Land Use Prof Blog

More on gay rights and land use: Will Chick-fil-A follow Target's about-face?

I've enjoyed Matt and Ken's posts on public officials in Boston and Chicago making statements that Chick-fil-A restaurants would not be welcome in their jurisdictions because of the anti-gay-marriage opinions expressed by the company's CEO. 

I thought that there were several factual, land-use related considerations worth noting, especially in light of Ken's argument.  First, Chick-fil-A is a largely suburban business.  Even though it is a company with $4.1 billion in annual sales, Chick-fil-A's restaurant locator shows no stores in Boston, one store in Chicago, one store in San Francisco, one store in New York City, and a similar choice to focus on suburban locations nationwide.  As such, big city mayors have little to fear by challenging Chick-fil-A:  the business brings in insignificant tax revenue for big cities, and Chick-fil-A appears to have no great interest in entering such locations.  This makes me second Ken's notion that this is largely about politics and "scoring one for the team" of gay rights.  This is largely an invented issue because it is not like Chick-fil-A is seeking to pepper these cities with their stores.

By comparison, consider the reparations Target has paid to gay communities in major markets in recompense for its $150,000 donation in 2010 to Minnesota Forward, an independent expenditure committee at the time backing an anti-gay candidate for governor in Minnesota.  Target, which does have an interest in entering big city markets, has done all but fall on its sword in an effort to support gay-friendly causes, and win necessary land use permits. The new Target store opening in San Francisco is a perfect example.  The news of Target's anti-gay support in Minnesota came just as the company was filing for land use permits to open two stores in San Francisco.   Get a sense of the tone Target was facing on those permits here.  Since then, Target has openly courted San Francisco's LGBT community. The San Francisco's Bay Area Reporter, the city's LGBT newspaper, listed out Target's donations to the community in a March article:

As Target prepares to open its first stores in San Francisco, the national retailer is increasing its giving to local LGBT organizations.

The company upped its donations to the LGBT Community Center, which is marking its 10th year and has launched a $1 million fundraising drive. Target donated $50,000 toward the anniversary campaign and is sponsoring the center's annual Soiree gala later this month at the $15,000 level.

Target first gave toward the event in 2011, and also donated $20,000 toward the center's education initiative last year with the San Francisco Unified School District.

Center Executive Director Rebecca Rolfe told the Bay Area Reporter the organization is "very pleased" to have Target as a major donor this year.

. . .

"At Target, we're proud of our long history of supporting the LGBT community through giving, volunteerism and event partnership and participation. Target was one of the San Francisco LGBT Center's first corporate sponsors," wrote Snyder.

The company has also been a major corporate sponsor for Out and Equal Workplace Advocates. Since 2010 Target has been a presenting sponsor for the San Francisco-based LGBT group's Workplace Summits.

What a difference a couple years make!  Like Ken noted, the reality is that many discretionary land use permitting disputes are resolved through informal means, especially when there is tension between national chain stores and local communities.  But query:  why did big city politicians not send letters to Target after its support of anti-gay rights causes saying they would never permit a Target in their communities?  Why the difference in treatment with Chick-fil-A?  I have at least one idea:  because big cities want Target stores for the tax revenue!  The small matter of the tax dollars may be enough to explain why big city politicians will negotiate with a potential big-revenue producer like Target on a culture wars slip-up (provided the store makes amends), and excoriate a negligible source of tax revenue to those same cities, such as Chick-fil-A.  Could such differential treatment, even in the culture wars, ultimately be all about the money?

Stephen R. Miller

Salkin on the Quiet Revolution and Federalism

Patricia Salkin (Touro Law Center) has posted The Quiet Revolution and Federalism: Into the Future, 45 John Marshall Law Review (2012).  The abstract:

This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local land use across three time periods: first, that which existed before the publication of THE QUIET REVOLUTION; second, legislation that emerged a quarter century after the publication of THE QUIET REVOLUTION; and third, more recent federal programmatic and legislative approaches. Part IV provides analysis of the future of federalism in land use regulation, noting the increasing trend of the federal programmatic influence and the potential future influence on local land use controls. The Article concludes with a warning to local governments to be vigilant and to rethink the paradigm of land use regulation to regain control in certain areas to prevent further encroachment by the federal government into matters of local concern.

This article comes from last year's excellent Kratovil Conference retrospective on The Quiet Revolution in Land Use Control (David Callies & Fred Bosselman (Council on Environmental Quality, 1971)), hosted by John Marshall Law School in Chicago.

Matt Festa

City Sues Former Law Firm Over Land Use Law Advice

Here is an interesting article from today’s Oregonian (I used to live in Portland and still follow the local news) discussing the city of Forest Grove, Oregon’s lawsuit against a firm that represented it in a land use case.  There is more background detail in an earlier article in the Portland Tribune.  I could not find the filings in the case.  

The city sought to condemn 140 acres of private farmland for use as a park.  It eventually abandoned its condemnation attempt, paid the property owner $186,000 in legal bills, and later settled, for $300,000, a suit for lost rental income and potential income.   Forest Grove is now seeking $528,004 from the law firm, which it asserts failed “to provide adequate guidance to the city leading up to and after the condemnation effort.”  The lawsuit centers on the language in a resolution passed by the city, at the advice, it claimed, of its attorney, stating that the city could “sell or lease for private development any portion [of the land taken by condemnation] not needed for park and recreation needs.”  The property’s owners invoked this passage in challenging the condemnation and the city argues the resolution weakened its position in court. 

Oregon’s law governing eminent domain, which includes a post-Kelo provision prohibiting condemnation with intent to convey to a private party, can be found here.

John Infranca

The Politics of Chick Fil-A Bans

Matt has the legality of the various proposed Chick Fil-A bans covered.  As numerous commentators have pointed out, prohibiting Chick Fil-A stores based on the opinions of the store's owner is flagrantly unconstitutional.  While most commentators have focused on the First Amendment, I think Chik Fil-A has an equally strong legal argument under the Fourteenth Amendment given the Supreme Court's decision in Village of Willowbrook v. Olech, 528 U.S. 562 (2000): it is a violation of the equal protection clause to discriminate against a particular landowner due to "animus" against the landowner. 

To me, the more interesting question is why city officials would propose something that is obviously unconstitutional (leaving aside the possibility that these officials are dumb, which is of course a legitimate possibility).  In fact, if city officials really wanted to prevent Chick Fil-A from locating in their towns, the very worst thing they could have done is announce publicly their discriminatory animus toward the franchise.  As land use folks have seen time and again, it's really easy for communities to exclude land uses they don't like (e.g., affordable housing) by citing vague concerns about traffic, noise, congestion, and so on.  They rarely make the mistake of saying "we just don't want poor people living here."  Now, because of what the various officials in Chicago, San Francisco, Boston, etc have said, it will only be harder to exclude Chick Fil-A even if the city has legitimate concerns about traffic, noise, etc because the inference of discriminatory animus will be so hard to shake.  So why, to repeat my question, are city officials doing this?  There are two possible answers, as I see it:

1) City officials see themselves as having nearly absolute power over zoning. Such a sense of entitlement may stem from a variety of sources: 1) city officials' authority is rarely challenged by repeat-player developers who would rather not anger city officials they may have to deal with again and again; 2) the news media rarely takes up zoning issues as causes celebre, and 3) courts are largely deferential toward local zoning practices.  This sense of entitlement may be especially acute in Chicago, where the informal practice of "aldermanic privilege" essentially grants the alderman in each ward the unfettered right to dole out land use permissions.

This is the less likely of two alternatives, however.

2) City officials knew all along that what they were proposing was unconstitutional, and never had any serious intention of banning Chick Fil-A.  The real reason for their strident statements: signalling that they are gay-friendly communities.  Under the public choice model of local governance, cities are conceptualized as "firms" who compete for affluent residents and tax revenues.  Richard Florida has provocatively argued that one of the greatest potential resources for cities are gay residents, who tend to have high disposable incomes and have had a history of revitalizing depressed neighborhoods in many urban areas.  Thus, it makes sense that these cities would want to signal their friendliness toward gays, and it especially makes sense that once one city so signalled, others did the same to ensure that they're not seen as any less gay-friendly.  In this sense, the proposed Chick Fil-A bans are very similar to then-mayor Gavin Newsom performing gay marriages in San Francisco in 2004 in flagrant violation of California law. 

One footnote here: If I'm right, why did New York mayor Mike Bloomberg so forcefully diverge from these other big-city officials and declare that cities have no right to ban Chick Fil-A?  Perhaps Bloomberg felt he already had sufficient credibility with gays that this was an unnecessary stunt.  In addition, cities aren't just competing for gays but for business.  Bloomberg's corporate instincts probably led him to conclude that potential investors in NY real estate might be deterred if the city started engaging in viewpoint-discrimination among different businesses.  This shows the delicate tap-dance big city officials have to constantly engage in: give sufficient tribute to the liberal constituencies while not alienating big business. 

Ken Stahl

California flirts with new environmental review exemptions for infill projects

Anyone who has practiced or studied land use law in a state with a strong environmental review process knows how that environmental review process often comes to override the land use permitting process.  In particular, urban projects have often suffered from an environmental review process that works better for reviewing greenfield projects, and also from more litigious groups of neighbors that use environmental review procedures either to oppose the project, or seek "mitigations" that benefit neighboring property owners.  On the other hand, efforts to ease the environmental review burdens on infill projects often run into a roadblock of environmental groups that believe exemptions for infill projects will likely only lead to more exemptions and a gutting of the entire law itself (the "slippery slope" argument). 

This fight has been ongoing in California, and other states, for decades.  Several infill exemption provisions from the state's California Environmental Quality Act ("CEQA", pronounced "SEE-kwa") look good on paper, but are essentially unworkable if there are litigious parties involved.  Such unworkable exemptions are in the state's landmark SB375 legislation that seeks to link land use and transportation:  the list of requirements for applicability of the exemption apply to, well, about absolutely nowhere.  Another unworkable exemption is CEQA Guidlines section 15332, which is seldom used where litigation is possible.

With the passage of SB 226 in 2011, however, the state is once again taking a hard look at exemptions for urban infill projects.  Under a mandate of SB 226, the Governor's Office of Planning and Research, now headed by Ken Alex, a well-respected former senior assistant attorney general who ran the California Attorney General's environmental division, has drafted a proposed new CEQA Guideline for urban infill exemptions that was released on June 25, 2012 after epic public commenting.  The proposed CEQA Guideline is now going through formal rulemaking processes at the state's Natural Resources Agency. A cheat sheet on the new proposed infill exemption is available here.  If you want to keep up-to-date on the California infill exemption hearings, you can do so by adding your name at this link.

California's purpose for pursuing the infill exemption is now structured in terms of the climate change debate, but decades ago, the need for such legislation was structured in terms of "sprawl" or "smart growth."  We all know that it is harder to build in urban areas than in greenfields, and there needs to be a way to level that playing field and encourage urban infill.  Following this latest effort in California will be a chance to watch this debate unfold once more, and now in the framework of the climate change debate.

Stephen R. Miller

Call for Papers: Local Government Law Works-in-Progress Conference

Here's a great opportunity for the local government scholars among us (Full disclosure for those who don't want to scroll to the bottom: I am one of the conference organizers)

Call for Papers: Local Government Law Works-in-Progress Conference

Marquette University Law School is pleased to announce that it will host the first annual
Local Government Law Works-in-Progress Conference on Friday, September 21, 2012
(possibly Saturday, September 22, 2012 as well, depending on interest). The conference
will provide an opportunity for local government law scholars to present works-in-
progress and receive feedback from their colleagues in the field.

Registration Deadline: Monday, August 13, 2012

Register: [Link] (https://mulaw.wufoo.com/forms/local-government-law-worksinprogress-conference/)

Abstracts and Papers: Deadline Tuesday, September 4, 2012; submit papers to
[email protected]

Conference Organizers:

Matt Parlow, Associate Dean for Academic Affairs, Marquette University Law School
Ken Stahl, Associate Professor of Law, Chapman University School of Law
Rick Su, Associate Professor of Law, SUNY Buffalo Law School

Recommended Hotel

Ambassador Hotel (ask for MULS rate)
2308 W. Wisconsin Ave.
Milwaukee, WI 53233
414.345.5000
Rate: $109 (plus applicable taxes)

***

For more information, please contact Matt Parlow at [email protected]

Ken Stahl

Chick-fil-A, Gay Marriage, Constitutional Law, and Land Use

Even the culture wars often end up in a land use controversy.  Over the past few days, public officials in Boston and Chicago made statements that Chick-fil-A restaurants would not be welcome in their jurisdictions because of the anti-gay-marriage opinions expressed by the company's CEO.  According to the Wall Street Journal's Jack Nicas, one Chicago alderman went so far as to state that he would personally deny a permit solely on that basis.  From First Amendment Trumps Critics of Chick-fil-A:

Chicago Alderman Proco Moreno wrote in the Chicago Tribune Thursday, "Because of [Mr. Cathy's] ignorance, I will deny Chick-fil-A a permit to open a restaurant in my ward."

I don't agree with the CEO's statements either, but it's pretty clear that, under the Constitution, his opinions can't legitimately be the basis for granting or denying land use permission.  Cleveland State law prof Alan Weinstein put it best:

Alan Weinstein, a professor of law at Cleveland State University who specializes on the intersection of land-use law and constitutional issues, said he has seen officials try to use zoning laws to block adult stores or religious institutions, but never a commercial enterprise because of political views. He said that beyond the First Amendment, "in the land-use sphere, the government has no legitimate interest" in the political views of an applicant.

That last observation is key.  Most of the commentary on this issue has revolved around the CEO's First Amendment rights.  And it's true that free speech is one of the only areas where the courts will apply strict scrutiny to overturn government land use decisions.  But as Prof. Weinstein notes, this question isn't even really about regulating actual speech on land; it's about the rational basis for land use regulation itself under the police powers. 

From a pragmatic perspective, it's pretty easy to imagine a counterfactual scenario where an unpopular political opinion on the other side of the spectrum could likewise result in negative land use decisions under such a precedent.  It appears that this constitutional reality is setting in, and the public officials are backtracking.  Here's a video interview with the WSJ reporter:

 

I was one of the other "land use experts" who talked to the reporter, but Prof. Weinstein definitely said it best.   

So to sum up: Many of us disagree with the Chick-fil-A CEO's opinions, but everyone seems to agree that it would be unconsitituional to prohibit the company's land use on that basis.

Matt Festa

Streamlining Land Use Regulation and Development Review

As reported on Planetizen, Seattle's City Council approved a series of changes to the city's land use regulations on Monday that, it is claimed, "will create jobs and encourage flexibility and creativity in new development."  These changes include an easing of parking requirements for new projects, a higher threshold for the size of projects subject to environmental review, and the elimination of a requirement of ground-floor retail space in certain areas.  Last month, New York City initiated a program aimed at speeding up the land use review process and reducing associated costs for developers.  New York is also considering reductions, in certain areas, of off-street parking requirements for new developments.  (See a Furman Center report on the impact of minimum parking requirements on housing affordability.)   Similarly, Los Angeles recently approved five years of funding for its Planning Department to revise the city's zoning code, part of a broader initiative to streamline development approvals.  

These programs are championed for their benefits in spurring development and increasing predictability. But for critics they threaten to reduce public input and the careful consideration of neighborhood concerns.  It will be interesting to see whether these changes represent a trend, partly motivated by the current economic climate, towards major reforms in city land use regulations and review processes.  If readers know of similar efforts underway elsewhere, please share.   

John Infranca

Stone, Vargo & Habeeb on Climate Action Plans

There has been a lot of interest in climate change strategies at the local level. In fact, I have heard many voice the opinion lately that climate change can only successfully be addressed by starting local. These three authors look at climate action plans in 50 cities and don’t seem to hopeful about their success.

Managing climate change in cities: Will climate action plans work? By Brian Stone, Jason Vargo, Dana Habeeb in Landscape and Urban Planning (2012).

Since the mid-20th century, most large cities of the United States have been warming at more than twice the rate of the planet as a whole. While many municipal and state governments have developed climate action plans designed to reduce emissions of greenhouse gases, rising concentrations of greenhouse gases typically are not the strongest driver of warming in cities. Our purpose is to evaluate the likely effectiveness of municipal and state level climate action plans in slowing the pace of warming in the most populous U.S. cities over the near-to-medium term. We employ time-series temperature trend analyses to differentiate global from local-scale climate change mechanisms in large U.S. cities between 1961 and 2010. We then review all climate action plans developed at the municipal or state level in the 50 most populous metropolitan regions to identify the various emissions control and heat management strategies incorporated into these plans. The results of our assessment suggest that the climate change management policies adopted through municipal and state climate action plans may fail to adequately protect human health and welfare from rapidly rising temperatures. Based on our review, we recommend that municipal and state governments broaden climate action plans to include heat management strategies in addition to greenhouse gas emissions controls.

Jessie Owley

The London Olympics & Land Use--The Atlantic Cities' Coverage

As Jessie noted in her post on the Olympic Villages, there are many land use issues involved when a city hosts the Olympic Games.  For a fantastic overview of these issues, with numerous in-depth stories, there's no better place to start than The Atlantic Cities' "Special Report" Olympics 2012: London Gets Ready for the Summer Games.  Feargus O'Sullivan has been reporting from London for months, and in the past couple of weeks many of their other writers have contributed excellent stories on a slew of land-use-related Olympic issues.  Here are just a few examples of the wide range of topics they've addressed:

Whether hosting the Olypmic "boondoggle" is good or bad for your city; homelessness and tourism; security issues; public attitudes--politicians telling "whingers" to "put a sock in it"; transportation concerns; architecture; planning for post-Games facilities use; affordable housing; the always-controversial of building new stadiums (stadia?); and many, many other important issues that come up when a big city offers to play host to the world. 

The British media, of course, have lots of excellent coverage.  But for a more specific focus on land use, local government, and urban planning issues, I highly recommend starting with The Atlantic Cities' Olympics 2012 page.  They're posting several new stories each day. 

In the meantime, I hope you all enjoy watching that important land use event known as the Olympic Games!

Matt Festa

DeGennaro & Li on Business Formation in the Wake of State Responses to Kelo

Ramon P. DeGennaro (Tennessee--Finance) and Tianning Li (Hood College) have posted Business Formation in the Wake of States' Responses to Kelo.  The abstract:

On June 23, 2005, the U.S. Supreme Court ruled in Kelo v. City of New London, 505 U.S. 469 (2005) that the Public Use Clause allows governments to take private property for transfer to new private owners for the purpose of promoting “economic development.” Our theoretical model identifies the circumstances under which Kelo and subsequent state laws affect business formation. We show that business creation can be encouraged, unaffected, or discouraged as the probability of takings increases, depending on the level of compensation for the takings and the magnitude of the owners’ public use benefits. We also show that utility-maximizing entrepreneurs’ choices of investment depend on the probability of takings and the level of government compensation for the taking. Our empirical results yield three insights. First, states and municipalities can pass laws protecting property rights without fear of retarding business formation. Second, we identify explanations why Kelo and these laws do not measurably affect business formation in our empirical work. Specifically, we believe that either government entities correctly compensate entrepreneurs for the disruption in their businesses through eminent domain legislation, or that the change in the probability of such takings is very small, so that any effect on business formation is too small to measure. Third, takings open the possibility for political corruption and distortions in the economy by encouraging overpayment or underpayment for takings. Under this interpretation, local laws against takings are not pro-business laws or anti-business laws. Rather, they are anti-corruption laws.

Matt Festa

Sharing the Streets

A few things I have come across in the last month have led me to think more about the role of the street in land use planning and the increasing demands on this most public of places.  Foremost among these was the Museum of the City of New York’s exhibit on New York’s street grid, which just closed and which Ken Stahl blogged about here a few months ago.  The exhibit drove home the role of the street grid in shaping the city’s development patterns (and the incredible uniformity it imposed upon that development). A recent post at Better! Cities & Towns, What is a block?, shared interesting thoughts on the interaction between public streets and private property, the legal and physical implications of the boundary line, and the definition of a block.

Last month, a “Complete Streets” provision included in the Senate transportation bill was struck from the final version during the conference process.  The provision would have required that federally-funded street projects include certain measures to more safely accommodate all road users, including pedestrians, cyclists, and public transportation users.  The coming years are likely to see more heated battles over the use of streets, for pedestrians, bicyclists, and bus rapid transit (in New Delhi, India a BRT corridor is being attacked as unconstitutional).  Looking ahead, an opinion piece in the Wall Street Journal last week argued for better highway planning and design to accommodate future development of “driverless” cars.  

Decisions regarding how roads will be designed (or redesigned) and what uses will be favored have a profound impact on future development patterns, energy use and climate change, and broader issues of community identity.  The use and design of streets has figured prominently among planners, but seems to have a less central role in land use law.  Like a number of land use issues, these decisions have both local and national importance.  They also affect the land uses of private property owners, who may object to changed road uses and their impact on commercial traffic, deliveries, and other interests.  It will be interesting to see what unique contributions land use scholars will make to these debates.

- John Infranca 

Piekielek and Hansen on Land Use Near National Parks

The authors study land use near national parks and how those land uses affect biodiversity in the parks. The article is helpful for its results but also the methodology of studying and comparing land uses.

Extent of fragmentation of coarse-scale habitats in and around U.S. National Parks by Nathan B. Piekielek, Andrew J. Hansen -- Biological Conservation, Volume 155 (2012)

U.S. National Park Service land managers face a variety of challenges to preserving the biodiversity in their parks. A principle challenge is to minimize the impacts of surrounding land use on park condition and biodiversity. In the absence of ideal sets of data and models, the present study develops methods and results that demonstrate a coarse-filter approach to understanding the effects of land use change on habitat types for four pilot study-areas. The area of analysis for each park is defined by a protected-area-centered-ecosystem. Habitat types were defined by biophysical factors assumed to represent the distribution of vegetation communities as they may have existed prior to European settlement.

Present-day land use was overlaid on historical habitat and change in area and pattern was quantified for private and public lands separately. Results suggest that patterns of development are affecting study-areas differently. Therefore, the conservation challenges faced by each study-area are distinct to their landscape contexts. For some parks, the primary challenge is to work towards maintaining ecosystem condition in its present or near-present state while paying particular attention to habitats that are underrepresented on public lands. For other parks, the challenge is to address spatially aggregated land use that is affecting only a few habitat types. For still other parks, the challenge is to maintain connectivity with a regional network of protected lands and to undertake restoration projects where feasible. The present methods and results help to focus conservation attention on habitats that have been most impacted by land use change.

Jessie Owley

Butsic et al on Landscape Management for Species Conservation

These authors create a model to figure out which land uses optimize species protection while maximizing economic output. 

 Analytical Solutions to Trade-Offs between Size of Protected Areas and Land-Use Intensity from Conservation Biology by Van Butsic, Volker C. Radeloff, Tobias Kuemmerle, and Anna M. Pidgeon

Land-use change is affecting Earth's capacity to support both wild species and a growing human population. The question is how best to manage landscapes for both species conservation and economic output. If large areas are protected to conserve species richness, then the unprotected areas must be used more intensively. Likewise, low-intensity use leaves less area protected but may allow wild species to persist in areas that are used for market purposes. This dilemma is present in policy debates on agriculture, housing, and forestry. Our goal was to develop a theoretical model to evaluate which land-use strategy maximizes economic output while maintaining species richness. Our theoretical model extends previous analytical models by allowing land-use intensity on unprotected land to influence species richness in protected areas. We devised general models in which species richness (with modified species-area curves) and economic output (a Cobb–Douglas production function) are a function of land-use intensity and the proportion of land protected. Economic output increased as land-use intensity and extent increased, and species richness responded to increased intensity either negatively or following the intermediate disturbance hypothesis. We solved the model analytically to identify the combination of land-use intensity and protected area that provided the maximum amount of economic output, given a target level of species richness. The land-use strategy that maximized economic output while maintaining species richness depended jointly on the response of species richness to land-use intensity and protection and the effect of land use outside protected areas on species richness within protected areas. Regardless of the land-use strategy, species richness tended to respond to changing land-use intensity and extent in a highly nonlinear fashion.

Jessie Owley

Call For Papers - 2013 Idaho Law Review Symposium on Fracking in the West

I am excited to be the faculty advisor for the Idaho Law Review's spring symposium, which will be held in Boise on March 29, 2013 and focus on hydraulic fracturing ("fracking") in the western United States.  As I noted in an earlier post, this issue is just beginning to heat up here in Idaho as it has in other places.  We already have a great line-up of academics and practitioners joining us, but we are looking for more!  If you're interested in joining us, please see the call for papers below.  I'd love to have more land use folks at the symposium.

 

CALL FOR PAPERS

 * * *

2013 University of Idaho Law Review Symposium

 

The Idaho Law Review invites you to participate in its 2013 Symposium to be held in Boise, Idaho on March 29, 2013. The Symposium presents an opportunity for discussion and debate about the legal implications and issues associated with hydraulic fracturing for natural gas (i.e., “fracking”) and especially its use in the western United States.  To complement the Symposium, the spring volume of the Law Review will be devoted to high-quality legal scholarship focusing on hydraulic fracturing. The Symposium has already attracted several leading scholars and practitioners, and we look forward to accepting more exceptional participants.

The Idaho Law Review seeks submissions of papers for oral presentation at the Symposium and for publication in its Spring 2013 volume. We invite contributions in the form of articles, essays, and presentations addressing any aspect of law related to the regulation and development of hydraulic fracturing. Topics may include, but are not limited to: the interplay of federal, state, and local regulation of hydraulic fracturing; environmental impacts of hydraulic fracturing; groundwater contamination/quality issues; land-use impacts of hydraulic fracturing; administrative concerns; and emerging issues related to hydraulic fracturing.  Although traditional, full-length papers are welcome, we are especially interested in shorter essays (roughly 8,000 to 15,000 words, including references) that will stimulate discussion at the Symposium.  

Draft abstracts of no more than one page, proposed topics, and queries may be addressed to Marc Bybee, Chief Symposium Editor, at [email protected], no later than August 31, 2012. Please accompany submissions with a curriculum vitae or resume, and indicate your willingness and availability to travel to Boise, Idaho to participate in the Symposium on March 29, 2013. Assistance with travel costs may be available, funds permitting.

 Stephen R. Miller  

Land Use Profs Present at Harvard/Stanford/Yale Junior Faculty Forum

Over at Property Prof, Steve Clowney gave well-deserved kudos to two property professors who were selected to present their papers at the prestigious Harvard/Stanford/Yale Junior Faculty Forum this summer. 

I should add, though, that these two rising stars are not just property profs, but land use profs in their teaching and research.  Our own Land Use Prof blogger Ken Stahl (Chapman) presented his very interesting paper Local Government, One Person/One Vote, and the Jewish Question, and Ashira Ostrow (Hofstra) presented her forthcoming article Land Law Federalism. 

Congrats to both, and way to represent those of us in the property and land use junior ranks!

Matt Festa

Salkin on Zoning Ordinance Variances

Patricia Salkin (Albany) has posted Zoning Ordinance Variances, published in the American Planning Association's PAS Quicknotes, no. 38 (2012).  The abstract:

This short piece designed for planners describes the purpose of variances, both use and area variances, conditions on variances and alternatives to variances.

It is an excellent short introduction to the legal concept of variances.  There is a lot of confusion out there on the differences between variances, special exceptions, nonconforming uses, and zoning amendments as methods for altering the rules.  In addition to planners, I think it would also be a great piece to share with clients, community members, . . . and land use law students.

Matt Festa

Disputes over Westchester Housing Settlement Continue

    Westchester County's protracted battle with HUD over the implementation of a 2009 lawsuit continues.  By way of background, the case, United States ex rel Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, was brought as a qui tam action under the False Claims Act, alleging that the county, through certifications made to HUD to receive Community Development Block Grant funds, falsely certified that it fulfilled its obligation to "affirmatively further fair housing."  The Anti-Discrimination Center (ADC), which brought the case, claimed that Westchester failed to consider race-based impediments to housing choice and failed to identify and take steps to overcome these impediments, as required by law.  The DOJ intervened and negotiated a settlement on behalf of HUD.  The settlement requires Westchester to, among other things, spend $51.6 million to develop, primarily in municipalities with overwhelmingly white populations, at least 750 affordable housing units that affirmatively further fair housing.  The County also must affirmatively market the housing in surrounding areas with significant non-white populations.  The court appointed a monitor to oversee and facilitate implementation of the settlement. (In the interest of disclosure, through my work at the Furman Center, I provided technical assistance to the Monitor's team earlier in the process). 

    The County argues that it is complying with the settlement and is ahead of schedule in constructing the units.  However, the ADC has asserted, that the locations of these units so far, which are often isolated from the surrounding community, fail to further the settlement's underlying goal of desegregating housing patterns.  The County has responded that the cost and availability of land restrict the options available.  The County Executive, who was elected after the settlement was reached (and has repeatedly said he would not have signed it), contends that HUD is overreaching, requiring the County to take actions beyond the terms of the settlement.  In May, the District Court ruled against the County, finding that it failed to comply with the settlement's requirements that it promote legislation prohibiting source-of-income discrimination.

        The most recent contentions focus on zoning issues and the County's compliance with a requirement that it conduct an "Analysis of Impediments" (AI), which examines barriers to fair housing choice.  HUD has withheld funding from the County, declaring the AIs it has filed fail to properly consider the impact of race on housing choice and whether local zoning regulation is exclusionary.  The County's AI concluded that no exclusionary housing existed in its municipalities.  Rather than revise that submission in response to the Monitor's list of deficiencies, the County refiled the same AI, accompanied by a legal analysis by the Land Use Law Center at Pace Law School, supporting its approach. 

The County argues that its review of local zoning followed the analysis of exclusionary zoning put forth by the NY Court of Appeals in Berenson v. New Castle, which requires that local zoning ordinances consider regional housing needs in developing a "properly balanced and well-ordered plan."  It concludes that all of the local ordinances consider regional needs and allow the development of multi-family housing and a range of uses and consequently are not exclusionary.  Therefore the County need not take any further steps to comply with the settlement's requirement that it use "all available means," including taking legal action, to address a municipality's action or inaction in promoting the settlement. 

HUD's response, and the next steps in this dispute, will raise interesting questions regarding the relationship between a County and its municipalities, the definition of exclusionary zoning and scope of judicial review of local zoning, and the courses of action available to HUD in challenging local zoning.  

John Infranca

 

Gade on Olympic Villages

Check out this interesting article and fascinating slide show on Olympic Villages over the years. As Matt always tells us, everything can be a land use issue and the Olympics are no exception. Many buildings and facilities are erected for each Olympics, and one necessary element is a place to house all the visiting athletes. This slide show of what the housing as looked like over the year (and in some cases what those properties look like still today).

Jessie Owley

Pham et al on Vegetation Distribution

There has been a lot of talk lately about distribution of vegetation in urban areas. The changes are so stark that we can identify low income communities from satellite photos just on the basis of tree cover. This new study illustrates this phenomenon examining Montreal.

 Spatial distribution of vegetation in Montreal: An uneven distribution or environmental inequity? By Thi-Thanh-Hien Pham, Philippe Apparicio, Anne-Marie Séguin, Shawn Landry, Martin Gagnon in Landscape and Urban Planning (2012)

Growing evidence is showing that across North American cities, underprivileged populations and racial and/or visible groups have disproportionally less access to vegetation than affluent groups, raising concerns of environmental inequity. This study aims to verify whether in Montreal (Canada) there is environmental inequity resulting from variations in urban vegetation for low-income people and visible minorities. More specifically, various vegetation indicators were extracted from very-high-resolution satellite images, including the proportion of city blocks, streets, alleys and backyards covered by total vegetation and trees/shrubs. Socio-demographic variables were obtained from 2006 Canada Census and rescaled to the city block level, by using a population-based weighing method. Statistical analysis indicates that there are disparities in the distribution of vegetation in Montreal which disfavour low-income people and, to a lesser extent, visible minorities. Disparities are also more pronounced on public land (streets, alleys) than on private land (backyards). Income is a major factor but cannot fully explain inequities among visible minorities. Notwithstanding the weak extent of such disparities, those vulnerable communities might need a better access to ecological services provided by vegetation, notably such as heat island mitigation. Compensatory equity needs to be addressed and our findings call for authorities to reconsider greening budgetary allocation and practices, especially in the most deprived neighbourhoods of the city.

 Jessie Owley