy approving those special use permits. Local hostility towards the facilities appears to be reversing as authorities consider the economic benefits that medical cannabis might bring to their cities and towns. As explained by Joliet Mayor Tom Giarrante and reported in the Joliet Herald News, “It’s kind of like gambling. If it's going to happen, I want it in Joliet so we get the sales tax and jobs." Some savvy jurisdictions are negotiating with cannabis entrepreneurs to offer a letter of support in exchange for benefits to the city. The far-northern Illinois city of McHenry has negotiated a Contribution Agreement with one grower, under which the mayor will write a letter of support of the grower’s license application in exchange for payments to the city of at least $20,000 per year, should that grower win the coveted state cultivator’s license. Not to be outdone, last night the City Council of Batavia unanimously authorized that town’s mayor to send a letter of support in favor of another applicant for a proposed cultivation facility there. McHenry and Batavia are both located in the same 5-county district in Northern Illinois, which under the legislation will house only one such facility. Similar rivalries are taking place all over the state, including in counties that have hedged their bets by amending zoning in such a way as two approve two facilities, even though no more than one of those will win the coveted license. (Among those, Will County, home of the City of Joliet, whose optimistic mayor is quoted above.)
Wherever Illinois' 60 medical marijuana dispensaries and 22 cultivation facilities are eventually located, it looks like patients will not be the only ones to benefit. Medical cannabis will be a boon to business in Illinois—not to mention a boon to government. The non-refundable state application fee for a cultivation facility license is $25,000; operating fees for successful licensees will total in the hundreds of thousands annually. And due to a little local clout in the decision-making process, counties and municipalities may end up benefitting as well.
~Celeste Pagano, DePaul University College of Law
Tuesday, August 5, 2014
As this is my maiden voyage into the blogosphere, I thought I’d share with you my passion for historic resources and their preservation along with an exciting recent publication. Before ever dreaming of law, or legal academia for that matter, I was studying medieval British history at Oxford University. Due to many experiences in the UK—handling and reading thousand-year-old vellum documents on a regular basis; participating in voluntary archaeological digs for Anglo-Saxon settlements; mapping the phases of urban growth in Oxford; charting extant Romanesque and Gothic survivals in old Oxford buildings and sharing these discoveries with others—I realized more fully how the past enriches the present, and how without an understanding of what has come before, our own lives are less complete.
I’ll never forget eating pizza on the second floor of an old restaurant in Oxford. While munching on a slice, I looked over at one of the walls. During renovations the owners discovered 16th century wall paintings depicting the symbiotic relationship between plants and humans and took steps to preserve these paintings, incorporating them into the ambience of a modern pizza joint. This visible connection between the past and present made me muse about all the people who had eaten (or lived) in this building before, and it made mediocre pizza taste like manna.
Laws governing the management of tangible historic resources—often referred to as Historic Preservation Law and/or Cultural Heritage Law—are rounding into maturity. Given that historic resources encompass many types of law (property law, land use law, natural resources law, environmental law, Native American law) and traverse local, state, tribal, federal and international jurisdictions, there has long been a need for a resource that speaks to those jurisdictions and varied types of law collectively, rather than in silos as the field is typically analyzed
Professor Sara Bronin (University of Connecticut School of Law) and I have recently published such a resource with West Academic: Historic Preservation Law in a Nutshell.
Here is the publisher's blurb: “Historic Preservation Law in a Nutshell provides the first-ever in-depth summary of historic preservation law within its local, state, tribal, federal, and international contexts. Historic Preservation is a burgeoning area of law that includes aspects of property, land use, environmental, constitutional, cultural resources, international, and Native American law. This book covers the primary federal statutes, and many facets of state statutes, dealing with the protection and preservation of historic resources. It also includes key topics like the designation process, federal agency obligations, local regulation, takings and other constitutional concerns, and real estate development issues.”
Click this link to go to Amazon where hardcopy and E-book formats can be purchased.
I hope that this book can be of use to you, and I would welcome any feedback on how it may be improved in future editions.
To some extent, all legal and policy decisions we make today--particularly those concerned with land--are predicated on the past. And in knowing about and respecting the past, we learn more about ourselves. As Shakespeare wrote in the Tempest, "What's Past is Prologue".
Monday, June 23, 2014
As long-time readers know, I have an obsession with interest in conservation easements. In particular, I have been intrigued with a category I call "exacted conservation easements," which I view as any conservation easements that have been created in exchange for some type of land-use permit or development benefit.
Many conservation easements are donated to land trusts and government entities. Those landowners are then able to seek deductions for charitable contributions on their federal tax returns based on the fair market value of the conservation easement. Of course, calculating the fair market value of a conservation easement may not be a simple task, but we can leave that discussion for another day. Today, I want to talk about the potential for tax deductions on exacted conservation easements.
Exacted conservation easements exist because a landowner is seeking the right to develop or change her land in a way currently restricted by law. For example, where a landowner wants to convert endangered species habitat into a residential development, the landowner often agrees to burden other land with conservation easements in exchange for an incidental take permit. Now, in what I hope is an uncontroversial statement, I often assert that such conservation easements should not garner landowners any charitable tax benefits. Unfortunately, I heard many stories of landowners seeking and obtaining tax deductions for such properties.
In a recent tax court opinion, we see an example from Colorado. In Seventeen Seventy Sherman Street, LLC [SSSS] v. CIR, T.C. Memo 2014-124, the Tax Court examined the deductibility of historic facade and interior conservation easements. SSSS wanted to develop an historic site (the Mosque of the El Jebel Shrine of the Ancient Arabic Order of Nobles of the Mystic Shrine) in Denver into condos. Because the property is a designated landmark, the architect proposed building in the parking lot and preserving the shrine "as leverage to induce the city of Denver to modify the zoning restrictions governing the use and development of the [property,]" which at that time was not zoned for residential development (T.C. Memo at 5-6). SSSS then entered into negotiations with the city's Community Planning and Development Agency regarding changes to the Planned Unit Development (PUD) for the area, the conservation easements, height variance, etc. The Agency asserted that it would not recommend any changes to the PUD or granting of the height variances without the conservation easements.
Hopefully, you see quickly why I label these exacted conservation easements (or I sometimes call them "coerced conservation easements") and why they differ from the vision most folks have of conservation easements protecting the family homestead and helping farmers keep the property in the family. Here, we have a developer with no emotional connection to the property simply making a deal to obtain the development rights that the developer sets as its goal. This doesn't mean that the developer doesn't value the historic, scenic, and cultural benefits of this property. Indeed, a developer may purchase an important or beautiful site exactly because it believes those features are important, BUT we may not have the same ideas of freedom of contract or donative intent involved. We might want to view such conservation easements differently, more critically.
So what kind of tax break should SSSS be able to get here? My initial take on these has always just been zero. The conservation easements were exchanged for a varaince and favorable development measures; they are not donations. But as the Tax Court points out, we may be able to find some instances where some of an exacted conservation easement was done in exchange for a permit or some other benefit, but the value of the restriction actually exceeds the value of the permit. Frankly, while I agree generally with that sentiment, I have trouble picturing where that might occur. How do we calculate that? Without the conservation easements here, we know there would have been no permit. So can we really say that the value of the conservation easements exceeds the value of the permit? If so, are there ways to confine the conservation easement to bring it in line with the value of the permit? They have to be perpetual, so we could only change other characteristics. Suddenly I feel like we are immersed in some Dolan-like analysis of value and proportionality.
The conservation easements in this case were first valued at over $7 million. On its tax forms, SSSS did not indicate that it had received anything of value in exchange for the conveyance of the conservation easements (to Historic Denver). The IRS responded that SSSS had failed to meet some filing and appraisal requirements and asserted that the conservation easements should only be valued at a little over $2 million but claimed that the interior CEs were not deductible at all, leaving the potentially deductible amount at $400,000. Here, the Tax Court did not need to determine the value of the conservation easements or the value of the development benefits SSSS received in exchange for them because SSSS failed to identify that it received consideration for the CEs as required by the Tax Code. The court continued to explain that the exchange sure looked like a quid pro quo one with SSSS agreeing to the CEs (whatever their value) in exchange for the Planning Agency's support (whatever its value).
I am glad to see the IRS taking a careful look at these conservation easements. Generally, I think we should be wary of any conservation easements emerging from development schemes.
Monday, April 7, 2014
Sarah Schindler (Maine) has posted Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms and the Local Food Movement, 2014 Wisc. L. Rev __ (forthcoming). Just in time for the finalizing of my presentation on unauthorized vacant property use for next month's ALPS conference (in Vancouver!). Here's the abstract:
It is becoming more common in many urban and suburban areas to see chickens in backyards, vegetable gardens growing on vacant, forclosed-upon, bank-owned property, and pop-up restaurants operating out of retail or industrial spaces. The common thread tying all of these actions together is that they are unauthorized; they are being undertaken in violation of existing laws, and often norms. In this essay, I explore ideas surrounding the overlap between food policy and land use law, and specifically the transgressive actions that people living in urban and suburban communities are undertaking in order to further their local food-related goals. I assert that while governmental and societal acceptance and normalization of currently illegal local food actions is likely needed for the broader goals of the local food movement to succeed, there are some limited benefits to the currently unauthorized nature of these activities. These include transgression serving as a catalyst for change and as an enticement to participate.
Monday, February 24, 2014
Jim Holway (Sonoran Institute), along with Don Elliot and Anna Trentadue, has written Combating Zombie Subdivisions: How Three Communities Redressed Excess Development Entitlements, Land Lines Vol. 26, No. 1, pp. 4-13. Not only is the article available through the Land Lines website, but so is the larger report on which it is based. That is called Arrested Developments: Combating Zombie Subdivisions and Other Excess Entitlements. Here's a summary of the magazine piece:
The Teton County Valley Advocates for Responsible Development (VARD) stepped in and petitioned the county to create a process to encourage the redesign of distressed subdivisions and facilitate replatting. VARD realized that a plat redesign could reduce intrusion into sensitive natural areas of the county, reduce governmental costs associated with scattered development, and potentially reduce the number of vacant lots by working with landowners and developers to expedite changes to recorded plats.
On November 22, 2010, the Board of County Commissioners unanimously adopted a replatting ordinance that would allow the inexpensive and quick replatting of subdivisions, PUDs, and recorded development agreements. The ordinance created a solution-oriented process that allows Teton County to work with developers, landowners, lenders, and other stakeholders to untangle complicated projects with multiple ownership interests and oftentimes millions of dollars in infrastructure.
The ordinance first classifies the extent of any changes proposed by a replat into four categories: 1) major increase in scale and impact, 2) minor increase in scale and impact, 3) major decrease in scale and impact, 4) minor decrease in scale and impact. Any increases in impact may require additional public hearings and studies, whereas these requirements and agency review are waived (where possible) for decreases in impact. In addition, the ordinance waives the unnecessary duplication of studies and analyses that may have been required as part of the initial plat application and approval. Teton County also waived its fees for processing replat applications.
The first success story was the replatting of Canyon Creek Ranch Planned Unit Development, finalized in June 2013. More than 23 miles from city services, Canyon Creek Ranch was originally approved in 2009 as a 350-lot ranch-style resort on roughly 2,700 acres including approximately 25 commercial lots, a horse arena, and a lodge. After extensive negotiations between the Canyon Creek development team and the Teton County Planning Commission staff, the developer proposed a replat that dramatically scaled back the footprint and impact of this project to include only 21 lots over the 2,700 acre property. For the developer, this new design reduces the price tag for infrastructure by 97 percent, from $24 million to roughly $800,000, enabling the property to remain in the conservation reserve program and creating a source of revenue on it while reducing the property tax liability. The reduced scale and impact of this new design will help preserve this critical habitat and maintain the rural landscape, which is a public benefit to the general community.
While recovery from the most recent boom and bust cycle is nearly complete in some areas of the country, other communities will be impacted by vacant lots and distressed subdivisions well into the future. Future real estate booms will also inevitably result in new busts, and vulnerable communities can build a solid foundation of policies, laws, and programs now to minimize new problems stemming from the excess entitlement of land. Communities and others involved in real estate development would be well-served by ensuring they have mechanisms in place to adapt and adjust to evolving market conditions. For jurisdictions already struggling with distressed subdivisions, a willingness to reconsider past approvals and projects and to acknowledge problems is an essential ingredient to success. Communities that are able to serve as effective facilitators as well as regulators, as demonstrated in the case studies presented here, will be best prepared to prevent and then respond and treat distressed subdivisions and any problems that may arise from excess development entitlements.