Land Use Prof Blog

The common law of parks

A recent Colorado Court of Appeals case caught my eye for its discussion of a "common law" of parks, which was new to me.  

In essence, Denver citizens sued to stop the city from turning over a piece of city land to the school district by arguing that the city had treated the land like a park since the Fifties and, in so doing, had made the land a de facto park through such actions under Colorado common law.  The Colorado Court of Appeals described the Colorado law as follows:

“In Colorado a dedication of land to public use may be made either according to the common law or pursuant to statute.” City & Cnty. Of Denver v. Publix Cab Co., 135 Colo. 132, 139, 308 P.2d 1016, 1019–20 (1957). Common law dedication occurs when the city's “unambiguous actions” demonstrate its “unequivocal intent” to set the land aside for a particular public use. State Dep't of Highways v. Town of Silverthorne, 707 P.2d 1017, 1020 (Colo.App.1985); accord City of Northglenn v. City of Thornton, 193 Colo. 536, 539, 569 P.2d 319, 321 (1977); City of Denver v. Jacobson, 17 Colo. 497, 500, 30 P. 246, 247 (1892); 11A Eugene McQuillin, Municipal Corporations § 33:32, at n. 6 (3d ed. rev.vol.2009) (intent need not actually exist, but rather must appear to exist).

One of the public uses for which a city may dedicate land under the common law is as a park. See McIntyre v. Bd. of Cnty. Comm'rs, 15 Colo.App. 78, 61 P. 237 (1900) (recognizing the doctrine of common law park dedication); see also Hall v. City & Cnty. of Denver, 115 Colo. 538, 542, 177 P.2d 234, 236 (1946) (applying the doctrine). In Hall, our supreme court applied the rule of common law dedication to city–owned land. The court found that that there was no “common–law acceptance of an offer to dedicate” land as a park. 115 Colo. at 542, 177 P.2d at 236. In reaching this conclusion, the court relied on Starr v. People, 17 Colo. 458, 30 P. 64 (1892), which held that the public's use of a road through private property did not turn the road into a public highway unless the property owner's statements and conduct indicated that he intended such a result.

 

Friends of Denver Parks, Inc. v. City & Cnty. of Denver, No. 13CA1249, 2013 WL 6814985 (Colo. Ct. App. Dec. 26, 2013).  The court ultimately rejected the citizens' claim under the common law theory, but it struck me as an incredibly novel argument that may hold sway under better facts.

 

Stephen R. Miller

California considers a shift away from "level of service" transportation analysis in CEQA environmental review

California is currently considering a shift away from the "level of service" approach to transportation analysis in the California Environmental Quality Act (CEQA) environmental review process.  

Anyone who has suffered through an LOS analysis knows how peculiar, finnicky, and often counter-productive the LOS approach can be.  Alternatives being considered:  vehicle miles traveled; automobile trips generated; multi-modal level of service; fuel use; and motor vehicle miles traveled.

For those interested in learning more about the State's proposed solutions, see the document below from the California Governor's Office of Planning and Research.

Download Cal OPR Preliminary Evaluation Transportation Metrics

 

The biggest land use event and land use law case of 2013?

It's the end of the year, and that means it's time to choose the biggest land use event and land use law case of 2013.  

My bet for the biggest land use story of the year is China's staggering project to relocate 250 million people from rural villages to cities in the next 15 years.  Check out the NYT article here.  

The biggest land use law case of the year?  Judging from the buzz, I'm going with Koontz.

How about you, dear readers?  What would you name as the biggest land use event and land use law case of the year?  We want to hear from you!  

It's hard to believe, but our readership has grown fivefold this year and we are on track to have well over 100,000 hits to the blog next year.  We welcome all of our new readers into the fold and remind all readers--new and old--that we always appreciate suggestions for events to cover, articles to post, or cases to mention.   

A happy, healthy, and successful new year to all!

Stephen R. Miller

 

 

 

 

 

 

Want on Koontz and economic substantive due process

William Want (Charleston) has just posted Economic Substantive Due Process:  Considered Dead is Being Revived by a Series of Supreme Court Land-use Cases on SSRN.  The article is forthcoming in the University of Hawaii Law Review.  Here is the abstract:

 

This article describes how the Supreme Court, in a series of land-use cases, is resurrecting economic substantive due process, which has been presumed dead since its rejection in the 1930s for blocking legislation aimed at fighting the Great Depression.  The most dramatic step in this reversion to Lochner is Koontz v. St. Johns River Water Management District, a case handed down on June 25, 2013.  Koontz extended the reach of Nollan v. California Coastal Commission and Dolan v. City of Tigard, cases that expanded takings law to include the lack of sufficient connection between a property interest required for mitigation of a permitted project and the project’s adverse impacts.  Those cases changed the judicial standard for reviewing permit conditions requiring the dedication of land from rational basis to the heightened takings standard, which includes the government bearing the burden of persuasion.  In Koontz, the Court ruled that this takings concept was applicable to the requirement that the permit applicant expend money to compensate for the impacts of the permitted activity despite the fact that the Fifth Amendment and previous case law confine takings analysis to property interests.  The practical effect of Koontz is that courts must implement substantive due process review to a vast amount of permit decisions of local, state, and federal government.  This article examines the doctrines of takings, substantive due process, and unconstitutional condition to arrive at the conclusion that the takings test created by Nollan, Dolan, and Koontz revives economic substantive due process.  The article recognizes the legitimacy of the desire of property rights advocates for more than rubber stamp, rational basis review of progressively more stringent land-use regulation.  To that end, the article concludes by proposing alternatives that accomplish this without resurrecting economic substantive due process that is a bad doctrine now for the same reasons it was rejected in the 1930s.

Stephen R. Miller

Jury Verdict in Controversial Ashby High Rise Case

An important jury verdict this week awards nuisance damages to residential neighbors of a prospective high-rise development. 

If you're one of the 6 million people living near Houston, Texas--or if you've been anywhere near one of my classrooms in the past 6 years--you know all about the controversy over the so-called "Ashby High Rise," a proposed 20+ story residential development that is planned for street that has a mix of uses surrounded by primarily single-family residential housing.  The site is in an affluent area very near downtown, midtown, and other centers in Houston.  The proposal has been highly controversial and has gotten steady local and occasional national media attention as an important land-use battle.

As you know, Houston is the Unzoned City, the only major American city without a traditional Euclidean zoning code.  But you may not realize, though, that Houston nonetheless has an extensive regime of land use controls, which I call "de facto zoning."  The gist of this story is that after five years of political and legal dispute, the City of Houston awarded the building permit, and the opponents' last-ditch effort this year was a nuisance lawsuit.  On Tuesday, the jury awarded $1.7 million in nuisance damages to certain of the neighboring landowners if the project gets built.  The judge will rule on the injunction request next month.

(Full disclosure: I testified as an expert for the defense at the trial).  I'll have a lot more to say about this case, but for now, the link above will take you to the initial story with the news.  As you can probably already tell, there are many interesting and important land use issues to unpack here.

Matt Festa 

See you at January 4 AALS panel on Sustainability and Health!

I'm excited to be speaking at AALS on my recent scholarship and work-in-progress, which involves the history, scope and purpose of the police power.  This particular talk will look at how the police power has been invoked--and challenged--over the years in efforts to further public health.  The panel, as a whole, has an amazing cast of characters, and I hope to see many of you in the audience then!

 

AALS Section on Law, Medicine & Health Care

2014 Section Program

Sustainability and Health

 

Saturday, January 4, 2014, 2:00–3:45 p.m.

 

Ani B. Satz, Emory University School of Law, Moderator

Stephen Miller, University of Idaho School of Law, The Police Power and Public Health in the Age of Sustainability

Melissa Powers,Lewis and Clark Law School, Climate Action Plans and Urban Pollution

Laurie Ristino, Vermont Law School, Food Policy for Improving Sustainability and Health: A Proposed Legal Framework

Mark Izeman, NRDC, Emerging Trends in Regional Food Law: Implications for Sustainability and Health

Ashley Rhinehart, Humane Society of the U.S., Factory Farming, Sustainability, & Public Health

Joanna Sax, California Western School of Law, Revisiting the Role of the Value of a Statistical Life Through Fracking

This panel will explore the effects of the environment on health in western nations and the role that sustainability initiatives play with regard to wellness. The panel will be interdisciplinary, broadly spanning topics in health, environmental, and animal law and policy as well as public health, land use, and urban planning. 

Stephen R. Miller

Bray on Progressive Property and Low-Income Housing

Zachary Bray (University of Houston) has posted The New Progressive Property and the Low-Income Housing Conflict, BYU Law Review, Volume 2012, Issue 4, p. 1109 (2012).  The abstract:

The foundation of property law has been much debated in recent years, as several scholars have sought to provide a theoretical alternative to what they call the dominant, “law-and-economics” approach to property. In place of the law-and-economics approach, these scholars advance a new theoretical approach, which I call “the new progressive property.” At its core, this new approach favors rules thought to promote the collective well-being of the larger community while ensuring that relatively disadvantaged members of society have access to certain basic resources. This Article explores the boundaries and practical implications of the new progressive property. To do so, I focus on two potential examples of this theoretical approach related to low-income housing: the federal Section 8 housing voucher program and local rent-control ordinances. I argue that Section 8 is a better example than rent control of the new progressive-property approach, even though rent control has previously been identified as a practical example of the new progressive property and Section 8 has not.

I then turn to examine a deep conflict at the intersection of Section 8 and rent control, which presents an important opportunity to further test and refine the new progressive property. In particular, I argue that this underexamined low-income housing conflict provides good reasons to abandon rent control, even from a progressive-property perspective. In addition, the low-income housing conflict between Section 8 and rent control sheds light on the ambiguous relationship between law-and-economics analysis and the progressive-property framework. More specifically, I argue that the conflict between rent control and Section 8 demonstrates that even the most basic law-and-economics tools must be incorporated into a progressive-property framework to achieve the ends of the new progressive property.

 

Very interesting, and an an original contribution in comparing two different facets of housing policy in the context of the larger theoretical discussion of progressive property.

 

Matt Festa

Hausmann in the American desert: A visit to the latest installment of exurban urbanism

It appears that exurban urbanism has finally been commoditized.  A model of development once hailed as "new urbanism" has been remodeled to fit market conditions and it is wildly successful all across the country.  

Here is the formula:  a developer buys a massive, far-removed piece of land, builds an outdoor mall with intervening streets and an urban feel but otherwise surrounded by massive parking lots, and puts some housing in the development to boot.  In other words, it is exurban mixed-use development built without strict zoning codes, but under the strict guise of a developer's contractual restrictions on use and CC&Rs that read like a book.  

The forerunners of this development scheme were places like Reston (tagline:  "where outside is in") and Kentlands (DPZ's masterpiece).  Now, this new version is dime-a-dozen.  Witness, a faux-Hausmann era French boulevard development that has sprung up here in a far suburb of Boise, called Eagle, where sage-brush desert can still be found on the horizon.  Dubbed "The Village," the new development boasts all of the hallmarks of this new development scheme I laid out previously plus, for the Christmas season, Frank Sinatra crooning holiday tunes from outdoor speakers.  I have also seen a similar development in my hometown of Dayton, Ohio, dubbed "The Greene" and in other exurbs across the country.    

These developments remind me of a passage that stuck with me from a 2010 ULI report called "Housing in America:  The Next Decade."  Here is the passage from that report that, to me, is spot on as to why this new exurban urbanism is flourishing:

Generation Y. There is no precise definition of generation Y, but generally it is made up of people in their late teens to early 30s and accounts for some 83 million people....

They say they want to live in urban areas: a 2008 survey by RCLCO found that 77 percent of generation Y reports wanting to live in an urban core, not in the suburbs where they grew up. They want to be close to each other, to services, to places to meet, and to work, and they would rather walk than drive. They say they are willing to live in a smaller space in order to be able to afford this lifestyle.

The ability of most of this generation to afford urban living will be limited, however, and once they have school-aged children, they will look for good public schools. To find them, they will either work to improve the schools in the cities in which they live, which will make a great contribution to those cities, or they will move to the suburbs, as generations before them have. However, they may move to the older, closer-in, and less expensive suburbs or to compact suburban town centers rather than to low-density culs-de-sac of the outer suburbs.

To get members of generation Y to buy their first home, builders will need to offer starter homes in large numbers at low prices—meaning homes that are small, simple, and on small lots, but that are well designed and built to green energy standards. This is hard to do, except in the outer-edge suburbs. For this reason, many young families will look to live in the older, close-in suburbs where prices have fallen or be forced to move to the outer-edge suburbs where home prices are lowest, regardless of the higher cost in dollars and time of long commutes.

This will be a big change from the past, when people moved to the outer suburbs by choice in order to find a newer, bigger home. Over the coming decade, many of those who move to the outer suburbs will do so reluctantly and will miss the sense of community and the amenities they value. In addition, their suburban homes will appreciate in value slowly, if at all, because their major appeal will be their low price.

This provides a major opportunity for developers to create new outer-edge communities with real town centers and urban amenities. Even on the outer edges, a compact, walkable lifestyle that is affordable will be attractive to income-constrained young families, especially if it provides transportation alternatives.

Places like The Village and The Greene are emblematic of this new development scheme aimed at Gen Y that the ULI report so presciently documented.  Today's Gen Y want to live in urban areas, but urban areas are either expensive or require a degree of homesteading most suburban-raised Gen Y'ers find exhausting or intimidating.  Suburbs are unwilling to impose strict mixed-use development codes in many parts of the country because developers tell them they will never work.  Ironically, developers are going to far-flung exurbs to build, from the ground up, exurban cities subject to private regulations.  Go figure!  

Many questions remain.  Can this type of urbanism flourish only with one developer holding all the cards?  Could a public entity ever hope to impose this kind of regulation--or reap this kind of success--at the urban fringe without a single property owner?  And will the Gen Yers that are flocking to these areas feel satisfied with the experience, or will they ultimately feel that this sanitized, distant-from-the-city city, with all its Hausmann-era street lights and faux Parisian grandeur, is lacking something?  Time, and the market, will tell.

For contemplation of exurban urbanism, here are several pictures I took of The Village, here in an exurb of Boise, on a recent foggy day:

 

 

 

Stephen R. Miller

PennDesign's "Designing Cities" MOOC

Three professors at Penn Design--Gary Hack, Jonathan Barnett, and Stefan Al--have put together a nice MOOC on urban design called "Designing Cities," which is currently available on Coursera.  Here is the course's blurb:

The course explores visionary and practical concepts of city design and planning, past and present, and how design can address such looming challenges as urban population growth, climate change and rising sea levels. Participants will be encouraged to make proposals for city design and development, starting with their own immediate environment.

I've dipped into several of the segments--each of which is about 10 minutes long--and found them informative refreshers in some instances and a font of new ideas in other cases.  Worth a look despite the headache of having to sign up for a Coursera account. 

Stephen R. Miller

 

Techies and community in urban spaces

The NYT has an interesting opinion article today about the role of tech companies in defining community in urban spaces.  From the lead:

The tech sector is, increasingly, embracing the language of urban planning — town hall, public square, civic hackathons, community engagement. So why are tech companies such bad urbanists?

Stephen R. Miller

Interior issues Report of the Commission on Indian Trust Administration and Reform

On December 10, the Department of Interior issued its Report of the Commission on Indian Trust Administration and Reform.  This is a massive document that touches on the future of virtually every aspect of federal relations to Indian Country.  Several aspects of the report also touch on land use issues and are worth reviewing for those working with or for Indian tribes.  I'd suggest the easiest way into the document is through the "Top 20 Recommendations" and also the more robust "Final Trust Recommendations Report."  Both sections are at the end of the report.

Hat tip to my colleague Angelique EagleWoman, who mentioned the report to me.

Stephen R. Miller

Utah Supreme Court reverses precedent to hold a site-specific rezone is a legislative act and subject to referendum

Yesterday, the Utah Supreme Court reversed precedent and held that a site-specific rezone is a legislative action rather than a use of executive or adjudicative power.  The case, Krejci v. City of Saratoga Springs, 2013 WL 6447985 (2013), will be one the treatise and casebook writers will want to consider for discussing that hazy line between legislative and adjudicative powers that often arise in land use decisionmaking.

Here is an excerpt:

III

¶ 21 Article VI of the Utah Constitution vests legislative power in the people, to be exercised by petition for ballot initiatives and referenda. Carter v. Lehi City, 2012 UT 2, ¶ 17, 269 P.3d 141. That power is limited to actions constituting “a valid exercise of legislative rather than executive or judicial power.” Id. ¶ 18. Thus, when a city council exercises its legislative authority, voters retain the constitutional prerogative of challenging its decisions by referendum. But where the city council is acting pursuant to its administrative authority, the voters have no such right.

 

¶ 22 The central issue in this case is whether the site-specific rezoning of Capital Assets' property was a legislative or an administrative act. Because site-specific zoning effectively establishes a new law, and does not just implement one already in existence, we deem it a legislative act. We base that conclusion on the notion that rezoning requires the weighing of broad, competing policy considerations and results in a law of general applicability. And we accordingly hold that the referendum petition submitted by petitioners was properly referable under the constitution, and should thus have been accepted by the city recorder for placement on the ballot.

 

A

 

¶ 23 By statute, Utah voters are authorized to pursue a petition for a law “to be submitted to ... a vote of the people if it is a local law.” Utah Code § 20A–7–102. A “local law” is statutorily defined as “an ordinance, resolution, master plan, and any comprehensive zoning regulation adopted by ordinance or resolution,” but “individual property zoning decision[s]” are excluded. Id. § 20A–7–101(12).

 

¶ 24 As Capital Assets indicates, site-specific rezoning decisions are statutorily ineligible for referendum under the terms of this provision. But the people's power to legislate is not a creature of statute. It is inherent power—authority reserved by the people in our constitution. Carter, 2012 UT 2, ¶ 83. So the legislature's failure to delegate referendum power is not the end of the inquiry. We must proceed to consider the question whether the legislature's regulation overrides the people's authority as reserved in the constitution. And if it does, it is the people's constitutional prerogative that must control.

 

¶ 25 The constitutional question turns on the distinction between legislative authority on one hand and administrative or executive power on the other. That is the sum and substance of our inquiry. If the site-specific zoning decision at issue is legislative in nature, then the matter is properly referable—regardless of any statutory determination to the contrary.

 

B

 

¶ 26 Our Carter opinion clarified the standards dictating the scope of the people's legislative power. It started with the proposition that “legislative power gives rise to a new law, while executive power implements a law already in existence.” Carter, 2012 UT 2, ¶ 57 (internal quotation marks omitted). And it articulated the core hallmarks of legislative power: “Legislative power generally (a) involves the promulgation of laws of general applicability; and (b) is based on the weighing of broad, competing policy considerations.” Id. ¶ 34.

 

¶ 27 In Carter we flagged but did not resolve the question whether site-specific zoning decisions were legislative or administrative. Id. ¶ 75 n. 52. In so doing, we acknowledged that site-specific rezoning presented the “classic hard case” under the above-quoted standard, in that it seems to bear some hallmarks of administrative action (for example, in that it affects only one party), but bears other indications of legislative power (in that it runs with the land and “often involve[s] the kind of decisionmaking that is the essence of legislating—a balancing of policy and public interest factors”). Id. ¶ 72 (internal quotation marks omitted). We accordingly reserved the question for a day “in which the issue is squarely presented and fully briefed.” Id. ¶ 75 n. 52. That day arrived upon the filing of this case.

 

¶ 28 Carter articulated two bright-line rules for marking certain decisions as conclusively legislative as a matter of law. First, we indicated that decisions made by a governmental body possessing “only legislative power” are conclusively legislative. Id. ¶¶ 73, 75. And second, we held that the adoption of a broad zoning ordinance or a new zoning classification would also be a conclusively legislative act. Id. ¶¶ 71, 74. Neither of those bright lines is implicated here. Saratoga Springs has a six-member council, which “jointly exercises both legislative and executive powers over the municipality.” And both the R–3 and R–6 classification “already existed as part of the City Code at the time Capital Assets submitted its rezone application.”

 

¶ 29 Capital Assets cites the lack of any bright-line basis for treating the rezoning decision at issue here as legislative as a ground for denominating it administrative. But that misapprehends the nature of our analysis in Carter. The bright-line rules in Carter were aimed at clarifying the grounds for resolving easy cases, not for marking the outer bounds of the people's constitutional power in the hard ones. To do that we must return to the general definition of the legislative power and to the hallmarks of legislative authority cited in Carter. Id. ¶ 34.

 

¶ 30 In two prior decisions, we have denominated site-specific rezoning as administrative and therefore non-referable. See Bird v. Sorenson, 394 P.2d 808 (Utah 1964); Wilson v. Manning, 657 P.2d 251 (Utah 1982). But the cited cases are based on standards and considerations that were repudiated in Carter. 2012 UT 2, ¶ 75 n. 52 (“[W]e repudiate ... the legal standard applied in Wilson and Bird. ...”). Bird, for example, cited the court's concerns for efficient administration of municipal government. 394 P.2d at 808. Wilson reiterated that point while also noting the insignificance of the variation between the challenged decision and an earlier municipal ordinance. 657 P.2d at 254. But both of these considerations were thoroughly repudiated in Carter. 2012 UT 2, ¶ 64 (“The power of the people to legislate by initiative does not depend on the degree to which the people may wish to depart from existing law or on the proposed initiative's consistency with the general policy of existing law. Nor does it turn on a judicial assessment of the people's capacity to comprehend or efficiently legislate on a particular matter.”). So Bird and Wilson are unhelpful in resolving the question presented. To decide the matter we must return to the first principles articulated in Carter.

C

 

¶ 31 The chief hallmarks of legislative action under Carter are the adoption of rules of general applicability and the “weighing of broad, competing policy considerations.” Carter, 2012 UT 2, ¶ 34. Site-specific zoning fits both of these criteria.

 

¶ 32 We acknowledged in Carter that site-specific zoning decisions “affect only one piece of property.” Id. ¶ 72. Thus, they are not generally applicable in the sense that they “do not result in the announcement of a rule that applies generally to other pieces of property.” Id. But they are generally applicable in a more important sense, in that they apply “to all present and future parties that meet its terms.” Id. We conclude that this is the appropriate formulation of “general applicability.” Any future owner of the rezoned property would be subject to the new zoning classification. And in this particular case, Capital Assets plans to develop the property into seventy-seven individual residential units. All future owners would be bound by the decision to rezone the property. Therefore, we conclude that site-specific rezoning creates a generally applicable law.

 

¶ 33 That said, general applicability, standing alone, does not compel the conclusion that a certain action is legislative. We must also evaluate whether the action in question implicates the weighing of broad, competing policy considerations. Id. ¶ 34. Reference to established analogies—decisions granting variances and conditional use permits—helps to illustrate this distinction. In Carter, we treated those decisions as administrative. See id. ¶ 71. We reached that conclusion even though they, like site-specific rezoning, are often generally applicable in that they “run with the land” and apply equally to present and future owners of the property.

 

¶ 34 The analogy between rezoning, on one hand, and variances and conditional use permits, on the other, breaks down on further scrutiny. Variances and conditional use permits are fundamentally administrative acts because they involve application of existing law to the facts presented by an individual applicant. And the decision on variances and conditional use permits is limited to the evaluation of specific criteria fixed by law. A rezoning decision, by contrast, is open-ended. No fixed criteria are required to be met as a prerequisite for a rezone. Any and all considerations are on the table, such that rezoning decisions are made by “consider[ing] the wide range of policy considerations of relevance to all who fall within the scope of a particular law.” Id. ¶ 38.

 

¶ 35 A “conditional-use” or “special-use” permit is an “authorization to use property in a way that is identified as a special exception in a zoning ordinance.” Black's Law Dictionary 1527 (9th ed.). “Unlike a variance, which is an authorized violation of a zoning ordinance, a special-use permit is a permitted exception.” Id.; see also Utah Code § 10–9a–507(1) (“A land use ordinance may include conditional uses and provisions for conditional uses that require compliance with standards set forth in an applicable ordinance.”). So in the conditional use context, the exception to zoning requirements is anticipated in the zoning ordinance itself, with the ordinance setting forth conditions that must be met in order for a property owner to qualify for an exception. Thus, if an applicant meets the standards in the ordinance, the permit “shall” be approved. Id. § 10–9a–507(2). So when a conditional use permit is approved, no new law is created. Instead, existing law has been applied to the particular facts presented by the applicant. That is the essence of administrative—not legislative—action.

 

¶ 36 Similar considerations are in play in the decision whether to grant a variance. To qualify for a variance, the applicant bears the burden of establishing the following:

 

(i) literal enforcement of the ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the land use ordinances;

(ii) there are special circumstances attached to the property that do not generally apply to other properties in the same zone;

(iii) granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zone;

(iv) the variance will not substantially affect the general plan and will not be contrary to the public interest; and

(v) the spirit of the land use ordinance is observed and substantial justice done.

 

Utah Code § 10–9a–702(2)(a). Unless an applicant proves all of these elements, a variance may not be approved. Thus, as with conditional use permits, the decision involves a determination whether the particular circumstances of an applicant are sufficient to meet the statutory standard. And again, such application of law to facts is not legislative action.

 

¶ 37 A site-specific rezoning decision, by contrast, does not involve an application of existing law to a new set of facts. It involves the establishment of new law out of whole cloth. Such a decision is unconstrained by statutory requirements. No showing that “the spirit of the [previous] land use ordinance is observed” is required, for example. See Utah Code § 10–9a–702(2)(a)(v). The municipality is free to amend its zoning requirements in a fundamental way. Or in a merely minor fashion. The question is a matter of legislative policymaking.

 

¶ 38 Rezoning is fundamentally different from the matter of granting a variance or a conditional use permit. It creates a generally applicable law and calls for the broad weighing of all relevant public policy considerations. And on that basis we deem site-specific rezoning a legislative act—and thus subject to referendum. Our contrary decisions in Bird v. Sorenson, 394 P.2d 808 (Utah 1964), and Wilson v. Manning, 657 P.2d 251 (Utah 1982), are accordingly overruled.

Stephen R. Miller

Why Cul-de-Sacs are Bad for You

Nowadays I usually get inspired to post on this blog by things that appear in my Facebook feed. Due to my long association with UGA Law many of my friends are in Georgia, and Georgia-related news gets lots of play.   Recently a few land use savvy friends have posted this article from Slate, "Why Cul-de-Sacs Are Bad for Your Health." 

My first thought - "Isn't this something the New Urbanists have been telling us for, oh, 20 years or so?" Andres Duany has certainly been on the topic for a long time - his book Suburban Nation came out in 2001.

But, this article supports the truth many of us have known for awhile - that living in the suburbs and commuting by car has a negative impact on one's health.  This is being confirmed by a recent study at Georgia Tech.  The article makes for interesting reading, regardless of where you live.

Jamie Baker Roskie

Serkin and Wellington on Exclusionary Dynamics Beyond Zoning Ordinances

Chris Serkin (Vanderbilt) and Leslie Wellington have posted Putting Exclusionary Zoning in its Place: Affordable Housing and Geographical Scale, 40 Fordham Urb. L. J. 1667 (2013).  Here's the abstract:

The term “exclusionary zoning” typically describes a particular phenomenon: suburban large-lot zoning that reduces the supply of developable land and drives up housing prices. But exclusionary zoning in its modern form also occurs both within the urban core and region-wide. Exclusionary zoning at the sub-local and regional scales results in property values that fully capitalize the benefits of living in higher-wage regions, and the value of local public goods (like high-quality schools). Lower-income households then cannot meaningfully access those advantages, even if every municipality accommodates its fair share of regional need. The long-standing focus of exclusionary zoning on the content of local ordinances, instead of on these broader exclusionary dynamics, has defined the problem of exclusionary zoning too narrowly. We remedy that deficiency in our contribution to the Fordham Urban Law Journal’s Fortieth Anniversary issue.

 

New Harvard study on rental housing

Harvard's Joint Center for Housing Studies has just released a new report entitled, America's Rental Housing:  Evolving Markets and Needs.  Here are the report's more salient points in one handy infographic:

 

In scanning the report, I was particularly interested in a section at the end that discussed the long-term success of the Low Income Housing Tax Credit (LIHTC).  Here is an excerpt from the report regarding LIHTCs:

THE CRITICAL ROLE OF THE LIHTC PROGRAM
The Low Income Housing Tax Credit (LIHTC) program has been the primary source of funding for both development of new low-income housing and preservation of existing subsidized properties since 1986. Over the quarter-century from 1987 through 2011, the LIHTC program supported construction of roughly 1.2 million new units and rehabilitation of another 749,000 homes.  Compared with earlier generations of supply-side programs, LIHTC projects have a very low failure rate, with only 1–2 percent of properties undergoing foreclosure. An important factor in this success is that private investors, rather than the federal government, provide the equity up front and bear the financial risk for the projects. Rather than providing direct subsidies that reduce tenants’monthly contributions to rent, the LIHTC program reduces the effective cost of developing rental housing by generating capital through the sale of tax credits. In exchange for the credits, developers must set aside a minimum of either 20 percent of the units for renters with incomes that do not exceed 50 percent of area median income, or 40 percent of units for those with incomes up to 60 percent of area median income. In practice, nearly nine out of 10 rental units in developments supported by the tax credits have been set aside for low-income renters. Rents for set-aside units are capped at levels affordable at the specified income limit and are not tied to the tenants’ income. But since many qualifying renters have significantly lower incomes, developers often have to apply other forms of subsidy to make the homes affordable. This layering of subsidies has enabled the LIHTC program to serve extremely low- income tenants. Indeed, a 2012 New York University study found that 43 percent of LIHTC occupants had incomes at or below 30 percent of AMI and that nearly 70 percent of these extremely low-income residents received additional forms of rental assistance. With the benefit of this support, only 31 percent of renters in this income group were severely housing cost burdened—significantly less than the 63 percent share of extremely low-income renters overall. In addition, these extremely low-income residents benefit from newly built or renovated housing that is of higher quality and often offers better access to supportive services than housing they would otherwise be able to secure. To date, federal fiscal pressures have not yet directly reached this off-budget program. In fact, to help spur housing development after the recession, Congress boosted the value of the tax credit through the end of 2013. But cuts to the HOME program have sharply diminished the pool of funds available to close gaps between what the tax credit can deliver and what is needed to bring rents down to more affordable levels. In addition, deficit-reduction efforts may yet lead to meaningful tax reform, and many proposals call for substantial elimination of tax expenditures (indirect means of funding such as deductions, credits, and other measures that reduce taxes owed). The LIHTC program could no doubt be improved to make housing more affordable for lowest-income renters and to work more efficiently with other subsidy programs. But eliminating or significantly curtailing this program would create a substantial void in affordable housing production and preservation—and at the expense of one of the most successful efforts on record in terms of sound financial performance and delivery of good-quality rentals.

Stephen R. Miller

 

 

 

New Ninth Circuit case addresses tribal jurisdiction for zoning of non-tribal member lands within reservation boundaries

Those interested in the intersection of land use and Native American law will want to take a look at the Ninth Circuit's recent decision in Evans v. Shoshone-Bannock Land Use Policy Comm'n, 13-35003, 2013 WL 6284359 (9th Cir. Dec. 5, 2013).  In Evans, a nonmember of the Shoshone-Bannock Tribes sought to build a single-family home on land he inherited and owned in fee simple that was also surrounded by the Tribes' reservation near Pocatello, Idaho. 

Although the project proponent obtained the proper building permit from the relevant county government, he did not obtain any permit from the Tribes.  The Tribes issued a stop work order on the project and further requested that the project proponent pay the Tribes' permit fees, and asked him to ensure that all of his contractors and subcontractors obtain business licenses and pay fees to the Tribes.  The project proponent contested the Tribes' jurisdiction to require compliance with the Tribes' land use policies.  On appeal, the Ninth Circuit held for the project proponent and determined that the Tribes did not have jurisdiction over the nonmember's land, even though it was within the reservation, sufficient to require compliance with the Tribes' land use policies.  The Court's decision provides substantial analysis of claims for tribal jurisdiction of land use planning on reservations.

More resources on the case over at the Turtle Talk blog.

Stephen R. Miller

USDA and EPA begin partnership on rural water quality trading

I found the following press release from USDA and EPA on water quality trading really interesting, and wonder where it will go.  The press release is short on the kind of details that would give a sense of what precisely is being proposed, but this will be an important partnership to follow:

USDA, EPA Partnership Supports Water Quality Trading To Benefit Environment, Economy

WASHINGTON – The U. S. Department of Agriculture (USDA) and the Environmental Protection Agency (EPA) have announced an expanded partnership to support water quality trading and other market-based approaches that provide benefits to the environment and economy.

“New water quality trading markets hold incredible potential to benefit rural America by providing new income opportunities and enhancing conservation of water and wildlife habitat,” Agriculture Secretary Tom Vilsack said. “Additionally, these efforts will strengthen businesses across the nation by providing a new pathway to comply with regulatory requirements.”

“EPA is committed to finding collaborative solutions that protect and restore our nation’s waterways and the health of the communities that depend on them,” said EPA Administrator Gina McCarthy. “We’re excited about partnering with USDA to expand support for water quality trading, which shows that environmental improvements can mean a better bottom line for farmers and ranchers.”

Water quality trading provides a cost-effective approach for regulated entities to comply with EPA Clean Water Act requirements, including water quality-based effluent limits in National Pollutant Discharge Elimination System permits. Trading would allow regulated entities to purchase and use pollutant reduction credits generated by other sources in a watershed. Cost savings and other economic incentives are key motivators for parties engaged in trading. Water quality trading can also provide additional environmental and economic benefits, such as air quality improvements, enhanced wildlife habitat, carbon capture and storage, and new income and employment opportunities for rural America.

EPA and USDA are working together to implement and coordinate policies and programs that encourage water quality trading. The Department and the Agency will identify opportunities to work collaboratively to help improve water quality trading programs across the country. Cooperative management and technical assistance will improve resource management and public services, and accelerate implementation.

USDA and EPA will:

- Coordinate and enhance communications and outreach to states, agricultural producers, regulated sources, and interested third parties on water quality trading;
- Engage expertise across agencies in the review of grants, loans or technical assistance programs focused on water quality trading;
- Share information on the development of rules and guidance that have the potential to affect water quality trading;
- Collaborate on developing tools and information resources for states and credit generators to guide decision making, reduce costs in program design and implementation, improve environmental performance, and foster consistency and integrity across regional initiatives;
- Co-host a workshop by 2015 to share tools and resources available to assist in stakeholder decision making and opportunities.

The purpose of this policy is to support states, interstate agencies and tribes as they develop and implement water quality trading programs for nutrients, sediments and other pollutants where opportunities exist to achieve water quality improvements at reduced costs.

New study finds California on track to meet 2020 GHG emissions target but will fall 2 to 5 times short of 2050 target with current policies

A report out this month from Lawrence Berkeley National Laboratory found that California's aggressive greenhouse gas emissions reduction strategies will meet 2020 GHG emissions targets but not the more aggressive 2050 targets.  Here is the report's abstract:

A California Greenhouse Gas Inventory Spreadsheet (GHGIS) model was developed to explore the impact of combinations of state policies on state greenhouse gas (GHG) and regional criteria pollutant emissions. The model included representations of all GHG-emitting sectors of the California economy (including those outside the energy sector, such as high global warming potential gases, waste treatment, agriculture and forestry) in varying degrees of detail, and was carefully calibrated using available data and projections from multiple state agencies and other sources. Starting from basic drivers such as population, numbers of households, gross state product, numbers of vehicles, etc., the model calculated energy demands by type (various types of liquid and gaseous hydrocarbon fuels, electricity and hydrogen), and finally calculated emissions of GHGs and three criteria pollutants: reactive organic gases (ROG), nitrogen oxides (NOx), and fine (2.5 μm) particulate matter (PM2.5). Calculations were generally statewide, but in some sectors, criteria pollutants were also calculated for two regional air basins: the South Coast Air Basin (SCAB) and the San Joaquin Valley (SJV). Three scenarios were developed that attempt to model: (1) all committed policies, (2) additional, uncommitted policy targets and (3) potential technology and market futures. Each scenario received extensive input from state energy planning agencies, in particular the California Air Resources Board. Results indicate that all three scenarios are able to meet the 2020 statewide GHG targets, and by 2030, statewide GHG emissions range from between 208 and 396 million metric tons of CO2 equivalent (MtCO2e/yr). However, none of the scenarios are able to meet the 2050 GHG target of 85 MtCO2e/yr, with emissions ranging from 188 to 444 MtCO2e/yr, so additional policies will need to be developed for California to meet this stringent future target.  A full sensitivity study of major scenario assumptions was also performed. In terms of criteria pollutants, targets were less well-defined, but while all three scenarios were able to make significant reductions in ROG, NOx and PM2.5 both statewide and in the two regional air basins, they may nonetheless fall short of what will be required by future federal standards. Specifically, in Scenario 1, regional NOx emissions are approximately three times the estimated targets for both 2023 and 2032, and in Scenarios 2 and 3, NOx emissions are approximately twice the estimated targets. Further work is required in this area, including detailed regional air quality modeling, in order to determine likely pathways for attaining these stringent targets.

Stephen R. Miller