April 06, 2012
Food Trucks, Land Use, and the Free Rider Problem
The food truck wars continue. In this piece on Slate, Matt Yglesias talks about several cities' and states' efforts to ban or regulate food trucks in a way that prevents them from competing with existing restaurants. He cites what he considers a particularly egregious example: a San Francisco ordinance that permits any existing business to comment on an application for a new vending license and directs the city to "consider" whether the new vendor will operate within 300 feet of an existing vendor in deciding whether to grant the license. Yglesias concludes: "a basic rule of thumb seems to suggest itself: The fact that business owners would prefer not to face competition is not a valid regulatory purpose."
This proposition would surely come as a surprise to most land use folks, who generally accept as a matter of course that land use regulations are, at their core, anti-competitive. From large-lot single-family residential zoning that inflates the cost of housing for the benefit of existing homeowners to anti-big-box store laws that are designed to protect quaint mom-and-pop businesses, zoning represents pure economic protectionism. Indeed, the San Francisco ordinance Yglesias mentions is pretty familiar: many zoning laws give neighbors the right to file a protest to a proposed land use change in their neighborhood, which can result in requiring the city to enact the zoning change by a supermajority vote or possibly even block the zoning change (I address the legality of these neighborhood zoning provisions in my article Neighborhood Empowerment and the Future of the City.)
Zoning laws are generally allowed to be anti-competitive because they are thought to be means of combatting free-rider problems. Economists like William Fischel and Bruce Hamilton have argued, for example, that a preponderance of expensive homes on large lots tends to correlate with higher-quality schools. But in the absence of large-lot zoning, people would have strategic incentives to build smaller, less expensive homes in the area just to have access to the better schools. Of course, if too many folks did the same, the very thing that attracted people to the area (the good schools) will be lost as the area becomes congested with smaller homes and more schoolchildren.
Food trucks, it would seem, present an even stronger free-rider problem. Foot traffic is drawn to an area because of the existing shops, restaurants, etc, and the foot traffic in turn generates a demand for more shops, restaurants, etc. Rents and property values go up, as do property taxes, and many high-traffic areas use special assessments or business improvement districts to provide collective sanitation or security services for the area (again overcoming a free-rider problem, as I explain in my Neighborhood Empowerment piece). When a food truck swoops into a high-traffic area, it pays no rent, no property taxes, and no assessments for that privilege, and its lower operating costs enable it to siphon some of that foot-traffic away from existing fixed eateries, thus free-riding on the efforts of those eateries to bring in the foot traffic in the first place. Think of it this way: if the food trucks are sufficiently successful to bankrupt the existing fixed eateries, leaving lots of vacant storefronts in their wake, people will stop coming to the area altogether, and the food trucks will move elsewhere. In other words, the food trucks depend on the existence of fixed eateries to fuel their business. But while fixed eateries pay taxes and fees for the ability to do business in a particular place, food trucks do not. So it should not be a surprise that existing businesses are unhappy.
The solution that suggests itself to me is fairly obvious: since business improvement districts are mechanisms for overcoming free-rider problems, than food trucks should be forced to pay assessments to the business improvement district or special assessment district in those areas where they operate. Legally and conceptually, though, this is difficult to accomplish because special assessments are, as a matter of hornbook law, supposed to be keyed to the benefits that accrue to real property. Because food trucks are not real property, it is difficult to apply the special assessment to them. But wouldn't it be possible for municipalities to use their home rule powers to impose some sort of free-rider fee on food trucks? I would hope that cities and states will consider this alternative rather than simply banning food trucks altogether.
For more on food trucks, see my colleague Ernesto Hernandez-Lopez's piece, LA’s Taco Truck War: How Law Cooks Food Culture Contests.
March 28, 2012
Waldman on Yglesias, Avent, and Zoning and Property Rights
A couple of weeks ago, I sat down and read Matt Yglesias’ The Rent Is Too Damned High and Ryan Avent’s The Gated City back to back. Both were a pleasure to read, for their content, and for the opportunity to kick a couple of bucks to two of my fave bloggers behind an ennobling veil of commerce. As an avid reader of both authors’ online work, there were no huge surprises, but reading the ebooks took me deeper and inspired some more considered thought on their ideas. Ryan Avent and Matt Yglesias (and Ed Glaeser too!) are separate humans with their own identities and ideas. But these “econourbanists” share a core view, and I hope they will forgive me if I consider their work together. Although they arrive at a similar place, the two books take very different roads: Avent’s book is a bit wonkier and more economistic, focusing on the macro role of cities in enhancing productivity through economies of scale and agglomeration; Yglesias treats the same set of issues more polemically and with an emphasis on the personal, thinking about how individuals should expect to make a living in an increasingly service-oriented economy, the importance of accessible cities to the kind of prosperity he envisions, and the perils of any obstacle that makes urban life inaccessible (“the rent is too damned high!”). Read both!
This is a long post with extensive analysis of the reviewed work and the authors' own insights. Waldman is a qualified skeptic of the authors' approaches. A very insightful essay that grapples with the issues I am trying to address in my own scholarship. I am glad to add a new term-- "econourbanist"-- to my land use lexicon! Thanks to Geoff Corn for the link.
March 15, 2012
Smith on Property as the Law of Things
Henry E. Smith (Harvard) has posted what looks to be a very important property theory piece, Property as the Law of Things, forthcoming in the Harvard Law Review. The abstract:
The New Private Law takes seriously the need for baselines in general and the traditional ones furnished by the law in particular. One such baseline is the “things” of property. The bundle of rights picture popularized by the Legal Realists downplayed things and promoted the expectation that features of property are detachable and tailorable without limit. The bundle picture captures too much to be a theory. By contrast, the information cost, or architectural, theory proposed here captures how the features of property work together to achieve property’s purposes. Drawing on Herbert Simon’s notions of nearly decomposable systems and modularity, the article shows how property employs a thing-based exclusion-governance architecture to manage complexity of the interactions between legal actors. Modular property first breaks this system of interactions into components, and this begins with defining the modular things of property. Property then specifies the interface between the modular components of property through governance strategies that make more direct reference to uses and purposes, as in the law of nuisance, covenants, and zoning. In contrast to the bundle of rights picture, the modular theory captures how a great number of features of property – ranging from in-rem-ness, the right to exclude, and the residual claim, through alienability, persistence, and compatibility, and beyond to deep aspects like recursiveness, scalability, and resilience – follow from the modular architecture. The Article then shows how the information cost theory helps explain some puzzling phenomena such as the pedis possessio in mining law, fencing in and fencing out, the unit rule in eminent domain, and the intersection of state action and the enforcement of covenants. The Article concludes with some implications of property as a law of modular things for the architecture of private law.
March 08, 2012
Stahl on Local Government, One Person/One Vote, and the Jewish Question
I have just posted my most recent paper on ssrn. It is entitled Local Government, One Person/One Vote, and the Jewish Question. It can be downloaded for free here, and has recently been submitted to law reviews for publication. I presented a version of this paper at the ALPS conference last week Here is the abstract:
This article argues that the Supreme Court’s jurisprudence regarding the application of the 'one person/one vote' rule to local governments, while often considered hopelessly confused, actually contains an internal logic that reflects the ambiguous legacy of the Enlightenment in this country. There are three broad strands within the one person/one vote jurisprudence: the first, beginning with Avery v. Midland County, requires cities to apportion votes based on a 'one person/one vote' principle; the second, exemplified by Ball v. James, permits certain municipalities to apportion votes according to a 'one dollar/one vote' formula; and a third, captured in Holt Civic Club v. City of Tuscaloosa, gives the state plenary power to allocate votes with regard to some local government matters. Although these three strands seem impossible to reconcile, they are all consistent with an Enlightenment jurisprudential project to consolidate the power of the central state by suppressing the ability of entities exercising authority over particular territories, such as local governments, to challenge the state’s hegemony. Each line of cases accomplishes this end by creating an idealized standard for political participation that conceptualizes voters as abstract, homogenous individuals who are divorced from their parochial territorial commitments and thus capable of being acted upon by the state without regard to such commitments.
The article further reveals, however, that the evisceration of territory in these cases is actually an illusion. Under the guise that territory has been rendered immaterial, the courts surreptitiously permit local governments to exercise a substantial degree of territorial control. For example, in the case of City of Eastlake v. Forest City Enterprises, the Court upheld a tiny suburban municipality’s parochial exercise of the zoning power (excluding an affordable housing complex) by invoking the municipality’s subjection to the one person/one vote rule. Because one person/one vote purports to remove territorial affiliations from the political realm, it had the power in Eastlake to transform a small fragment of a large metropolitan region into 'the people,' a despatialized abstraction that was entitled, by virtue of its ostensible remove from territorial particularity, to exercise the zoning power in its own interest.
I explain the ambiguous use of territory in the jurisprudence by drawing upon the Enlightenment obsession with 'the Jewish question,' or the problem of incorporating territorially-bound subgroups like the Jewish ghetto into a modern nation-state predicated on the idea of a uniform citizenry. The tension between the surface homogenization and the underlying fragmentation of territory in the one person/one vote cases reflects an uneasy compromise between the Enlightenment attempt to incorporate groups such as the Jews into the abstract 'rights of man' and a pragmatic realization that territorial sovereignty is a precondition to securing human rights. This compromise, I argue, has troubling consequences: it enables those with sufficient political or financial power to retreat into insulated enclaves under the aegis of state neutrality, while foreclosing recompense for those excluded from such enclaves by deploying the fiction that they still retain their abstract rights. The article concludes accordingly that the egalitarian promise of the one person/one vote jurisprudence rings hollow.
February 25, 2012
Mandelker on Housing Quotas for People with Disabilities
Daniel R. Mandelker (Washington U) has a new article called Housing Quotas for People with Disabilities: Legislating Exclusion, Urban Lawyer, Vol. 43, No. 4, p. 915, 2011. The abstract:
The transfer of people with disabilities from state institutions to residential housing is one of the great migrations in recent history, but finding adequate housing is difficult. Laws that enact housing quotas make this task even harder. Quotas can require a minimum distance between group homes, limit the number of group homes that can be allowed in a community, or limit the number of apartments in multifamily projects. This article considers the legality of these quotas under the federal Fair Housing Act, and their constitutionality as an equal protection violation.
Part I describes the universe of housing models available for people with disabilities. Part II examines the problem of clustering that occurs when this housing locates in groups. Part III describes state statutes that require a minimum distance between group homes for people with disabilities, and federal housing subsidy legislation that contains quotas and preferences. It criticizes the dispersion strategy for housing that quotas implicitly require. Part IV considers the constitutionality of housing quotas under the equal protection clause of the federal constitution.
Part V considers the legality of quotas under the federal Fair Housing Act, which makes it a violation to “otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap." Part VI discusses more acceptable models for distributing housing opportunities.
An important issue with a valuable discussion from one of the leaders in our field.
February 21, 2012
East L.A. Cityhood Proposal Defeated
An interesting local government story from the L.A. Times: East Los Angeles, an unincorporated and predominantly Latino neighborhood of 126,000 in Los Angeles county has had its latest petition to incorporate as a municipality denied by the Local Agency Formation Commission (LAFCO.)
Unlike many states, which simply permit any unincorporated area to incorporate if it can gather enough signatures for an incorporation petition, California actually requires all proposed municipal boundary changes to be approved by LAFCO, and one of the major factors LAFCO considers is the fiscal viability of the proposed municipality. In this case, the LAFCO concluded that East L.A. lacks sufficient taxable resources to generate sufficient tax revenue to finance the municipal services (fire, police, etc.) that the new city would require.
East L.A.'s situation is interesting for many reasons. For one thing, it highlights what Michelle Anderson has referred to as the problem of municipal "underbounding." Take a look at the map of the Los Angeles basin below:
It's hard to read, but you can see that I have circled East LA in the center of the map. The white portion of the map to the west and north of East LA are all encompassed within the city of Los Angeles. The multi-colored territories to the East and South are other incorporated cities. You can see that aside from a few small "islands" of unincorporated territory, most of the urbanized part of LA county lies within some incorporated municipality. So what happened?
As detailed in Gary Miller's excellent book Cities by Contract, during the 1940s and 50s the two largest cities in LA county, Los Angeles and Long Beach, began aggressively annexing neighboring unincorporated land. Many unincorporated areas were apprehensive because they sensed that annexation was driven by a desire to acquire tax-rich territory so as to redistribute tax revenue from the annexed territory to the annexing municipality. These unincorporated areas could prevent annexation only by incorporating as municipalities themselves, but if they did so, they would then become responsible for financing their own municipal services, a potentially crippling burden. LA county was also worried about the annexations because, as LA and Long Beach grew and swallowed unincorporated areas, they took power away from the county. So the county and the unincorporated areas came up with an ingenious idea called "the Lakewood plan." Under the Lakewood plan, any incorporated municipality could "contract" with the county for the provision of services so as to take advantage of the county's economies of scale in the provision of services while allowing municipalities to retain the powers they really wanted: taxing, zoning, and school control. With the Lakewood plan in place, there was no disincentive for unincorporated areas to incorporate, and they did so with abandon. Today there are 88 incorporated municipalities in LA county.
So why did East LA not incorporate? Frankly, no one wanted to annex poor areas like East LA, so East LA had no reason to incorporate. And, even under the Lakewood plan, incorporated municipalities would still be required to finance their schools out of their own tax base, which is a very significant expenditure for a poor area. The result is that East LA remained unincorporated. So why incorporate now? And why are they being prevented from doing so?
The second question is somewhat easier to answer. After the rash of Lakewood plan incorporations, someone in California state government decided this system of willy-nilly incorporation was crazy, and the LAFCO was formed in order to create a more orderly process of dealing with municipal boundary changes.
Now the harder question: why would east LA want to incorporate in light of the crushing financial burden that would impose? Remember, by remaining unincorporated, East LA receives services from LA county that are highly subsidized by residents of incorporated cities, who are still required to pay property taxes to the county in addition to the fees they pay for the contracted services. Why forego this subsidy and have to pay your own way? Incorporating would give East LA control of its own zoning, schools, and tax base, but with such a minimal tax base they would apparently be better off (and LAFCO certainly thought so) getting their subsidy from the county.
According to the website for the East LA cityhood movement, the goal is the basic one of bringing local government closer to the people. LA county government is the largest local government in the United States, with a population of 10 million, but has only a five-person board of supervisors. If my remedial math serves, that means each supervisor governs roughly 2 million people.
The East LA incorporation drive runs counter to the received wisdom that municipal boundary change follows a kind of "public choice" logic in which the motivation of annexing cities is to loot the tax revenue of unincorporated areas and unincorporated areas are driven by the selfish desire to hoard their stash from being redistributed to the urban masses. Here, it seems, the desire to incorporate stems from a yearning for self-government by a group of people who perceive themselves as a distinct community within the larger city.
Richard Briffault writes that there are two competing conceptions of local government in our political system: the polis and the firm. Local governments are sometimes seen as little democratic republics, and other times as participants in a marketplace. East LA's incorporation petition seems to rest on the former conception of local government -- a city is a forum for enlightened self-government. The reason East LA's petition has been stymied, however, is because LAFCO adheres to the latter conception -- local governments are business organizations. It is telling in this regard that the principal reason LAFCO gives for disapproving the incorporation is that East LA lacks a sufficient number of big-box stores to support an independent city.
February 10, 2012
Pennsylvania Limits Municipal Zoning Power
The Pennsylvania legislature approved a bill that limits municipalities zoning
power with respect to gas drilling. The issue of municipal authority to zone for hydraulic fracturing and related operations has been a significant issue in Pennsylvania as it has in New York
(see February 2, 2012 post). Pennsylvania courts had determined the contours of municipal power but Governor Tom Corbett and industry representatives pushed a through bill that requires municipalities
to permit nearly all types of oil and gas operations in all zoning districts including residential neighborhoods and sensitive natural and cultural resource protection areas. The bill does not offer any increased protection to environmental resources although it does include some bonding requirements. Called a “compromise” the bill does include impact fees payable to the counties
and municipalities but concerns have been raised that the fees are insufficient to offset any costs. Governor Corbett is expected to sign the legislation this week.
February 07, 2012
The Bizarro Mount Laurel Doctrine
How do you like the working title for my next law review article? In a recent decision, the New Jersey Supreme Court (of Mount Laurel fame) held that the first amendment does not necessarily require a particular municipality to provide access to adult businesses, as long as adult businesses can find adequate locations elsewhere in the metropolitan region --- even if the only accessible locations are across state lines. I call this the "bizarro" Mount Laurel doctrine because where Mount Laurel requires every municipality in New Jersey to accommodate its fair share of the regional need for a particular use (there, affordable housing rather than adult businesses,) under this reasoning municipalities do not need to accommodate their fair share provided that someone else in the region does. Several courts have used this bizarro logic to justify other forms of exclusionary zoning. Consider the Sixth Circuit's 1955 decision in Valley View v. Proffett, 221 F.2d 412 (6th Cir. 1955), regarding a zoning ordinance designed to maintain the exclusively residential character of a suburban village:
Traditional concepts of zoning envision a municipality as a self-contained community with its own residential, business and industrial areas. It is obvious that Valley View, Ohio, on the periphery of a large metropolitan center, is not such a self-contained community, but only an adventitious fragment of the economic and social whole. . . .The council of such a village should not be required to shut its eyes to the pattern of community life beyond the borders of the village itself . . . [but has the authority] to pass an ordinance preserving its residential character, so long as the business and industrial needs of its inhabitants are supplied by other accessible areas in the community at large.
The bizarro Mount Laurel doctrine seems suspiciously like a recipe for ghettoization. Those communities that have permitted land uses deemed undesirable by other communities, perhaps out of a willingness to absorb their fair share, will be branded as red-light districts or ghettos and become dumping grounds for undesirable uses, while those that have guarded their exclusiveness most zealously will get to continue doing so for no better reason than that they always have. City leaders will of course get the message that it's better to exclude everything than even try to be a good neighbor and accommodate your fair share. At least adult uses can lean on the first amendment for some protection. Where are advocates of affordable housing to turn? Obviously not to New Jersey governor Chris Christie, who has denounced the Mount Laurel decision as an "abomination" and is working hard to dismantle its legacy.
(Here's the court's opinion:Download A6610BoroughofSayrevillev35Club)
December 22, 2011
Levine Powers on State and Local Regulation of Fracking
Yes, more about "fracking", that is, oil and gas extraction through hydraulic fracturing. Erica Levine Powers (SUNY-Albany-Geography and Planning) has published Home Rule Meets State Regulation: Reflections on High-Volume Hydraulic Fracturing for Natural Gas, ABA St. & Loc. L. News (Vol. 35, No. 2, p.1). Here's the opening:
Hydraulic fracturing, or “fracking,” like all mining, is both a local matter impacting community development and environmental quality and a state matter impacting national energy security and regional economic development. Along with the discovery of new sources of natural gas—and methods for its recovery—have come increasing battles over local control and state interests. States have taken diverse positions on fracking, and, building on the experiences of other states, New York is the latest to wrestle with the issue. In the process, New York is defining the roles of local and state government by including an explicit role for local government in environmental review, by public input in the state review process, and through ongoing litigation that will define the rights of New York’s home-rule municipalities to regulate fracking.
December 01, 2011
Zoning "Can't Buy Me Love"
I had an interesting conversation this morning with Meg Mirshak, a reporter from The Augusta Chronicle. She contacted me for background on a series of stories she's doing on a proposed overlay zone that would allowed mixed-use development in a historic African-American neighborhood called Laney-Walker. The overlay as proposed is very general, but requires specific permission for uses like pawn shops and liquor stores. The community feels underinformed and is very concerned about the potential impact on their neighborhood. Also, this concept of an overlay zone is confusing to many, and the commission has delayed its vote on the overlay until January due to the confusion and to notice problems.
Mirshak asked me if I could provide examples of where overlay zoning has proved succesful, and honestly, this stumped me. We've proposed particular types of overlay zoning in some of our client communities - to require more pedestrian friendly redevelopment on aging strip corridors, for example - but the time horizon on implementing these changes is so long that I can't honestly say I know of a "successful" use of overlay zoning. Also, as I pointed out to her in a follow up e-mail, overlay zoning is really just a form, so it's kind of like asking if any type of form - buildings, novels, movies - are inherently successful. Yes, those forms can be successful or they can be a disaster, depending on how you construct them and what you're trying to accomplish. With any zoning tool the trick is to make sure they reflect the community's goals and market realities, and that they deliver what's best for the long term vibrancy of the city. And that often involves a lot of process, more process than they seem to have allowed for in Augusta.
Coincidentally, I stumbled across a blog post on Planetizen, written by an urban planner who lead a group of students to plant trees at a New Orleans school, only to be thwarted in their task by a schoolyard shooting. The post, titled "Can't Buy Me Love - or Plan for It," points out the importance of human connection in urban planning.
In my first year and a half as a working urban planner, I've consistently come back to the lessons I learned in New Orleans in 2009: For all of the innovative design that you can bring to a city, and for all of the smart planning principles that they teach you in school, there's no match for literally and figuratively digging your heels into a neighborhood, getting residents invested in the work that you're doing, and—together—building a partnership that leads to the kind of community building that can't be taught.
I can't say better than that. Here's hoping the planners in Augusta can do what it takes to get the residents invested in what they're trying to accomplish.
Jamie Baker Roskie
November 30, 2011
Wal-Mart and Vested Rights or Wal-Mart in Athens Part II
So, today I waded into the local controversy about the possibility of a Wal-Mart in downtown Athens with an editorial in the local weekly. [Note - this article is no longer available on the original site, so this link is to a re-posted version.] Specifically, I responded to media reports that the county attorney has said the developers have vested rights to develop the property based on the amount of money they claim to have spent on site preparation. Now, Georgia has a pretty generous vested rights doctrine, but it's not that generous. As in most states, you still have to have some kind of official assurance for rights to vest. Apparently now the county attorney doesn't want to talk about it, but other folks on both sides of the issue certainly have been.
This type of controversy is not unique to Athens, apparently. A casual perusal of media reports turns up vested rights controversies over proposed Wal-Marts in Hood River, Oregon, Leon County, Florida, San Antonio, Texas, and Abingdon, Virginia. Is this some kind of trend?
Jamie Baker Roskie
November 14, 2011
Sterk and Brunelle on Zoning and Res Judicata
Stewart Sterk (Cardozo) and Kimberly Brunelle have posted Zoning Finality: Reconceptualizing Res Judicata Doctrine in Land Use Cases, 63 Fla. L. Rev 1139 (2011). Here's the abstract:
Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen to live and to the economic value of their homes.
The protagonists in zoning disputes-landowners and neighbors-invest time and other resources to persuade the relevant decisionmakers to rule in the protagonists’ favor. When the parties make that investment, should they assume that a decision made today will have some enduring significance? Whether the decision is “final” may play an important role in shaping the parties’ participation and presentations. If a zoning board were free to deny a variance today and to grant the identical variance next week (or next year), there would be less reason for neighbors (and landowner applicants) to spend time and money framing their arguments for today’s decision.
Many of the reasons that underlie res judicata doctrine apply to these local land use disputes. In the interest of conserving the resources of all parties- landowners, neighbors, and local decisionmakers-issues should be decided once, not multiple times. There is little reason to think that, were the issues decided multiple times, subsequent determinations would improve on prior ones. This is especially true in the context of land use, where the issues involve primarily questions of fact, and parties have incentives to come forward with all relevant information at the time the first decisionmaker considers the dispute.
If a court, rather than a zoning board, were resolving the dispute, res judicata doctrine would circumscribe the power of a subsequent court to depart from the earlier determination. In the first instance, however, zoning disputes are resolved not by the courts, but by local legislatures and administrative bodies. No finality principle comparable to res judicata attaches to legislative determinations, no matter which legislative body-Congress, a state legislature, or a local city council- makes those determinations. Unlike most judicial decisions, which resolve discrete disputes over past events, legislatures act prospectively. Finality rules would preclude legislative decisionmakers from considering new facts that cast doubt on the wisdom of past decisions. It should not be surprising, then, that legislatures are typically free of finality constraints.
In contrast to the well-established principles that apply to judicial and legislative determinations, the applicability of finality principles is unclear when it comes to administrative decisions by the local zoning board, such as the grant or denial of a variance. Courts sometimes treat zoning board decisions as if they were judicial decisions, using res judicata language to preclude new applications for relief that the zoning board previously denied. In other cases, courts-often from the same jurisdictions-permit boards to entertain applications virtually identical to previously rejected applications. Although courts sometimes suggest the need to be “flexible” in applying res judicata doctrine to zoning disputes, neither courts nor scholars have offered a coherent prescriptive or descriptive account for how that flexibility does or should operate.
This Article has two related objectives: to develop a normative theory explaining how finality principles should apply in the land use context and simultaneously to argue that existing case law, however inarticulately, reflects that normative theory. Part I begins by exploring the distinctive structure of zoning doctrine, which fits imperfectly with traditional categorization of decisions as legislative or judicial. Part II examines more generally the role of finality in legal decisionmaking. Part III demonstrates that, in light of the structure of zoning doctrine, traditional claim preclusion doctrine should have no place in zoning law. This Article argues, by contrast, that issue preclusion doctrine should and does operate to constrain zoning decisionmakers. The Article goes on to demonstrate that this framework explains the results, even if not the language, in the vast majority of zoning cases that raise finality issues.
November 11, 2011
Hills & Schleicher on Balancing the Zoning Budget
Roderick M. Hills, Jr. (NYU) and David Schleicher (George Mason) have posted Balancing the 'Zoning Budget', published in Regulation, vol. 34, no. 3 (2011). The abstract:
Local government officials regularly adopt zoning changes that result in fewer potential housing units, despite making public commitments to improve housing supply. The reason these zoning changes are successful is because they are often desired by current voters who want to protect the “character” of their neighborhoods, while most of the beneficiaries of increased housing supply are not current voters in the affected district. This political economy dynamic can cause long-term economic harm to communities by harming housing affordability. This paper recommends that local policymakers adopt an annual “housing budget” to clearly identify the number of potential housing units that they want to exist. With this budget established, changes in zoning that reduce the number of potential housing units must be balanced with other changes that expand housing units.
This shorter piece is a very interesting and accessible read, and I especially recommend it if you haven't had the chance to read the longer version from the Case Western Law Review. This innovative idea has been featured in several media outlets. The always-fascinating Atlantic "Cities" Blog discusses it in The Case for Strengthening Urban Property Rights; Matt Yglesias posted on it at Think Progress; and the ideas are featured in the book The Gated City by The Economist's Ryan Avent.
November 09, 2011
Ballot Box Zoning -- A Response to Festa
OK, I'll bite. Matt has laid down the gauntlet with his criticism of the initiative process. This subject is of great importance to land use profs because, at least in many sunbelt states, a good deal of land use policy is made through direct democracy -- so-called "ballot box zoning." In this post, I want to respond to some of Matt's criticisms and offer a very tentative defense of ballot box zoning. For those who are interested, I have defended ballot box zoning at greater length (although I ultimately call for its abolition anyway) in this paper.
I must first concede to Matt that the initiative process has serious deficiencies. He mentions transparency and voter ignorance. The social science literature confirms that these are major problems. I would also add a few more: the initiative process is often captured by special interest groups, as money and organizational resources are often decisive in initiative contests; the initiative tends to favor the affluent and well educated, which is not surprising since the affluent and well educated are more likely to vote on initiatives; voters are easily confused by deceptive wording on initiatives, and initiative advocates often deliberately use deceptive terms to confuse voters; the initiative process reduces complex issues to a simplistic yes/no dichotomy in which hyperbolic sound bytes replace rational discourse. I suppose I could go on, but you get the point.
So what virtues could the initiative process possibly have? I want to focus specifically on the land use initiative, although some of my comments may be generalizable. Although it is often asserted that local politics are controlled by homeowners who seek to limit or manage growth, that is generally true only in smaller municipalities. Sunbelt states like Texas and California, however, have a disproportionate number of medium to large-size municipalities, dubbed "boomburbs" by sociologists Robert Lang and Jennifer LeFurgy. The larger size of these municipalities gives homeowners less political power. At the same time, sunbelt boomburbs have often pursued headlong development as a means of economic growth and to overcome fiscal constraints imposed by constitutional or political limitations on raising tax revenue. Lang and LeFurgy accordingly assert that these municipalities tend to be in thrall to the "growth machine," a matrix of developers and related cohorts who facilitate urban growth. As I further argue in my paper, the fact that many of these boomburbs use at-large voting structures rather than ward voting systems further enhances the power of developers and dilutes the ability of neighborhood groups to fight development.
Obviously, this system is less than ideal for homeowners. And let's face it: while we might hate those NIMBYs, they have some pretty good reasons for opposing new growth. For years it has been national policy to induce Americans to purchase property through a combination of incentives, including low-interest mortgages and municipal zoning ordinances that provide some assurances to homeowners that their property values, and hence their ability to pay off their mortgages, will be protected against unpredictable declines. New growth and the externalities that accompany it are very likely to diminish property values, and hence prejudice the ability of homeowners to finance what is likely to be by far their most significant asset. Existing homeowners are in effect subsidizing new growth through diminished property values, and although city officials claim that everyone benefits from new growth, it is often a concentrated group of homeowners alone who must bear a disproportionate degree of the cost. As I questioned in a previous post, it can even be argued that homeowners have a regulatory takings claim -- but courts have never recognized such a cause of action.
As envisioned by its Progressive-era architects, the initiative is supposed to correct the defects in the ordinary legislative process, particularly the dominance of special interests. And that is exactly what ballot-box zoning appears to do in the sunbelt states -- the very states where boomburbs, at-large voting and the growth machine dominate the political landscape are also the states where ballot-box zoning is most robust. Ballot box zoning has proven to be a powerful weapon with which homeowners can fight back against the growth machine, because prevailing on a local initiative requires only a one-time infusion of cash and a constituency that is easily organized and highly motivated -- ie, a group of neighboring homeowners who are all extremely ticked off about land use changes around their neighborhood. This can counteract the repeat player and other advantages that the developer has in the legislative process. Granted, the initiative process itself invites special interest abuses and all sorts of other problems, but it seems no less messy or dysfunctional than the system of government it is designed to counterbalance.
November 08, 2011
Election Day 2011 and State Constitutions
Even though the media is obsessed with the 2012 elections, it is the first Tuesday after the first Monday in November, and as land use folks well know, a lot of important law is made at the state and local level during off-year elections. Today in Texas there are ten state constitutional amendments on the ballot for voter approval, generated by the 2011 legislative session (Texas' legislature still meets only bienially--one of four remaining states to do so, and the only major state).
I'm generally not a fan of constant new constitutional amendments, for two reasons, one structural and one democratic. First, many state constitutions--like Texas'--are already bloated. I printed it out once--all 80,806 words of it (sorry environmental profs)--and I make the point in class by comparing the massive document to a pocket U.S. Constitution. In general, I don't think that most mundane policy issues should be entrenched in fundamental law. On the other hand, this structural critique can be countered somewhat by the argument that while the federal constitution enables the Congress to do a certain range of things, state legislatures already have plenary power, so state constitutions largely exist to limit the legislature--and then they need to be amended often to adjust those limits. But still . . . 80,806 words?
My second beef with the practice of placing a slew of state constitutional amendments is has more to do with the theory of state and local elections, and I don't like it for the same reason I'm skeptical of the overuse of initiative and referendum. What could be more democratic than letting the people vote, you ask? The problem is informational. I usually ask my upper-level state & local government students--a sample of pretty well educated and informed voters--which way they voted on certain amendments or referenda from prior years. Almost universally I get two responses; either (a) no recollection whatsoever; or, occasionally, (b) they voted with their gut based on a cursory reading of the ballot text in the voting booth. And if they remember which way they voted, it was usually "yes" because the text sounded like "good things," or "no" because the text sounded like "spending more money."
There in turn at least two reasons why even smart voters end up voting with their gut on these important measures. First, the ballot language is usually vague and fuzzy, and often is quite different from the actual text of the law that will go on the books. I don't think this is usually done to confuse the voters, I think it's the opposite intent--but regardless, the ballot language in my experience is usually so general that it fails to communicate what the proposal is really about. Another major reason, of course, is that with a few exceptions, these items don't get very much media exposure. So most Texans probably know a lot more about, e.g., the latest in sexual harrassment allegations against national candidates, than they do about the 10 items they are probably going to add to the state constitution today. The info is out there, but it's up to the individual voter to burn some calories and go find and read information such as the analysis by the Texas Legislative Council.
Now in class, we talk about whatever amendments and referenda are on the ballot, and it's a lot of fun. Students do class presentations, we have guest speakers, and so on. And it often turns out that a lot of these state constitutional amendments (and local referenda) are substantively about land use--from eminent domain to land sales, zoning, conservation, and more (which was going to be the original point of this post, before I got off on my rant). So I do my part to create a group of 40 or 50 educated voters.
But if that's what it takes, is democracy really served by putting all this stuff on the ballot, and in such a vague manner? I find more and more that people in general really do care about land use in their communities and their region. A lot. Yet in the cases where they actually have a say in the matter, it gets translated so poorly that most votes actually cast are probably not informed ones. So it's the people behind the scenes in and around legislative bodies that end up making all the rules.
November 07, 2011
Nolon on Land Use for Energy Conservation and Sustainable Development
John R. Nolon (Pace) has posted Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation. The abstract:
Land use tools and techniques have impressive potential to reduce energy consumption, improve the economy, and mitigate climate change. This article explores the little understood influence of local land use decision-making on energy conservation and sustainable development and how it can mitigate climate change if properly assisted by the federal and state governments. The construction and use of buildings combined with extensive vehicular travel throughout the nation’s human settlements consume large amounts of energy, and much of that consumption is highly inefficient. By enforcing and enhancing energy codes, encouraging the use of combined heat and power and district energy systems, properly orienting and commissioning buildings, incorporating renewable energy resources, and promoting transit and other methods of reducing vehicle miles travelled, local land use law’s potential to achieve energy conservation and sustainable development can be unlocked. These techniques can be organized at the neighborhood level and aggregated by adopting local Energy Conservation Zoning Districts in neighborhoods where significant energy conservation can be achieved. The article proposes federal and state policies, combining features of both the Coastal Zone Management Act and the Enterprise Zone initiative, that can facilitate local land use initiatives that will shape human settlements and control the built environment as a new path toward energy efficiency and climate change mitigation.
In the footnotes, Prof. Nolon notes that this is part of a trilogy:
FN.1. This article is one of three that examine how local land use law that can be used as an effective strategy to mitigate climate change. See John R. Nolon, The Land Use Stabilization Wedge Strategy: Shifting Gound to Mitigate Climate Change, 34 WM. & MARY ENVTL. L. & POL’Y REV. 1 (2009) [hereinafter Land Use Stablization Wedge] and John R. Nolon, Mitigating Climate Change through Biological Sequestration: Open Space Law Redux, 31 STAN. ENVTL. L.J. (forthcoming Winter 2011) [hereinafter Open Space Law Redux].
This is a great set of articles for anyone interested in the subject from one of the leaders in land use and local environmental law.
November 7, 2011 in Climate, Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Green Building, Local Government, Planning, Scholarship, State Government, Sustainability, Zoning | Permalink | Comments (0) | TrackBack
November 06, 2011
Another Great Land Use Resource
Further to my post below, the New York City Department of City Planning has recently released another great resource for students of New York City zoning -- this time, it's a collection of documents relating to the adoption of the city's 1961 zoning resolution. Some great bedtime reading for the archivists among us. The publication of these documents is timed to coincide with the 50th anniversary of the resolution, as is this one-day conference on "Zoning the City," set for November 15. I won't be able to attend, as I'll be stuck here in balmy southern California soaking in the sunshine, but it promises to be very interesting, with a great lineup of speakers.
November 03, 2011
NPR on Zoning out Hydrofracking in Upstate NY
From the "You Must Hear This" Dept., we have a really interesting NPR report this morning on attempts by some citizens of the town of Dryden, NY to zone out hydraulic fracturing ("hydrofracking") as a means of removing oil and gas from local shale deposits. The report features commentary on crucial state preemption issues by Eduardo Peñalver (Cornell).
I think siting of hydraulic fracturing operations is a terrific subject for discussion in a Land Use, Environmental or Property law class. I even used a hydraulic fracturing hypothetical on my Property final last Spring to test on inquiry notice and reciprocal servitudes. Focusing on public rather than private land use regulation, this story frames the state and local government issues nicely. Enjoy.
October 30, 2011
What Occupy Wall Street Owes to Zoning
From the Wall Street Journal's Developments blog: What Occupy Wall Street Owes to Zoning.
Occupy Wall Street’s monthlong protest has been helped by donors willing to supply food, temperate fall weather and support from organized labor and some elected officials. But a less-visible asset has proved a big boon for the protesters: New York City’s land-use policy.
The geographic center of the protest is lower Manhattan’s Zuccotti Park, a one-block collection of trees and benches that is owned by an office landlord, Brookfield Office Properties Inc. Private ownership actually makes the space more accessible than public parks, many of which close at night.
As discussed in a Journal article on Saturday, the city’s zoning code requires that many privately owned parks be open to the public at all times — one of the factors that made Zuccotti Park a hospitable venue for the protesters’s all-hours encampment.
Termed a “privately owned public space” — or POPS, in zoning parlance — these plazas stand at the intersection of capitalist instinct and public interest. The zoning code puts restrictions on the scale of towers that developers are allowed to build. In an attempt to add public space in Manhattan without buying new parkland, city government allowed developers to build bigger structures if they set aside a plaza that remains open to the public.
While many of these are tucked away in the backs of buildings or in lobbies, Zuccotti Park turns out to be one of the most accessible POPS in the city. Of course, there is an irony that the space in which Occupy Wall Street has found a continued home is owned by the city’s largest landlord for financial services firms — the very industry they are protesting.
October 11, 2011
Ostrow on Land Law Federalism
Ashira Ostrow (Hofstra) has posted Land Law Federalism, 61 Emory L.J. ___ (forthcoming 2012). A must-read, this foundational work explores the theoretical framework for appropriate federal intervention in the state/local-dominated area of land use regulation. Here's the abstract:
In modern society, capital, information and resources pass seamlessly across increasingly porous jurisdictional boundaries; land does not. Perhaps because of its immobility, the dominant descriptive and normative account of land use law is premised upon local control. Yet, land exhibits a unique duality. Each parcel is at once absolutely fixed in location but inextricably linked to a complex array of interconnected systems, natural and man-made. Ecosystems spanning vast geographic areas sustain human life; interstate highways, railways and airports physically connect remote areas; networks of buildings, homes, offices and factories, create communities and provide the physical context in which most human interaction takes place.
Given the traditional commitment to localism, scholars and policymakers often reflexively dismiss the potential for an increased federal role in land use law. Yet, modern land use law already involves a significant federal dimension resulting, in part, from the enactment of federal statutes that have varying degrees of preemptive effect on local authority. Moreover, this Article maintains that federal intervention in land use law is warranted where the cumulative impact of local land use decisions interferes with national regulatory objectives (such as developing nationwide energy or telecommunications infrastructure).
Finally, this Article advances an interjurisdictional framework for federal land law that harnesses (a) the capacity of the federal government, with its distance from local politics and economic pressures, to coordinate land use on a national scale and (b) the capacity of local officials, who have detailed knowledge of the land and are politically accountable to the local community, to implement land use policies.
October 11, 2011 in Climate, Development, Environmental Law, Environmentalism, Federal Government, Globalism, Green Building, Inclusionary Zoning, Local Government, NIMBY, Planning, Scholarship, Smart Growth, Sprawl, Subdivision Regulations, Sustainability, Transportation, Wetlands, Zoning | Permalink | Comments (1) | TrackBack