Wednesday, November 25, 2020

Mandelker & Alexander: Minority Discrimination Through Popular Vote in the Land Use Process

Dan Mandelker and Trevor Alexander have posted Minority Discrimination Through Popular Vote in the Land Use Process on SSRN.  Here is the abstract:

Voter participation in the land use process can discriminate against minorities. Assume a city council approves an amendment to the zoning ordinance that authorizes an affordable housing project. The amendment attracts opposition because the project will be open to minorities. Voters who oppose the project place a referendum on the ballot, an election is held, and the amendment is rejected by popular vote. Similar problems arise when voters adopt a constitutional or city charter amendment that bars effective action to prevent minority discrimination. Assume a city adopts an inclusionary housing program that requires developers to provide affordable housing and prohibits minority discrimination. Voters place an initiative on the ballot that would amend the city charter to prohibit inclusionary housing programs, an election is held, and they adopt the charter amendment.

Initiatives and referenda like these are facially neutral but raise minority discrimination problems, which the Supreme Court considered in a series of cases. Its decisions are mixed, and it rejected initiatives that had racially discriminatory impacts in some cases. The constitutional basis for these cases was not always clear, and some preceded the critical holding in Washington v. Davis that proof of racial discrimination under the Fourteenth Amendment requires proof of discriminatory intent. The Court changed direction in a recent case, where a plurality upheld an initiative that prohibited affirmative action in higher education.

Commentary suggests that cases holding initiatives unconstitutional applied a political process doctrine based on a famous footnote in U.S. v. Carolene Products Co. In that footnote, Justice Stone asked “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” The footnote’s application to the land use process is clear. In the examples at the beginning of this article, a referendum or an initiative rejected a decision made by legislative representatives, and curtailed a political process used to protect minorities. Rezoning for housing available to minority groups was displaced by popular referendum, and an initiative rejected a legislative program that benefited minorities.

The political process doctrine has two prongs. The first prong requires that an issue that raises a political process problem must be minority sensitive “in that it singles out for special treatment issues that are particularly associated with minority interests.” The second prong requires a showing that voters removed a decision associated with minority interests to a higher level of government, where it was insulated from change except through change at the higher level. A mere repeal of protective legislative action does not satisfy this prong. There must be repeal plus a modification of the normal political process for making political decisions. An initiative can accomplish this change.

Supreme Court cases that rejected initiatives because they were racially discriminatory did not explicitly embrace or explain a political process theory, but acceptance of this theory is implicit. A recent plurality decision by the Supreme Court, Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, damaged these early decisions, damaged judicial protection against racial discrimination by popular vote, and rejected the political process theory. We begin with Supreme Court cases, discussed in Schuette, that invalidated racially discriminatory initiatives. We then discuss Schuette, and what it means for the future of racial plebiscites as they affect the land use process. We then discuss two Supreme Court cases not discussed in Schuette where the Court upheld racially discriminatory initiatives, and what these cases mean for the Schuette decision.

November 25, 2020 | Permalink | Comments (0)

GMU Law Podcast: The Expanding Scope of Public Nuisance and Locality Litigation: The Role of Precedent, Consistency, and the Rule of Law

This just in from Donald Kochan, which I think might interest some readers...

Law & Economics Center, George Mason University Antonin Scalia Law School
Civil Justice Fest: A Month of Dialogues On the Most Pressing Civil Justice Issues:

The Expanding Scope of Public Nuisance and Locality Litigation: The Role of Precedent, Consistency, and the Rule of Law

Trevor S. Cox, Counsel, Hunton Andrews Kurth LLP 
John Culhane, Professor of Law and H. Albert Young Fellow in Constitutional Law, Widener University Delaware Law School 
Walter Olson, Senior Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute

Moderator: David J. Porter, Judge, US Court of Appeals for the Third Circuit 

November 25, 2020 | Permalink | Comments (0)

Land Use, Human Health, and Equity Project, Post 5: State & Local COVID-related Emergency Powers: Individual Rights

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 5 of the Land Use, Human Health, and Equity Project
Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss
Contributing Researcher: Jillian Aicher[*]

State & Local COVID-related Emergency Powers: Individual Rights


[This is the fifth in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  This post also appears on the law school's GreenLaw blog.]

The pandemic has fostered many cases challenging emergency powers of government to limit or control personal behavior. The judicial standards used and the outcomes have not been uniform, but they inform future public health and climate change land use planning. The individual rights claims vary, covering freedom of religion, free speech and assembly, takings, right to travel, right to abortion, and the right to work, among others. An important threshold issue in these cases is whether the deferential Jacobson v. Massachusetts standard will apply or whether traditional constitutional principles will govern. 

In the 1905 case Jacobson v. Massachusetts, the Supreme Court upheld Massachusetts’ vaccination law during a smallpox outbreak and affirmed the defendant's guilty verdict for failing to comply. The court stated, “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” It then exhibited significant deference to the public health statute due to the smallpox emergency. District courts, Circuit Courts, and even the Supreme Court (Chief Justice Roberts, concurring in South Bay United Pentecostal Church v. Newsom) have cited Jacobson’s deferential standard when considering COVID-related orders’ restrictions on individual rights. Others, however, reject that Jacobson deference should apply and instead employ more recent constitutional principles and standards of scrutiny. 

  • Illinois Republican Party v. Pritzker: The Seventh Circuit declined to issue a preliminary injunction for a COVID-related executive order, which Plaintiffs argued violated free speech. When considering the order’s “overall validity,” the court found Jacobson applicable, stating, “[a]t least at this stage of the pandemic, Jacobson takes off the table any general challenge to EO43 based on the Fourteenth Amendment's protection of liberty. Like the order designed to combat the smallpox epidemic, EO43 is an order designed to address a serious public-health crisis.”
  • County of Butler v. Wolf: A Pennsylvania district court declined to apply Jacobson to analyze the constitutionality of several executive orders and instead used ordinary scrutiny standards. The court found the governor’s and health commissioner’s orders – imposing gathering limits, stay at home requirements, and business closures –unconstitutional. 

While precise litigation risks surrounding emergency laws (regarding separation of powers, scope of authority, and individual rights claims) remain unclear, some general takeaways can be discerned. First, many courts apply Jacobson deference when analyzing whether COVID-related executive orders violate constitutional rights. When Jacobson is not applied, many courts uphold orders as furthering a compelling government interest, but some strike down the orders as not narrowly tailored or arbitrary (depending on the order itself and the constitutional standard used). Second, state actors must pay close attention to procedural requirements set out in emergency laws (such as rulemaking procedures and declaration timelines). Third, local public health actions (grounded in public health, not emergency, legislation) will play an important role when planning for local land use measures. 

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

November 25, 2020 | Permalink | Comments (0)

Friday, November 20, 2020

Land Use, Human Health, and Equity Project, Post 4: Novel Coronavirus Claims Implicate Age-Old Property Rights Questions

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 4 of the Land Use, Human Health, and Equity Project
Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss
Contributing Researcher: Jillian Aicher[*]

Novel Coronavirus Claims Implicate Age-Old Property Rights Questions

[This is the fourth in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  This post also appears on the law school's GreenLaw blog. ]

New legal challenges to COVID-19-related government actions, including mask mandates and business closures, address old questions: How far can the police power be stretched to protect the public against dangers? To what extent do property rights limit governmental actions? When does diminution of existing property rights require compensation? Do localities have implied emergency powers, do they need specific authorization, and can they supplement state orders? What rights do property owners, landlords, and tenants have during crises?

Common law principles and a century’s worth of U.S. Supreme Court opinions balancing property rights and public interests contribute to a better understanding.

Blackstone’s Commentaries demonstrate that even under early common law, government regulation could limit personal liberties and property rights.  Many Supreme Court cases build on this concept through Due Process and Takings jurisprudence.

1922, Penn Coal v. Mahon: In this seminal Supreme Court case, a property owner sought to enjoin mining under his house based on a Pennsylvania statute regulating coal mining. The Court denied the injunction, finding the statute may have constituted a taking. Before this case, we did not know police power regulations could constitute “regulatory takings.” Pre-1922 challenges to property regulations were based on Fifth and Fourteenth Amendment Due Process claims that laws did not reasonably protect the public interest. Property “takings” are different. As Justice Holmes declared in Penn Coal, when a regulation goes too far, it can constitute the equivalent of a physical taking, which the Fifth and Fourteenth Amendments prevent unless implemented for a public purpose and accompanied by just compensation. The Penn Coal Court held Pennsylvania’s mining restriction law could not be sustained as a police power exercise.

1906, Strickley v. Highland Boy Gold Mining Co.: 16 years before Penn Coal, Justice Holmes wrote Strickley, limiting a property owner’s ability to enjoin a Utah police power law. The plaintiff challenged the state’s action condemning an easement over the plaintiff’s property and conveying it to a private mining company. Justice Holmes upheld the challenged legislation, finding that the state’s action taking private property and conveying it to another private party was not unconstitutional.

1915, Hadacheck v. Sebastian and Rienman v. Little Rock: These cases address the legitimacy of using police power to prevent property use that constitutes a nuisance or causes injury. The Supreme Court validated property restrictions of a brick kiln and livery stable, land uses it found injurious to the public health and safety.

1928, Miller v. Schoene: The Miller Court found the Takings Clause did not require Virginia to compensate an owner of cedar trees after the state ordered them destroyed to prevent disease to nearby apple orchards. The Court upheld the state’s action as “controlled by considerations of social policy which are not unreasonable.”

1926, Euclid v. Ambler Realty: The famous Euclid decision rejected another Due Process claim and upheld zoning as constitutional. The Euclid Court presumed the validity of police power enactments and imposed a heavy burden of proof on challengers. Euclid demonstrates that the scope of Constitutional principles expands and contracts in a changing world.

1988, Pennell v. San Jose: Plaintiffs challenged the City of San Jose’s rent-control ordinance, enacted to alleviate elevated rents during a housing shortage. The Court held the ordinance did not violate Due Process but was rationally crafted to protect landlords’ investments and prevent tenants’ rent increases. The ordinance – with its purpose to prevent unreasonable rent increases – legitimately exercised police power.  

2002, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency: This case demonstrates that temporarily suspending land development rights is not a taking. SCOTUS held a 32-month moratorium on development (issued to allow the Agency time to adopt measures to mitigate environmental impacts to Lake Tahoe) was not a regulatory taking.

These cases do not offer much hope for takings claims’ success against public health emergency regulations. As for the seminal takings doctrines – Loretto, Lucas, Nollan, Dolan, and Penn Centrala study of 2,000 takings cases establishes that SCOTUS’s categorical rules govern almost no state takings cases and regulatory takings claims almost invariably fail. Public health protection laws accomplish valid public objectives; they are likely to be valid under Due Process jurisprudence.

These cases also illustrate the role that local governments can play during public health crises, which can vary depending on the power granted in local charters, home rule provisions in state constitutions or state laws, or special and general enabling acts. 

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

November 20, 2020 | Permalink | Comments (0)

Friday, November 13, 2020

Oregon adopts new housing production strategy rules

LCDC Adopts New Housing Production Strategy Rules

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DLCD logo



FOR IMMEDIATE RELEASE: November 13, 2020



Ethan Stuckmayer, 503-302-0937,

Samuel De Perio Garcia, 971-375-5970,

Land Conservation and Development Commission Adopts

Housing Production Strategy Rules

SALEM - At their meeting on November 12, 2020, the Land Conservation and Development Commission (LCDC) passed new rules to implement House Bill 2003 from the 2019 legislative session. The primary goal of the bill is to help satisfy unmet housing needs in Oregon through the development of housing production strategies. Forty-nine (49) cities in Oregon with a population over 10,000 will be subject to these new rules. The adopted rules require cities to develop housing production strategies to achieve fair and equitable housing outcomes. These strategies seek to increase housing production while addressing the location of housing, fair housing, housing choice, housing options for residents experiencing homelessness, opportunities for affordable rental housing and homeownership, gentrification and displacement, and encouraging housing stabilization for historically marginalized community members.

“This is a historic moment - created by a diverse volunteer Rules Advisory Committee and staff. We are grateful for their extensive contributions. It’s rare that we have cities telling us we did everything right,” said Chair McArthur after hearing a range of testimony.

Director of the Homelessness Research and Action Collaborative, PSU Professor Marisa Zapata served on the state’s advisory committee. Dr. Zapata advised commissioners of the far-reaching implications of this work: “Oregon has set a standard on homelessness and housing that is the first of its kind in the country. These new rules will incorporate the needs of people experiencing homelessness for the first time in planning for unmet housing needs.”  

Commissioner Anyeley, the commission’s liaison to the advisory committee, made the motion to approve the new rules. Commissioner Nick Lelack seconded the motion which passed 5-0. 

“The rulemaking process has been very intentional on encouraging equitable housing outcomes for all Oregonians. This work has required the participation of diverse stakeholders not traditionally included in land use decision making processes and a deliberate focus on providing opportunities and eliminating barriers to the production of needed housing”, said Commissioner Hallova. “We look forward to partnering with cities, housing providers, and community organizations to implement these new rules”.

Adopted without amendment, the new rules to implement House Bill 2003 may be found on DLCD’s website here:

With funding provided by the Oregon Legislature via the Department of Land Conservation and Development (DLCD), two cities are currently working on prototype versions of Housing Production Strategies this year.

Last year, the Oregon Legislature also passed House Bill 2001 aimed at providing Oregonians with more housing choices, especially housing choices more people can afford. This new law lets people build certain traditional housing types, like duplexes, in residential zones. These housing types already exist in most cities, but have been outlawed for decades in many neighborhoods. The Land Conservation and Development Commission continued the hearing to implement House Bill 2001 to December 9, 2020 where final rules are expected to be reviewed and approved by the commission.


Oregon’s statewide land use planning program — originated in 1973 under Senate Bill 100 — protects farm and forest lands, conserves natural resources, promotes livable communities, facilitates orderly and efficient development, helps coordination among local governments, and enables citizen involvement.  

The program affords all Oregonians predictability and sustainability to the development process by allocating land for industrial, commercial and housing development, as well as transportation and agriculture.  

The Department of Land Conservation and Development (DLCD) administers the program. A seven-member volunteer citizen board known as the Land Conservation and Development Commission (LCDC) guides DLCD.  

Under the program, all cities and counties have adopted comprehensive plans that meet mandatory state standards. The standards are 19 Statewide Planning Goals that deal with land use, development, housing, transportation, and conservation of natural resources. Periodic review of plans and technical assistance in the form of grants to local jurisdictions are key elements of the program

November 13, 2020 | Permalink | Comments (0)

Wednesday, November 4, 2020

Land Use, Human Health, and Equity Project, Post 3: The Role of Density in Combatting Climate Change and COVID-19

Elisabeth Haub Law School of Law

Pace University

Land Use Law Center

Supervisor: John R. Nolon, Distinguished Professor

Blog No. 3 of the Land Use, Human Health, and Equity Project

Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss

Contributing Researcher: Gabriella Mickel[*]

The Role of Density in Combatting Climate Change and COVID-19

[This is the third in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  This post also appears on the law school's GreenLaw blog. ]

High population density might seem an unlikely pillar of sustainable development. Take, for instance, New York City. While it is the most densely populated city in the U.S., few would characterize it as particularly "green." By significant measures, however, there are few greener communities in the country. In 2016, New York City's per-capita carbon dioxide equivalent emissions averaged less than one-third of the national per-capita average.

The key to this lower level of emissions is density. Concentrating people, businesses, and services makes public transportation more feasible, apartment buildings (which are generally more energy-efficient than single-family homes) more common, and ultimately preserves more land. If all of New York City's residents spread out at the population density of Vermont, the city would consume "the land area of six New England states plus New Jersey, Delaware, Maryland, and Virginia." Compared to such sprawl, compact urban development is associated not only with lower emissions and greater environmental preservation but also greater economic productivity, innovation, traffic safety, air quality, social capital, and opportunities for upward mobility. It further results in less car dependency, “less likelihood of obesity and related chronic diseases,” and “increased overall life expectancy.”

But is compact urban development better for the public's health in the wake of COVID-19? It may seem intuitive that the higher the density, the higher the risk of disease contagion and mortality. Yet, evidence suggests that density, in and of itself, may not be to blame. In a recent study, researchers analyzed the COVID-19 infection and mortality rates in 913 U.S. metropolitan counties. When factors such as race, education, and metropolitan size were taken into account, the researchers found that "county density is not significantly related to the infection rate." Further, "counties with higher densities have significantly lower virus-related mortality rates than do counties with lower densities."

One possible reason for such a lower mortality rate in higher-density areas is the availability and quality of health care. In one survey, almost all low-income respondents who live in suburban and rural areas cited transportation as "a significant barrier to obtaining health care services." Not only do suburban and rural residents travel farther to medical facilities, but many people in these car-dependent areas do not own cars. Since public transportation seldom serves these areas, many are left without a reliable means of obtaining medical care. To make matters worse, "a substantial portion of the US population residing in these areas lack[] health insurance," and their medical providers are "less likely to receive public funds" to support care for the uninsured.                                  

In contrast, dense urban areas provide more medical care options (including free or low-cost alternatives). In addition, the options provided in denser communities are often more accessible. Since high-density areas can support public transportation, many people living in these areas need not rely on cars to obtain medical care. These factors can reduce disease mortality.

But what about disease contagion? While it may seem logical that high-density areas would have high infection rates, this is not necessarily true. Research indicates that connectivity between areas "matters more than density in the spread of the COVID-19 pandemic." By itself, density may even work to reduce infection rates since high-density areas have the infrastructure to more effectively implement measures that promote social distancing. In addition, high-density makes it easier to provide services to people most in need while social distancing orders are in place.

These findings suggest that density can play a critical role in promoting public health and building a more sustainable future. While cities must continue working to reduce disease contagion and mortality, density can be a valuable tool in doing so. However, to maintain high-density levels, cities must continue working to make density appealing by integrating public health into urban planning and design. At the Land Use Law Center, the Land Use, Human Health, and Equity Project is developing strategies for how cities can do so in a post-pandemic world.

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.  Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.  Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.  Gabriella Mickel is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

November 4, 2020 | Permalink | Comments (0)

Monday, November 2, 2020

New documentary on RLUIPA: America's Holy War

There is a new documentary on RLUIPA available on Amazon Prime (free with Prime membership) called America's Holy War.  Here is the summary:

An elderly widow is pressured to sell her beloved home.  Her neighbors harassed to sell theirs too to developers who want to replace them with multi-story buildings for a rapidly growing religious community.  The story of a battle triggered by the Religious Land Use and Institutionalized Persons Act (RLUIPA) which was meant to fight religious discrimination but instead has ignited a holy war.

Hat tip to Patty Salkin.

November 2, 2020 | Permalink | Comments (0)

Tuesday, October 27, 2020

Iowa Law Symposium: The Future of Law & Transportation

The Future of Law & Transportation

Presented by: Iowa Law Review & the Iowa Innovation, Business and Law Center

Faculty Organizer: Professor Gregory Shill

November 6, 2020

University of Iowa College of Law, Iowa City, IA

Held virtually via Zoom. Click here to receive registration information.  


This year’s Symposium will focus on the law, policy, and potential of transportation, an area that is growing increasingly important due to its connection to economic growth, public health, and climate change. The Symposium will, for the first time, convene a diverse group of scholars from multiple fields to discuss and produce scholarship on the past, present, and future of law and transportation from a variety of perspectives, including: land use, state and local government, environmental, administrative, tax, and tort law, as well as allied fields in the social sciences. Pieces from the Symposium will be published in Issue 5 of Vol. 106 of the Iowa Law ReviewTo sign up for a Zoom link and other information, please click here. A list of keynote speakers and presenters is listed below, and can also be found here. Please provide your best mailing address by October 19 to receive a postcard.


The Future of Law & Transportation

Iowa Law Review Symposium, November 2020

All Times Central; All Events Virtual


Friday, November 6

8:30-8:45am:  Welcoming Remarks & Introductions

Dean Kevin WashburnN. William Hines Dean and Professor of Law, University of Iowa College of Law

IBL Center Director, Professor Jason RantanenProfessor of Law, Ferguson-Carlson Fellow in Law, and Director of the Iowa Innovation, Business & Law Center, University of Iowa College of Law

Law Review Organizers and Hosts, Dana Waterman and Hayley ShermanEditor-In-Chief and Symposium Editor, respectively, Iowa Law Review

Faculty Organizer and Host, Professor Gregory Shill, Associate Professor of Law, University of Iowa College of Law, and Affiliated Faculty Member, National Advanced Driving Simulator, University of Iowa College of Engineering

8:45-9:45am:  Panel One

Transportation Planning & Land Use I

Professor Jonathan LevineProfessor of Urban and Regional Planning, University of Michigan Taubman College of Architecture and Urban Planning

“Transportation Policy Entrenchment: Institutional Barriers to Accessibility-Based Planning”

Professor Audrey McFarlane, Associate Dean of Faculty Research & Development and Dean Julius Isaacson Professor of Law, University of Baltimore School of Law

“Black Mobility and the Refusal of Funds: Structural Racism and Mass Transportation Decision-Making”

Professor Sara BroninThomas F. Gallivan Chair in Real Property Law and Faculty Director, Center for Energy and Environmental Law, University of Connecticut School of Law

“Dangerous by Design: How Vehicle and Street Standards Hurt Us”

9:45-11:05am: Panel Two

Rights of Way & Public Space

Professor David PrytherchProfessor of Geography, Miami University, Department of Geography “Mobility Justice and the Public Right-of-Way: The Geography of Traffic Law and Design”

Professor Jamila Jefferson-JonesAssociate Professor of Law, University of Missouri-Kansas City School of Law

“#DrivingWhileBlack as #LivingWhileBlack”

Professor Tara GoddardAssistant Professor, Texas A&M University, College of Architecture, Department of Landscape Architecture & Urban Planning

“Not ‘Just Semantics’: How the Language and Framing of Transportation Safety Shapes Perception and Practice”

Professor Vanessa Casado PérezAssociate Professor of Law, Texas A&M University School of Law, and Research Associate Professor of Agricultural Economics, Texas A&M Department of Agricultural Economics

“Reclaiming the Streets: Pedestrianization”

11:05-11:15am: Short Break

11:15am-12:00pm: Keynote Address

Ms. Beth OsborneDirector, Transportation for America

12:00-12:45pm: Lunch (no programming)

12:45-1:45pm: Panel Three

Mobility, Segregation & Polarization

Professor Clayton NallAssistant Professor, University of California-Santa Barbara, Department of Political Science “The Road to Inequality and Political Constraints on Legislating a Green New Deal”

Professor Deborah ArcherAssociate Professor of Clinical Law and Co-Faculty Director, Center on Race, Inequality, and the Law, New York University School of Law

“Transportation Policy and the Underdevelopment of Black Communities”

Professor Daniel RodriguezHarold Washington Professor of Law and Dean Emeritus, Northwestern University Pritzker School of Law

“Road Wary: Transportation, Law, and the Problem of Escape”

1:45-3:05pm:   Panel Four

Transportation Planning & Land Use II

Professor Janice GriffithProfessor of Law, Suffolk University School of Law

“Metropolitan Planning Organizations: Evolving Roles as Transportation Planning Incorporates Environmental and Sustainability Goals”

Professor Noah KazisLegal Fellow, New York University Furman Center for Real Estate and Urban Policy, New York University School of Law and the Robert F. Wagner Graduate School of Public Service

“Transportation, Land Use, and the Sources of Hyper-Localism”

Professor Kenneth StahlProfessor and Director, Environmental Land Use and Real Estate Law Program, Chapman University, Dale E. Fowler School of Law

“Integrating Transportation Policy into the Land Use Curriculum”

Professor Darien ShanskeProfessor of Law, University of California-Davis School of Law (co-author: Professor Deb NiemeierClark Distinguished Chair, Civil and Environmental Engineering, University of Maryland A. James Clark School of Engineering)

“Subsidizing Sprawl, Segregation and Regressivity: A Deep Dive into Sublocal Tax Districts”

3:05-3:15pm:   Short Break

3:15-4:00pm:   Keynote Address

The Honorable Ray LaHood, 16th U.S. Secretary of Transportation

4:00-4:40pm:  Panel Five

Transportation & Finance

Professor Pamela FooheyProfessor of Law, Indiana University-Bloomington, Mauer School of Law

“Bursting the Auto Loan Bubble in the Wake of COVID-19”

Professor Randall JohnsonProfessor of Law and Director of the Public Service Law Center at Mississippi College, Mississippi College School of Law

“Why Illinois Should Eliminate Its Video Tolling Subsidy”

4:40-4:45pm:  Thank You & Farewell

October 27, 2020 | Permalink | Comments (0)

Fellowship @ Yale Ludwig Community and Economic Development Clinic


 in the

 Ludwig Community and Economic Development Clinic


Yale Law School seeks applications for a clinical fellowship in the Jerome N. Frank Legal Services Organization, within Yale Law School’s clinical program. This is a thirty-month position, beginning on or about January 1, 2021, designed for lawyers with at least three years of practice who are considering a career in law school teaching. The Fellow will work with the Ludwig Center for Community & Economic Development (CED). The Fellow’s responsibilities include representing clients, supervising students, assisting in teaching classes, and pursuing a scholarship agenda. In addition, the Fellow may be asked to co-teach a section of a six-week fall program for first-year students, Introduction to Legal Analysis and Writing.  Candidates must be prepared to apply for admission to the Connecticut bar. (Candidates with five years of practice experience may qualify for admission without examination.)

The Ludwig Center for Community & Economic Development (CED) is a semester-long, in-house clinic that provides transactional legal services to clients seeking to promote economic opportunity and mobility. CED’s clients include affordable housing developers, community development financial institutions, farms and farmer’s markets, fair housing advocates, and neighborhood associations. CED’s legal services help our clients to expand access to financial services, bring arts institutions and grocery stores to chronically under-resourced communities, break down barriers to affordable housing development in high-opportunity communities, promote access to healthy foods, and facilitate entrepreneurship among low-income people.

On behalf of our clients, our students negotiate and draft contracts; provide advice on the tax consequences of deal structures and entity choices; structure and carry out real estate transactions; represent borrowers and lenders in financings; engage in legislative and regulatory advocacy; form for-profit and not-for-profit entities; and resolve land use and environmental issues. In addition to representing clients, students in their first semester of the clinic take a seminar which covers federal, state and local policies affecting urban and suburban places; substantive law in tax, real estate development, and corporate governance; and transactional and regulatory lawyering skills, such as negotiation and drafting contracts.

The Jerome N. Frank Legal Services Organization is committed to building a culturally diverse and pluralistic faculty and staff to teach and work in a multicultural environment. Candidates must be able to work both independently and as part of a team, and must possess strong written and oral communication skills. Experience in creative and community-driven advocacy is a strong plus. Annual salary is $65,000-70,000. In addition, the Fellow will receive health benefits and access to university facilities.  Email a resume, cover letter, writing sample, and names, addresses and telephone numbers of three references to Osikhena Awudu, Program Manager, The Jerome N. Frank Legal Services Organization, osikhena.awudu@yale.eduWe will accept applications until November 30, 2020 but will review them on a rolling basis (early applications encouraged).

October 27, 2020 | Permalink | Comments (0)

Friday, October 23, 2020

Online Symposium, Oct 30: Cutting Through Academic Silos to Achieve Sustainability


View in browser.
Friday, October 30, 2020
10 a.m.–3:30 p.m. (CT)
(Online on Zoom)

Register Online

There is no fee to attend, but advance registration is required.
University of Illinois System University Logos

Join faculty from across the University of Illinois System for an interdisciplinary look at how advancing sustainability can help address issues of climate change, which are looming challenges in the Midwest. Using convergence and the emerging circular economy, sustainability can help meet the needs of the present without compromising the ability of future generations to meet their needs.

Presenters will discuss how their research advances sustainability and is shared with students and stakeholders outside the UI System. This Symposium will serve as a catalyst for more interdisciplinary collaboration that breaks down and moves across the academic silos.

Organized in interdisciplinary panels, faculty will present their innovative scholarship and research and show ways in which Midwest residents and businesses can reap the benefits of advancing sustainability.

Organized by the UIC John Marshall Law School Center for Real Estate Law.

Symposium Program

9:30–10 a.m.


10–10:15 a.m.

Opening Remarks

Darby Dickerson
Dean; Professor of Law, UIC John Marshall Law School
University of Illinois Chicago

Celeste M. Hammond
Professor of Law; Director, Center for Real Estate Law,
UIC John Marshall Law School

University of Illinois Chicago

Representative TBD
The Braun Foundation

10:20–10:50 p.m.

Keynote Address: "The Development of Research, Scholarship, and Education about Sustainability and Climate Change in the University of Illinois System"

Donald J. Wuebbles
Harry E. Preble Professor of Atmospheric Science
University of Illinois at Urbana-Champaign

11–11:45 a.m.

Concurrent Sessions I

Session A: "World Without Waste"

Don Fullerton
Professor of Finance, Gies College of Business
University of Illinois at Urbana-Champaign

Thomas L. Theis
Professor; Director, Institute for Environmental Science and Policy
University of Illinois Chicago

Ning Ai
Associate Professor, College of Urban Planning and Public Affairs
University of Illinois Chicago

Session B: "Creating Smart, Resilient, and Sustainable Cities through Planning, Design, and Engineering"

Zorica Nedovic-Budic
Professor, College of Urban Planning and Public Affairs
University of Illinois Chicago

Sybil Derrible
Associate Professor, College of Engineering
University of Illinois Chicago

Kheir Al-Kodmany
Professor, College of Urban Planning and Public Affairs
University of Illinois Chicago

11:50 a.m.–12:30 p.m.


12:30–1:15 p.m.

Concurrent Sessions II

Session A: "Legal, Business, and Human Rights Research and Scholarship about Sustainability"

Carolee Rigsbee
Assistant Professor, College of Business and Management
University of Illinois Springfield

Celeste M. Hammond
Professor of Law; Director, Center for Real Estate Law,
UIC John Marshall Law School

University of Illinois Chicago

Sarah Davila-Ruhaak
Assistant Professor of Law; Director, International Human Rights Clinic,
UIC John Marshall Law School

University of Illinois Chicago

Session B: "Legal Teaching, Training, and Clinical Education in Sustainability"

Warren G. Lavey
Associate Adjunct Professor, College of Law;
Associate Adjunct Professor, Campus Honors Program
University of Illinois at Urbana-Champaign

Susan Kaplan, JD
Research Assistant Professor, Division of Environmental and Occupational Health Sciences,
School of Public Health

University of Illinois Chicago

Paul Lewis
Professor of Law; Director, Center for International Law,
UIC John Marshall Law School

University of Illinois Chicago

1:30–2:15 p.m.

Concurrent Sessions III

Session A: "Sustainable Energy Futures from UIC"

Farzad Mashayek
Professor; Department Head, Mechanical and Industrial Engineering,
College of Engineering

University of Illinois Chicago

Elizabeth Kocs
Director, Partnerships & Strategy, UIC Energy Initiative
University of Illinois Chicago

Meenesh R. Singh
Assistant Professor of Chemical Engineering;
Director, Materials & Systems Engineering Lab,
College of Engineering

University of Illinois Chicago

Session B: "The Future of Water in a Rapidly Changing Climate"

Moira Zellner
Associate Professor, Urban Data Visualization Lab,
College of Urban Planning and Public Affairs

University of Illinois Chicago

Ahmet Enis Cetin
Research Professor, College of Engineering
University of Illinois Chicago

Rachel Havrelock
Associate Professor, College of Liberal Arts and Sciences
University of Illinois Chicago

2:30–3:15 p.m.

Concurrent Sessions IV

Session A: "Sustainability Issues Uncovered by COVID-19"

Linda Forst, MD
Senior Associate Dean; Professor, School of Public Health
University of Illinois Chicago

Lorraine Conroy
Professor; Director, Healthy Work,
School of Public Health

University of Illinois Chicago

Jane Lin
Professor, Department of Civil, Materials and Environmental Engineering,
College of Engineering

University of Illinois Chicago

Kouros Mohammadian
Professor; Department Head, Civil, Materials, and Environmental Engineering,
College of Engineering

University of Illinois Chicago

Session B: "Disparities in Public Health in Light of Climate Change"

Lisa Powell
Professor; Director, Health and Policy Administration,
School of Public Health

University of Illinois Chicago

Victoria Persky, MD
Professor, School of Public Health
University of Illinois Chicago

Teresa Cordova
Professor; Director, Great Cities Institute,
College of Urban Planning and Public Affairs

University of Illinois Chicago

Samuel Dorevitch, MD
Associate Professor, School of Public Health
University of Illinois Chicago

3:20–3:30 p.m.

Closing Remarks

About the Belle R. & Joseph H. Braun Memorial Symposium
The Braun Memorial Symposium Series honors the legacy of Joseph H. Braun, a 1918 graduate, and his wife, Belle. The inaugural symposium was held in 1989, the year of his passing. Since then, the series has featured a number of distinguished panels and speakers on topics including constitutional law, criminal law, environmental law, and international human rights.

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October 23, 2020 | Permalink | Comments (0)

Thursday, October 22, 2020

Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project, Post 2: Planning for Public Health: A New Beginning for Land Use Law

[This is the second in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  This post also appears on the law school's GreenLaw blog. ]


Planning for Public Health: A New Beginning for Land Use Law

The story of local land use law is one of constant new beginnings. It began as a mechanism for designating zoning districts in which specific land uses are permitted and others prohibited and building construction prescribed. As development sprawled, local land use law began addressing the need to protect natural resources and promote smart growth. As evidence of climate change later mounted, local land use law shifted focus to mitigating greenhouse gas emissions and adapting to the realities of a warming climate. Now, as U.S. cities confront the challenges posed by COVID-19, local land use law finds itself engaged in another new beginning.

While it is too early to understand the full impact of COVID-19 on cities, there is evidence to suggest that people who can leave them are doing so in substantial numbers. In New York City, real estate values and office and residential rents have fallen dramatically, and vacancies have more than doubled from just last year. Meanwhile, data shows "unprecedented sales growth" in suburban areas like Fairfield and Westchester counties, "driven by a continuation of New York City buyers relocating" amid the pandemic. 

One reason for this exodus is residents’ concern over crowding, especially considering the ease with which COVID-19 can spread. There are legitimate concerns that the subways, busses, sidewalks, playgrounds, restaurants, and entertainment venues that have long attracted people to cities may now be unsafe. The command to socially distance and convenience of working from home compound the situation. However, if this mass migration from cities continues, we risk recreating the post-WWII "white flight" that eroded cities' tax bases, segregated communities, exacerbated health disparities, and contributed to a massive amount of sprawl

Given these risks, planners and lawyers must continue working to prevent this pattern of urban flight from repeating. While no one can be sure of the duration of this pandemic, the likelihood of future pandemics, and the ultimate effect on cities, one thing remains clear: cities need to become safer. Cities must continue to make density appealing by making public health a central concern in urban planning and design. What follows is an abbreviated menu of options for how cities can begin:

Comprehensive Plan: Cities can include public health components into their comprehensive plans. These plans can specify the goals, objectives, strategies, and techniques for achieving safe buildings and densities.

Building Standards and Checklists: Local checklists of safe construction techniques can be created regarding, for example, better internal ventilation, ultraviolet light to disinfect indoor air, high-efficiency air filters, health screening technology, wide corridors, work from home spaces, more elevators (including voice-activated elevators), automatic doors, special distance metrics for indoor service, and redesigned interior amenity spaces. 

Capital Investments in Infrastructure: City budgets can fund "creative place-making," including social distancing in urban parks and open spaces, tree canopies, broader sidewalks, increased bike lanes, expanded capacity for outdoor retail, curbside management to facilitate pick-ups,  and "slow” and "dining" streets.

Zoning and Land Use Regulations: Short term permits can be given for new uses and expansions, and temporary permits can be offered quickly to commercial tenants adjusting to the changing economy. Cities can award emergency variances from setback requirements, reduce the amount of required parking, allow retail and dining uses of parking lots, and amend office zone standards to allow creative interior arrangements and flexible residential uses. Where retail is not feasible, cities can eliminate requirements for on-street retail use. Permits for all small business applications can be expedited by bringing together regulatory agencies, authorities, and government departments to review projects simultaneously. Pre-application meetings with developers can include health professionals to assure the health of future occupants.

Existing Buildings: To reduce the risk of potential contagion, cities can encourage building owners to retrofit their properties, work with public health experts to create standards for safe buildings, and offer incentives for compliance with these standards. Emerging ratings such as the WELL Health Safety Rating and Fitwell Viral Response Module models can be consulted, and financial incentives such as tax abatements given for adopting recommended improvements.

Small business recovery: Grants and affordable loans can be provided to small businesses so they can better accommodate their customers’ changing service needs. Courts can also refer eviction proceedings to city-supported mediation clinics to search for win-win solutions where both commercial tenants and landlords' bottom lines are considered. 

These suggestions provide a brief overview of how cities can begin preparing for a safer future. Additional strategies will be developed by our team and highlighted in future blogs and reports.

Prior Posts

Introducing the Land Use, Human Health, and Equity Project

October 22, 2020 | Permalink | Comments (0)

Wednesday, October 21, 2020

Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project 

[This is the first in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  The series is also available on the school's Greenlaw blog. ]


Reframing Sustainability: Introducing the Land Use, Human Health, and Equity Project 

The COVID-19 pandemic and climate change gravely threaten public health. Both call for a sharper focus on “sustainability,” a term given new meaning by these undeniable threats. A fear-based trend of people leaving cities has emerged as an initial response to the pandemic. If this trend continues, it could pose serious risks to low-carbon land use strategies recently adopted by densely populated urban communities and worsen already disproportionate public health harms in marginalized communities. Land use law can play an essential role in effectively addressing these issues and shaping a healthier, more prosperous future. 

The Land Use Law Center’s Land Use, Human Health, and Equity Project will make accessible effective land use tools for strengthening public health and environmental protections in urban communities in response to the pandemic. These strategies can contribute to communities’ healthy and resilient post-pandemic futures while also reinvigorating cities’ climate change management capabilities. Through a team of two dozen student researchers led by Professor Nolon, this project addresses climate change and COVID-19 by discovering local solutions.

The project will provide data on the pandemic’s effect, responding to questions such as: Who is fleeing? Where is urban flight occurring? To what degree?  What is the effect of this flight on municipal budgets and affordable housing? How does it affect small businesses, and how can they recover? What are the implications regarding evictions and displacement? And, and how can land use law protect residents, workers, and businesses?  Our reports will describe local land use solutions, garnered from case studies and reports, to show how localities are responding to the pandemic through land use planning and regulation. We will demonstrate how comprehensive plans, land use regulations, the review of development proposals, novel uses of public infrastructure, and other feasible strategies can protect public health, promote equity, and provide financial stability.

The project will demonstrate the importance of density in mitigating climate change and providing affordable housing and efficient transportation. It will search for environmental justice-centered land use solutions to pervasive health and environmental disparities stemming from racial inequities. 

While the future of our post-pandemic world remains uncertain, one thing is clear: new energy and innovation are required to ensure that buildings and neighborhoods are safe for families, workers, and businesses. This is not a new idea, but these times make it imperative that officials, professionals, and advocates review, revise, and renew existing strategies to respond to what is clearly an existential threat.  As many wrestle with existential fear and uncertainty regarding climate change and public health in a post-pandemic future, the Land Use, Human Health, and Equity Project will offer concrete steps toward ensuring sustainable density, prosperous cities, and healthy communities.

October 21, 2020 | Permalink | Comments (0)

Tuesday, October 20, 2020

Stein on autonomous vehicles and the sharing economy

Gregory Stein (Tennessee) writes to share two new articles:

I recently uploaded my new manuscript, The Impact of Autonomous Vehicles on Urban Land Use Patterns, forthcoming in Florida State University Law Review, to SSRN.  As you can probably guess from the title, the article looks at how the long-anticipated rise of self-driving cars in the coming years will cause us to have to rethink the urban landscape.  Everything from parking requirements to the need for drop-off zones to roadway design to how cities raise revenue will be on the table, and local jurisdictions need to be thinking about these issues now.

In addition, my new article, Inequality in the Sharing Economy, has been published in the Brooklyn Law Review.  The article examines the extent to which the sharing economy, including its use of dynamic pricing, may increase existing inequalities.  Among other topics, it asks how the growth of services such as Airbnb have impacted housing supply, and other similar topics relevant to land use professors.

October 20, 2020 | Permalink | Comments (0)

Sunday, September 27, 2020

The racist origins of "grandfathering"

A footnote in the Massachusetts case of Comstock v. Gloucester Zoning Board of Appeals made local news for its discussion of how the zoning term "grandfathering," often used to refer to non-conforming uses, had racist origins.  I just learned of the case, though, and thought I'd post that footnote here in case others had not come across the decision or its discussion, which I found interest.  Here is the footnote:

Providing such protection commonly is known -- in the case law and otherwise -- as "grandfathering." We decline to use that term, however, because we acknowledge that it has racist origins. Specifically, the phrase "grandfather clause" originally referred to provisions adopted by some States after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867. See Webster's Third New International Dictionary 987 (2002) (definition of "grandfather clause"); Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era, 82 Colum. L. Rev. 835 (1982).



September 27, 2020 | Permalink | Comments (0)

Wednesday, September 16, 2020

Podcast on short-term rental regulation (featuring me!)

I recently appeared on a podcast regarding short-term rentals at the C. Boyden Gray Center at GMU Scalia Law School.  You can listen to it here.  More about the podcast below...

Conversations about “the administrative state” usually focus on federal regulators, but for many upstart tech companies, local regulation often presents the most significant challenges. Uber and Lyft, for example, famously collided with local taxicab regulations. And “short-term rental” companies like AirBNB have faced countless regulations from countless regulators.

That is the subject of a new Gray Center Working Paper by Professor Jordan Carr Peterson (North Carolina State). In “Zoning for Disruption,” he finds that AirBNB’s arrival in a city can trigger significant regulatory responses not spurred by less-famous short-term rental companies. He describes that dynamic, and the wide range of regulations at issue.

To discuss his paper, and broader issues of regulation and short-term rentals, Adam White and Professor Peterson are joined by the University of Idaho’s Professor Stephen Miller and AirBNB’s former Head of Policy Strategy, David Owen.

September 16, 2020 | Permalink | Comments (0)

Wednesday, September 2, 2020

Call for Panelists: AALS Section on Real Estate Transactions and Section on Academic Support: The Changing Architecture of Legal Education:  Real Estate Transactions as a Case Study

AALS Section on Real Estate Transactions and Section on Academic Support

The Changing Architecture of Legal Education: 

Real Estate Transactions as a Case Study

Seeking Panelists:

What real property law courses should law schools be teaching?

Who should be teaching these courses?

How should the courses be taught?

The Section on Real Estate Transactions and the Section on Academic Support seek to explore these questions and related issues at their joint online session during the 2021 AALS Annual Meeting, The Changing Architecture of Approaches to Legal Education: Real Estate Transactions as a Case Study.

Members of the legal academic community are invited to submit statements of interest in joining the panel of presenters who will discuss the following in the context of real property law and related courses (mortgage finance, securitization, commercial leasing, housing law, real estate development, etc.):

  • Law schools’ curricular choices
  • Course content and design
  • Teaching and pedagogy application.

As explained more in the “Background” section below, the Sections are specifically looking to highlight issues related to course offerings, curricular design, and teaching methodologies that can better prepare students for modern practice and ensure student achievement of course objectives. Statements of interest (including a description/summary of your proposed presentation) should be emailed to Andrea Boyack at by September 17, 2020.

There is no formal paper requirement associated with participation on the panel. 

**Note that the AALS Annual Meeting in January 2021 will be held in a completely digital format, and individual registration fees will not be charged for participation in/attendance at the Annual Meeting.**

Background/Program Overview: 

In the past decade, legal education has experienced a number of body blows from which it still struggles to recover. In 2007, Educating Lawyers: Preparation for the Profession of Law (more commonly known as the “Carnegie Report”) criticized the academy for insufficiently preparing students for legal practice. In the aftermath of the 2008 Financial Crisis and global recession, many attorneys (especially from Big Law) were laid off and new graduates faced fewer and fewer job prospects. Mainstream and social media spotlighted lawyer and law student discontent, worries about sustainability of legal careers and the high cost of legal education, schools skewing data to try to game US News rankings, and the growing number of for-profit institutions. Law firms and their clients started exhibiting an increasing hesitancy with respect to hiring and training inexperienced attorneys. Law school admission rates tumbled as college graduates changed their opinions about the value of a legal education, as the ABA began making new demands of law schools pertaining to skills training and assessments. The practice of law, in the meantime, has changed dramatically, with automation, internet resources, and contract attorneys (or non-attorneys) taking the place performing tasks lawyers once controlled. Furthermore, schools have struggled to adapt to different expectations of the Millennial and Gen-Z generations of law students. Then, in March 2020, legal academia and law practice suddenly shifted to operating (temporarily?), primarily in the digital/virtual realm. The world has changed over the past 15 years, the practice of law has changed, and law schools struggle to adapt quickly enough to stay relevant and valuable.

The evolving demands and expectations for law schools are not just issues to be addressed by deans and administrators. Nor can the task of preparing new lawyers be allocated exclusively to clinicians and adjunct instructors of specialized “skills” classes. Doctrinal professors may want to also change their approach in the classroom in response to new industry demands for practice competencies and evolving attorney roles in an ever-changing marketplace, but have our pedagogical approaches adequately adapted to this new world? And how has law schools’ increasing reliance on adjunct professors impacted the students’ experience and preparation for the bar and beyond? In short: In what ways do we need to rethink what we teach and how we teach it in order to remain optimally relevant to tomorrow’s lawyers.


Per AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit a statement of interest.

September 2, 2020 | Permalink | Comments (0)

Tuesday, September 1, 2020

CFP: Race and Racism in Affordable Housing Law & Policy

ABA Journal of Affordable Housing & Community Development Law

Call for Papers

Race and Racism in Affordable Housing Law & Policy

Drafts due November 1, 2020

The Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays on issues related to race and racism in affordable housing law and policy.  Practitioners and scholars have long known of the racial inequities in housing, such as redlining, disparate impacts of zoning, racially restrictive covenants, segregated public housing projects, and the concentration of housing tax credits in low-income neighborhoods, to name but a few. While addressing the legacy—and continued applicability—of racially-based housing laws and policies has proven challenging, the death of George Floyd in Minneapolis opened a new conversation about racism embedded in American social institutions.  How should we think about race and racism in housing now?  What are the important issues where race and housing collide, and what are the solutions to address them?

For this issue, the Journal seeks wide participation and especially welcomes shorter essays (2,000–3,000 words).  In addition, the Journal will also continue to seek general essays (typically 2,500–6,200 words) or articles (typically 7,000–10,000 words) related to the Journal’s traditional subjects: affordable housing, fair housing and community/economic development.

The Journal is the nation’s only law journal dedicated to affordable housing and community development law.  The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

Interested authors are encouraged to send an abstract describing their proposal no later than September 7, 2020.  Submissions of final articles and essays are due by November 1, 2020. Please email abstracts and final drafts to the Journal’s Editor-in-Chief, Stephen R. Miller, at The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

September 1, 2020 | Permalink | Comments (0)

Wednesday, August 12, 2020

A potential fix to conditional review of multi-family housing?

At yesterday's Rocky Mountain Land Use Institute RoundUp on housing, my small group breakout session with Erin Clark got to talking about the standards on which multi-family housing decisions get made.  After that call, I was thinking if there might be a way to tinker with the basic structure of entitlement elements that would shift the presumption in favor of multi-family housing and lessen the NIMBY effect.  I realize some will consider this an incidental fix, but consider...

Most multi-family housing units require some kind of discretionary permit, usually a conditional use permit (CUP).  In most states, the statute authorizing such permits requires that a CUP be "in compliance with the comprehensive plan," or similar language.  While I am all for comp planning, the reality is that this is the legal window through which the usual assaults on multi-family housing--traffic and noise--enter the fray, and the decisionmaking.  

My proposal is this:  for multi-family housing, local governments establish certain additional standards relative to issuance of CUPs.  Many local governments do this routinely for anything from drive-thrus to chain stores name it.  Why couldn't there be special presumptions that apply to multi-family housing and what "compliance with the comp plan" means?  For instance, a city could adopt something like the following as presumptions of compliance:

Multi-family projects are presumed to be in compliance with the comprehensive plan if the project affirmatively furthers location choices for low income individuals in an underserved location.  Non-compliance with the comprehensive plan must be shown by clear and convincing evidence through expert testimony.  This applies, but is not limited to, effects of a multi-family project on traffic and noise.

Again, I realize that this will not solve the housing problem in America.  But I do think that presumptions like these related to multi-family housing could make it easier for decisionmakers to evaluate--and approve--multi-family units even in the face of NIMBY opposition.  It also has the virtue of working within the existing system that most local governments will not have the money to change significantly for the near future.

I'd be curious folks' thoughts.




August 12, 2020 | Permalink | Comments (0)

Tuesday, August 11, 2020

Festschrift in Honor of Julian Conrad Juergensmeyer now available

The Festschrift II in Honor of Julian Conrad Juergensmeyer on the Occasion of his Retirement:  International Perspectives on Urban Law & Policy is now published in the Journal of Comparative Urban Law and Policy.  Check it out here:

August 11, 2020 | Permalink | Comments (0)

Sunday, August 9, 2020

APA Planning & Law Division announces 37th Annual Smith-Babcock-Williams Student Writing Competition

From Brian Connolly:

Full letter and instructions here:  Download APA-PLD Student Writing Competition 2020

To Whom It May Concern:

The Planning & Law Division of the American Planning Association announces its 37th Annual Smith-Babcock-Williams Student Writing Competition. The Competition, which honors the memory of three leading figures in American city planning law (R. Marlin Smith, Richard Babcock, and Norman Williams) seeks writings from applicants on a question of significance in planning, planning law, land use law, local government law or environmental law. The Division is excited to announce that it has updated the Competition for 2020. This year, the Competition will be open to both current students and recent graduates (within the past five years). We will also accept a greater variety of formats, including short essays, longer pieces on topics for a broader audience, or law review articles. As in past years, the winning entry will be awarded a prize of $2,000, the Second Place paper will receive a prize of $400 and we will award one Honorable Mention prize of $100. All three winning entries will be published in the semi-annual newsletter of the Division or, if a winning entry is suitable for law review publication, the Competition Committee will work with the winner to place the entry in a mutually-acceptable journal. Additionally, for winning entries that comment on a current topic of interest to planners and land use lawyers, the Competition Committee will invite one or more of the winning authors to coordinate and present a nationally-broadcast webinar on behalf of the Division. The deadline for submission of entries is October 31, 2020 and winners will be announced by December 1, 2020. Please refer to the enclosed official rules for further details. Our past experience has shown that teachers in planning, planning law, land use law, local government law or environmental law are in an ideal position to stimulate student and recent graduate interest in research and writing and to encourage participation in the Competition. Each year, many of the entries appear to have been prepared initially for courses or seminars. We hope you will add your support to the Competition by encouraging your current and past students to submit entries. 

August 9, 2020 | Permalink | Comments (0)