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.
Thursday, November 14, 2013
Sheila Foster (Fordham) has posted Breaking Up Payday: Anti-Agglomeration Zoning and Consumer Welfare, 75 Ohio St. L.J. ___ (forthcoming 2014). Here's the abstract:
In the last decade, dozens of local governments have enacted zoning ordinances designed to limit the concentration of payday lenders and other alternative financial services providers (AFSPs), such as check-cashing businesses and auto title loan shops, in their communities. The main impetus for these ordinances is to shield economically vulnerable residents from the industry’s lending practices in the absence of sufficiently aggressive federal and state consumer protection regulation. This Essay casts considerable doubt on whether zoning is the appropriate regulatory tool to achieve the consumer protection and welfare goals animating these ordinances. The author’s analysis of the aftermath of payday lending zoning restrictions in one state demonstrates that while such laws may play a role in reducing the number of payday lenders in the immediate urban area, they do not shield consumers from these lenders altogether. Further, the economic literature on agglomeration economies suggests that there are costs to consumer welfare from limiting or breaking up retail agglomerations. Such “anti-agglomeration” zoning restrictions can prevent consumers from capturing the benefits of the price and product competition that result from retail agglomerations. This Essay concludes that if the main impetus behind anti-agglomeration zoning measures is to protect local residents from the high interest rates and loan terms associated with the payday industry, it might be that these measures are working against their intended purpose and actually harming consumers who lack viable financial services alternatives. As such, in weighing the costs and benefits of payday lender agglomeration, lawmakers should consider more carefully the effects of anti-agglomeration zoning measures on consumer welfare.
Sheila has written terrific articles on social capital and urban geography. I'm glad to see her confront, as a land use regulation problem, activities identified as detrimental to social capital and explore some of the same strategies used by communities to respond to the marketing of pornography.
Tuesday, November 12, 2013
Stephanie Maloney (Notre Dame Law Review) has posted her note entitled Putting Paradise in the Parking Lot: Using Zoning to Promote Urban Agriculture, 88 Notre Dame L. Rev. 101 (2013). Here's the abstract:
This Note explores municipal zoning regulations related to urban agriculture and evaluates specific zoning mechanisms that can be implemented to efficiently promote the accommodation of urban agriculture and access to locally grown food. Consideration of the benefits and costs of urban agriculture, alongside the zoning practices of leading cities, will assist in developing zoning laws that meet the needs of American cities and citizens. Part I of this Note introduces the concept and history of urban agriculture, providing an overview of its benefits and challenges. Part II examines municipal zoning and the principle zoning restrictions that impact farming and gardening in a city. Part III reviews the varied efforts of municipalities to support urban agriculture by incorporating it into local zoning codes. Part IV concludes by offering recommendations for the municipal integration of agriculture into the urban fabric, with particular attentiveness to participatory policy-making in the form of food policy councils.
Friday, November 1, 2013
Marie Boyd (South Carolina) has posted Zoning for Apartments: A Study of the Role of Law in the Control of Apartment Houses in New Haven, Connecticut 1912-1932, 33 Pace L. Rev. 600 (2013). In it, she reviews building records and Sanborn maps to give her reader a complete picture of the restrictions placed on apartment development before and after New Haven's first zoning ordinance in 1926. Here's the abstract:
This article seeks to contribute to the legal and policy debates over zoning by providing a more detailed examination of the impact of apartments on both pre-zoning land use patterns and the zoning process during the formative initial stages of zoning in the United States than has been provided in the literature to date. Specifically, this Article analyzes the impact of apartments on both pre-zoning land use patterns and the zoning process in New Haven, Connecticut. It focuses on the period beginning with the selection of New Haven’s first Zoning Commission in 1922, and concluding with the passage of New Haven’s first zoning ordinance in 1926. Through this detailed historical account of the realities of zoning, this Article demonstrates how — due to delays in the enactment of zoning — New Haven’s first zoning ordinance, rather than shaping the future growth of the regulated area, was instead shaped by existing land use patterns and political considerations.
Monday, October 21, 2013
David Kirp (UC Berkeley--Public Policy) has published an op-ed in the NY Times entitled "Here Comes the Neighborhood." In it, he discusses the overwhelmingly positive impact of the affordable housing built in the New Jersey township of Mt. Laurel. Referencing the recently published book, Climbing Mt. Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb by Douglas Massey (Princeton-Sociology) with others, Kirp counters the claims of those who saw the judicial response to exclusionary zoning as grafting urban cancer onto healthy suburban tissue. The cancer metaphor comes from Mt. Laurel's then-mayor Jose Alvarez and seems absurd in light of the overwhelmingly positive effects documented four decades later.
My good friend and NDLS clinic colleague, Bob Jones, sent the link to me because I am working on a paper looking at Catholic Social Teaching's response to overconcentration of poverty. I think this anectdotal account from the birthplace of judicially mandated inclusionary zoning should complement the 2011 study American Murder Mystery Revisited by Ingrid Gould Ellen, Michael Lens and Katherine O'Regan undercutting some loose talk about spreading violence and disorder through the Housing Choice Voucher program that followed the controversial eponymous 2008 Atlantic Monthly article.
Saturday, August 31, 2013
John Echeverria (Vermont) has just this week posted Koontz: The Very Worst Takings Decision Ever?. In it, he takes on both of the U.S. Supreme Court's holdings in its most recent land use decision and spells out how they will inhibit development planning discussions at the local level. Here's the abstract:
This article argues that Koontz v. St. Johns River Water Management District, the most widely discussed of the Supreme Court’s takings trilogy in the 2012-13 term, represents a major, unprincipled break from prior law and casts an unfortunate pall of confusion and uncertainty over takings doctrine, partly reversing the Court’s recent, successful effort to make takings doctrine more coherent and predictable. The Court ruled that the relatively heightened standard of judicial review established by the Supreme Court for so-called “development exactions” in Nollan v. California Coastal Commission and Dolan v. City of Tigard applies both (1) when the government denies a development permit after the developer rejects a government demand for an exaction as a condition of project approval, and (2) when a permit condition requires a developer to pay or expend money to mitigate project impacts. In so ruling, the Court rejected the position that claims challenging such government orders should be evaluated under either the Court’s relatively forgiving regulatory takings analysis or deferential due process analysis. Justice Elena Kagan wrote a dissent for herself and three other justices, arguing that the case did not involve an actual demand triggering Nollan and Dolan and that the standards established by those cases do not apply to permit conditions requiring the expenditure of money. This article contends that the Koontz decision is one of the worst decisions, if the not the worst decision, in the pantheon of Supreme Court takings cases. In doctrinal terms, the majority opinion flagrantly contradicts or ignores established precedent, fails to acknowledge its departure from prior law, and does not attempt to offer any new, coherent justifications for its novel holdings. As a practical matter, the decision creates a perverse, wasteful incentive for local officials to decline to work cooperatively with developers in designing projects that make business sense and protect the interests of the community. Finally, the decision injects new uncertainty into takings law, setting the stage for future debates over the legitimacy and appropriate scope of intrusive judicial review of local land use decision-making, including whether local governments retain the authority to reject development proposals based on unacceptable project impacts without triggering stringent judicial review.
August 31, 2013 in Community Economic Development, Constitutional Law, Environmental Law, Impact Fees, Planning, Property, Property Rights, Property Theory, Scholarship, Takings, Zoning | Permalink | Comments (0) | TrackBack (0)
Tuesday, August 6, 2013
In summer, I like to put aside an hour or so each work day to read various articles and books that I have stumbled across during the busy semester but lacked time to review. Today, the top of my stacks were an article from The New American and a book by Glenn Beck. It was really just coincidence that these two hit the top of my piles today, but it has made for a surreal afternoon.
First up is an article from The New American (the publication of the John Birch Society) by Tom DeWeese, entitled Conservation Easements and the Urge to Rule. You know an article is gonna be good when the first sentence mentions the Green Mafia. DeWeese's piece argues that conservation easements are the biggest threat to small family farmers out there. I don't want to spend too much time on his article, because it is just so chock full of problems and errors that it would take too long. He conflates conservation easements and zoning law and seems to rest everything on one case study whose facts are unclear in his piece. My favorite line though is where he compares land trusts to commodity traders buying and selling conservation easements at a significant profit. That sentence on page 2 is where he really lost any credibility he might have had with me. While not an adherent of the John BIrch Society, I have been a vocal critic of the uses of conservation easements. It is always surprising to me when I see them attacked from the right. In many ways, they embody fundamental conservative ideals of promoting and protecting private property rights. Instead of saying landowners can freely enter into any contract regarding their land that they like (a clear libertarian approach), DeWeese seems to be suggesting that any limitation on property rights (even voluntary ones) should not be permitted. Without giving too much credence to DeWeese's writing on this, I am just generally befuddled by the lack of consistency in the property rights movement.
I wish I could also share an interview with Becky Norton Dunlop of the Heritage Foundation on Fox News from February 2010 where she amusingly asserts conservation easements are akin to eminent domain, but the clip no longer appears available.
After zooming through that little article, I picked up Agenda 21 by Glenn Beck. Wow is this a crazy book. Now I don't have cable tv (and would unlikely be tuning into FoxNews if I did), so I have a general understanding of who Glenn Beck is but haven't really seen much more than clips. This may explain why I had no idea what I was in for. I was looking for a book to give me the conservative take on Agenda 21 conspiracy. I gave a talk at the Western New York Land Conservancy earlier this summer, and the Conservancy chose not to advertise the talk in the Buffalo News for fear of Agenda 21 protesters. I am super a bit embarrassed to admit that I was unfamiliar with the conservative Agenda 21 battle cry. My take on Agenda 21 thus far is that it is pretty toothless. Lots of big ideas with little action. So I was pretty surprised to hear that some radical right groups appear afraid of it. Clearly they must fear what it symbolizes rather than what it actually does. Enter Glenn Beck. Someone told me that Glenn Beck wrote a book about Agenda 21 and it is a fast read. What that person failed to mention is that it is a 1984-esque sci fi novel set in a future where Agenda 21 has led to a dystopia. Wanna hear my secret? I kinda love it. It is completely ridiculous, of course, but a great beach read ... if you were willing to let people see you reading it in public.
Friday, July 19, 2013
Hannah Wiseman (Florida State) has posted Urban Energy, published in the Fordham Urban Law Journal, (invited symposium), 2013. The abstract:
The twenty-first century has seen important changes in the U.S. energy system, and most share a common theme: In some regions of the country, energy infrastructure is now located near human populations. As has always been the case; fuel in the form of oil, gas, sunlight, wind, water, or other energy sources must be extracted wherever it happens to be found; and humans have little control over its location. Energy companies must move to the areas of highest resource abundance and find available surface space from which to capture these fuels. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed. Sunlight and wind require thousands of acres of technology installations to be efficiently captured, and unconventional oil and gas resources exist at low densities over wide areas in shales or tight sandstone formations. As we tap these sources in ever more numerous locations, energy bumps up against certain human population centers. The city of Fort Worth, Texas, for example, now hosts thousands of natural gas wells, and San Diego has more than 4,500 solar projects. Indeed, with the rise of the Smart Grid; every American consumer could become a small source of electricity; sending electricity back into the grid from a plug-in hybrid vehicle, a solar panel or small wind turbine, a fuel cell, or battery storage. As the extraction of fuels and generation of electricity (“energy production”) become integral parts of certain population centers; the law will have to adjust; responding to land use and environmental disputes, nuisance claims, enhanced demands on local electricity grids, and concerns about equity, in terms of unevenly distributed effects. This Essay explores these new themes in energy law; investigating how certain populated areas have begun to embrace their role as energy centers; by addressing conflicts ex ante, creating systems for permitting and dispute resolution that balance flexibility with predictability, and managing the tradeoff between land-based energy demands and other needs. It also briefly proposes broader lessonsfor improving energy law, based on the piecemeal approaches so far.
Very important analysis; Prof. Wiseman (a former guest-blogger here!) has provided some of the most interesting recent scholarship on the new energy boom and land use.
July 19, 2013 in Clean Energy, Environmental Law, NIMBY, Oil & Gas, Planning, Property Rights, Scholarship, Sustainability, Texas, Urbanism, Wind Energy, Zoning | Permalink | Comments (0) | TrackBack (0)
Monday, July 15, 2013
William A. Fischel (Dartmouth-Economics; Lincoln Institute of Land Policy) has posted Fiscal Zoning and Economists' Views of the Property Tax. The abstract:
Fiscal zoning is the practice of using local land-use regulation to preserve and possibly enhance the local property tax base. Economists agree that if localities can conduct "perfect zoning," which effectively makes all real estate development decisions subject to a review that balances its benefits and costs to the community, then the local property tax can be converted into a benefit tax and lacks the deadweight loss of taxation. This essay argues that American zoning is closer to this ideal than many other economists think. The practice is often difficult to detect because zoning serves several objectives besides fiscal prudence.
Anything by Fischel is a must-read!
Saturday, June 15, 2013
Land Use Prof's own Ken Stahl (Chapman) has posted the final version of Neighborhood Empowerment and the Future of the City, 161 U. Pa. L. Rev. 939 (2013). (Who says Zoning can't go Ivy?!?) Matt notified us when the piece first was uploaded. Here's the abstract for the finished piece:
In any given metropolitan region,
scores of municipalities are locked in a zero-sum struggle for mobile sources
of jobs and tax revenue. This competition appears to benefit small, homogeneous
suburbs that can directly enact the uniform will of the electorate over large,
diverse cities that are often ensnarled in conflict between competing interest
groups. Cities can level the playing field with suburbs, however, by devolving
municipal power to smaller, more homogeneous subgroups, such as neighborhoods.
Indeed, many commentators have identified one such effort at neighborhood
empowerment, the “business improvement district” (BID), as a key factor in the
recent revitalization of many cities. The BID and the related “special
assessment district” devolve the financing of infrastructure and services to
landowners within a territorially designated area. Courts have widely upheld
BIDs and special assessment districts against constitutional challenges.
Cities remain hamstrung in competing with suburbs, however, because courts prohibit cities from delegating what is perhaps the most coveted power of all to neighborhood groups: zoning. Since an unusual series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners within a certain distance from a proposed land use change (a scheme I designate a “neighborhood zoning district”).
This Article argues that the judicial prohibition on neighborhood zoning districts is inconsistent with the judiciary’s permissive attitude toward BIDs and special assessment districts. As I demonstrate, the neighborhood zoning district is conceptually identical to the special assessment district/BID. Both devices are designed to enable large, diverse cities to capture some of the governance advantages of small, homogeneous suburbs by providing landowners with the direct ability to manage local externalities. This Article attempts to make sense of the disparate treatment accorded these devices by examining several grounds upon which they could potentially be, and have been, distinguished. I find, however, that the only meaningful distinction between these mechanisms is that special assessment districts/BIDs actually raise far more troubling public policy concerns than neighborhood zoning districts, thus calling into question why the judiciary has been so much more deferential toward the former than the latter. I conclude that courts should broadly defer to municipal delegations of power to sub-local groups, so that cities can work out their own strategies for surviving in an era of intense interlocal competition.
Monday, June 10, 2013
Margaret F. Brinig (Notre Dame) and Nicole Stelle Garnett (Notre Dame) have posted A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism, forthcoming in The Urban Lawyer (2013). The abstract:
Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. Our analysis suggests that the seeming success story masks hidden local regulatory barriers. Local governments have responded to local political pressures by delaying the enactment of ADU legislation (and, in a few cases, simply refusing to do so despite the state mandate), imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted “as of right,” requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details likely dramatically suppress the value of ADUs as a means of increasing affordable housing.
This looks really interesting. Here in Houston we have a significant number of ADUs--so-called "granny flats" because--stop me if you've heard this before--Houston has no zoning to make it illegal, as this article shows it has been in single-family residentail neighborhoods around the country. These ADUs provide an important supply of affordable "inside-the-Loop" (i.e. central city area) housing.
June 10, 2013 in Affordable Housing, California, History, Housing, Houston, Local Government, Planning, Politics, Property, Property Rights, Scholarship, State Government, Subdivision Regulations, Zoning | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 17, 2013
Lee Fennell (Chicago) has posted Crowdsourcing Land Use, 78 Brook. L. Rev. ___ (forthcoming 2013). In it she looks ahead to the possibilities for emerging information technology to provide platforms for sharing data about land use impacts and preferences as well as landowner intentions. The last of these involves a proposal for the creation of publicly facilitated options markets in land use rights, an idea she previously outlined in her 2011 piece Property and Precaution (Journal of Tort Law, 2011). Here's the abstract for the Crowdsourcing article:
Land use conflicts arise from information shortfalls, and avoiding them requires obtaining and using information. Yet traditional forms of land use control operate in relative ignorance about landowner intentions, about preferences for patterns of land use that do not presently exist, and, more fundamentally, about land use impacts as they are experienced on the ground. Because information is expensive to gather and use, this ignorance may be rational. New technological and theoretical advances, however, offer powerful ways to harness and deploy information that lies dispersed in the hands of the public. In this symposium essay, I assess the prospects for an increased role for crowdsourcing in managing land use, as well as the limits on this approach. Governments must do more than elicit, aggregate, coordinate, and channel the preferences, intentions, and experiences of current and potential land users; they must also set normative side constraints, manage agendas, and construct appropriately scaled platforms for compiling and using information.