Monday, August 6, 2012
An article in this Sunday's Philadelphia Inquirer discusses New Jersey Governor Chris Christie's demand that towns in New Jersey turn over to the state money that has been in their affordable-housing trust funds for more than four years, a total of $141.2 million. A state law (N.J.S.A. 52:27D-329.2) requires that this money, which towns receive from fees paid by developers, be committed within four years. The state recently sent letters to 372 town outlining how much each one is being asked to transfer to the state's Affordable Housing Trust Fund. (NJ's Fair Share Housing Center posted a copy of one of these letters.)
Christie's effort, as the Inquirer article notes, is just the latest episode in New Jersey's battles over zoning and affordable housing regulation, battles made famous by the Mount Laurel decision. Christie previously sought to eliminate the state's Council on Affordable Housing (COAH), which enforces the judicial requirements regarding how much housing must be built in each town. However, NJ's Supreme Court rejected his attempt. (For an interesting perspective on Christie's "War Against the Mount Laurel Doctrine," see this piece by Rick Hills from a while back on PrawfsBlawg).
Now, critics claim Christie is seeking the money to fill holes in the state budget, while the Governor's camp responds that the money will be used for housing programs at the state level. Local officials assert their failure to spend the money is largely due to the state's confusing guidelines, particularly regarding what it means to have, as the law requires, "committed" funds to fulfill their affordable housing obligations.
When Christie first announced his plans to seize the funds, the Fair Share Housing Center filed a motion seeking to enjoin the state's actions, arguing that COAH failed to promulgate standards outlining what municipalities must do to "commit" the funds. The Appellate Division of the NJ Superior Court refused to issue an injunction, but did require that municipalities receive written notice of the amount they owed and how it was calculated. This notice came in the form of the subsequent letters stating the amount due and demanding that towns transfer the funds - or dispute the amount calculated - by August 13, 2012. The Fair Share Housing Center, joined by the NJ State League of Municipalities, now contend that the letter sent to municipalities fails to comply with the requirement that municipalities be informed regarding how the amount was calculated.
To my mind, it seems the challenge to the state's actions will be an uphill battle for the municipalities. The statute the state is relying upon in seizing the funds states:
"The council shall establish a time by which all development fees collected within a calendar year shall be expended; provided, however, that all fees shall be committed for expenditure within four years from the date of collection. A municipality that fails to commit to expend the balance required in the development fee trust fund by the time set forth in this section shall be required by the council to transfer the remaining unspent balance at the end of the four-year period to the “New Jersey Affordable Housing Trust Fund" . . . to be used in the housing region of the transferring municipality for the authorized purposes of that fund."
In its Order denying the request for an injunction, the court declared that "[t]he ambiguity, if any, concerning the term commit has not precluded municipalities from seeking COAH's approval of particular housing projects on a case-by-case basis." The court's chief concern, as noted, was that the municipalities receive notice and an opportunity to contest the transfer. It is likely this battle will continue to drag out, largely focused on the process through which the state is seeking to take back the funds, but it seems difficult to envision a strong legal basis for the municipalities ultimately stopping the seizure of the funds. It may be more likely that political pressure, from local municipalities and residents who will still need to fulfill their affordable housing obligations, but will be forced to find new sources of funding, may stop the state's efforts.
Over at Next American City there is a five-part series of interviews being conducted with staffers from New York City’s Department of City Planning, discussing changes to city zoning. The first two installments provide some interesting insights into two innovations to the zoning code.
The first installment looks at the FRESH program, a combination of zoning and tax incentives that are intended to encourage the entry of grocery stores into underserved neighborhoods throughout the city. The zoning incentives include a bonus allowing the construction of a larger mixed-use building if a developer includes a ground-floor grocery store as well as the easing of parking requirements.
The second installment looks at Zone Green, a set of changes to the zoning code that relax barriers to adding more environmentally friendly features to new and existing buildings. Installing such features can often require lengthy approval processes to allow elements not permitted by the building code. Both posts are worth checking out.
On an unrelated note, following up on Stephen’s recommendation of the Pruitt-Igoe Myth, which I strongly second, I wanted to mention a proposed design for the current site, much of which remains empty, that I came across a while back. It offers a neo-classical approach that tries to link the site back with the surrounding grid.
Saturday, August 4, 2012
The Chick-fil-A land use controversy has mostly focused on freedom of speech, but I think there is a larger point about the police-power basis of land use regulation that has been overlooked. In the wake of the Chick-fil-A CEO's comments on gay marriage, and the subsequent statements of public officials in Chicago and Boston indicating their opposition to building new Chick-fil-A franchises in their jurisdictions, there seems to be a general agreement that it would be illegal to deny building rights on the basis of the CEO's speech. Ken Stahl and Stephen Miller have offered additional insights on the political, tax, and other potential motivations behind this controversy, with which I completely agree. In this post, I want to expand on Ken's point about a potential Fourteenth Amendment violation of basing a land use decision on "animus" against the owner, and to peel back the onion a little bit and consider what might be the primary legal basis to a challenge to such a land use denial.
The general agreement seems to focus on the First Amendment free speech issue. Eugene Volokh seems to have the definitive analysis that, whether or not one agrees with the CEO's opinions, it would be a First Amendment violation to deny a building permit on that basis (h/t Property Prof). Viewed through the general prism of free speech and the Bill of Rights, this is entirely correct, and is probably sufficient for the public understanding of the issue. As Prof. Volokh's caselaw indicates, there can be a First Amendment violation in denying a permit based on the property owner's speech. But I think that's actually a secondary issue when it comes down to hypothetical litigation here. What's really the primary issue, as I see it, is whether or not such a denial would be a violation of the police power itself.
The Chick-fil-A hypothetical permit denial does not on its face regulate speech: neither the CEO's personal remarks, nor the official speech of the corporation are being suppressed. While there is a colorable as-applied claim of retaliation through the land use process in this hypo, the way I see it is that the primary cause of action would be that the permit denial was a violation of the statutory zoning/regulatory power itself. In other words, Chick-fil-A would start by arguing that the city's denial of permission to build is not legitimately related to the purposes for which the state legislature granted the power to regulate.
The power of local governments to engage in planning, zoning, and building regulations comes from the police powers--the state legislature's plenary authority to regulate. The Standard State Zoning Enabling Act, promulgated by Secretary Hoover's Commerce Department in 1926, starts with the standard description of the police-power font of authority for all modern land use regulation, which is "[f]or the purpose of promoting health, safety, morals, or the general welfare of the community . . . ." This means that in theory, as long as there is a legitimate reason for regulating on those broad bases, a local government can be empowered to regulate land use in its political discretion. Therefore there is a "presumption of constitutionality" granted to land use regulations (see Mandelker & Tarlock 1992 for a nuanced analysis of the presumption in judicial review). Judicial review--again, in theory--has generally centered on whether the regulation itself (whether a use restriction, site requirement, etc.) is legitimately related to one of the police-power purposes. A classic Euclidean example would be restriction of industrial uses from a residential area, for health and safety purposes.
While the courts have given broad interpretation to the police power justifications of land use regulations, the outer limit is supposed to be--again, in theory--that the nature of the restriction is itself somehow related to the objective. What it can't be is an arbitrary and capricious restriction based on considerations outside the police power. It's very similar to the "rational basis" standard of scrutinty that all lawyers learn about in consitutional law.
The reason this is important is because the presumption of constitutionality usually holds, the police powers usually win, and "arbitrary and capricious" challenges to land use decisions are hard to prove and usually lose. Steve Clowney noted Matt Yglesias' insight that almost any seemingly-legitimate content-neutral reason could give a police-power justification to regulate despte ulterior motives (though I think his example of a Sunday-opening requirement isn't the best one--just about anything involving traffic, for example, would be much easier to justify), and this is obviously a longstanding issue in land use law. But if I were trying to prove that a negative land use decision was outside the bounds of the police power basis of government regulation, I couldn't ask for a better piece of evidence than a published statement by a City Alderman like this:
"Because of this man's ignorance, I will now be denying Chick-fil-A's permit to open a restaurant in the 1st Ward."
(emphasis added). In other words, the primary reason for the negative land use decision does not have anything to do with the actual use of the land itself, but instead is based primarily on the government official's opinion about the property owner's opinions about topics extraneous to the land use (again, the decision is not based on any discriminatory practice, or on speech taking place on the site). This may in fact be a decision that is not rationally related to the police power basis for regulation, and could be struck down for that reason alone. This is important because while the First Amendment angle that had dominated the discussion of the issue could apply "strict scrutiny" to the decision, this situation could be the much rarer case where a court could find a government decision to be arbitrary and capricous, and therefore to flunk the rational basis test itself. Which means that this is potentially much more than just a case of an individual right trumping the regulatory power; it means that the city didn't have the power to do it in the first place.
This way of looking at the controversy allows us to consider the larger issue of what are the outer bounds of legitimate land use regulation, in a way that we don't often get to see in the real world. I'm still no fan of the substance of the CEO's remarks on gay marriage, but as a land use specialist, I'm also very disturbed by what Ken identified as an attitude of "entitlement" to near-absolute discretion over land use decisions by government officials in informal systems such as Chicago's traditional "aldermanic privilege," which is apparently so ingrained that it can lead an elected official to say things like:
"You have the right to say what you want to say, but zoning is not a right."
Well, maybe not, but the latter certainly can't depend on what a government official thinks of the former. Zoning still has to comport with the rule of law.
Thursday, August 2, 2012
As I mentioned in my first post, I want to use some of my time as a guest-blogger here to introduce a few projects I am current working on through the Furman Center. Today I want to talk about a fairly new project examining regulatory barriers to the construction of smaller housing units.
There has been significant discussion recently of the benefits of allowing the construction of very small apartments. In Boston, Mayor Menino has advocated the development of micro-units, smaller than those permitted by current regulations, targeted at young professionals. As reported on the PropertyProf Blog, San Francisco is exploring ways to reduce existing unit size minimums from 290 square feet to 220 square feet. In New York, Mayor Bloomberg announced a request for proposals to build an apartment building with units measuring between 275 and 300 square feet (currently units must be at least 400 square feet). The associated request for proposals for the project has already been downloaded over 1,000 times by interested parties throughout the world.
Parallel with this discussion of micro-units, a number of municipalities, both large and small, are rethinking regulations governing the construction of accessory dwelling units (ADUs) in single family neighborhoods. Some communities, such as Santa Cruz, California, have gone further and actively encourage the construction of accessory dwelling units by providing technical assistance to prospective landlords, pre-approved designs, low-interest loan programs, and other resources. These units, which may be located over a garage or in a basement, offer opportunities for encouraging denser development and urban infill. They also are seen by some as a way to help seniors maintain their homes or “age in place.”
Efforts to encourage construction of smaller housing are motivated in part by the recognition that changing demographics and household composition have created a mismatch between demand and existing housing supply. A recent book, Going Solo: The Extraordinary Rise and Surprising Appeal of Living Alone, explored the increasing prevalence of single urban dwellers. New York City’s Citizens Housing Planning Council raised attention to this issue through a recent project called “Making Room,” which enlisted a set of architects to propose different designs for innovative housing types that would meet these changing needs, but would demand regulatory changes in order to be built. The project recognized that many individuals, who cannot find housing that meets their needs, currently live in unregulated apartments within an underground housing market. These illegal conversions and other sources of affordable housing can create dangerous living conditions for occupants.
Smaller units – both in the form of micro-units in a multifamily development and accessory dwelling units in a single-family residential area – hold promise for serving a variety of needs: providing affordable housing, fostering greater density and more sustainable development patterns, increasing demand for mass transit in an area, and, as championed in Boston and New York, making expensive cities more attractive to young professionals who spend little time at home.
One supporter of the micro-unit proposal in New York was quoted in the Wall Street Journal as saying that “the city should ‘not be charged with regulating people’s preferences.’” This is, of course, the deeper question raised by changing the regulatory landscape to permit smaller housing units. Are these changes simply a matter of removing a (perhaps, to some, anachronistic or paternalistic) constraint on individual preferences? Or do the laws restricting this housing continue to serve an essential public purpose related to the health, safety, and welfare of residents? Commentators have noted that the zoning regulations that will be waived to allow the micro-unit prototypes in New York City were instituted in the early 20th Century to provide more humane living conditions, particularly through greater access to light and air. But modern construction methods and technology may provide news means to address these same health and safety issues, without returning to dreary and dangerous tenement living.
The discussion about changing regulations to allow smaller housing units is really just one piece of a broader question: do changes in living patterns, family composition, and technology demand a radical rethinking of the legal framework that governs urban life? Should the presence of vast amounts of currently illegal housing be seen as an indication that existing regulation is too strict and prevents the market from meeting demand? Are some regulations championed as serving goals related to health, safety and welfare, really more about the aesthetic or other preferences of existing residents?
To address the narrower regulatory questions raised by compact housing units, the Furman Center has begun a project, in partnership with CHPC, looking at a number of cities throughout the United States and examining regulatory barriers to smaller housing units, as well as efforts currently underway to change regulations or build these forms of housing. We are planning to study New York; Washington, DC; Austin; Denver; and Seattle, a mix of cities with varying degrees of interest and progress related to these issues. We will be examining a broad range of existing regulations, including zoning, building codes, accessibility laws, and occupancy regulations, that might prohibit or stymie the construction of these types of housing. Our goal is to outline the regulatory barriers that policy makers would need to address if they wished to allow more compact housing and to frame the questions that would need to be considered in conducting a more sophisticated cost-benefit analysis of the potential tradeoffs of changing these regulations, some of which may still serve a vital role in making cities more safe and livable.
Monday, July 30, 2012
Patricia Salkin (Touro Law Center) has posted The Quiet Revolution and Federalism: Into the Future, 45 John Marshall Law Review (2012). The abstract:
This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local land use across three time periods: first, that which existed before the publication of THE QUIET REVOLUTION; second, legislation that emerged a quarter century after the publication of THE QUIET REVOLUTION; and third, more recent federal programmatic and legislative approaches. Part IV provides analysis of the future of federalism in land use regulation, noting the increasing trend of the federal programmatic influence and the potential future influence on local land use controls. The Article concludes with a warning to local governments to be vigilant and to rethink the paradigm of land use regulation to regain control in certain areas to prevent further encroachment by the federal government into matters of local concern.
This article comes from last year's excellent Kratovil Conference retrospective on The Quiet Revolution in Land Use Control (David Callies & Fred Bosselman (Council on Environmental Quality, 1971)), hosted by John Marshall Law School in Chicago.
Matt has the legality of the various proposed Chick Fil-A bans covered. As numerous commentators have pointed out, prohibiting Chick Fil-A stores based on the opinions of the store's owner is flagrantly unconstitutional. While most commentators have focused on the First Amendment, I think Chik Fil-A has an equally strong legal argument under the Fourteenth Amendment given the Supreme Court's decision in Village of Willowbrook v. Olech, 528 U.S. 562 (2000): it is a violation of the equal protection clause to discriminate against a particular landowner due to "animus" against the landowner.
To me, the more interesting question is why city officials would propose something that is obviously unconstitutional (leaving aside the possibility that these officials are dumb, which is of course a legitimate possibility). In fact, if city officials really wanted to prevent Chick Fil-A from locating in their towns, the very worst thing they could have done is announce publicly their discriminatory animus toward the franchise. As land use folks have seen time and again, it's really easy for communities to exclude land uses they don't like (e.g., affordable housing) by citing vague concerns about traffic, noise, congestion, and so on. They rarely make the mistake of saying "we just don't want poor people living here." Now, because of what the various officials in Chicago, San Francisco, Boston, etc have said, it will only be harder to exclude Chick Fil-A even if the city has legitimate concerns about traffic, noise, etc because the inference of discriminatory animus will be so hard to shake. So why, to repeat my question, are city officials doing this? There are two possible answers, as I see it:
1) City officials see themselves as having nearly absolute power over zoning. Such a sense of entitlement may stem from a variety of sources: 1) city officials' authority is rarely challenged by repeat-player developers who would rather not anger city officials they may have to deal with again and again; 2) the news media rarely takes up zoning issues as causes celebre, and 3) courts are largely deferential toward local zoning practices. This sense of entitlement may be especially acute in Chicago, where the informal practice of "aldermanic privilege" essentially grants the alderman in each ward the unfettered right to dole out land use permissions.
This is the less likely of two alternatives, however.
2) City officials knew all along that what they were proposing was unconstitutional, and never had any serious intention of banning Chick Fil-A. The real reason for their strident statements: signalling that they are gay-friendly communities. Under the public choice model of local governance, cities are conceptualized as "firms" who compete for affluent residents and tax revenues. Richard Florida has provocatively argued that one of the greatest potential resources for cities are gay residents, who tend to have high disposable incomes and have had a history of revitalizing depressed neighborhoods in many urban areas. Thus, it makes sense that these cities would want to signal their friendliness toward gays, and it especially makes sense that once one city so signalled, others did the same to ensure that they're not seen as any less gay-friendly. In this sense, the proposed Chick Fil-A bans are very similar to then-mayor Gavin Newsom performing gay marriages in San Francisco in 2004 in flagrant violation of California law.
One footnote here: If I'm right, why did New York mayor Mike Bloomberg so forcefully diverge from these other big-city officials and declare that cities have no right to ban Chick Fil-A? Perhaps Bloomberg felt he already had sufficient credibility with gays that this was an unnecessary stunt. In addition, cities aren't just competing for gays but for business. Bloomberg's corporate instincts probably led him to conclude that potential investors in NY real estate might be deterred if the city started engaging in viewpoint-discrimination among different businesses. This shows the delicate tap-dance big city officials have to constantly engage in: give sufficient tribute to the liberal constituencies while not alienating big business.
Saturday, July 28, 2012
Even the culture wars often end up in a land use controversy. Over the past few days, public officials in Boston and Chicago made statements that Chick-fil-A restaurants would not be welcome in their jurisdictions because of the anti-gay-marriage opinions expressed by the company's CEO. According to the Wall Street Journal's Jack Nicas, one Chicago alderman went so far as to state that he would personally deny a permit solely on that basis. From First Amendment Trumps Critics of Chick-fil-A:
Chicago Alderman Proco Moreno wrote in the Chicago Tribune Thursday, "Because of [Mr. Cathy's] ignorance, I will deny Chick-fil-A a permit to open a restaurant in my ward."
I don't agree with the CEO's statements either, but it's pretty clear that, under the Constitution, his opinions can't legitimately be the basis for granting or denying land use permission. Cleveland State law prof Alan Weinstein put it best:
Alan Weinstein, a professor of law at Cleveland State University who specializes on the intersection of land-use law and constitutional issues, said he has seen officials try to use zoning laws to block adult stores or religious institutions, but never a commercial enterprise because of political views. He said that beyond the First Amendment, "in the land-use sphere, the government has no legitimate interest" in the political views of an applicant.
That last observation is key. Most of the commentary on this issue has revolved around the CEO's First Amendment rights. And it's true that free speech is one of the only areas where the courts will apply strict scrutiny to overturn government land use decisions. But as Prof. Weinstein notes, this question isn't even really about regulating actual speech on land; it's about the rational basis for land use regulation itself under the police powers.
From a pragmatic perspective, it's pretty easy to imagine a counterfactual scenario where an unpopular political opinion on the other side of the spectrum could likewise result in negative land use decisions under such a precedent. It appears that this constitutional reality is setting in, and the public officials are backtracking. Here's a video interview with the WSJ reporter:
I was one of the other "land use experts" who talked to the reporter, but Prof. Weinstein definitely said it best.
So to sum up: Many of us disagree with the Chick-fil-A CEO's opinions, but everyone seems to agree that it would be unconsitituional to prohibit the company's land use on that basis.
Tuesday, July 24, 2012
Patricia Salkin (Albany) has posted Zoning Ordinance Variances, published in the American Planning Association's PAS Quicknotes, no. 38 (2012). The abstract:
This short piece designed for planners describes the purpose of variances, both use and area variances, conditions on variances and alternatives to variances.
It is an excellent short introduction to the legal concept of variances. There is a lot of confusion out there on the differences between variances, special exceptions, nonconforming uses, and zoning amendments as methods for altering the rules. In addition to planners, I think it would also be a great piece to share with clients, community members, . . . and land use law students.
Monday, July 23, 2012
Westchester County's protracted battle with HUD over the implementation of a 2009 lawsuit continues. By way of background, the case, United States ex rel Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, was brought as a qui tam action under the False Claims Act, alleging that the county, through certifications made to HUD to receive Community Development Block Grant funds, falsely certified that it fulfilled its obligation to "affirmatively further fair housing." The Anti-Discrimination Center (ADC), which brought the case, claimed that Westchester failed to consider race-based impediments to housing choice and failed to identify and take steps to overcome these impediments, as required by law. The DOJ intervened and negotiated a settlement on behalf of HUD. The settlement requires Westchester to, among other things, spend $51.6 million to develop, primarily in municipalities with overwhelmingly white populations, at least 750 affordable housing units that affirmatively further fair housing. The County also must affirmatively market the housing in surrounding areas with significant non-white populations. The court appointed a monitor to oversee and facilitate implementation of the settlement. (In the interest of disclosure, through my work at the Furman Center, I provided technical assistance to the Monitor's team earlier in the process).
The County argues that it is complying with the settlement and is ahead of schedule in constructing the units. However, the ADC has asserted, that the locations of these units so far, which are often isolated from the surrounding community, fail to further the settlement's underlying goal of desegregating housing patterns. The County has responded that the cost and availability of land restrict the options available. The County Executive, who was elected after the settlement was reached (and has repeatedly said he would not have signed it), contends that HUD is overreaching, requiring the County to take actions beyond the terms of the settlement. In May, the District Court ruled against the County, finding that it failed to comply with the settlement's requirements that it promote legislation prohibiting source-of-income discrimination.
The most recent contentions focus on zoning issues and the County's compliance with a requirement that it conduct an "Analysis of Impediments" (AI), which examines barriers to fair housing choice. HUD has withheld funding from the County, declaring the AIs it has filed fail to properly consider the impact of race on housing choice and whether local zoning regulation is exclusionary. The County's AI concluded that no exclusionary housing existed in its municipalities. Rather than revise that submission in response to the Monitor's list of deficiencies, the County refiled the same AI, accompanied by a legal analysis by the Land Use Law Center at Pace Law School, supporting its approach.
The County argues that its review of local zoning followed the analysis of exclusionary zoning put forth by the NY Court of Appeals in Berenson v. New Castle, which requires that local zoning ordinances consider regional housing needs in developing a "properly balanced and well-ordered plan." It concludes that all of the local ordinances consider regional needs and allow the development of multi-family housing and a range of uses and consequently are not exclusionary. Therefore the County need not take any further steps to comply with the settlement's requirement that it use "all available means," including taking legal action, to address a municipality's action or inaction in promoting the settlement.
HUD's response, and the next steps in this dispute, will raise interesting questions regarding the relationship between a County and its municipalities, the definition of exclusionary zoning and scope of judicial review of local zoning, and the courses of action available to HUD in challenging local zoning.
Thursday, July 19, 2012
I am very excited for the opportunity to blog on the Land Use Prof Blog over the next month. Thanks to Matt Festa and the other editors for inviting me to do so. As Matt mentioned in his introduction, I am a Research Fellow at NYU's Furman Center for Real Estate and Urban Policy. For those not familiar with the Center, we are a joint endeavor of NYU's law and public policy school and we conduct interdisciplinary legal and empirical research on land use, affordable housing, housing finance, neighborhood change, and a host of other urban issues. Although we particularly focus on issues in New York City, we are increasingly pursuing projects in other cities and working on national affordable housing and urban policy issues.
My plan during the next month is to talk about a few interesting projects I am pursuing with the Furman Center, a few of my personal research projects, and of course to write about new land use issues.
For this first post, I thought I would discuss one of the big land use issues on our radar here in New York, Mayor Bloomberg's recent proposal to rezone a significant part of East Midtown Manhattan, in the area around Grand Central Terminal. Over the past decade the Bloomberg administration has dramatically altered New York City's zoning through over 100 rezonings affecting approximately one-quarter of the city's land. This new proposal, which includes changes in the rules governing the use of the air rights/transferable development rights over Grand Central (the rights at issue in Penn Central, only a fraction of which have been sold) raises a number of interesting issues and questions.
The proposed rezoning (see the Department of City Planning study presentation) covers 78 blocks and seeks to encourage the development of more modern and taller office buildings in an area where the average office building is currently over 70 years old. The proposal would allow new buildings substantially taller than what currently exists in the area and potentially as large as the Empire State Building. These new buildings, which would only be allowed on sites that cover a block's full frontage on one of the area's avenues, would provide larger floor plates, fewer internal supports, and other amenities the City feels are needed for the area to stay competitive with business districts in "global competitor cities."
What is particularly interesting is that -- rather than simply upzone the area to allow these larger buildings -- developers would be able to obtain greater densities (through a higher maximum floor-area-ratio) as-of-right (meaning no required city planning approval process) only by either purchasing transferable development rights (TDRs) from nearby landmarks (the major seller being Grand Central, which has nearly two million square feet available) or by obtaining a bonus in exchange for a contribution to a City fund dedicated to area improvements. Beyond these as-of-right FAR increases, even taller buildings (close in size to the Empire State Building) could be constructed, but would be subject to a Special Permit process, which would include a design review and would require certain public improvements to be provided.
The proposal raises a host of issues. If additional density is desirable in the area, why not simply rezone, rather than require the purchase of TDRs on the private market or contributions to a City fund? Is the City simply selling an upzoning or demanding an exaction from developers? And of course, for area residents and workers and potential developers other concerns exist: what effect would these new buildings have on the nearby subway, which already operates above capacity, and how much will it cost to buy these additional square feet of permitted development?
The proposal is also interesting because it represents the latest example of the City's creative use of transferable development rights, a tool that in New York has historically operated in a manner akin to density zoning or, in the case of landmarks, as a means of mitigating the effects of development restrictions. These new programs in New York use TDRs instead as a means of furthering traditional and quite specific planning and land use goals in a manner more akin to how TDRs have been used in suburban and rural areas nationwide. The City's proposal builds upon the use of TDRs in the rezoning of West Chelsea, site of the elevated High Line Park, and at Hudson Yards, an area west of Penn Station in Midtown Manhattan. Both these districts involve the innovative use of TDRs to serve a variety of planning, preservation, and development goals. Vicki Been and I will be exploring these themes further in a forthcoming article.
At the Furman Center, we are also nearing completion of the first comprehensive database of TDR transactions in New York City. We have recorded data on over 400 of these transactions between 2003 and 2011 and have begun reviewing the data to learn more about the market for TDRs in New York and how developers use them in place or in addition to other tools for increasing the size of a project. I plan to say more about this data, our plans for it, and its relevance for thinking about TDRs in other cities in a future post.
Wednesday, July 18, 2012
It's been exactly a year since we last blogged about the siting of the mosque in Murfreesboro, Tenn. Last month, opponents of the mosque convinced a county judge to enjoin its construction by alleging that they were not given adequate notice of the zoning proceedings. Today, US District Court Todd Campbell granted the proponents an injunction based on RLUIPA to allow construction to proceed. The members of the local Muslim community were represented by the The Becket Fund for Religious Liberty. Here's a copy of the TRO.
Monday, July 16, 2012
Michael Lewyn (Touro) has taken his analysis of sprawl north of the border in Sprawl in Canada and the United States, 44 Urban Lawyer 85 (2012). The abstract:
The purpose of this article is to show that, in Canada as in the United States, government regulation promotes sprawl through anti-density zoning, minimum parking requirements, and overly wide streets. However, Canadian cities are less "sprawling" than American cities- perhaps because at least some of these regulations are less onerous than in the United States.
It's an interesting article that makes an original point. We tend to assume that places like Canada must be more regulated than the US, but it isn't necessarily true when it comes to land use. Lewyn suggests a potential link to comparative levels of sprawl.
Tuesday, June 26, 2012
Just wanted to follow up on Stephen Miller's post about the new TDR Handbook. I've had the privilege of working with co-author (and planning consultant extraordinaire) Rick Pruetz on several TDR projects here in the Southeast. This Handbook is a follow on to Rick's two previous books, Saved by Development and Beyond Takings and Givings. Rick is amazingly knowledgable and very generous with his time and expertise. We just finished helping the City of Milton implement a TDR program as part of their form-based code. I will continue to work with Rick during my year off (which starts Friday!).
Jamie Baker Roskie
Monday, June 18, 2012
Bustic, Gaeta & Radeloff on Using Zoning and Land Acquisition to Increase Property Values and Help Fish
The ability of zoning and land acquisition to increase property values and maintain largemouth bass growth rates in an amenity rich region
Source:Landscape and Urban Planning, Volume 107, Issue 1
Van Butsic, Jereme W. Gaeta, Volker Radeloff
Land use change is a leading cause of environmental degradation in amenity rich rural areas. Numerous policies have been used to combat these negative effects, including zoning and land acquisition. The empirical effects of these policies on the environment and land markets are still debated. Using a coupled economic–ecological model in conjunction with landscape simulations we investigate the effect of zoning and land acquisition on property prices and largemouth bass (Micropterus salmoides) growth in Vilas County, WI, an amenity rich region with growing rural development. Using econometric models of land use change and property prices, we simulate four alternative land use scenarios: a baseline simulation, a zoning change simulation, a land acquisition program simulation, and a land acquisition program+zoning simulation. Each scenario is simulated over 82 separate lakes. For each scenario we calculate the length of a 20-year old largemouth bass, property prices, and number of new residences at simulation years 20, 40 and 60. The policies have small effects on largemouth bass size and property prices on most lakes, although the effects are more pronounced on some. We also test if the increased property values due to land acquisitions are greater than the cost of the land acquisition program and find that in our case, land acquisition does not “pay for itself”. Our methodology provides a means to untangle the complex interactions between policy, land markets, and the environment. Empirically, our results indicate zoning and land acquisition are likely most effective when targeted to particular lakes.
Friday, June 15, 2012
Via Congress for the New Urbanism, I came across this link to what looks like a great panel discussion hosted by the Cato Institute and cosponsored by Next American City, called "The Death and Life of Affordable Housing." Here is the link to the video. The session features a terrific lineup of thoughtful commentators. From the event description:
Featuring Ryan Avent, Author of The Gated City; Adam Gordon, Staff Attorney, Fair Share Housing; Randal O'Toole, Senior Fellow, Cato Institute, and author of American Nightmare: How Government Undermines the Dream of Homeownership; Matthew Yglesias, author of The Rent Is Too Damn High; moderated by Diana Lind, Executive Director and Editor-in-Chief, Next American City. . . .
The Cato Institute and Next American City will jointly host a panel discussion about housing and development policy in American cities. For several decades, U.S. policymakers have grappled with how to make housing more affordable for more people. In the past year, several new books have claimed that various government tools, such as zoning and subsidies, have limited people's access to desirable, affordable housing—while other leading thinkers have suggested that markets alone will not create socially, economically, and environmentally sustainable communities. With a shared goal of creating livable, affordable communities for all people—but diverging ideas of how to get there—the panel will give voice to a range of perspectives on the hotly debated issue of how to shape 21st-century American cities.
I plan to check it out this weekend. Enjoy,
June 15, 2012 in Affordable Housing, Books, Conferences, Development, Environmentalism, Housing, Lectures, Planning, Scholarship, Sustainability, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 6, 2012
Christopher Leinberger (Brookings) and Mariela Alfonso have published Walk this Way:The Economic Promise of Walkable Places in Metropolitan Washington, D.C., an economic analysis of certain DC neighborhoods using walkability measures. The study offers four findings:
--More walkable places perform better economically.
--Walkable places benefit from being near other walkable places.
--Residents of more walkable places have lower transportation costs and higher transit access, but also higher housing costs.
--Residents of places with poor walkability are generally less affluent and have lower educational attainment than places with good walkability.
The authors urge inclusion of walkability measures into lender underwriting criteria, developer feasability analyses, and private foundation sustainability metrics. In a brief article on TheAtlanticCities.com, Leinberger argues that walkability in neighborhoods has become a price benefit and that cities need to meet the growing demand. (Hat tip to my NDLS colleague Chris O'Byrne for sharing TheAtlanticCities.com piece)
Tuesday, June 5, 2012
Earlier in the Spring, Matt let us know about the availability of the first chapter of Daniel Mandelker's Designing Planned Communities (2010). Now, Prof. Mandelker (Washington U.) has posted the next four chapters of the book. The entire book can be downloaded from the author's website. Here are the links to the second through fifth chapters in order with the author's descriptions:
This is the second chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Planned communities require a number of design solutions: a design for the entire project as well as designs at the site, building, and streetscape levels. The discussion of these issues in this chapter assumes a planned community large enough to need design solutions at the project level and for a number of subsidiary elements such as mixed-use centers, neighborhoods, sites, buildings, and streetscapes. Many of these design solutions are also required in smaller planned communities such as mixed-use communities. All planned communities need a neighborhood design, for example, and all must consider designs for buildings and their sites. This is true even of cluster housing. The chapter surveys the design ideas, concepts, and solutions that are available for planned communities and for each level within these communities.
This is the third chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. This chapter shows how design policies and standards can be incorporated in local comprehensive plans, design guidelines, and manuals for the purpose of guiding the design of planned communities. Comprehensive, or general, plans are mandatory in many states and contain planning policies for the future growth of the jurisdiction. Land-use regulations and decisions are expected to take the planning policies into account, and, in some states, must be consistent with the plan. Design policies can be one of the elements in a plan. Design guidelines and manuals are separate and usually unofficial documents that supplement planning policies in the plan and land-use regulations in the zoning ordinance.
The role these documents play in the review and approval of planned communities varies. Significant design detail in these documents can provide a policy framework for planned community zoning amendments or for formal design standards in planned community regulations. Alternatively, some local governments adopt design guidelines and manuals if they know they will not be able to update their zoning regulations for some time, and need policies to support rezoning requests and variances that may arise from major conflicts with underlying zoning in the meantime.
This is the fourth chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Design standards can be included in the planned community ordinance, where they function as one of the standards local governments consider when they review planned community projects. Such standards in planned community ordinances present a different legal problem than design standards in advisory plans, guidelines, and manuals. Design standards in ordinances are regulatory, and compliance with these standards is a condition to project approval. A constitutional problem may arise, however, if the design standards contain qualitative terms such as “harmonious,” “creative,” or “innovative,” which courts may find unconstitutionally vague.
There is no way around the constitutionality problem if only words are used to set forth a standard because all descriptive words are ambiguous and indeterminate. There is no language “fix” that can solve this problem. This chapter provides examples of design standards that use indeterminate terms that may make the standards vulnerable to constitutional objection. Selecting these standards for discussion was done intentionally, partly because plans, guidelines, and manuals can help give meaning to indeterminate standards, and partly because the constitutional objections are not as serious as many imagine. At the same time, local governments may not opt out of this problem by declining to have any standards for planned communities. A review without standards of planned community projects is an unconstitutional delegation of legislative power.
This is the fifth chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Design standards in planned community regulations can raise constitutional problems because a court can hold them unconstitutionally vague or an unconstitutional delegation of legislative power. This problem occurs especially with planned community regulations that contain indeterminate design standards, such as equirements that a planned community’s design be “creative” or “harmonious.” The judicial record on the constitutional issues is mixed. Some courts have struck down stand-alone design standards that are not part of a comprehensive program for regulating planned communities, but some have not. Courts have upheld design standards when they are one element in a program of planned community regulation. Even when the courts have struck down design standards, they have provided drafting guidelines that can avoid constitutional problems.
Monday, June 4, 2012
Recently I came across the following cluster of five houses in an otherwise standard subdivision of front-
facing houses with their usual (yawn) front setbacks, side setbacks, and usual suburban land use controls that created the dominant suburban urban form.
The image of these five houses in Teton County, Idaho, however, will immediately induce a land use lawyer's headache. Inevitably, everyone knows, that if there is the will to make something like this work as a "one off" experiment, someone will call it a "planned unit development," or something like that, and there will quickly be a retreat from the strictures of the dominant code and a run for the relief provisions, whatever they may be locally. Maybe its a conditional use, maybe it's a special use district, a planned unit development. [Insert your local jurisdiction's relief provision here.]
But I began to wonder... what if you wanted to build a whole community, or thinking big--a whole city--built upon the premise of this five-house approach? As readers of this blog know, I have recently been somewhat infatuated with the idea of how attention to our smallest living units--neighborhoods--can be an impetus to solving our larger land use and environmental challenges. And so, I find this particular model of five units intriguing. Think about the density of these single-family houses (quite high), and think about the livability of an environment like this (also quite high, I believe). This approach will not appeal to everybody--nothing does--but if it can appeal to people in big-sky country of eastern Idaho, I think it could appeal to lots of other people, too. The combination of density and appealability seems to me a potentially winning combination in efforts to try to build more dense, environmentally sustainable communities.
Now, the question is, how could we make experiments in suburban neighborhood design like this easier from a land use law perspective? One person who has thought about the issue significantly is Ross Chapin, whose book Pocket Neighborhoods, addresses urban design of small neighborhood units in suburban reaches. Chapin's dominant proposal clusters 8 to 12 houses, rather than five, around a central "common," as shown in the graphic here. In addition, the Municipal Research and Services Center of Washington has compiled codes from places that have adopted this style of housing, which the Center calls cottage housing. For those interested in pursuing this, a review of the codes the Center has compiled is well worth it. These model and enacted codes provide approaches to neighborhood design that I believe could prove valuable to re-thinking what it means to live in a suburb, and maybe even in quasi-urban, environments.
Stephen R. Miller
Monday, May 28, 2012
Yesterday I took my kids to see The Avengers, the ensemble superhero movie featuring Ironman, Thor, Captain America, and The Hulk. But before all the world-saving action started up, I caught a throwaway line from the Gwyneth Paltrow character who plays Robert Downey Jr.'s assistant/girlfriend-- referring to their "Stark Tower" skyscraper in midtown Manhattan (powered by some futuristic sustainable energy source, natch) and their plans to build several more, she notes that she was planning to spend the next day "working on the zoning" for the other towers. I made a mental note that this could be a humorous, quick blog post reaffirming my theory that there is a land use angle to everything, and then proceeded to watch the superheroes smash it out with the bad guys to my son's delight.
But just now, the majesty of the Internet has shown me how badly I've been beaten to the punch. Via our Network colleagues at the Administrative Law Prof Blog, I found a link to a blog called Law and the Multiverse: Superheroes, Supervillans, and the Law, which has a blog post--nay, a 1,500+ word essay!--on this very subject called The Avengers: Arc Reactors and NYC Zoning Laws. This is unbelievable--from the same offhand script line that set off my land-use radar, the author delves deep into the New York City zoning code, citing chapter and verse of the regulations; identifies where Stark Tower is on the maps (all with copious linkage); and then explains the legal options available to our developer/hero:
I. Stark Tower’s Zoning District
As it happens, we know exactly where Stark Tower is meant to be located within New York: it’s built on the site of the MetLife building at 200 Park Ave.
(Update: Early on some sources indicated that it was built on the site of the MetLife building and now others indicate that Stark built the tower on top of the preexisting building. This doesn’t change the analysis. Whatever the zoning status of the MetLife building, the construction of Stark Tower was likely a “structural alteration” of the building that would disallow a grandfathered nonconforming use. It certainly exceeded the kind of “repair or incidental alteration” that would preserve the nonconforming use.)
Here’s a zoning map of the area. As you can see, it’s in a C5-3 commercial district in the Special Midtown District, which means Stark Tower has a maximum Floor Area Ratio of 18 (3 of that comes from the special district). Basically this means that if the building takes up its entire lot then it can only have 18 full-size floors (or the equivalent). There are various ways to increase the FAR, such as having a public plaza on the lot. The sloped, tapering structure of Stark Tower means that it can have more floors without exceeding its FAR because the upper floors are much smaller than the lower ones. Given the size of the 200 Park Ave lot, it’s believable that Stark Tower could be that tall, given its shape and the various means of increasing the FAR.
Stark mentions that the top ten floors (excluding his personal penthouse, presumably) are “all R&D.” Is that allowed in a C5-3?
Apart from residential uses, the permitted commercial uses in a C5 are use groups 5 (hotels), 6, 9 and 10 (retail shops and business services) and 11 (custom manufacturing). Unfortunately, research and development is not allowed as a permitted or conditional use in this district. In fact, scientific research and development is specifically allowed in a C6 as a conditional use, which requires a special permit and approval from the City Planning Commission.
So Stark needs some kind of special dispensation. How can he get it? There are many possible ways.
The essay goes on to analyze the options for rezoning, variances, and the related issues of electrical power generation permits and FAA approval, again chock full o' links to the statutes, regs, and caselaw. The author, James Daily, concludes that "while Pepper Potts may indeed have to do some work to get the next few buildings approved, it’s not far-fetched from a legal perspective." Read the whole thing, it's wild, and quite sophisticated too.
But I will draw this even more compelling conclusion: Even the world's greatest Superheroes are no match for the awesome power of the Zoning Code and the Planning Commission.
Thursday, May 24, 2012
Everyone in New York is talking about fracking. We routinely have folks stopping by our door asking us to sign petitions or donate money to fight fracking. (In fact, NYSPIRG stopped by last night.) I live in the city of Buffalo, which has banned fracking. This is the case in many towns and municipalities around the state and may work because of New Yorks Home Rule law. As there is a moratorium in place pending some additional environmental review, we have some time before courts fully examine the legitimacy of these local bans. The ban in Buffalo is largely sympolic as no one is proposing to drill any gas wells here, but some of these communities are in the heart of the Marcellus shale.
Last week, Vermont became the first state with a state-wide ban. Again this is probably largely symbolic but the public outcry against this technique is worth listening to.