Saturday, February 13, 2016

R.I.P. Scalia. His passing means the Clean Power Plan will likely survive.

As many of us are just learning, Justice Antonin Scalia died overnight while vacationing at a West Texas hunting resort. And while that news settles, already speculation and punditry is exploding in both traditional and social media.

The most immediate implication to land use law is the fate of the Obama Administration's Clean Power Plan.  Only a few days ago the  Supreme Court stayed implementation of the CPP.  However, New York Magazine is reporting that with Scalia's death the plan is likely to survive. Its fate is to be decided (and will likely be upheld) by the D.C. Circuit. With the court likely deadlocked 4-4 on many contentious issues until Scalia's successor is appointed, the Circuit Court's decision is unlikely to be overturned.  More on what happens to the Term's most contentious cases appears on Scotusblog.

More as it develops.

Jamie Baker Roskie

February 13, 2016 | Permalink | Comments (0)

Friday, February 12, 2016

Are there opportunities for local government in the sharing economy?

Local governments spend a lot of time these days thinking about how to regulate the sharing economy.  But are there opportunities local governments should be seizing that the new platform-based businesses offer?

If this question interests you, then I'd suggest you could do worse than the following article and, well, my response to it.  Daniel E. Rauch (Yale - Student) and David Schleicher (Yale) wrote an excellent article, Like Uber, But for Local Governmental Policy: The Future of Local Regulation of the 'Sharing Economy,' which was recently published in the Ohio State Law Journal.  Here is there abstract:

In the past five years, “sharing economy” firms like Uber, ZipCar, AirBnB and TaskRabbit have generated both huge market valuations and fierce regulatory contests in America’s cities. Incumbent firms in the taxi, hotel and other industries, as well consumer protection, labor and neighborhood activists, have pushed for regulations stifling or banning new sharing economy entrants. Sharing firms have fought back, using their popularity with consumers and novel political strategies, lobbying for freedom to operate as broadly as possible without government interference. But to date, both participants and observers of these “sharing wars” have relied on an unstated assumption: if the sharing firms win these fights, their future will be largely free from government regulation. Local governments will either shut sharing down, or they will leave it alone.

But this assumption is almost surely wrong. If sharing firms prevail in the current fights over the right to operate (and indications suggest they will), it is unlikely that cities and states ignore them. Instead, as sharing economy firms move from being upstarts to important and permanent players in key urban industries like transportation, hospitality and dining, local and state governments are likely to adopt the type of mixed regulatory strategies they apply to types of firms with whom sharing firms share important traits, from property developers to incumbent taxi operators. Using tools of agglomeration economics and public choice, this Article sketches the future of such policy regimes.

Specifically, local and state governments will adopt some combination of the following policies in addition to insisting on consumer/incumbent protections: (1) subsidizing sharing firms to encourage expansion of services that produce public goods, generate substantial consumer surplus and/or minimize the need for excessive regulation of the property market; (2) harnessing sharing firms as a tool for redistribution; and/or (3) contracting with sharing firms to provide traditional government services. The future of sharing economy regulation will be very different from its present, and the changes will pose profound legal, political and ethical questions for our cities.

My response is called Decentralized, Disruptive, and On Demand: How the Sharing Economy Will Re-Shape Local Government and will be forthcoming soon(ish) in the Ohio State Law Journal's online publication Furthermore.  Here is the abstract:

This essay is a response to Daniel E. Rauch and David Schleicher’s Like Uber, but for Local Government Policy: The Future of Local Regulation of the Sharing Economy. The essay examines policy propositions raised by Rauch and Schleicher, and also affirmatively posits three ways in which local government can use the sharing economy to achieve long-standing policy goals. First, the sharing economy can be used by local governments to decentralize economic development activity throughout the city. Second, when local governments are using regulatory powers to assist redistribution efforts, such as inclusionary zoning, they can consider how sharing firms, such as car-sharing, can be implemented into those existing redistributive requirements. By doing so, local governments can create disruptive markets that assist with the developing competitiveness of the sharing economy. Third, local governments can use sharing economy services for their own proprietary functions. Taken to its logical end, such sharing of government property could go a long way towards eliminating Tieboutian sorting and address regional inequities. In addition, the essay urges local governments to consider long-term implications of the sharing economy, such as how sharing firms may control access to future technologies like autonomous cars, and begin preparing for such futures now when making long-term infrastructure investments.



February 12, 2016 | Permalink | Comments (0)

Thursday, February 11, 2016

CityLab features work integrating transferable sharing rights into London's sharing economy

Late last year, I was approached by several computer scientists about their desire to propose a regulatory system for short-term rentals in London based upon the transferable sharing rights model I had proposed in an article forthcoming from the Harvard Journal on Legislation.  I'm excited to report that CityLab has done a profile of their work, which is available here.  See some of Daniele Quercia's other interesting work here.     

After considering the proposal for TSRs, the CityLab reporter, Laura Bliss, lists three reasons why she believes TSRs won't work.  I thought I would take a shot at responding.  Her text is in italics and my response follows:

First, it assumes that Airbnb would be open and transparent in sharing rental data when there’s ample reason to believe otherwise.

Airbnb and other parts of the sharing economy are hesitant to give up data right now because, frankly, their businesses are mostly illegal under existing legal structures.  If Airbnb and other sharing firms could be brought within the fold of legality and their basic business not challenged by disclosure, I suspect they would be far more likely to comply.  I think the impetus to compliance would be redoubled if it led to an alternative to existing regulatory options, such as those land use-based options tried by major cities like San Francisco or Portland, that do not fit Airbnb's business model and that have largely been failures.  Finally, even if Airbnb did not want to provide the information, government's routinely--and rightly so--require market participants to provide data to regulators whether the participants want to do so or not.  Inevitably, they types of information necessary for a TSR-based regulatory scheme will be required regulatory disclosure.  Take, for instance, the battle between the California Public Utilities Commission and Uber, where the CPUC recently fined Uber $7.3 million for failing to disclose data.  CPUC will almost certainly win, and when they do, data compliance in five or ten years will just be part of what is required of transportation network companies.  The game for the sharing firms in fighting so hard against disclosure right now is delay until they can establish market share and achieve some modicum of legality.  As I noted above, though, I think the sharing firms would be all-the-more willing to enter into such informational disclosures if information disclosure was itself a part of their legalization.

An interesting report detailing the future of Big Data in regulation is by the Roosevelt Institute and available here

Second, even with good and complete data, it’s untrue that simply running an algorithm reveals important insights about, say, where residents should pay more for rental rights. That still requires human labor and judgment, which can be flawed, to say the least, especially in a context that demands real-time answers.

The whole notion of a TSR scheme, as I proposed it, is that it is imbued with the values of the community and that they can change over time.  Rather than analyzing those choices as "flawed" or "correct," I'd suggest that they would be part of the political process of a city and the trade-offs inherent therein.  The idea that you cannot make regulation ahead of time in a legislative capacity and then apply it in real-time seems to belie how much of large city government already works.  As one example, many major cities already offer on-line building permits for many projects where issuance is ministerial (see, e.g., San Francisco).  In other words, a policy decision about the requirements for such a permit was made in advance, and when a person seeks to obtain that permit, they can do so in real time and without any involvement with city staff.  We already live in this era of real-time answers.

Third, and maybe most worryingly, regulating with an algorithm means that regulations are no longer legible to all citizens. When not everyone can understand the code or the data that’s guiding decisions at City Hall, especially for something as essential and complicated as housing, that’s a sad day for democracy.

We already live in a world where many of our laws are not legible to the average person.  But would be rather not have securities regulation, or regulation of the healthcare industry, or regulation of lead in the water because average persons--myself included--have difficulty understanding the basis of the regulation?  At some point, a complicated urban environment has to rely upon experts, and it has to entrust those experts to do their work effectively and within a scope of accountability.  Sometimes those experts will not do their work properly, and we will hold them accountable.  But we don't throw out the regulations because of the occasional failure of the experts to properly apply the regulation.  

Perhaps the greater concern expressed here is whether legal requirements enforced and applied by computers in a dynamic, real-time fashion, can be trusted and embraced.  How a person feels about that likely has more to do with individual proclivities about privacy and technology generally in this digital age.  We should note, though, that we already engage in such trust in many ways with our transportation infrastructure:  consider managed lanes; congestion pricing; and adjustable rate parking meters.  These are among the first forays into using technology to manage and price markets effectively based on demand and to use that real-time market pricing to spread the demand around the city.  While some debate the equity of these particular transportation pricing matters, I do not imagine them as "sad for democracy" because I do not understand the way the algorithm works that determines the price of the fast lane or the perfect parking spot.  Instead of running from the technology, I suggest we embrace it, and make it better.  

The heart of my argument is that we must marshal technology to assist us with regulation of activities that are based upon new technologies.  We cannot expect to regulate the twenty-first century with last century's tools.

Despite our disagreements on implications, I want to thank Ms. Bliss for highlighting these new ideas on CityLab.






February 11, 2016 | Permalink | Comments (0)

Wednesday, February 10, 2016

New study shows rural western counties with federal lands fare better than those without

Headwaters Economics has a new study out looking at the effects of federal public lands on the economies of rural western communities.  Here are the three big takeaways: 

  • From 1970-2014, western rural counties with the highest share of federal lands on average had faster population, employment, personal income, and per capita income growth than their peers with the lowest share of federal lands.
  • Similarly, from 1970-2014, counties with the highest share of protected federal lands on average performed better for population, employment, personal income, and per capita income growth than those with the least protected federal lands.
  • Some rural counties are struggling and are searching for ways to benefit from nearby federal lands. While every county has unique circumstances, the changing economy of the West has impacted all counties and altered the role and importance of nearby public lands.

Read the rest of the report here


February 10, 2016 | Permalink | Comments (0)

Tuesday, February 9, 2016

Problems with LOS as a measure of transportation impact

In a recent webinar regarding changes to analyzing transportation impacts under the California Environmental Quality Act, there was one slide that caught my attention more than the rest:  8 reasons why LOS is a failed measure of transportation impact.  While there has been much grousing about LOS for a long time, it remains a common way to engage the discussion of transportation planning.  This slide, and the discussion thereon, convinced me that it is now clear that LOS is a failed system of transportation planning.  That wouldn't be so bad if most transportation agencies didn't still use it.  See the video below beginning at approximately Minute 9:30.


February 9, 2016 | Permalink | Comments (0)

Monday, February 8, 2016

Zoning’s Centennial, Part 5: The Most Appropriate Use of Land: A Series by John R. Nolon

Part 5

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

The Most Appropriate Use of the Land

Immediately after WWII, Euclidian Zoning was not working for the Village of Tarrytown, NY. The Village needed workers to attract employers to build its tax base. For political and economic reasons, it decided not to zone large areas for multi-family housing.  Instead, in 1947, the Village board of trustees created a floating garden apartment zone, which allowed landowners who owned ten acres of land or more to apply for the floating zone to alight on their property; a unique two-step process that was clearly not within the specific delegated power of the Village under the state zoning enabling act. The foundation for this creative zoning technique was laid in the Village’s comprehensive plan, which identified the need for affordable housing and an effective means to provide it. The Village knew that a straightforward rezoning of land to multi-family use would greatly increase its value and adversely affect the desired affordability.

In Rodgers v. Tarrytown (1951), the plaintiff, who owned six acres nearby, pointed out that nothing in New York’s zoning enabling act expressly authorized the Village to first create a multi-family zoning district and then, later, apply it to a parcel in a single-family district after consideration of an application made by the parcel’s owner. In the view of the Euclidians, zoning districts were to be changed by amendments to the zoning map, adopted at the same time as the provisions regulating land uses were changed.

The state’s highest court disagreed with the plaintiff, and broadly interpreted the creative authority of local governments. The court noted that “zoning is by no means static….[c]hanged or changing conditions call for changed plans….”  And, further, “The village’s zoning aim being clear, the choice of methods to accomplish it lay with the board.” With these words, the Neo-Euclidian period began.

The dissent in Rodgers spoke for the conservative interpretation of the enabling act. It argued that “the device…most assuredly is not ‘zoning.’” It feared that upholding floating zoning could “well prove to be the opening wedge in the destruction of effective and efficient zoning in this State.” The dissent called this an ultra vires act, one that created a nonconforming use in an established zone for the benefit of the owner of a single parcel  (also known as “spot” zoning), or gave the legislature the power to grant variances, a power reserved to the zoning board of appeals. Under either interpretation, the dissent believed that the creation of a floating zone was not within the delegated authority of the board of trustees.

The rationale of the majority in Rodgers was on sound footing. The Standard Zoning Enabling Act, which was adopted nearly in its entirety by the New York legislature, contains this provision: “Such [zoning] regulations shall be made…with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the community.”  This language was included in most of the zoning enabling acts adopted by state legislatures throughout the country.

If floating zoning was not zoning, in the dissent’s view, what was it?  Perhaps this 1951 case sufficiently broadened the term zoning so that, over time, it became land use law.  Today, we use land use law, including floating zones and its many siblings, to create sustainable neighborhoods, permit community solar facilities, and promote mixed-use developments oriented to transit. Beyond this first flexible tool, the courts and legislatures have added many more to the land use toolbox: special use permits, overlay zoning, planned unit development districts, receiving and sending zones for the transfer of development rights, growth control ordinances, density bonuses in exchange for affordable housing, and a host of additional Neo-Euclidian devices.

As this century progresses, land use law is becoming an essential strategy for mitigating and adapting to climate change. By properly shaping settlement patterns, it can greatly decrease per capita carbon emissions, water use, energy consumption, and impervious coverage, which causes flooding. Today, lawyers practice land use law - not zoning - thanks, in part, to the Rodgers holding and similar decisions in other states. Students go far beyond memorizing and applying the holding in Euclid and now study dozens of land use techniques. The practice of land use law today focuses on shaping settlement patterns to achieve “the most appropriate use of the land” in an era fraught with frightful challenges.

For more information, see John R. Nolon, The Law of Sustainable Development: Keeping Pace, 30 Pace L. Rev. 1246 (2010).  

Links to previous posts in the Zoning Centennial’s Series:

Part 1: The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority To Adopt Zoning

 Part 3: Zoning Was Contagious, But Was It Constitutional?

Part 4: The Unintended Consequences of Euclidean Zoning

February 8, 2016 | Permalink | Comments (1)

Sunday, February 7, 2016

University of Wyoming study illustrates how land use planning in the WUI dramatically affects wildfire costs

A new report out from researchers at the University of Wyoming illustrates the role land use planning plays in wildfire costs.  From the press release:

According to the report, available from UW Extension at, the dramatic rise in firefighting costs over the last decade is due, in part, to the growth of residential development in the wildland-urban interface.

“Protecting homes from fire is dangerous and expensive. Solutions to rising costs must address that reality,” Scofield says.

Costs are higher in the wildland-urban interface because firefighters shift from simple fire containment to structure protection, she says, adding that the cost of full suppression is significantly higher.

Widely dispersed developments and isolated homes also require more resources to protect than homes clustered in one area. Scofield says land-use decisions at the town and county levels have major consequences for federal wildland fire management.

“Our research offers local governments a middle ground between legislation that ignores the increased suppression costs of development in the wildland-urban interface and policies that exclude that development altogether,” she says.

Using data from 291 wildfires in Colorado, Montana and Wyoming from 2002-2011, researchers found a single isolated home can add $225,000 to overall firefighting costs, while a home within a dense cluster can contribute as little as $100.

The Wyoming Open Spaces Initiative supports Wyoming citizens’ conservation of open spaces through research, information, education and decision-making assistance, according to its website. Its research explores agricultural sustainability, community planning and development, wildlife and other cultural, economic and environmental issues.

February 7, 2016 | Permalink | Comments (0)

Friday, February 5, 2016

Malheur Occupation/Sagebrush Rebellion Continue

When Stephen Miller blogged a week ago about the implications of the occupation at the Malheur National Wildlife Refuge in Oregon, it seemed like things were winding to a close. Ammon Bundy and the other organizers had been arrested and LaVoy Finicum killed in a confrontation with federal law enforcement personnel, and many of the other occupiers had scattered.  But today, the occupation enters day 35, as four hold-outs remain at the sanctuary.

Whatever the outcome of the occupation, this action has sparked a national examination of the pressures facing ranchers, federal control of land, and the implications to the Western way of life.  However, other writers have noted that Malheur is actually at the center of a collaborative approach to land management that balances the concerns of environmentalists, conservationists, and local land owners, and that the occupiers were completely out of line in their attempt to make the refuge a symbol of federal overreach.

On both sides of my family, I come from stock that is deeply tied to the land and interested in the outcome of these disputes.  My maternal grandfather joined the US Forest Service in the early part of the last century, and spent his career (and his days in the Montana Senate after his retirement) implementing the "Multiple Use" philosophy, which attempted to balance conservation and resource extraction. And my paternal grandparents were ranchers in Eastern Montana until the 1980s, when they lost the ranch due to the collapse of the beef cattle market.

So I've always felt conflicting loyalties in any discussion over management of federal lands in the West.  On the one hand, I recognize that the settlement of the West and the continued viability of the Western economy was and is extremely dependent on federal largess.  It's difficult to find unbiased analysis of whether that largess is a necessary part of the ranching economy, or simply "welfare ranching." There's also the issue that small time ranch owners may be increasingly pushed out by billionaire land owners like the Koch Brothers.  There does seem to be a consensus that absentee ownership of farm and ranchland is on the rise. And some pretty extreme political actors have risen to fill the vacuum.

Some of the best reporting on the Malheur standoff and related issues is being done by High Country News.  In addition to their close coverage of the day-to-day developments, they've also provided a platform for Westerners voices both sympathetic and unsympathetic to the Bundys' concerns. And HCN is doing a terrific series of stories on the revived Sagebrush Rebellion and the complex interplay of politicians, "Constitutional sheriffs" and other players in the drama. You can check it out here.

Jamie Baker Roskie


February 5, 2016 in Agriculture, Federal Government | Permalink | Comments (0)

Thursday, February 4, 2016

They're making a movie about Jane Jacobs

It's called A Matter of Death and Life:  A Movie about Cities through the Lens of Jane Jacobs.   Apparently there was a screening in LA last week.  Probably out soon.  Here is how the film describes itself:

Fifty years ago, our cities were being ravaged and destroyed. Jane Jacobs blew the whistle. Now, history is repeating itself—on an epic scale. A Matter of Death and Life is a film about cities though the lens of Jane Jacobs.

Jane Jacobs (1916-2006) had no formal training as an urban planner and not even a college degree, and yet, with her 1961 book, The Death and Life of Great American Cities, the woman often called a “genius of common sense” changed cities and the way we think about them forever, persuading generations of people to take a second look at their urban surroundings and to take action against previously unquestioned authority.

With the opening words in The Death and Life of Great American Cities—“This book is an attack on current methods of city planning and rebuilding”—Jacobs commenced a jeremiad against what were then universally accepted ideas about how to improve urban areas. At the time Jacobs was writing, planners’ favored tools were the aerial photograph and the wrecking ball. Nearly everyone was in thrall to the Utopian concepts of the modernist god, Le Corbusier, whose plan for leveling the cities of the past and starting with a perfectly-ordered clean slate was espoused by most governments, planners, and architects worldwide. Those charged with fixing our cities were carelessly obliterating sometimes blighted but typically vibrant neighborhoods, replacing them with ordered banality in the name of a social-engineering concept known as urban renewal.

Jacobs saw that this top-down, often brutal, one-size-fits-all approach to city planning was obliterating life on the street and, along with it, the delicate, complex organic social and economic networks that allow cities to thrive. She was among the first to understand that urban infrastructure, while of great importance, was absolutely secondary to the complex self-organizing web of human connectivity that creates unique places in urban settings. The misguided imperative for order was destroying the sections of the cities that often worked best, often replacing them with aesthetically pleasing, yet deeply flawed faux solutions. “When we deal with cities, we are dealing with life at its most complex and intense,” she wrote in Death and Life. “Because this is so, there is a basic aesthetic limitation on what can be done with cities: A city cannot be a work of art.”

As massively scaled housing projects, highway networks, and suburban tracts were being built, and as people were being factored out of the urban equation, Jacobs excoriated the unchecked power of the planners. She drew the world’s attention to the ground-level vibrancy of urban cores—what Jacobs famously called “the ballet of the sidewalks”—and showed that a city’s success cannot be planned or controlled by some central authority, but that rather it must grow from the common experiences of its inhabitants. At the time Jacobs was reporting and writing Death and Life, Robert Moses, New York’s master builder, was the personification of central authority in city planning. Jacobs’s point of view—and much of her grass-roots activism in the 1950s and 1960s—was in opposition to the methods, theories, and practices of Moses and his cohorts in other cities, and she helped to precipitate their downfall.

Jacobs’s case for the “bottom up” city, where trust and power are vested in the people, was a particularly shocking proposal in the mid-20th century, when the belief in command-and-control-style central planning and social-engineering projects was ironclad. Her book turned the urban-planning establishment on its head so thoroughly that today it’s hard to believe how revolutionary her ideas were at the time.

Today, the lessons of Death and Life have become mainstream, but the reality of city building hardly takes Jacobsian theory into adequate consideration. This must change if old and new cities are to thrive. The Indian architect and urban planner, Charles Correa, has said, “Jane Jacobs was invaluable in correcting the disastrous course in which we were seemingly embedded—and which might still overwhelm us. We are really on the wrong track. She was a watershed moment, and we need another one.” While Corbusian top-down planning, which Jacobs reacted against, has been widely discredited, this film will reveal that, in the rapidly developing and urbanizing world, Le Corbusier’s influence is still very much alive, and there has been a nearly universal embrace of his prescriptions for the modern city and top-down planning methods. As countries such as China and India grapple with the challenges of mass urbanization, they are building mega-cities by the score and at an unprecedented pace. Those nations have had one model to serve as an example for how to build their new cities: the United States in the post-war period. Their scaled-up mimicking of the American Century’s car-centered, superhighway-girded, tower-in-the-park urbanism is today producing similarly disastrous results around the world, but the scope and scale mean that any future reckoning will be even more severe. Newly minted cities for millions are being built from scratch, all tailored to the motor vehicle, with scarce consideration for the key elements that make them truly livable. While there are some surviving parts of old cities which serve their populations well because they were largely planned from the bottom up, this film will reveal that these “organic cities” are not just endangered but are being systematically destroyed.

Our film will show that this is a worldwide epidemic all over the world, from the instant magacities of China to the rapidly expanding urban areas of India and Africa to South America’s exploding urban cores. The consequences are dire. Much like the destruction of the rain forest, as each square mile of organic city is destroyed, our world becomes less sustainable, less livable and less humane. While the cause of saving the rain forest is now very much in the popular consciousness, the topic of the organic (sometimes called “informal” or “user-generated”) city is not. In 1961, Jacobs made a brilliant case for the triumph of the informal city and its superiority to the over-planned modern metropolis. Today, at this crucial moment, it is imperative that we again make the case for the organic city. We need to revisit Jacobs’s ideas. The grave mistakes of the mid-20th century must not be repeated around the world as we face urbanization on a hitherto, unimaginable scale. While the problems we now face in the urbanizing world are far different in scope from anything Jacobs encountered in her time, her ideas have proved incredibly prescient and contain many potential answers for addressing the dizzyingly complex problems of cities today. If we build our urban areas with sensitivity and don’t destroy what is organically great about them, we can move toward solving many pressing global issues. As Jacobs wrote: “Cities contain the seeds of their own regeneration, with energy enough to carry over for problems and needs outside themselves.”

This film is an attack, just as Jacobs’s book was an attack, exposing today’s planning methods as The Death and Life of Great American Cities did more than 50 years ago. It will revive Jacobs’s voice at a time when it most needs to be heard, and take the case for “the city of the people” a necessary step further.

February 4, 2016 | Permalink | Comments (0)

Did the State of Michigan inversely condemn the entire City of Flint?: Environmental justice meets the Takings Clause

A complaint filed in mid-January by plaintiffs in Michigan's Court of Claims alleges a novel, and intriguing claim.  Taken to its limits, the class action essentially alleges that the State of Michigan inversely condemned the entire City of Flint, or some large portion thereof, by knowingly transferring the city to a water source contaminated with lead.  

At first, the action may seem far-fetched.  But is it? This story from the New York Times seems to indicate that everyone who can get out of Flint is doing just that.  The only people staying are those too poor to leave.  As the NYT writes:

Because the drinking water flowing from their pipes is contaminated, tens of thousands of people here may have been exposed to lead and other toxic chemicals. Untold numbers of them are desperate to leave. But few see a way to pick up and move to a place where the water that flows from the taps is clean and safe.

So, imagine owning an apartment complex in Flint.  What is the value of that property if everyone leaves?  Is it any different if the only people who stay are those too poor to leave?

What about a home owner?  Is anyone choosing to move to Flint these days?  Is there any marketability in a residential home?  Will the lead in the water permanently taint the real estate market?  What if the only people who want to live in Flint are those who can't afford to live anywhere else?

What do others think?  Is it a viable claim?  Personally, I think it has legs if it gets the right judge; the case has received surprisingly little media attention.  It seems to me that, if the case is made right, the State of Michigan might just have just bought itself the entire City of Flint.

The claim is brought under the Michigan constitution's takings clause.  Michigan courts have held that "the two elements of an inverse condemnation claim are (1) ‘that the government's actions were a substantial cause of the decline of his property's value, and (2) that the government abused its legitimate powers in affirmative actions directly aimed at the plaintiff's property."  Hinojosa v. Dep't of Nat. Res., 263 Mich. App. 537, 549, 688 N.W.2d 550, 557 (2004).

The evolution of this case will be interesting to follow.

Download Flint Inverse Condemnation Complaint (See Complaint at 35, Count IV).

February 4, 2016 | Permalink | Comments (4)

Wednesday, February 3, 2016

So you think you can fix the Bay Area's housing crisis? Prove it...with a board game!

I reported last year on the Kickstarter campaign to create a board game that simulates the San Francisco Bay Area's housing crisis.  Now, it's out, and you can play the game!  Here is the link.





February 3, 2016 | Permalink | Comments (0)

Tuesday, February 2, 2016

Land use articles posted to SSRN in January

Here are all of the new land use-related articles posted to the SSRN Property, Land Use & Real Estate Law eJournal in the month of January.  As always, the articles are listed in the reverse order of posting; those at the top of the list were posted later in the month.  The order here does not indicate downloads.  I also have removed articles that were written prior to 2015 since the goal of the list is to reflect new scholarship.

Finally, I have divided the list into scholars with U.S. law school affiliations and those with non-U.S. law school affiliations.  

Lots of good stuff below.  Happy reading!

Scholars with U.S. institutional affiliations:

 Enhancing the Urban Environment Through Green Infrastructure
Environmental Law Reporter, Vol. 46, No. 1, 2016
John R. Nolon 
Pace University School of Law 

 Maximizing Capital Gains in Real Estate Transactions
N.Y.U. 73d Ins. Fed. Tax’n (2015), Brooklyn Law School, Legal Studies Paper No. 436, 
Bradley T. Borden and James M Lowy 
Brooklyn Law School and Independent 

 Getting Residential Mortgage-Backed Securities Right: Why Governance Matters
Stanford Journal of Law, Business, and Finance, Vol. 20, No. 273, 2015
June Rhee 
Yale School of Management 

 Land Use Law Update: The 2015 Mid-Year Roundup
29 Municipal Lawyer 27 (Spring/Summer 2015), Touro Law Center Legal Studies Research Paper Series
Sarah Adams-Schoen 
Touro College - Jacob D. Fuchsberg Law Center 

 Environmental Hedonism or, Securing the Environment Through the Common Law
William & Mary Environmental Law and Policy Review, Vol. 40, Pp. 65-114 (2015), CUA Columbus School of Law Legal Studies Research Paper No. 2016-1
George P. Smith II and David Steenburg 
Catholic University of America (CUA) - Columbus School of Law and Grove City College 

 'La Parte Alta Del Cerro Es Para Los Pequeños Mineros'. Sobre La Vigencia Del Régimen Minero Especial Para Marmato Y Su Influencia En La Construcción De Territorialidad ('The Top of the Hill is for Small Miners'. On the Validity of the Special Regime for Marmato Mining and its Influence on the Construction of Territoriality)
REVISTA DERECHO DEL ESTADO, No. 35, Julio-Diciembre de 2015
Gloria Patricia Lopera Mesa 
Florida International University (FIU) 

 Hobby Lobby as a Land Use Case: Charting For-Profit RLUIPA Claims
NYU Journal of Law & Liberty, Vol. 10, No. 2, 2016, Forthcoming
Ross Campbell 
New York University (NYU), School of Law, Students 

 Gay Marriage and the Problem of Property
Washington University Law Review Commentaries, Spring 2016, Forthcoming
Andrea Beauchamp Carroll and Christopher K. Odinet 
Louisiana State University, Baton Rouge - Paul M. Hebert Law Center and Southern University Law Center 

 The Oregon Public Trust Doctrine and Atmospheric Greenhouse Gas Pollution: A Law Professors' Amicus Brief
Michael C. Blumm Mary C. Wood and Steven M. Thiel 
Lewis & Clark Law School , University of Oregon - School of Law and Lewis & Clark Law School 

Surface Access to Severed Federal Minerals
61 Rocky Mt. Min. L. Inst. 8-1 (2015)
Tara Kathleen Righetti 
University of Wyoming College of Law 

 Leveraging Federal Land Plans into Landscape Conservation
The George Washington Journal of Energy and Environmental Law, Vol 6, No. 3, 2016, Forthcoming, Indiana Legal Studies Research Paper No. 334
Robert Fischman 
Indiana University Maurer School of Law 

 Wind Power Growing Pains
Chapman Nexus Journal 2016, Forthcoming, U Denver Legal Studies Research Paper No. 16-02
K.K. DuVivier 
University of Denver Sturm College of Law 

 Slaying Contingent Beneficiaries
24 University of Miami Business Law Review 31 (2015)
Kevin Bennardo 
Indiana University Robert H. McKinney School of Law 

 Fee Simple Obsolete
University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 739, U of Chicago, Public Law Working Paper No. 559
Lee Anne Fennell 
University of Chicago Law School 

 Macroprudential Regulation of Mortgage Lending
Southern Methodist University Law Review, Forthcoming
Steven L. Schwarcz 
Duke University School of Law 

 Make My Day! Dirty Harry and Final Agency Action
Environmental Law, Forthcoming
William Funk 
Lewis & Clark Law School 

 Learning Both Directions: How Better Federal-Local Land Use Collaboration Can Quiet the Call for Federal Lands Transfers
76 Montana Law Review 147 (Winter 2015)
Michelle Bryan 
University of Montana - Alexander Blewett III School of Law 

 Cause for Rebellion? Examining How Federal Land Management Agencies & Local Governments Collaborate on Land Use Planning
6 Journal of Energy & Environmental Law 1 (2015)
Michelle Bryan 
University of Montana - Alexander Blewett III School of Law 

 Can Short-Term Rental Arrangements Increase Home Values?: A Case for Airbnb and Other Home Sharing Arrangements
The Cornell Real Estate REview, Vol. 13, June 2015
Jamila Jefferson-Jones 
University of Missouri at Kansas City - School of Law 

 Property Rights Theory: Evidence from Hollywood
F. Andrew Hanssen and Alexander Raskovich 
Clemson University and U.S. Department of Justice - Economic Analysis Group 

 The Law of Banksy: Who Owns Street Art?
University of Chicago Law Review, Vol. 83, No. 4, 2016
Peter N. Salib 
University of Chicago 

 Forced Subordinations of Liens to Leases: Is Texas Property Code Chapter 66 an Unconstitutionally Retroactive Law?
Journal of Land Use & Environmental Law, Forthcoming
Michael P. Vargo 

 Towards a New Eviction Jurisprudence
Georgetown Journal on Poverty Law Policy, Vol. 23, No. 1, 2015
Gerald S. Dickinson 
U.S. Court of Appeals for the Third Circuit 

Scholars with international affiliations:

 El Dominio Público Y Los Bienes Públicos: Europa Y América Latina. ¿El Hijo Sigue Mirando Al Padre? (Public Domain and Public Goods (Land) in Europe and Latin America: Does the Boy Still Look Up to His Father?)
Sergio Alejandro Chemas Velez 
Universidad Externado de Colombia 

 Effective Methods of Consumer Protection in Brazil. An Analysis in the Context of Property Development Contracts
Revista De Derecho Privado, No. 29, July-December 2015
Deborah Alcici Salomão 
Justus-Liebig Universität Giessen, Department of Law, Students 

  Uses of Macro Social Theory: A Social Housing Case Study
The Modern Law Review, Vol. 79, Issue 1, pp. 76-101, 2016
Chris Bevan and Dave Cowan 
Barrister-at-Law and University of Bristol - Department of Law 

 Women’s Right to Own Property
Yinka Olomojobi 
Babcock University - School of Law and Security Studies 

 Zoning and Market Externalities
Amnon Lehavi 
Interdisciplinary Center Herzliyah - Radzyner School of Law 

Will Regulation 650/2012 Simplify Cross-Border Successions in Europe?
European Property Law Journal. Volume 4, Issue 1, 2015
Mireia Artigot-Golobardes 
Law School, Universitat Pompeu Fabra 

 The Evolution of 'Greener' Leasing Practices in Australia and England
Bright, S., J. Patrick, B. Thomas, K. B. Janda, E. Bailey, T. Dixon, & S. Wilkinson. 2015. “The evolution of “greener” leasing practices in Australia and England.” In Proceedings of COBRA, July 8-10, 2015 (Sydney, Australia). Royal Institute of Chartered Surveyors (RICS)., 
Susan Bright Julia Patrick Ben Thomas Kathryn B Janda Esther Bailey Timothy Dixon and Sara Wilkinson 
University of Oxford - Faculty of Law , University of Oxford , Better Buildings Partnership , Environmental Change Institute , Better Buildings Partnership , University of Reading and University of Technology Sydney (UTS) 

 Possession of Acquired Land Under Land Acquisition Act: A Critical Study in the Light Of Supreme Court's Decision In Banda Development Authority's Case
Mukund Sarda 
Bharati Vidyapeeth University 

 Gated Community -- Modern Lifestyle in Urban Area: Issues and Challenges on Legal Development in Peninsular Malaysia
Malayan Law Journal, Volume 1, 2015
Eng Siang Tay Chee Ying Kuek and Que Seng, Jason Kung 
Multimedia University - Faculty of Law , Multimedia University - Faculty of Law and Tahps Group Berhad 

 Die Wirkung Relativer Dinglicher Rechte Nach Deutschem Internationalen Sachenrecht (Relative Property Rights in German Conflict of Laws)
Rabel Journal of Comparative and International Private Law, Vol. 79, No. 1. 2015, pp. 36–71., 
Jan Jakob Bornheim 
University of Essex - School of Law 

 Unlocking the First Protocol: Protection of Property and the European Court of Human Rights
Human Rights Law Journal Vol. 29, No. 6-9
Richard Lang 
University of Brighton - Faculty of Business 

February 2, 2016 | Permalink | Comments (0)

Virginia legislature considers overhaul to land use "proffer" system

Fascinating article from the Richmond Times-Dispatch:

Legislation working its way through the General Assembly would make it more difficult for local governments to force developers to pay for public infrastructure or change building plans, a prospect that has caused alarm among some local officials who fear it could sharply limit their ability to manage growth.

Bills have been introduced in both chambers to dramatically reshape the proffer system, which allows localities to extract cash payments and other concessions from home builders through the residential rezoning process.

The proposal applies to both cash proffers, direct payments to local governments, and architectural proffers designed to boost the quality of a project by specifying building materials, exterior colors or other design features.

The legislation would prohibit localities from making zoning decisions tied to “unreasonable” proffers; virtually eliminate localities’ ability to request changes to building materials or designs through the proffer system; and require more proof that new residents would strain services such as schools, roads or parks.

The legislation is backed by the Home Builders Association of Virginia, which says its aim is to restore fairness to a practice described by critics as “legalized extortion.”

Michael L. Toalson, the group’s CEO, said cash proffers — which range from $6,000 to $59,000 per home — have stunted the housing industry’s recovery in high-growth areas of the state.

“We just think that, given the inability of our industry to recover to any near-normal level of housing production, rebalancing this system will help,” he said. “And now’s the time to do it.”

Henrico County Manager John A. Vithoulkas said the bill diminishes the rights of local officials — and by extension, their constituents — to shape their communities.

“We feel that this bill completely removes our ability to ensure that our citizens have well-built, quality homes,” Vithoulkas said. “At the end of the day, it comes down to a question of local democracy. That is, the citizens either have a say in the zoning process or they don’t.”

Vithoulkas said Henrico’s attempts to work with the home builders association have been met with an unyielding response: “We’ve got the votes.”

“I’m not sure what kind of fuel those guys have and whatever steamroller they’re driving, but it’s pretty potent,” Vithoulkas said.

The industry group, which donated nearly $140,000 to both Republicans and Democrats in last year’s legislative elections, has seen its reform bill sail through a House of Delegates committee with just a handful of dissenting votes.

The Senate version of the bill — patroned by Minority Leader Richard L. Saslaw, D-Fairfax, and Mark D. Obenshain, R-Harrisonburg — is scheduled to be heard in committee today.

Del. C. Todd Gilbert, the patron of the House bill, said cash proffers are creating a “barrier to building affordable homes.”

Rest of the article here.

February 2, 2016 | Permalink | Comments (1)

Monday, February 1, 2016

Zoning’s Centennial, Part 4: The Unintended Consequences of Euclidian Zoning: A Series by John R. Nolon

Part 4 

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center


The Unintended Consequences of Euclidian Zoning


Following the decision in Euclid v. Ambler Realty Co. in 1926, land use lawyers and planners celebrated the advent of a new, comprehensive method of shaping human settlements and protecting investments in the built environment. Their excitement was short-lived.  In 1929, the stock market crashed and land development moved at a snail’s pace until the end of World War II. The growth rate in housing units in the 1950s increased by 40% over the 1940s, putting much more pressure on the land use regulatory system at mid-century. We had to wait until this growth was absorbed to see what zoning had wrought.

The Standard Zoning Enabling Act (SZEA), as adopted by most state legislatures, seemed simple enough. It permitted local governments to separate land uses into use districts or zones within which they regulate the construction and the use of buildings or land. The Act stipulated that “regulations shall be uniform for each class or kind of buildings throughout [each] district.” This was in contrast to existing patterns of land use in the 1920s, which were disorganized and chaotic in urban areas, a consequence of the unplanned results of countless unguided private sector land use decisions.

What would neighborhoods look like after being filtered through a zoning ordinance that channeled like-kind land uses into geometric-shaped districts, governed by bulk and area standards, limiting lot sizes and coverage, and building heights and set-backs: standards that must apply uniformly to all parcels within the district? Much of what concerned zoning in its inception had to do with civil engineering, fire-safety, and related concerns, such as ensuring fire truck access to buildings during fires, designing streets and driveways to reduce accidents, and limiting house heights to 35 feet, so that they were tucked under the tree canopy of the neighborhood to preserve community character.

Euclidian zoning seemed well named, as lawyers and planners first drew the shapes this law seemed to dictate. The geometry was not flexible, due in part to the adherence of judges to Dillon’s Rule, under which courts were obliged to read literally the laws that delegate power to local governments. How much uniformity was optimal; what would the legacy of uniformly regulated neighborhoods be? 

After World War II, growth pressures in suburban communities intensified due to the return of the soldiers, affordable federal mortgages, and the 1956 Federal Highway Act that allowed city dwellers to abandon cities in record numbers. This migration rapidly revealed the designs that zoning created. Much of the land in developing communities was zoned for single-family housing on relatively large lots, large enough to permit builders to use septic systems and individual wells, thereby reducing the capital infrastructure costs to the municipality. These mostly single-family homes were uniformly sized and their shape was dictated by zoning’s area and bulk requirements.  

There was a certain sameness to many of these emerging neighborhoods. As they expanded outward, commutes lengthened, increasing vehicle miles travelled and CO2 emissions; impermeable lot coverage intensified stormwater runoff and flooding; open space shrunk and, with it, wetlands and habitats; housing became less affordable, creating racially imbalanced neighborhoods; the lack of workers repelled employers, reducing jobs and limiting property tax revenues; municipal services became more expensive; and the character of communities changed, not always to the liking of those who lived there. NIMBYism set in and land use lawyers and planners began to tweak the legal framework to achieve more flexibility in permitted development.

As the century progressed, zoning’s weaker sibling--land use planning--became a larger factor in land use law.  The adverse effects of promulgating the Standard City Planning Enabling Act (SCPEA) after, instead of before, the SZEA were better understood. Day-to-day zoning decisions needed to be guided by a vision for the city or town’s future;  adopting a comprehensive land use plan gave citizens and local officials a method of realizing that vision, in addition to mitigating the unintended consequences of Euclidian zoning. Some states stipulated that the local planning commission or a special advisory committee should formulate and adopt the comprehensive plan, insulating the planning process somewhat from electoral politics and tying zoning’s conformance to an apolitical document. Communities that took planning seriously and conformed their zoning to their plan learned that they had protected zoning from a variety of challenges, including due process and ultra vires claims. If a zoning provision accomplishes a comprehensive plan objective, it is less likely to be invalidated for failing to further a legitimate public objective or failing to be within the legal power of the locality to enact.

That zoning was to reach beyond civil engineering and fire safety was embedded in the SCPEA. As a predicate for zoning, it provided that plans will, “in accordance with present and future needs, best promote health, safety, order, morals, convenience, prosperity, and general welfare as well as efficiency and economy in the process of development….” The purposes of planning were broad. Zoning had to conform. The stage was set for the adoption of flexible zoning and land use strategies that moved beyond the rigid contours of Euclidian zoning.

The Neo-Euclidian era began as zoning turned 40, roughly a decade after the post-war experiments with the original model. Its failures led to a variety of legal remedies; all experiments in search of proper development patterns. Courts slowly moved past Dillon’s Rule and some state legislatures changed the law, calling for a liberal interpretation of the strict language of the enabling act, while others delegated new powers to localities to mitigate the unintended consequences of the Euclidian era.

For more information, see John Nolon, Comprehensive Land Use Planning: Learning How and Where to Grow, 13 Pace N.Y. L. Rev. 151 (1993-94).


Links to previous posts in the Zoning Centennial’s Series:

Part 1: The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority To Adopt Zoning

 Part 3: Zoning Was Contagious, But Was It Constitutional?

February 1, 2016 | Permalink | Comments (0)