Tuesday, 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:

 Untitled
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. 

Ken Stahl


February 21, 2012 in California, Environmental Justice, Local Government, Sun Belt, Zoning | Permalink | Comments (0) | TrackBack (0)

Friday, 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 10, 2012 in State Government, Zoning | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 7, 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.

Ken Stahl

(Here's the court's opinion:Download A6610BoroughofSayrevillev35Club)

February 7, 2012 in Affordable Housing, First Amendment, Housing, Local Government, Zoning | Permalink | Comments (1) | TrackBack (0)

Thursday, 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.

Jim K.

December 22, 2011 in Environmental Law, Local Government, Nuisance, Oil & Gas, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, December 1, 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

December 1, 2011 in Community Design, Development, Georgia, Historic Preservation, Local Government, Planning, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, 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 30, 2011 in Caselaw, Community Economic Development, Development, Downtown, Georgia, Local Government, Planning, Politics, Property Rights, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, 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.

Jim K.

November 14, 2011 in Judicial Review, Remedies, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Friday, 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.

Matt Festa

November 11, 2011 in Budgeting, Local Government, Politics, Property Rights, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 9, 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. 

Ken Stahl

November 9, 2011 in California, Density, Development, Exurbs, Local Government, Mortgages, NIMBY, Politics, Suburbs, Sun Belt, Takings, Texas, Zoning | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 8, 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.

Matt Festa

November 8, 2011 in Constitutional Law, Eminent Domain, Environmentalism, History, Local Government, Politics, Property Rights, State Government, Texas, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, November 7, 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. & POLY 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.

Matt Festa

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 (0)

Sunday, November 6, 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.  

Ken Stahl

November 6, 2011 in New York, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, November 3, 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.

Jim K.

November 3, 2011 in Clean Energy, Environmental Law, Environmentalism, Industrial Regulation, New York, NIMBY, Nuisance, Oil & Gas, Water, Zoning | Permalink | Comments (0) | TrackBack (0)

Sunday, 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.

Matt Festa

October 30, 2011 in Development, Local Government, New York, Pedestrian, Politics, Urbanism, Zoning | Permalink | Comments (1) | TrackBack (0)

Tuesday, 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.

Jim K.

 

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 (0)

Sunday, October 2, 2011

Is mixed use crimogenic?

In Euclid v. Ambler Realty, the Supreme Court upheld single-use zoning; one of the arguments that the Court credited was that a “place of business in a residence neighborhood furnishes an excuse for any criminal to go into the neighborhood, where, otherwise, a stranger would be under the ban of suspicion.” After Euclid, cities everywhere adopted single-use zoning codes; nevertheless, crime exploded and cities decayed in the 1960s.

As neighborhoods built under Euclidean zoning began to fail, the intellectual tide turned. In the 1960s, Jane Jacobs wrote that the presence of shopkeepers creates “eyes on the street” and thus actually reduces crime. Her views are popular among new urbanists, who have occasionally created neighborhoods with more of a mix of uses than under typical Euclidean zoinng.

Some recent scholarship has discussed criminological literature which apparently supports the Euclid Court’s point of view, by drawing a correlation between nonresidential land uses and crime or disorder. But in my view, this scholarship fails to support the Euclid Court’s view.

For example, one criminology article by Profs. Samson and Raudenbush in the American Journal of Sociology asserts that “Mixed land use has been shown to be a robust but understudied correlate of crime and disorder.” (1) Samson and Roudebush then discuss a study of Chicago census tracts which (according to them) proves the point.

Based on videotapes of 196 Chicago census tracts, Samson and Raudenbush find a positive correlation between mixed land use and forms of minor social disorder such as littering and “loitering” (whatever that means).

But the kinds of disorder Samson and Raudenbush are interested in did not translate into crime (as measured by surveys of neighborhood residents). According to them, the relationship between disorder and predatory crime is “spurious”; after controlling for a variety of other factors, “the coefficient for [physical and social] disorder is reduced to insignificance.”

The same table they use to prove the point shows that the correlation between mixed land use and personal violence is in fact negative, and that the correlation between mixed land use and burglary is (although positive) insignificant.

Samson and Roudebush also seek to measure crime through police reports (as opposed to surveys, which pick up crimes not reported to police). This measurement also does not support a correlation between crime and mixed use; as to homicide, burglary, and robbery, the correlation between mixed use and crime is not significant.

In support of their critique of mixed use, Samson and Raudenbush cite an article by Ralph Taylor asserting that mixed-use blocks have “more physical deterioration” (to quote the title)(2) But the whole point of Samson and Roudebush’s work is that crime doesn’t necessarily correlate with minor disorder; if this is the case, then a correlation between mixed use and disorder, even if true, proves nothing about the relationship between mixed use and crime.

Of course, absence of evidence is not evidence of absence. I cannot claim to have reviewed every possibly relevant article, just a couple that I have seen cited in law reviews.

 

(1) Robert J. Sampson and Stephen W. Raudebush, Systematic Social Observation of Public Spaces: A New Look at Disorder in Urban Neighborhoods, 105 American Journal of Society 603 (1999). In particular see id. At 622, 627, 629.

(2) Ralph Taylor et. Al., Street Blocks with More Nonresidential Land Use Have More Physical Deterioration: Evidence from Baltimore and Philadelphia, 31 Urban Affairs Review 20 (1995).

Michael Lewyn

October 2, 2011 in Community Design, New Urbanism, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 28, 2011

Alexander on Lawmaking and the Debate between Place-Based and People-Based Community Development

Lisa Alexander (Wisconsin) has posted Cultural Collective Efficacy, Social Capital and Place-Based Lawmaking: Revisiting the People Versus Place Debate.  In it she renews the debate between those who advocate improving geographic communities and those who emphasize increasing options for economically and socially mobile households.  Here's the abstract:

U.S. housing law is finally receiving its due attention. Scholars and practioners are primarily focused on the subprime mortgage and foreclosure crises. Yet, the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists respectively attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a socio-legal approach, it develops a theory of cultural collective efficacy as a justification for place-based lawmaking. Cultural collective efficacy describes positive social networks that inner-city residents develop through participation in musical, artistic and other neighborhood-based cultural endeavors. Cultural collective efficacy can help inner-city residents mitigate the negative effects of living in a poor and segregated community as well as obtain more concrete benefits from urban revitalization. It provides a framework to examine important microdyanmics in the “inner-city” that many scholars and policymakers have ignored. This Article devises new combinations of place-based laws that might protect cultural collective efficacy such as: (1) historic districts with affordable housing protections secured through transferable development rights, (2) foreclosure prevention strategies, (3) techniques to mitigate eminent domain abuse, and (4) re-interpretations of the Fair Housing Act’s “affirmatively furthering” fair housing mandate. These examples of place-based lawmaking may more effectively promote equitable development and advance distributive justice in U.S. housing law and policy. 

Jim K.

September 28, 2011 in Affordable Housing, Property Theory, Race, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, September 19, 2011

Salkin on Bee Siting

Patricia Salkin (Albany), the quintessential "busy bee", has posted Honey, It's All the Buzz: Regulating Neighborhood Bee Hives (B.C. Env. Aff. L. Rev., forthcoming 2011).  Here's the abstract:

Urban beekeeping, along with other types of urban agriculture, sustainable development and green building, has generated quite a buzz in recent years. Small-scale beekeeping has proven to be especially popular among people looking to obtain more of their food from local sources and urban bees provide important pollination services to community gardens, home vegetable gardens and fruit trees. Some people also believe that honey contributes to a healthier lifestyle by providing a minimally-processed sweetener and through its various uses as a homeopathic remedy. Small-scale beekeeping may augment local economies too. Despite the benefits and growing popularity of backyard beekeeping, apiaries are not always welcomed by the neighbors. This article is designed to provide information to land use regulators about the benefits and drawbacks of beekeeping in residential areas, and it offers strategies for addressing beekeeping activities through local laws and ordinances.

Jim K.

September 19, 2011 in Agriculture, Food, NIMBY, Nuisance, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 14, 2011

Salkin & Lavine on Regional Foodsheds

Patricia E. Salkin (Albany) and Amy Lavine (Albany) have posted Regional Foodsheds: Are Our Local Zoning and Land Use Regulations Healthy?, Fordham Environmental Law Journal, Vol. XXII (2011). The abstract:

Governments at all levels have become increasingly interested in fostering healthy eating habits and sustainable agricultural production. Promoting access to locally grown produce is an important part of many policy goals seeking to address these concerns, and the concept of regional foodsheds has risen in popularity as one method to achieve these goals. Research indicates that community based food systems have the potential to address food security, public health, social justice, and ecological health. Food production and consumption patterns are influenced by a range of federal, state, and municipal policies, but meaningful change in regional food system policies is likely to start with state and local governments, which can take proactive measures to strengthen their regional foodsheds through a variety of land use planning and regulatory actions. This Article focuses on how existing land use plans and regulations can promote healthier and more sustainable communities through the foodshed movement. In particular, this Article discusses specific land use strategies that can be implemented in urban and suburban settings to facilitate local and regional food production and distribution that go beyond farmland preservation strategies and examine, among other things, smaller-scale community gardens, residential agricultural uses and farmers markets.

Matt Festa

September 14, 2011 in Agriculture, Comprehensive Plans, Environmentalism, Food, Local Government, Scholarship, Suburbs, Sustainability, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, September 12, 2011

spot zoning

Land use cases often suggest that “spot zoning” is bad.  What is “spot zoning”?  One New York Court defines it as as the process of singling out "a small parcel of land for a use classification totally different from that of the surrounding area for the benefit of the owner of said property to the detriment of other owners”.  Citizens for Responsible Zoning v. Common Council, 868 NYS 2d 800, 802 (3d Dept. 2008).   To determine whether this test is met, courts “may consider several factors, including whether the rezoning is consistent with a comprehensive land use plan, whether it is compatible with surrounding uses, the likelihood of harm to surrounding properties, the availability and suitability of other parcels, and the recommendations of professional planning staff.” Id. 

I’ve never understood the point of the label "spot zoning".  If a rezoning is to the detriment of surrounding owners (and to the detriment of the public generally) it is problematic whether it is different from the surrounding area or not.  So the “spot zoning” label adds nothing to an overall public interest inquiry.

Furthermore, compatibility with surrounding land uses is not necessarily a good thing.  Much of suburban America is dominated by houses with nothing to walk to except more houses.  As a result, people have to drive miles to get groceries or fulfill any other useful function, thus making our air dirtier and our bodies less fit.    One way to alleviate this difficulty is to allow landowners to put stores and shops somewhere in this great mass of housing- in short, to allow spot rezoning.  So maybe there should be a presumption in favor of spot zoning.

Michael Lewyn

September 12, 2011 in Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)