Monday, February 29, 2016
Stephen Miller and I have previously blogged about California Building Industry Ass'n v. City of San Jose, a case in which the California Supreme Court upheld the constitutionality of the City of San Jose's inclusionary zoning ordinance. The California Building Industry Association had filed a petition for cert with the U.S. Supreme Court. Today, that petition was denied. However, Justice Clarence Thomas warned that the court may yet take up the issue of the constitutionality of such ordinances.
Until we decide this issue, property owners and local governments are left uncertain about what legal standard governs legislative ordinances and whether cities can legislatively impose exactions that would not pass muster if done administratively. These factors present compelling reasons for resolving this conflict at the earliest practicable opportunity. Yet this case does not present an opportunity to resolve the conflict. The city raises threshold questions about the timeliness of the petition for certiorari that might preclude us from reaching the takings-clause question. Moreover, petitioner disclaimed any reliance on Nollan and Dolan in the proceedings below. Nor did the California Supreme Court's decision rest on the distinction (if any) between takings effectuated through administrative versus legislative action. Given these considerations, I concur in the court's denial of certiorari.
In other news, today Justice Thomas asked his first question from the bench in over a decade. Given Justice Scalia's passing, perhaps Thomas feels it is time for him to take a more visible role on the court.
Jamie Baker Roskie
Advanced registration for the American Planning Association's annual conference in Phoenix ends March 3
John R. Nolon
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
Regionalism and ‘Wistful Hoping’
We praise the parochial nature of American land use law because it gives power to local people to cure local problems and take advantage of local opportunities that deeply affect them. This was borne out in our examination, in my previous post, of the advent of local environmental law; where local concerns over environmental degradation gave birth, arguably, to a new field of local environmental law.
In the seminal Euclid case, the owners of the property regulated by the Village–and an entire regional industry–were upset by zoning’s interruption of the natural evolution of land development. The U.S. Supreme Court wrote, “It is said that the village of Euclid is a mere suburb of the city of Cleveland; that the industrial development of that city has now reached and in some degree extended into the village, and in the obvious course of things will soon absorb the entire area for industrial enterprises…. But the village, though physically a suburb of Cleveland, is politically a separate municipality, with powers of its own and authority to govern itself as it sees fit….”
The flip side of this is that natural resources, nonpoint source pollution, and economic and housing markets transcend local boundaries. They are intermunicipal, regional, and, in some cases, interstate in nature. Critics including industry, environmental, and fair housing advocates have bemoaned local control and called for its preemption by state or federal regulation, where their particular interests are thwarted.
The case that first validated local control of regional growth recognized the irony of its position. New York’s highest court, in Golden v. Planning Board of Town of Ramapo, wrote that “Statewide or regional control of planning would insure that interests broader than that of the municipality underlie various land use policies.” The court further noted, however, that local control should not be struck down “in the wistful hope that the efforts of [regional planning] will soon bear fruit.”
The dissonance between the regional nature of land use problems and local control is best explained by former House Speaker, Thomas P. O'Neill Jr., who quipped that "all politics is local." State and Congressional lawmakers stand for election in essentially local districts where control by remote governmental agencies is anathema.
The quandary can be resolved by searching for regional processes that respect the critical role that local governments play in land use decision-making. To be politically palpable, these initiatives must not be perceived as methods of imposing a state or regional body's will on local governments. Rather, they should be viewed as means of communicating effectively about regional and local needs, balancing those interests, and arriving at mutually beneficial decisions over time.
From its inception, the U.S. land use system has encouraged voluntary, grassroots approaches to intermunicipal and regional planning. The Standard City Planning Enabling Act provided for regional planning by authorizing local planning commissions to petition the governor to establish a regional planning commission and to prepare a master plan for the region’s physical development. Provisions were included in the Act for communication between the regional and municipal planning commissions, with the objective of achieving a certain degree of consistency between local and regional plans. Regional consciousness has been with us since the early days of American zoning.
Many localities have adopted sustainable development strategies because of encouragement, information, or funding provided by the state or federal government. This observation aligns with research results published in Urban Affairs Review, where the authors demonstrate that “more policy making occurs in states with a multilevel governance framework supportive of local sustainability action.” http://uar.sagepub.com/content/51/1/46
Localities will align their land use plans with common sense state policies if they receive information and support via state assistance offered in the right way, without a heavy top-down emphasis or requirements that seem like mandates. Correcting the deficiencies in the hundred-year old zoning system is not about taking away local power, but rather should focus on working with localities to build a better system. This suggests that we need to discover and implement methods of using federal and state policies and resources to support, guide, and sustain local initiatives to coordinate land use policy across municipal and state borders.
Regionalism is not at odds with our land use planning tradition. It need not be “wistful hoping” if approached in the right way. We have not, however, developed a consensus on the proper strategy of weaving local control into the broader fabric of society. It takes a clear understanding by federal and state lawmakers and agencies that parochialism has its place. We are still waiting for this insight to seriously shape their efforts to solve regional land use problems.
Links to previous posts in the Zoning Centennial’s Series:
Sunday, February 28, 2016
From the folks at Pace Law:
Pace Law School is pleased to announce that we are seeking an Associate Director of Environmental Law Programs to begin work in the late spring/early summer of 2016. The Associate Director is an integral member of the environmental law team at Pace, helping to run a multifaceted, dynamic academic program and working with a wide range of individuals both internal and external to the university. She or he will report to the Executive Director of Environmental Law Programs. Further description of the position and application requirements can be found at careers.pace.edu/applicants/Central?quickFind=55325. (Posting # 0602739). Pace’s Environmental Law Program is one of the oldest and most extensive in the world. It is perennially ranked as one of the top environmental programs in the nation. An overview of the Environmental Law Program can be found at http://bit.ly/1R6CQRZ.
Thursday, February 25, 2016
Land Use Prof Blog is a completely non-partisan forum, but I was fascinated to read this recent article in the Colorado Springs Gazette (apparently picked up from AP) about Marco Rubio's early career as a land use lawyer. (I'm guessing the article appeared in a Colorado publication because the Colorado caucuses are on "Super Tuesday," March 1, although the Colorado Republicans will not actually be caucusing for Presidential candidates, leaving that to their delegates at the national convention.)
It's not often that a zoning lawyer rises to national political prominence. The article is also interesting because it discusses Rubio's work for clients vis a vis his position in the Florida Legislature, and seems exemplary of the role of politics in local land use decisions.
Jamie Baker Roskie
Wednesday, February 24, 2016
Cost-benefit analysis of health benefits from reducing emissions so they do not surpass 2 °C released
The first cost-benefit analysis of health benefits from reducing emissions so they do not surpass a 2-degree C threshold is just out in Nature Climate Change. Here is the abstract (edited to eliminate internal footnotes):
An emissions trajectory for the US consistent with 2 °C warming would require marked societal changes, making it crucial to understand the associated benefits. Previous studies have examined technological potentials and implementation costs and public health benefits have been quantified for less-aggressive potential emissions-reduction policies, but researchers have not yet fully explored the multiple benefits of reductions consistent with 2 °C. We examine the impacts of such highly ambitious scenarios for clean energy and vehicles. US transportation emissions reductions avoid ~0.03 °C global warming in 2030 (0.15 °C in 2100), whereas energy emissions reductions avoid ~0.05–0.07 °C 2030 warming (~0.25 °C in 2100). Nationally, however, clean energy policies produce climate disbenefits including warmer summers (although these would be eliminated by the remote effects of similar policies if they were undertaken elsewhere). The policies also greatly reduce damaging ambient particulate matter and ozone. By 2030, clean energy policies could prevent ~175,000 premature deaths, with ~22,000 (11,000–96,000; 95% confidence) fewer annually thereafter, whereas clean transportation could prevent ~120,000 premature deaths and ~14,000 (9,000–52,000) annually thereafter. Near-term national benefits are valued at ~US$250 billion (140 billion to 1,050 billion) per year, which is likely to exceed implementation costs. Including longer-term, worldwide climate impacts, benefits roughly quintuple, becoming ~5–10 times larger than estimated implementation costs. Achieving the benefits, however, would require both larger and broader emissions reductions than those in current legislation or regulations.
Article cite: Climate and health impacts of US emissions reductions consistent with 2 °C, Nature Climate Change (2016): doi:10.1038/nclimate2935.
Tuesday, February 23, 2016
The Atlantic uploaded yesterday an interview by Amanda Kolson Hurley of Myron Orfield (Minn). Titled "The Persistence of America's 'Easy White Enclaves,'" the interview explores policy decisions about the siting of subsidized housing development, which issues are so topical now that SCOTUS has remanded the Inclusive Communities litigation. But, Orfield also discusses what his research has shown about what levels of integration (read: diminution of white predominance) lead to resegregation. The short piece links to a 2013 Housing Policy Debate article Orfield co-authored with Thomas Luce as well as a more recent study of the causes of segregation in the Twin Cities.
Apparently the wealthy elites are not pleased with the new directive issued by Chinese leadership to eliminate all gated communities. The Global Times has nice coverage:
A government document that instructs cities across China to open up the enormous numbers of gated residential compounds to ease traffic congestion aroused public controversy on Monday, with many residents arguing that the administrative order, though well-intentioned, may bring personal and property safety concerns.
The Communist Party of China Central Committee and the State Council on Sunday issued guidelines on urban development to deal with "urban ills" resulting from poor urban design. These ills include congestion, pollution and designing either over-large buildings or those which are too exotic.
The document said China will optimize the structure of street networks to promote an open and easy-access street-and-block system.
"No more enclosed residential compounds will be built in principle," the document said. "Existing residential and corporate compounds will gradually open up, so the interior roads can be put into public use, which will save land and help reallocate transport networks."
Since the late 1980s, many cities have built sprawling gated residential compounds - many with lawns and exercise venues and facilities inside - for safety and a better living environment for the apartment owners.
Congestion has plagued China's cities, despite ambitious expressway-building projects. Freeing up narrower roads and congested street designs have become a new concept in the country's urban planning.
The release of the guidelines comes two months after leaders met for the Central Urban Work Conference, promising to make China's sprawling cities more livable and green. The last time China held such a meeting was in 1978, when only 18 percent of the population lived in cities. That had increased to 56.1 percent by the end of 2015, according to the Xinhua News Agency.
"The second urban work conference, 37 years after the first, shows that urban planning is a core problem in China's economic and social development," Niu Fengrui, director of the Institute for Urban and Environmental Studies at the Chinese Academy of Social Sciences, told the Global Times.
From the NYT:
A directive issued on Sunday by the State Council, China’s cabinet, and the Communist Party’s Central Committee says no to architecture that is “oversized, xenocentric, weird” and devoid of cultural tradition. Instead, buildings should be “suitable, economic, green and pleasing to the eye.”
The directive also calls for an end to gated communities. . . .
[T]he same directive also says there are to be no more gated residential communities. Those already in place will be gradually opened to the public, with their roads opened to traffic with one goal being to ease congestion.
China began building gated apartment complexes and suburban developments in the 1990s when the private property market first took off.
Monday, February 22, 2016
John R. Nolon
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
The Advent of Local Environmental Law
As American development progressed into the 1980s, the landscape changed due to the prevalence of sprawl. People became perturbed at the local level, where environmental degradation is painfully obvious. Natural resources were threatened. Open space, wetlands, and habitats—and their obvious local benefits—diminished. Many of these problems were beyond the reach and competence of federal environmental law, with its primary focus on point source pollution of the air and navigable waters. As these worries deepened, local leaders and their lawyers gradually learned to rely on “local environmental law” as an antidote and, in doing so, greatly widened the net of land use law.
As land use regulation matured during the 1950s and 1960s, the line between physical, or infrastructure, planning and natural resource protection blurred. In 1955, for example, rezoning that increased lot sizes in single-family zones to protect drinking water from pollution was upheld in De Mars v. Zoning Commission of Town of Bolton (CT. 1955). The Connecticut Supreme Court rested its decision, in part, on the fact that one of the purposes of the state zoning enabling act was “to promote the most appropriate use of the land.” The National Flood Insurance Program, created in 1968, exerted an early and strong influence on the initiation of local environmental legislation. It required localities to adopt and enforce floodplain zoning restrictions so that local property owners would be eligible for flood disaster insurance and payments. Although originally focused on minimizing property loss and personal injury, flood insurance regulation gradually recognized and, in some cases, protected the ecological services provided by floodplains. This concern for nature gradually grew as local environmental law progressed into the 1990s.
Local land use law, we now understand, dictates how much of the land is covered with impervious surfaces, causing flooding; how many miles of roads are built, fragmenting habitats and watersheds; how many septic systems, sewer plants, and water systems are created, diminishing ground and surface water quantity and quality; and where buildings and improvements are located, increasing vehicle miles traveled and air pollution, aggravating climate change. Quite obviously, regulating land development and environmental considerations are intimately linked.
As local environmental perturbations increased, more localities adopted laws that protect natural resources and lessen environmental pollution. These local environmental laws take a number of forms and accomplish an array of objectives. They include local comprehensive plans expressing environmental values, zoning districts created to protect critical environmental areas, environmental standards contained in subdivision and site plan regulations, and stand-alone environmental laws adopted to protect particular natural features such as ridgelines, wetlands, floodplains, stream banks, existing vegetative cover, and forests. Local governments have creatively used a variety of traditional and modern powers that their state legislatures have delegated to them to address locally occurring environmental problems.
Much progress has been made under the authority to encourage the appropriate use of the land through zoning. In some states, however state legislatures are more explicit. They authorize local governments, for example, to protect the physical and aesthetic environment, control development in floodplains, prevent soil erosion, or require local governments to conduct environmental impact reviews before approving development proposals.
The evolution of this authority is seen in South Carolina. The state constitution authorizes the legislature to provide for “the structure and organization, powers, duties, functions and responsibilities of the municipalities.” The state constitution says that “[t]he provisions of [the] Constitution and all laws concerning local government shall be liberally construed in their favor,” and that any powers granted local governments by the constitution and laws “shall include those fairly implied and not prohibited by [the] Constitution” (S.C. Const. Art. VIII, § 17).
This broad grant of local authority was statutorily implemented by the South Carolina Legislature through the South Carolina Local Government Planning Enabling Act, which requires local plans to include natural resource components.. State law requires that all zoning and land use regulations must be in accordance with the comprehensive plan. The Act also authorizes a variety of Neo-Euclidian techniques to be used, and makes it clear that “any other planning and zoning techniques may be used.” Municipalities are authorized by this state law to consider “the protection of . . . ecologically sensitive areas” in adopting their zoning laws.
We learn two key lessons from this continuing progress toward a robust system of local environmental law. The first is that local legislators, driven by residents animated by environmental degradation, have surprisingly broad powers to protect the environment in many states. This springs from the parochial nature of local land use law, where citizens within constrained borders call for their natural resources to be protected. The second is that environmental resources often transcend those borders and require intermunicipal or regional arrangements to be effectively protected, which I will take up in Part 8.
Links to previous posts in the Zoning Centennial’s Series:
Sunday, February 21, 2016
Worth noodling around with.
From the press release:
The U.S. Environmental Protection Agency today released DWMAPS – the Drinking Water Mapping Application to Protect Source Waters. This robust, online mapping tool provides the public, water system operators, state programs, and federal agencies with critical information to help them safeguard the sources of America’s drinking water.
DWMAPS allows users to learn about their watershed and understand more about their water supplier. DWMAPS also lets users see if sources of their drinking water are polluted and if there are possible sources of pollution that could affect their communities’ water supply. DWMAPS can even guide users to ways they can get involved in protecting drinking water sources in their community.
“A key part of having safe drinking water is protecting the sources – the streams, rivers, and lakes where utilities withdraw water,” said EPA Administrator Gina McCarthy. “DWMAPS is the latest example of how EPA is using technology and digital tools to better protect public health and the environment.
Utilities and state drinking water program managers can also use DWMAPS with their own state and local data. It allows them to identify potential sources of contamination in their locations, find data to support source water assessments and plans to manage potential sources of contamination and evaluate accidental spills and releases. DWMAPS also integrates drinking water protection activities with other environmental programs at the federal, state, and local levels.
DWMAPS can provide users with information to update source water assessments and prioritize source water protection in any location or watershed in the country. Specifically, DWMAPS helps users to:
- Identify potential sources of contamination in locations defined by users;
- Find data to support source water assessments and plans to manage potential sources of contamination;
- Evaluate accidental spills and releases, identifying where emergency response resources for accidental releases must be readily available; and
- Promote integration of drinking water protection activities with other environmental programs at the EPA, state, and local levels.
The mapping system will not display the locations of Public Water System facility intakes, but it does contain a wide variety of data useful to the protection of drinking water sources. EPA developed DWMAPS in consultation with EPA regional drinking water programs, state drinking water regulators, and public water systems.
Friday, February 19, 2016
High Country News is a print and online publication that offers excellent coverage of news related to Western issues. Yesterday Elizabeth Shogren, their "DC Dispatch" reporter, posted a fascinating article entitled "Scalia was Supreme Court’s leader on limiting environmental rules: A conservative legal foundation fears its winning streak may be over."
In his opinion in the 2006 Clean Water Act case known as Rapanos, one of the Pacific Legal Foundation’s biggest triumphs, Scalia criticized “the immense expansion of federal regulation of land use that has occurred under the Clean Water Act — without any change in the governing statute — during the past five Presidential administrations.”
Scalia’s death dims the Pacific Foundation's chances in a major environmental case on the horizon. The Supreme Court is expected to eventually review Obama’s Clean Water Rule, which has been stayed by a lower court. Significantly for the arid West, the rule would protect tributaries, no matter how frequently water flows in them, as well as some wetlands, ponds and ditches. "With Justice Scalia’s departure, it’s fair to say it’s more likely to be upheld," Schiff says. “The impacts will be principally in the West. It’s precisely in the areas that are dry most of the year that you have the most significant disputes about the Clean Water Act.”
The article also discusses the potential impact to the Clean Power Plan, as well as the impact to administrative-law-related decisions generally.
Jamie Baker Roskie
Thursday, February 18, 2016
Miller & Sivas on Bloomberg Radio discussing Sierra Club's new fracking case related to Oklahoma earthquakes
Today I did an interview with Bloomberg Radio about the Sierra's Club's fracking lawsuit in Oklahoma. Here is Bloomberg's write-up:
Stephen Miller, a law professor at the University of Idaho College of Law, Brandon Barnes, a litigation analyst for Bloomberg Intelligence, and Deborah Sivas, a professor of environmental Law at the Stanford University Law School, discuss a lawsuit against three fracking companies in Oklahoma. The lawsuit, which has been brought by the Sierra Club, alleges that the fracking process has led to an increase in earthquakes in the surrounding areas. They spoke with Bloomberg Law host June Grasso on Bloomberg Radio’s "Bloomberg Law."
Great planning position in Menlo Park. From my friend Thomas Rogers:
Salary: $105,950.29 - $127,766.65 Annually
Under the general direction of the Community Development Director, performs work necessary to maintain professional planning functions, process development projects, and provide for effective administrative operations to ensure a sustainable, safe and vibrant community; and any other related duties as required.
IMPORTANT AND ESSENTIAL
This is a professional planning supervisory classification. Work consists of continuing responsibility for implementing the city’s planning functions by personally performing work and providing direction to others in one or more of the following areas.
Focus on single-family residential development, small multiple-family residential development and neighborhood commercial development within the context of current planning activities. Responsible for the City’s ordinances, regulations and processing systems in these same focus areas as well as implementation and updating of the City’s Housing Element.
Direction and Supervision
Provides direct supervision of Planning staff; Participates in the selection, training and evaluation of staff; Assists in preparing the annual goals and objectives for the Planning functions; Assists in preparing and managing the budget for the Planning functions.
Conducts and supervises professional planning work connected with the development, monitoring and updating of City policy and regulatory land use documents, including the General Plan, Zoning Ordinance, specific plans and other land use studies; Provides guidance to and coordination of the professional planning team, including consultants, to ensure work is progressing toward established goals; Effectively represents the City at public meetings and to Commissions and the City Council; Provides guidance on appropriate community engagement and outreach tools and approaches; Provides guidance on necessary data collection, analysis and management; Evaluates long-range planning documents on an on-going basis and recommends to the Director timely revisions of the documents.
Conducts and supervises the professional review and processing of proposed development projects to ensure that applications for land use entitlements are complete and in conformance with City policies and regulations, as well as regional, state and federal requirements; Determines appropriate legal and regulatory procedures; Provides professional planning advice to and assistance to project applicants, members of the community, Commission and Council members; Coordinates the technical processing of development proposals, including compliance with the California Environmental Quality Act; Monitors general operating policies and procedures for the efficient and cohesive review of development proposals and recommends changes to the Director; Interprets development regulations and resolves inconsistencies in requirements.
California Environmental Quality Act
Personally prepares or supervises the preparation of documents required to ensure compliance with state and federal environmental requirements. If needed, arranges for obtaining consultant services for preparation of environmental documents including the development of requests for proposals, selecting the consultant, processing an agreement and supervising the consultant’s work.
Coordinates with other City departments, other local jurisdictions and agencies, and regional, state and federal agencies during the development review process for individual projects.
Serves as Secretary and/or staff for Planning matters on behalf of the Community Development Department to various Boards, Committees and Commissions; Prepares reports on planning and administrative operations necessary for effective monitoring of the development review process; Conducts special studies and prepares related reports as needed to evaluate specific issues; Provides information to members of the public and other persons on Planning policies and regulations; Receives, investigates and responds to complaints connected with planning operations and personnel; Performs other work assigned by the Director which is consistent with the scope of responsibilities of the position.
- Assist in developing department goals and objectives and assist in the development of and implementation of policies and procedures;
- Coordinate development review activities;
- Supervise and participate in the implementation of the City's General Plan;
- Conceive and implement programs and activities to improve the efficiency of the development review process;
- Recommend the appointment of staff, provide or coordinate staff training, conduct performance evaluations, and implement discipline procedures as required;
- Research and prepare technical and administrative reports and written correspondence;
- Establish and maintain positive working relationships with co-workers, other City employees, public and private officials, and the general public using principles of good customer service;
- Perform related duties as assigned.
JOB-RELATED AND ESSENTIAL
Principles and practices of governmental development review including planning, engineering and building inspection; State, County and City laws and regulations applicable to development review; principles of management, personnel administration, and public relations; principles and practices of policy development and implementation; principles and practices of leadership, motivation, team building and conflict resolution; principles and practices of business correspondence and report writing; pertinent local, State and Federal rules, regulations and laws; budgeting procedures and techniques; and modern office procedures, methods and computer equipment.
Prepare, review and interpret a sound development review program for the City; collect and analyze data, and recommend revisions in municipal land use regulations consistent with local needs; analyze budget and technical reports; interpret and evaluate staff reports; know laws, regulations and codes; observe performance and evaluate staff; problem solve department related issues; interpret and explain policy, rules and procedures; prepare ordinances and formulate recommendations for land use policies; analyze problems, identify alternative solutions, project consequences of proposed actions and implement recommendations in support of goals; gain cooperation through discussion and persuasion; mediate problems and resolve conflicts within the Department and with other City Departments; communicate effectively, both orally and in writing; prepare oral and written reports and provide staff direction; train, supervise and evaluate assigned staff; establish and maintain cooperative working relationships with those contacted in the course of work.
Equivalent to graduation from an accredited four-year college or university with major work in a closely related field.
This position may require at least five (5) years of full time, increasingly responsible experience in municipal development review work.
LICENSE OR CERTIFICATE
Possession of a valid California Class C driver’s license and a satisfactory driving record as a condition of initial and continued employment.
May sit for long periods of time; May attend night meetings; operates general office equipment.
Supervision Received and Exercised:
Receives direction from the Director of Community Development; Exercises direct supervision over professional planning staff; May be asked to serve as Director of Community Development in Director's absence; This classification may also perform any and all functions of Senior Planner, Associate Planner and Assistant Planner.
The City offers an excellent benefit package consisting of:
- Vacation: 11 days per year to start out and will gain more with time and tenure.
- Sick Leave: 8 hours per month earned.
- Health Insurance: City contribution towards medical coverage.
- Holidays:11 official holidays and 30 float hours off per year.
- Dental: Delta Dental Plan
- Vision - City sponsored
- Retirement: CalPERS: For classic members 2.0% @60 formula. For all others, 2%@62 formula. For more information on how CalPERS retirement reform (PEPRA) affect you, please contact CalPERS at 1-888-225-7377.
- Deferred Compensation: Voluntary participation in City Plans.
- Life Insurance: 1-1/2 times regular annual wage.
- Long Term Disability: Subject to a 45 day waiting period.
Wednesday, February 17, 2016
After going to see Hamilton last month, I quipped on this blog that someone should do a hip-hop show about Robert Moses and Jane Jacobs. Imagine my surprise, then, to read in the New Yorker this week that there is, in fact, a new opera about to open focused on--what else--Robert Moses and Jane Jacobs. It seems the pair's Broadway debut has arrived. Here is an excerpt from the New Yorker article:
Will Rawls was waiting in the Lorimer Street subway station one recent Sunday, trying to get to a rehearsal in Chelsea—Rawls is the choreographer for a new opera about Robert Moses, the dictatorial city planner, and Jane Jacobs, the populist city un-planner—when he had a thought. The L train wasn’t coming, and pretty soon, with repairs threatening to suspend service between Brooklyn and Manhattan for more than a year, the train wouldn’t be coming at all. “I was, like, this shit is always broken,” Rawls said, after arriving in Chelsea. “I almost want Robert Moses 2.0 to come back and fix the M.T.A.”
“That’s a very human emotion, to want a Moses-like figure to come in and fix everything,” Joshua Frankel, the opera’s director, said.
"What did Moses do about public transit, anyway?” Rawls asked.
“Starved it of money,” Frankel said, with a shrug.
The opera, “A Marvelous Order,” which premières next month, has two acts—“Robert Moses wouldn’t fit inside a one-act play,” Rawls said—and traces Jacobs’s mid-century fights against Moses’s attempts to build a four-lane road through the middle of Washington Square Park and a ten-lane crosstown expressway along Broome Street. Jacobs thought that Moses was trying to “Los Angelize” New York. Moses thought the only people opposing his plans were “a bunch of mothers.”
The opera is called "A Marvelous Order," and you can check out its website here. A promotional video is below.
Tuesday, February 16, 2016
John R. Nolon
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
The Surprising Origins of Smart Growth
The idea that local land use law can intelligently shape settlement patterns was not a familiar concept in the late 1960s when the Town of Ramapo, New York adopted an ordinance that delayed development permits until the Town could provide needed infrastructure. Ramapo was experiencing unprecedented growth as one of the closest northern suburbs of New York City. Developers, who in some cases had to wait years for services to their land, sued; they argued that these phased development controls were intended to prohibit subdivisions and restrict population growth, which is not authorized under the state’s zoning enabling legislation.
New York’s highest court disagreed, holding that “phased growth is well within the ambit of existing enabling legislation.” Golden v. Planning Board of Ramapo (1972). The court found that Ramapo was not acting to close its borders to growth, but was trying to prevent the negative effects of uncontrolled growth. It found that Ramapo’s zoning was not in violation of the Federal or New York State Constitutions, because a rational basis for phased growth exists where “the existing physical and financial resources of the community are inadequate to furnish the essential services and facilities which a substantial increase in population requires.”
Another form of growth control, a strategy that became known as smart growth, was created 25 years later in Maryland, under Governor Parris Glendenning (now President of the Smart Growth Leadership Institute). He radically changed state budget priorities by investing state infrastructure funds in priority growth areas to foster new development and by acquiring open space in conservation areas to preserve natural resources. This approach controlled growth in order to reign in the ill effects of sprawling land use patterns. Such patterns evolve gradually, as the land use blueprint contained in the municipal zoning ordinance is built out, one project at a time.
Maryland did what the Ramapo court suggested that the New York State legislature should do. “Of course,” the court wrote, “these problems cannot be solved by Ramapo or any single municipality, but depend upon the accommodation of widely disparate interests for their ultimate resolution. To that end, Statewide or regional control of planning would insure that interests broader than that of the municipality underlie various land use policies.”
Glendenning’s strategy called for local action. If local governments are to revise their basic blueprint and accomplish smarter growth, how should they proceed? State law provides numerous planning tools for municipalities to use to accomplish growth and conservation objectives. Principal among these, of course, is the comprehensive plan, the ideal document to account for the rational allocation of land use.
Local plans, properly drafted to accomplish smart growth, call for the use of a host of land use techniques that are capable of creating smarter, less wasteful, and more economically-efficient development patterns. These include, among others, cluster zoning, performance zoning, overlay zoning, floating zones, transit oriented development, traditional neighborhood zoning, planned unit development zoning, the purchase of development rights, the imposition of conservation easements, and the transfer of development rights. In addition, comprehensive plans can guide the creation of capital budgets and the funding of water, sewer, roads, lighting, sidewalks, parks, and education infrastructure in areas where denser development is needed.
Today, priority growth areas include cities and urban villages which are out-competing suburbs for growth and its benefits. Urban neighborhoods are fueling the economy by spiking construction and retail jobs, increasing real estate sales, brokerage commissions, financing, and title coverage as well as providing urban amenities to newly formed households looking for lively places to work and live. These efforts in the cities and villages that host our colleges, hospitals, affordable housing, restaurants, and entertainment venues make both themselves and development in adjacent communities more viable. Workers and residents, for example, are attracted to a transformed mixed-use office park when they can access the shopping, night life, and services available in a nearby, rejuvenating city or village.
Smart Growth is a popular label for a growth strategy that addresses current concerns about traffic congestion, disappearing open space, non-point source pollution, the high cost of housing, increasing local property taxes, longer commutes, excessive fossil fuel and energy consumption, and the diminishing quality of community life. What was barely perceptible in the real estate market 15 years ago is rapidly becoming a booming business. Developers make it clear that they will invest in this new market, but only where local mayors and councils are champions of sustainable development, where a clear local vision and conforming zoning are in place, and where the local land use approval process works efficiently.
States are following Maryland’s example, learning how to shape spending policies to influence local action. They are adopting smart-growth infrastructure plans, new energy plans, complete street infrastructure policies, main street programs, climate-smart communities initiatives, brownfield spending budgets, and transit-oriented development policies and programs. Together, these state efforts create a clear target for local governments and developers to address.
What is smart about these policies and the projects they spawn, in addition to being sensitive to powerful new market trends and utilizing existing infrastructure, is that they also greatly reduce, on a per household basis, water consumption, energy use, building materials used, and the impervious coverage that causes storm water runoff and flooding. These developments can also be more affordable, particularly where localities offer bonus densities to developers in exchange for workforce housing, bringing office, research, retail, and service workers closer to where they work.
Links to previous posts in the Zoning Centennial’s Series:
Monday, February 15, 2016
Yesterday our fearless leader, Stephen R. Miller, blogged about Justice Scalia's three most important land-use-related decisions. I agree with his assessment that Nollan and Lucas are two of the most influential takings cases ever decided, and certainly Rapanos' change in wetlands regulation are had a dramatic effect on the development industry and control of water quality (although arguably Justice Kennedy's concurrence with its "significant nexus" test is more relied upon by regulators).
Inspired by Stephen, I perused the list of Scalia-authored opinions and found a couple more of interest. In the vein of my previous post about how Scalia's passing will likely result in the survival of President Obama's Clean Power Plan, I also think Scalia's decision in Michigan v. EPA was highly influential. It held that the EPA must consider cost when deciding whether regulations under the Clean Air Act is "appropriate and necessary." (Bob Sussman wrote about the impact of Michigan v. EPA for the Brookings last summer.)
Also, a somewhat lesser known but important Scalia-authored case was City of Columbia v. Omni Outdoor Advertising (1991), in which the court upheld anti-trust immunity for local governments enacting zoning restrictions - in this case, those that regulated signs. (Linda Greenhouse covered the case for The New York Times.) Although this case lacks the colorful language of some of Scalia's more recent opinions (primarily dissents), it is interesting reading for those of us who care about the limits of local government police power.
Jamie Baker Roskie
Sunday, February 14, 2016
With Justice Scalia's passing, I began thinking about his most influential opinions that affect land use law. Three stood out:
Nollan v. California Coastal Com’n, 483 U.S. 825 (1987)
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)
Rapanos v. U.S., 547 U.S. 715 (2006)
Other contenders for most important Scalia opinions affecting land use law?