Land Use Prof Blog

The Long Tail of the Athens Food Cart Project

Longtime readers of this blog know that I "retired" as the Managing Attorney of the UGA Land Use Clinic almost four years ago. But apparently the LUC's legacy lives on, at least in a tiny way.  One of the last projects of the clinics was a food truck study and draft ordinance revisions for Athens Clarke County (the combined city-county that is the home of the University of Georgia). And, amazingly, the ACC commission recently voted to allow more food trucks downtown! This is gratifying, if somewhat belated, news.

Jamie Baker Roskie

Colorado's Dept. of Local Affairs releases ground-breaking report on planning for hazards and community resilience

The Colorado Department of Local Affairs has just released what I believe is one of the best new tools out there for thinking through planning for natural hazards and resilience issues.  The report, Planning for Hazards:  Land Use Solutions for Colorado, is available in both a hard-copy and web-based format.  Here is the overview:

Planning for Hazards: Land Use Solutions for Colorado enables counties and municipalities to prepare for and mitigate multiple hazards by integrating resilience and hazard mitigation principles into plans, codes, and standards related to land use and the built environment. This guide provides detailed, Colorado-specific information about how to assess a community’s risk level to hazards and how to implement numerous land use planning tools and strategies for reducing a community’s risk. Hazards are occurring more frequently in Colorado, and with greater severity. Experts believe this trend will continue; therefore, this guide helps Colorado to be more resilient and able to protect its residents and property from the devastating impacts of natural and human-caused hazards. This guide provides detailed descriptions of a range of land use planning mechanisms that can be used to reduce risk to hazards. The Colorado Department of Local Affairs led the development of this guide, working with an Advisory Committee comprised of representatives from state and federal agencies, local government, and other subject-matter experts in hazard mitigation and land use planning. The Advisory Committee met three times throughout the course of the project and provided guidance and valuable input at critical milestones, identified key resources, and reviewed interim deliverables. The result is this guide that includes information from Colorado’s leading experts on the subject, and represents varying community sizes, locations, and values.

Perhaps the real value of this guide at this time is that it provides a workable framework for those tasked with application of resilience strategies while also providing a big picture framework that offers a way to think through the reasons why these tools are important.  I imagine that this guide--excellent now--will only get better with future iterations.

View the full website here.

View the report as a pdf here.

March 31 - April 1: Wallace Stegner Center 21st Annual Symposium – Green Infrastructure, Resilient Cities: New Challenges, New Solutions

Excited to be a part of this event.  If you'll be in Salt Lake City, stop on by... 

Green Infrastructure, Resilient Cities: New Challenges, New Solutions

Register online »

S.J. Quinney Moot Courtroom, S.J Quinney College of Law (Level 6)
The Stegner Center’s twenty-first annual symposium, “Green Infrastructure, Resilient Cities: New Challenges, New Solutions,” will address new urbanism and how to create cities that are both sustainable and resilient. Topics to be addressed include urban design, green architecture, water usage (including reuse of waste water and storm water), the suburban-urban interface (including regional transportation, food sheds, and air quality), energy usage in cities, and how to plan for climate change to create resilient cities. Throughout the symposium, speakers and talks will focus on how these issues relate to the Wasatch Front. The College of Law’s new LEED Platinum building will be highlighted, as an example of green architecture.

9 hours of CLE. Registration required. Click here for the Symposium Brochure »

Symposium Agenda

Thursday, March 31, 2015

8:00 a.m. – Registration and Continental Breakfast

9:00 a.m. – Welcome and Introductions

9:10 a.m. – Rethinking Buildings
Thomas Butcavage, Smith GroupJJR
Nicole DeNamur, Pacifica Law Group
Chris Duerksen, Clarion Associates LLC

10:30 a.m. – Break

10:55 a.m. – Rethinking Urban Design
Rob Bennett, EcoDistricts
Rocky Piro, Colorado Center for Sustainable Urbanism
Jonathan Rosenbloom, Drake University Law School

12:15 p.m. – Lunch

1:15 p.m. – Rethinking Water in Cities
Tony Arnold, University of Louisville Louis D. Brandeis School of Law
Stacey Eriksen, EPA Region 8
Eric Millis, Utah Division of Water Resources

2:35 p.m. – Break

3:00 p.m. – Keynote Address – Community Food Systems and Regional Resilience
Sheila Martin, Institute of Metropolitan Studies, Portland State University

3:40 p.m. – Rethinking Energy for Cities
Alexandra Aznar, National Renewable Energy Laboratory
Sara Bronin, Center for Energy & Environmental Law, University of Connecticut School of Law
Troy Rule, Arizona State University Sandra Day O’Connor College of Law

5:00 p.m. Conclude

Friday, April 1, 2016

8:30 a.m. – Continental Breakfast

9:00 a.m. – Rethinking the Urban-Suburban Interface
Robert Cervero, Department of City and Regional Planning, University California, Berkeley
Reid Ewing, Metropolitan Research Center, University of Utah
Kellen Zale, University of Houston Law Center

10:20 a.m. – Break

10:45 a.m. – Keynote Address – “Future-Proofing” Infrastructure: Action Items for the Anthropocene
Hillary Brown, City College of New York, CUNY

11:25 a.m. – Incorporating Resilience – to Drought, Disaster, and Climate Change
Melissa M. Berry, Chapman University
Stephen R. Miller, University of Idaho College of Law – Boise
Hari Osofsky, Energy Transition Lab, University of Minnesota Law School

12:45 p.m. Conclude

 

 

 

 

April 4-6: Local Solutions: Eastern Regional Climate Preparedness Conference: Local Government lawyers attend free!

Thanks to an anonymous donor, local government employees and representatives of small- and medium-sized businesses are eligible for special funding to cover the full registration cost of attending Local Solutions: Eastern Regional Climate Preparedness Conference April 4–6 in Baltimore’s Inner Harbor. This capacity-building conference, hosted by Antioch University New England’s Center for Climate Preparedness and Community Resilience in partnership with EPA, aims to help communities build resilience for climate-related challenges and severe weather events. It includes dedicated business continuity and education summits, tours of hallmark projects in the Baltimore area, and numerous resources for local government decision-makers, businesses, and others.

This is a great opportunity for: city and town administrators, managers, and elected or appointed officials and decision makers; regional planning councils; emergency preparedness personnel; public works, planning and parks and recreation staff; county government employees; conservation commissions; and code and zoning personnel, and representatives of small- and medium-sized businesses.

Featured speakers include: Stan Meiburg, acting deputy administrator, US EPA; Avis Ransom, Commission on Sustainability, City of Baltimore; Bob Perciasepe, president, Center for Climate and Energy Solutions; Bill McKibben, founder of 350. org; and Mark Jacobson, professor of civil and environmental engineering and director of the Atmosphere/Energy Program, Stanford University, who will discuss how communities can convert to 100 percent clean, renewable energy by 2050.

To learn more about the conference and apply, click here. Connect with the Center and conference on Twitter at @ClimatePrepCenter, Facebook and LinkedIn. Funding will be awarded on a first-come basis with preference given to municipal employees.

Hat tip to Sarah Adams-Schoen.

Pace Law School LLMs - deadline April 1

Pace Law School is offering the following positions with a stipend and full scholarship for an LLM degree:

-          Environmental Law LLM Graduate Fellow (work on NELMCC and Pace-NRDC Food Law Initiative)

-          Energy and Climate Center EASE LLM Graduate Fellow (work with Earthjustice on equitable access to sustainable energy)

-          Land Use Law Center LLM Graduate Fellow (work with the Land Use Law Collaborative)

-          Global Center for Environmental Legal Studies LLM Graduate Fellow (work with the International Union for Conservation of Nature)

Details on how to apply can be found at law.pace.edu/enviro-grad-research-fellows. Applicants should send a cover letter, resume, writing sample, and list of references directly to [email protected].)

Zoning’s Centennial, Part 12: Green Infrastructure: A Series by John R. Nolon

Part 12

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

 

Green Infrastructure

 

At their inception, comprehensive planning and zoning focused intensely on capital infrastructure: streets and roads; water and sewer; and electric lines and other utilities.  These served development parcels with their buildings, driveways, and other hardscapes. Streets and roads were classified by traffic load and function with local streets, secondary streets, collectors, and arterials governing the flow of traffic in the public interest. When viewed from 10,000 feet, this gray infrastructure is clearly visible: a thoughtful pattern of connectivity to serve the built environment. This result was one of the principal objectives of early zoning.

Over time, evolving concerns with flooding, public safety, wetland and watershed protection, the urban heat island effect, and the loss of open space and its ecological services gave rise to mapping and preserving the green infrastructure of a community. These plans connect the natural assets of the community in much the same way that planners design a locality’s gray infrastructure. Planners concerned with green infrastructure calculate the current green space coverage and connectivity and then figure out methods of increasing it to a healthy amount of the surface area of the community. This process ensures that an adequate percentage of the land is sheltered and shaded, with its soils held intact and its ability to absorb and retain water preserved, if not enhanced. Water and wildlife, like vehicles and people, need to travel through connected paths and landscapes.

The broad view of green infrastructure envisions it as a strategy for adapting to climate change, bettering air quality, lowering heat stress, creating greater biodiversity, conserving energy, providing ecological services, sequestering carbon, preserving and expanding habitats, enhancing aesthetics, increasing property values, and improving the livability of neighborhoods.

The elements of green infrastructure include green roofs; planters; rainwater harvesting; street trees; preserved open space on building sites; natural vegetated corridors and swales; permeable paved areas accented with green features; xeriscaping; private gardens and public parks; detention basins; bio-retention ponds and rain gardens; green building facades; and greened medians and edges along streets, paths, and rail lines. Parking lots can be greened by adding trees and using permeable surfaces that allow infiltration and permit vegetative growth. When seen from the air, the community with robust green infrastructure appears more connected naturally; ideally, the green and the gray are complementary.

All of these elements of green infrastructure can be built into local planning, zoning, and land use regulations. Cities can begin green infrastructure planning at the same time they create and implement their plans for building and development to accommodate anticipated increases in population. The local comprehensive plan can be supplemented by the addition of a green infrastructure component that grows out of this planning process. Then, zoning and land use regulations can be amended to implement the green infrastructure component’s vision.

An adopted overlay zone can trace the contours of the green infrastructure plan and, within that zone, local review boards can condition approvals, or use zoning incentives, to implement it. Landscaping requirements, along with erosion and sediment controls, can be added to subdivision and site plan regulations. Developers can be required to include green features in, on, and around their buildings. They can also be required to pull development back from floodplains and wetlands and to leave room on their sites for open space. They can pay impact fees where they cause the destruction of vegetated areas and the proceeds can be used to pay for the greening of nearby public spaces. Local and state capital budgets can support street trees, medians, parks, the greening of publicly-owned buildings and sites, and open space preservation.

What the architects of green infrastructure do is use these land use techniques in an integrated fashion; they plan the entire community so that its natural functions are connected and create healthy and livable neighborhoods. In communities that have made green infrastructure a priority, zoning achieves objectives not understood when it was invented 100 years ago.

For more information, see John R. Nolon, Enhancing the Urban Environment Through Green Infrastructure, in Protecting the Environment Through Land Use Law: Standing Ground (Environmental Law Institute ed., 2014), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2724050.

 

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

Part 5: The Most Appropriate Use of the Land

Part 6: The Surprising Origins of Smart Growth

Part 7: The Advent of Local Environmental Law

Part 8: Regionalism and ‘Wistful Hoping’

Part 9: Mixed Signals: Exclusionary Zoning and Fairness

Part 10: The Emergence of the Law of Sustainable Development

Part 11: Designing Density

How--and why--Jackson, Wyoming financed a new vertical farm like an economic development project

The New York Times has the story here.  I have an upcoming article in the Fordham Urban Law Journal describing precisely how this financing mechanism for vertical farms could take off, and why it makes sense.  A link to my article is here.

 

 

U of Arizona Law seeks executive director for new Natural Resources Users Law & Policy Center

An interesting new position at U of Arizona Law.  From Christopher Robertson, who is heading the search committee.  Contact him if you have questions.  Link to the full position description here.

 

Title	(UPDATED) Executive Director, University of Arizona Natural Resources Users Law & Policy Center
Department	Law Instruction (3603)
Location	Main Campus
Position Summary	Please note that the review date for this position has been extended. The University of Arizona College of Agriculture & Life Sciences (CALS) and James E. Rogers College of Law have partnered to create the University of Arizona Natural Resources Users Law & Policy Center (NRULPC). The center will include a Law Practice Group to address the currently unmet legal needs of ranchers, farmers, miners and others whose business involves the use of natural resources and whose business often takes place on “working landscapes.” The Center will also support research, education and outreach to the resource users community. The Executive Director will report to the head of Cooperative Extension for all non-legal functions and the Dean of the College of Law for all law related functions. Outstanding UA benefits include health, dental, and vision insurance plans; life insurance and disability programs; paid vacation, sick leave, and holidays; UA/ASU/NAU tuition reduction for the employee and qualified family members; state and optional retirement plans; access to UA recreation and cultural activities; and more! Accepting a new position is a big life step. We want potential candidates and their families to be able to make informed decisions. Candidates who are considering relocation to the Tucson or Phoenix area, and have been offered an on-site interview, are encouraged to use the free services offered by Above & Beyond Relocation Services (ABRS).Ask your department contact to be introduced to ABRS prior to your visit. The University of Arizona has been recognized on Forbes 2015 list of America’s Best Employers in the United States and has been awarded the 2015 Work-Life Seal of Distinction by the Alliance for Work-Life Progress! For more information about working at the University of Arizona, please click here.
Duties & Responsibilities	Implement, manage and provide leadership to the NRULPC, in three phases: Phase 1. Engage stakeholders and the full range of CALS and university experts in natural resources to determine priorities for the NRULPC. The NRULPC will provide private and public lands natural resource users information and assistance when they face complex legal environments. The Executive Director will be tasked with determining which issues to focus on first based upon the needs of the industry. Phase 2. Hire a Legal Director to establish a Public Interest Law Clinic within the Center that will offer College of Law and CALS students experiential learning opportunities by providing legal services and policy advice to resource users. The clinic will serve as a foundation to seek external funding to expand into the second phase. Phase 3. Work with the Legal Director to establish a Law Practice Group, which is akin to a law firm, that will employ post-graduate legal fellows who can provide more advanced representation as full time lawyers and who will become a new source of legal expertise for the commercial world in this broad area, as well as CALS students whose expertise can inform policy work and research—this will be a clear contribution to Arizona’s and the nation’s economic development. Collaborate with stakeholders, internal and external to the University. Design and implement a consultative structure to ensure regular feedback and input from intra- and extra-mural stakeholders. Report quarterly to intra- and extra-mural stakeholders. Work with the Development teams in Law and CALS, develop and implement a fundraising plan so that the NRULPC is self-sustaining within three years of inception. Travel will include face-to-face meetings, conferences, law/policy meetings, workshops, etc. The person will coordinate and attend face-to-face meetings with stakeholders such as Mining, Ranching and Forestry businesses. Plus attend law/policy meetings with the following types of agencies: Farm Bureau, Family Farm Alliance, Agribusiness and Water Council, Arizona Cotton Grower’s Association, the Arizona Cattleman’s Association (travel will be state-wide, but also throughout the West, and perhaps DC). Selected candidate should provide their own transportation. Other duties as assigned.
Minimum Qualifications	At least 5 years of practice experience, including experience in many of the following fields: ranching, mining, forestry or other natural resource use law; environmental law, water law, public lands law and policy. A deep demonstrated knowledge of Arizona’s economy with respect to ranching, mining, forestry, and other resource operations in the context of the Southwest including the current challenges facing the industry and a working knowledge of the agencies engaged with the various industries including, but not limited to, the Farm Bureau, Family Farm Alliance, Agribusiness and Water Council, Arizona Cotton Grower’s Association, the Arizona Cattleman’s Association, and similar agencies A working understanding of the local, state and national politics of Arizona’ natural resources and their commercial use. Demonstrated connections within the natural resource industry. Ability to travel in-state.

Alaska legislation would let project opponents "phone in" their testimony during quasi-judicial proceedings

From the Alaska News Miner:

Currently, people affected by a land use proposal, such as a request for a conditional use permit, are required to attend such quasi-judicial hearings if they want to weigh in. 

The rule, which also applies in land use appeals, is in place so that affected people can be sworn in and cross examined. 

Under Ordinance 2015-74, they can make arrangements to phone into the meeting or to submit an affidavit.

“If you got a ‘Dear property owner’ letter, then you could have come and testified in the first place.  You should be allowed, even if there is a scheduling conflict, to somehow get your testimony in there,” said Fairbanks North Star Borough Assemblywoman Diane Hutchison.

Hutchison is a sponsor of the measure along with Assemblywomen Kathryn Dodge and Janice Golub. 

The assemblywoman said she is trying to make the process easier for people affected by proposed land use changes in their neighborhoods.

“I definitely think it’s too limiting the way it is,” Hutchison said. “We’ve witnessed where people could have attended a meeting but the meeting got changed.”

The process is conducted at the convenience of the applicant for the land use change, Hutchison said, without as much consideration for other affected parties. 

“If the date doesn’t fit them, how do they get their testimony heard?”

Full article here.

 

Warm Cookies of the Revolution and the advent of the civic health club

 At the Rocky Mountain Land Use Institute's annual conference earlier this month, I  was delighted to hear a presentation by the "civic health" group Warm Cookies of the Revolution.  They led a lunchtime group in an exercise that began with answering the following:

Then, after a discussion of our answers as to what we "own," we then flipped over the page and talked about these other types of things that we also "own" but that have a public character we seldom consider.

It seemed to me a valuable exercise that could be right for a land use class or a state and local government class to get students thinking.  More on Warm Cookies of the Revolution in the video below: 

 

 

How many unintended consequences can you find in this proposed bill about short-term rentals and HOAs that will likely be law in Idaho?

Idaho is close to enacting a piece of legislation that purportedly is meant to restrict homeowner's associations (HOAs) from regulating short-term rentals (STRs), such as Airbnb, but only to those that are new purchasers within HOAs.  Well, that is what I am told the proposed legislation is trying to do and that is what leading law firms in Idaho are saying this is about.  However, the proposed legislation is so bizarre and ill-worded to the stated purpose, I had to post it to the blog to see how many unintended consequences of the legislation people could identify.  Here is the proposed additional language:

No homeowner's association may add, amend or enforce any covenant, condition or restriction in such a way that limits or prohibits the rental, for any amount of time, of any property, land or structure thereon within the jurisdiction of the homeowner's association, unless expressly agreed to in writing at the time of such addition or amendment by the owner of the affected property. Nothing in this section shall be construed to prevent the enforcement of valid covenants, conditions or restrictions limiting a property owner's right to transfer his interest in land or the structures thereon so long as that covenant, condition or restriction applied to the property at the time the homeowner acquired his interest in the property.

See the language in the context of the existing statute here.  The legislative history of Idaho HB 511 is here.  The bill is currently on the Governor's desk and it is presumed he will sign it.

Now for the fun part:  how many ways is this a completely incomprehensible piece of legislation that has nothing to do with STRs?  I will get us started:

1.  Um, there is no limitation on "rental."  So, this wouldn't govern just short-term rentals, but ALL rentals.
2. Because this applies to all rentals, would this also mean that the HOA could not govern what a renter does with a property, which might include subletting and assigning of the lease?
3. What about commercial uses of a "renter," such as daycares in HOAs?  Seems to me that the HOAs could not regulate such commercial uses that are otherwise permitted by local zoning.  
4.  Presumably the second sentence is meant to mean that existing CC&Rs apply to existing owners.  However, what are we to make of the fact that the first sentence speaks of "property land or structure" while the second sentence speaks of just "right to transfer his interest in land or the structures thereon"?  Is there some aspect of "property" to which the first sentence applies that is not implicated by the second sentence?  
5. "Rental," "property," "structure," "interest in land," "homeowner," and "owner" are all undefined terms.  Litigators...go nuts!
6. What's with the gendered pronouns? 

Well, I could keep going, but I'm curious what others think of this bill.  What unintended consequences do you see?  

If nothing else, this bill is a clear indication of how efforts to fix one problem--what to do about short-term rentals in HOAs--can open up a host of new problems.  To my eyes, this is a field day for real estate litigators in the making.

 

LEGOLand urbanism

I am just back from spring break, which included for me a visit to LEGOLand in California.  I was pleased to see there a major exhibit on world urbanism; well, in fact, they called it MiniatureLand and it seemed to largely be a spectacle of lilliputian life.  There was no mention of land use or Jan Gehl anywhere.  Nonetheless, I feel compelled to share vacation pictures that surely are of interest to blog readers.  

 It occurs to me now that the children of land use law professors everywhere surely have their work cut out for them.

 

 Grand Central Terminal ... in LEGOs.

 Midtown ... in LEGOs.

 Times Square ... in LEGOs.

 The French Quarter ... in LEGOs.

 Mardi Gras ... in LEGOs.

 Washington, D.C. ... in LEGOs.

 

The arrival of the transgender restroom sign

I saw this sign in a bathroom in San Diego last week; such a great design.  Seems about time that, at a minimum, we stop building new gendered bathrooms.  Retrofitting old gendered bathrooms will take awhile but seems to make so much sense.  

 

SCOTUS Reviews a Land Use Law Case- kind of

The United States Supreme Court is presently reviewing a case with lots of land use law principles. Murr v. Wisconsin involves two nonconforming (or “substandard”) lots. The Court of Appeals of Wisconsin found (in an unpublished decision) that an ordinance that merged two adjacent, riparian lots for purposes of sale or development did not constitute a regulatory taking. The issue for the United States Supreme Court centers on the “relevant parcel” inquiry.

In 1960, Murr’s parents purchased a lot and built a cabin on the lot, then transferring title to the family business. In 1963, Murr’s parents purchased the adjacent lot in their personal names, but never built anything on the lot. In 1994 and 1995, both lots were conveyed to Murr and her siblings, bringing the lots into common ownership.

Murr requested the following eight variances or special exception permits: (1) variance to sell or use two contiguous substandard lots in common ownership as separate building sites; (2) variance to reconstruct and expand a nonconforming structure outside its original footprint; (3) variance to fill, grade, and place a structure in the slope preservation zone; (4) special exception to fill and grade within forty feet of the slope preservation zone; (5) special exception to fill and grade more than 2000 square feet; (6) variance to construct retaining walls and stairs inside the ordinary high-water mark setback; (7) variance to reconstruct a patio within the ordinary high-water mark setback; and (8) variance to construct a deck within the ordinary high-water mark setback.

The applicable ordinance was adopted pursuant to WIS. ADMIN. CODE § NR 118.08(4) and provides, in pertinent part:

(4) SUBSTANDARD LOTS Lots of record in the Register Of Deeds office on January 1, 1976 or on the date of the enactment of an amendment to this subchapter that makes the lot substandard, which do not meet the requirements of this subchapter, may be allowed as building sites provided that the following criteria are met:
*181 (a) 1. The lot is in separate ownership from abutting lands, or
2. The lot by itself or in combination with an adjacent lot or lots under common ownership in an existing subdivision has at least one acre of net project area. Adjacent substandard lots in common ownership may only be sold or developed as separate lots if each of the lots has at least one acre of net project area.
(b) All structures that are proposed to be constructed or placed on the lot and the proposed use of the lot comply with the requirements of this subchapter and any underlying zoning or sanitary code requirement
 
Each of the Murr lots contained approximately ½ acre of net project area.

After the variances and special exceptions were denied, and upheld by the Court of Appeals, Murr filed suit, claiming a regulatory taking. The suit averred that the regulation deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot”. Note that Lot E (the lot with no dwelling) could not be farmed or otherwise used because of the steep terrain and size. Murr and the State filed motions for summary judgment. Although the lower court found the claims by Murr time barred, the court reached the merits of the claim. The court found that the “property as a whole” included both lots, not each individual lot separately. Therefore, the regulation did not enact a taking, as residential uses remain.

The Court of Appeals found that Zealy v. City of Waukesha, 201 Wis.2d 365, 548 N.W.2d 528 (1996) stands for the proposition that continguous property, “[r]egardless of how that property is subdivided” should be considered as one parcel for the purposes of regulatory takings analysis. “[The] well-established rule [holds] that property under common ownership is considered as a whole regardless of the number of parcels contained therein.” Viewing the two lots as one, Murr failed to show that all or virtually all uses of the property are denied. Therefore, the Lucas claim failed.

The court proceeded to review the case under the Penn Central balancing test, as Murr “obliquely suggest[ed]” a partial taking as well. Citing the environmental character of the regulation, the court balanced the factors and rejected that claim as well.

The issue before the United States Supreme Court is whether Wisconsin’s rule that merges adjacent properties under common ownership for the purposes of regulatory takings analysis is constitutional. Given the fact specific nature of regulatory takings analysis, I predict that the court will reject the automatic merger rule and remand the case.

For those that read this blog, perhaps the more important question is whether merging adjacent nonconforming lots under common ownership, which appears to be a reasonable and common practice, will result in successful takings claims if the case is indeed remanded. In the context of nonconforming lots, should a provision that merges adjacent nonconforming lots be reviewed in the context of a regulatory takings claim as one lot or two lots?

This case frankly drives me crazy, since the posture of the case, and Wisconsin’s rather arbitrary rule of combining adjacent parcels as the relevant parcel for regulatory takings claims, obscures the real land use issue- methods of dealing with nonconforming lots. This important issue is lost in translation, and ignored in the briefs (and was ignored in the Wisconsin courts).

Although reasonableness is not the test for regulatory takings claims or for determining the relevant parcel, I further predict that on remand the Wisconsin Court of Appeals, on remand, will find that in these particular circumstances, where a local ordinance merges adjacent nonconforming lots under common ownership, the two lots should be considered as one in the relevant parcel analysis.

Jesse Richardson

Zoning’s Centennial, Part 11: Designing Density: A Series by John R. Nolon

Part 11

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

 

Designing Density

 

In land use, there are two things that Americans dislike: one is sprawl, the other is density. This catch-22 can be resolved by mitigating those aspects of urban living associated with density: congestion, bulky buildings, sameness, design incongruities, unsafe streets, inefficiency, and the sense that neighborhoods are not livable and pleasant. These characteristics of density cut against sustainability. They define places that people want to leave as soon as they can. To reduce vehicle miles travelled and carbon emissions, as well as to prevent sprawl, we must create places of enduring value, located next to transit in walkable and sustainable neighborhoods.

When zoning was first adopted a century ago, little attention was paid to design. The focus was on separating incompatible uses and rigidly defining building heights, setbacks, and lot coverage: the ingredients of sameness, often the antithesis of livability. Gradually, over the years, communities addressed this issue by creating Architectural Boards of Review, Landmarks Commissions, Historic District Commissions, and adopting design review standards for individual buildings, whether new, landmarked, or historic. Over time, these initiatives have been supplemented by adopting standards contained in the U.S. Green Building Council’s LEED-Neighborhood Development rating system and by incorporating into zoning the Congress for the New Urbanism’s form-based codes approach to urban design control.

The law in many states expressly supplements traditional zoning by authorizing localities to create boards and commissions and design standards that are either advisory or regulatory. Such locally created commissions and boards can issue certificates of consistency to rehabilitate landmarks or build in historic neighborhoods. Similarly, these laws authorize the creation of Architectural Review Boards (ARBs), and the adoption of design guidelines for all buildings within the community, enforced either by the ARB or, with the ARB’s advice, by the local Planning Commission. In the latter case, the Planning Commission is authorized to require design features in all development it approves through subdivision or site plan review or the issuance of special permits.  

The idea is to ensure that individual buildings are consistent with the historic fabric of the locality or are architecturally compatible with the neighborhood. These techniques are not Euclidian Zoning, but rather constitute an attempt to mitigate the designs wrought by use separation and area and bulk requirements that are traditionally applied uniformly in zoning districts.

Two relatively recent land use innovations have evolved organically to breathe better design into zoning at the neighborhood scale: the voluntary LEED-Neighborhood Development rating system, promulgated by the U.S. Green Building Council, and form-based codes, developed by the Congress for New Urbanism and the Form-Based Codes Institute.  

The LEED-ND rating system was developed by the USGBC in response to criticism of its New Construction rating system, which could result in Platinum or Gold rated buildings located in agricultural zones or environmentally sensitive areas. These buildings, while internally sustainable, are decidedly not consistent with larger principles of sustainability that emphasize environmental conservation and the reduction of automobile use and vehicle miles travelled. Here, place matters, and LEED-ND contains prerequisites and criteria that require rated buildings to be sustainability located as well as built.

Local governments have begun to incorporate LEED-ND standards in their zoning and land use regulations. See, for example, the Technical Guidance Manual for local governments developed by the Land Use Law Center for the USGBC. This document includes a step-by-step process for incorporating sustainable neighborhood standards into the local comprehensive plan, zoning, land use regulations, approval processes, and capital budgets.  

Finally, form-based codes are beginning to catch on, especially in urban neighborhoods. The unique aspect of such codes is that they deemphasize use, bulk, and area requirements, substituting for them actual physical designs, adopted as code, that govern development. Diagrams and illustrations become regulations and govern building styles, details, and materials that are permitted, as well as the ways in which they can be incorporated into specific building elements. These regulations reach into the public realm and present in graphic form the width and dimensions of streets, sidewalks, paths, street trees, furniture, and more.

To zoning’s credit, design standards fit into the Standard Zoning Enabling Act, its focus on the appropriate use of the land and the processes it uses to review and approve specific buildings. We are unaware of any case that has successfully challenged as ultra vires the incorporation of LEED-ND standards or the precepts of form-based codes in to local law. And, since historic, landmark, and architectural guidelines are often authorized by discrete state laws, the power of local governments to design density is clear, and is becoming an important aspect of sustainable development.

For more information, see the U.S. Green Building Council’s Technical Guidance Manual for Sustainable Neighborhoods (developed by the Pace Land Use Law Center), and the website of the Form-Based Codes Institute.

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

Part 5: The Most Appropriate Use of the Land

Part 6: The Surprising Origins of Smart Growth

Part 7: The Advent of Local Environmental Law

Part 8: Regionalism and ‘Wistful Hoping’

Part 9: Mixed Signals: Exclusionary Zoning and Fairness

Part 10: The Emergence of the Law of Sustainable Development

Would a vote on annexation thwart Oregon's heralded land use system?

Oregon's leaders appear to think so.  This Portland Tribune op-ed explains newly enacted legislation on annexation and the issues faced:

Since 1973, when the Oregon Legislature passed a historic land-use planning law, this state has been heralded for its innovative efforts to preserve forest and farmland and its requirement that every city and county decide where its future dwellings and businesses should go.

Earlier this month, the 2016 Legislature took an important — and somewhat controversial — step to ensure that the process set up more than four decades ago is not undermined by voters in individual cities.

Senate Bill 1573 was part of a package of housing measures. We applaud Gov. Kate Brown for signing that bill.

The bill, one of the few in the recent legislative session to draw bipartisan support — and opposition — would prevent residents of urban and suburban communities from blocking annexation with a popular vote. It can be used only if several conditions are met: Agreement by 100 percent of the landowners involved; at least one lot must abut current city limits or a right of way; and the annexation must comply with the city comprehensive land-use plan and other ordinances.

The democratic process should never be thwarted without good reason. Because of that principle, both the League of Oregon Cities and the League of Women Voters of Oregon opposed the bill.

We agree that voters should be able to have a say in what happens in their cities, but giving them veto power over annexation plans throws the whole state land-use system into jeopardy.

That’s because a key provision of the state law is that metropolitan areas must establish urban growth boundaries to accommodate 20 years of growth.

That contentious process, which includes local elected officials, generally leaves everyone a bit unhappy with the resulting urban growth boundary. Some communities that would like to expand onto farm or forest land are told they can’t. And some areas, which may not want to grow, are earmarked for growth anyway, because of their proximity to jobs, transit or other urban services.

Residents in several cities where growth is controversial, including Sherwood and Oregon City, require a public vote on all annexations. In practice, such votes almost always nix annexations.

The result is an urban growth boundary that looks great on a map, but doesn’t work in practice.

The rest of the op-ed here.

Land Use and the Law of Armed Conflict

What does the law of land warfare have to do with the law of land use? Quite a lot, actually. Greetings from the Clara Barton International Humanitarian Law Competition,  sponsored by the American Red Cross and its IHL Section. Several property law issues are prevalent in the law of armed conflict.

I’m coaching my South Texas team (sponsored by the Frank Evans Center for Conflict Resolution) in this unique event that challenges students to advocate and role-play in realistic scenarios involving international humanitarian law (IHL), also known as the law of armed conflict (LOAC) or more traditionally, the law of war.

The LOAC/IHL is mostly focused on protection of persons, but it also covers a lot of property law. The bottom line is that wars and armed conflicts involve a lot of property issues—the rules about what actions armed forces can or must take with regard to public and private, real and personal property. There is a complex international law regime, codified through the Geneva and Hague Conventions, the UN Charter, and other treaties and customary international law, that deals with land and property rights.

Here at the American Red Cross IHL competition (named for ARC founder Clara Barton, who performed medical and humanitarian assistance during the Civil War, including a field hospital at the Fairfax church where I was married(!)), the scenarios included detainee interviews, targeting decisions, public relations, and international criminal court arguments. Several of the scenarios involved issues of seizure, occupation, requisition, and cultural protection of property. Other armed conflict issues include claims, restitution, and post-conflict governance questions such as titles, registration, and resolving property disputes. These property issues are governed by the international law of armed conflict.

While most of the public perception of the Red Cross is based on its important missions of disaster relief and blood donations, the movement was founded to establish and enforce international humanitarian law in the wake of disastrous nineteenth-century battles. The ICRC is the world's lead organization on this and you can read its Intercross blog; the ARC also has an important IHL section with the mission to educate, train, and promote IHL, which you can read about at the Humanity in War blog. 

As some of you know, I have been busy over the past few years in my Army Reserve assignment as an Associate Professor of International & Operational Law at the U.S. Army Judge Advocate General’s School in Charlottesville, Virginia. I’ve been focused more on the law of land warfare than the law of land use. That’s why I haven’t been blogging much here at the Land Use Prof Blog, while Stephen Miller has been outstanding in continuing to lead this crucial forum for the land use academic community. Going forward, I plan to contribute some thoughts about the relationship between land use and the law of armed conflict, and more broadly, international property law . . . and also get back to blogging about land use here in the "unzoned city" of Houston.

Matt Festa

Zoning’s Centennial, Part 10: The Emergence of the Law of Sustainable Development: A Series by John R. Nolon

Part 10

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

 

The Emergence of the Law of Sustainable Development

 

When we created and named the Land Use Law Center for Sustainable Development in 1993, we had a foggy vision of the contours of Sustainable Development Law. We knew that the advent of local environmental law, the origins of smart growth, and zoning for affordable housing traced the outlines of this field of law and practice. These movements in land use law focused on promoting and regulating economic development to meet present needs, providing for equitable community development, and preserving natural resources to meet the needs of future generations: the essential elements of sustainable development as defined in the Rio Accords of 1992.

We did not know then, however, that land use law would progress rapidly over the next quarter century to include topics as diverse as green infrastructure and biological sequestration; adaptation to sea level rise and storm surges; siting and promoting wind and solar facilities; preserving agricultural land through urban food sheds; creating livable neighborhoods through design controls; and regulating hydrofracking to protect the health of local residents.

In 1993, the technology was either nascent or did not exist for achieving high levels of on-site stormwater infiltration; constructing zero net energy buildings; measuring increases in sequestering vegetation and urban tree canopies; expanding domestic gas and oil exploration through fracking; creating clean energy facilities such as geothermal, combined heat and power, and micro-grids; developing rating systems for sustainable buildings and neighborhoods; identifying neighborhoods where high energy waste occurs; understanding ecosystem services and their values; creating metrics that identify base lines for carbon emission and measure its increases and decreases; and designing models that project the extent of sea level rise in coastal areas.

Over the past 25 years as these technologies developed, the law adapted to put them to effective use in promoting sustainability in all of its dimensions. We now know, through examining advances in technology and local law, how to achieve development that uses less material, avoids destroying wetlands or eroding watersheds, consumes less energy, eliminates or shortens vehicle trips, emits less carbon dioxide, lessens stormwater runoff, reduces ground and surface water pollution, and creates healthier places for living, working, and recreating.

This body of law is being created mainly by municipalities, which have the principal legal authority to regulate building construction, land use, and the conservation of natural resources at the local level. Increasingly, however, positive federal and state influences are speeding local adaption of sustainable law techniques.

This is evident in federal and state tax credit, spending programs, and technical assistance that promote solar and other clean energy facilities. Similarly, the Sustainable Communities Initiative – a partnership between HUD, the Department of Transportation, and EPA – has aided local efforts to achieve transit oriented development and reduce vehicle miles travelled.  HUD’s recent efforts to affirmatively further fair housing guide localities in identifying the impediments to fair and affordable housing. With coastal protection and disaster planning, federal and state efforts are helping localities, as first responders, deal with climate-induced hazards. Federal and state transportation spending is directed by federally-required Metropolitan Planning Organizations, creating one model of regional planning that involves local elected officials. In the environmental field, EPA’s stormwater management program and aligned state efforts have greatly assisted localities to reduce stormwater runoff. EPA has experimented with efforts to cooperate with local land use authorities to reduce nonpoint source pollution to achieve its Total Maximum Daily Load objectives for federally-impaired waters. These initiatives that exhibit a clear-eyed view of the importance of local land use provide a basis for a fuller integration of local, state, and federal efforts to create rational land use and transportation patterns.

The challenge ahead is to scale up the most exemplary of these integration efforts. The patterns of a more coherent framework of sustainable development law can be observed in the operations of each level of government and the close connections between economic development, environmental protection, and the promotion of equitable development.

As these patterns become better understood, the prospect brightens for a robust and integrated system of federal, state, and local laws dedicated to sustainable development and climate change management. The law has always evolved in this way to serve the needs of society. Expect as much progress in law and technology over the next quarter century as we have witnessed in the last.

For more information, see John R. Nolon, Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, 24 Fordham Envtl. L. Rev. 242 (2013) and 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

Part 5: The Most Appropriate Use of the Land

Part 6: The Surprising Origins of Smart Growth

Part 7: The Advent of Local Environmental Law

Part 8: Regionalism and ‘Wistful Hoping’

Part 9: Mixed Signals: Exclusionary Zoning and Fairness

This Wed-Fri: Live-streams from the Rocky Mountain Land Use Institute 25th anniversary conference

If you can't make it to Denver for the Rocky Mountain Land Use Institute's annual conference this week, be sure to check out some of the events that will be live-streamed over the next several days.  These live-streamed events will include several workshops on linking land use and water, which will include blogger John Nolon.  I will be moderating the sharing economy panel on Friday morning.  

For those attending, I will be in Denver Thursday and Friday.  Hope to catch up with some folks!

 

 

2016 Rocky Mountain Land Use Institute Conference If you didn't register for RMLUI's 2016 Western Places/Western Spaces conference, you can still participate. We will be providing a live stream of select sessions throughout the conference.  Wednesday, March 9  9:00am - 12:00pm Linking Land Use & Water workshop  1:00pm - 4:00pm Linking Land Use & Water workshop      Thursday, March 10  10:15am - 11:45am Here Comes the Big Box: AICP Ethics Case of the Year  1:15pm - 2:45pm Sagebrush Rebellion III? The Effort to Transfer Ownership of Public Land  3:00pm - 4:30pm Water's Role in Shaping the Rocky Mountain West      Friday, March 11   8:30am - 10:00am The Sharing Economy Matures: How the On-Demand Marketplace Is Evolving; How Cities Will Respond  10:15am - 11:45am Resilient Communities: Learning from the World's Best  1:15pm - 2:45pm Creative Solutions to the Affordable Housing Crisis  3:00pm - 4:30pm The Role of the Neighborhood Association in the Land Use Approval Process   For more information about the sessions, please visit RMLUI online todownload the program. Handouts are available online at the 2016 Session Materials page. If you would like to participate in the live streaming event, click on the links above. If you have any questions about the event or the streaming service, please contact Lisa Loranger Bingham at 303-871-6319 or[email protected]. Please note that the links will only be active for the times indicated. Sincerely, The Rocky Mountain Land Use Institute The Rocky Mountain Land Use Institute's 25th Annual Conference is brought to you in part by:  The University of Denver Sturm College of Law is committed to providing facilities that are accessible to persons with and without disabilities. We encourage anyone who requires additional assistance to contact Lisa Loranger Bingham at 303-871-6319 or[email protected] for further information.

From Liability to Viability: Neglected Properties Toolkit

Throughout the United States, communities trying to attract economic development are faced with abandoned and neglected buildings. In addition to being eyesores, these properties can be health and safety hazards. The problem is acute in West Virginia. To help local governments in West Virginia, the Land Use and Sustainable Development (LUSD) Law Clinic at the West Virginia University College of Law has published a free guide to navigating the legal issues of dealing with dilapidated properties. “From Liability to Viability: A Legal Toolkit to Address Neglected Properties in West Virginia” was written by the attorneys in the LUSD Law Clinic.

The easy-to-use handbook identifies the various tools available to attorneys, mayors, code enforcement officers, land use planners and community leaders. It is based on dozens of interviews conducted statewide with experts as well as in-depth reviews of local ordinances. Topics addressed in the handbook range from prioritization and collaboration to codes, eminent domain and negotiation. Although the handbook uses West Virginia law, the explanation of tools will benefit local governments across the country.

The book grew out of the LUSD Law Clinic’s experiences working throughout West Virginia over the past several years. Working with local governments on land use and planning issues, the clinic kept hearing about the problem of dilapidated properties. The issues are complex, dealing with a broad range of legal questions, but the need is very real. 

“From Liability to Viability” is part of a LUSD Law Clinic initiative called West Virginia Legal Education to Address Abandoned and Neglected Properties, or WV LEAP. A grant from the Claude Benedum Foundation in 2014 provided the initial funding for WV LEAP. A PDF of “From Liability to Viability” is available for free at wvleap.wvu.edu. Hard copies of the handbook are available by contacting the LUSD Law Clinic at (304) 293-4633 or emailing [email protected].

Jesse Richardson