Land Use Prof Blog

Why do we give away housing vouchers with a lottery?

This episode of Planet Money provides a surprisingly succinct and detailed introduction to the history of housing policy.  Worth a listen!

 

Clinical Director sought for new UCLA Food Law and Policy Clinic

From Michael T. Roberts:

I am happy to report that thanks to funding we have recently received, the UCLA Resnick Program is launching a Food Law and Policy Clinic during the 2016-17 academic year.  The clinic's programmatic mission will be to facilitate sufficient access to socially, economically, and environmentally sustainable food and to improve food environments particularly for low income populations and marginalized communities.  We are excited about this development and hope that it serves as another important benchmark in the developing field of food law and policy.

To launch the clinic, we are seeking a Clinical Director who will be expected to teach, develop, and manage the clinic.  The Clinic Director will also work with faculty and administrators to develop and implement other food law and policy related experiential opportunities for students. 

The recruitment period starts today.  Applications need to be made no later than May 19, 2016.  The start date will be July 1, 2016.

The job announcement and details can be accessed at https://recruit.apo.ucla.edu/apply/JPF02172.  Details about our program can be found at: http://www.law.ucla.edu/centers/social-policy/resnick-program-for-food-law-and-policy/

140,448 people "like" my new book on Facebook: Really?!

As I blogged about last week, Robin Craig and I have a new book of essays from 12 authors responding to the IPCC and considering the role of law in climate policy generally.  It's a great book of essays (selling for a very reasonable $35.95...thank you ELI Press!).  While I consider the book a blockbuster of legal insight, frankly, I didn't imagine the book would sell many copies.  But then I was checking my Facebook account earlier this week and an ad for the book appeared beside my "news feed" in Facebook.  I presume the ad was placed because I had looked to see if the book was available on Amazon (it is) and I am guessing that browser history caused Amazon to place this ad.  The part that caught my eye, though, was the text below the ad:  "140,448 people like this." I laughed, at first, and then for a fleeting second imagined that it might be true:  It just might be that 140,000 people have decided to "like" an academic book about climate policy.  Then reason weighed in:  No way.

But what to make of this?  Is that a purely invented number?  Did "bots" simply like the book?  If so, to what end?  Does anyone out there have experience with this?  I presume the number isn't real...I just wonder how it came to be and, perhaps equally intriguing to its presumed falsity, how whoever placed the ad can get away with a false advertisement of "likes."

 

Pruitt & Sobszynski on What Environmental Litigation Conceals and Reveals about Rurality

Interesting new article by Lisa R. Pruitt (UC Davis) and Linda Sobszynski (Independent) that relates to rural land use issues.  The paper is, "Protecting People, Protecting Places: What Environmental Litigation Conceals and Reveals About Rurality."  Here is the abstract:

 

This paper considers how conservation litigation seeking to protect wilderness from degradation can overlook those living nearby or within it, even though the degradation also threatens residents. We use as a case study the controversial siting of a concentrated animal feeding operation (CAFO) in a chronically impoverished, all-white community in the remote Arkansas Ozarks of the United States. Because the CAFO is at the cusp of federally protected wilderness, it attracted the attention of national conservation interests, who sued seeking the CAFO’s closure.

These events provide a basis for illustrating how and theorizing why the community was disserved by both its rurality and its whiteness. We suggest that widely held rural associations with the pastoral and bucolic — imaginaries that are at least implicitly white — may have blinded those strategizing the litigation to the place’s deep and entrenched poverty and therefore to the residents’ vulnerability. Alternatively, the conservation-oriented plaintiffs and attorneys may have viewed these poor white residents as transgressing wilderness — as having trashed pristine nature by their very presence — and thus as unworthy of advocacy. Either way, the plaintiffs did not bolster their conservationist claims with environmental justice advocacy, presumably because of the absence of a clear optical trigger for the latter.

Finally, we consider these events through three lenses typically associated with environmental law: conservationist, economic, and social (environmental justice). Finding each of these lacking, we illustrate how the robust and multi-dimensional concept of rurality can synthesize these individual frames while surfacing voices and issues not otherwise heard. Turning a rural lens on these events also reveals socio-spatial obstacles to environmental justice, explaining, for example, why multi-generational residents are unwilling to assert their legal rights. The paper is thus essentially a meta-narrative of rurality.

How Cities Will Save the World: Urban Innovation in the Face of Population Flows, Climate Change and Economic Inequality (Brescia & Marshall, eds.)

Ray Brescia (Albany) and John Travis Marshall (Georgia State) have just published a collection of essays they co-edited, How Cities Will Save the World:  Urban Innovation in the Face of Population Flows, Climate Change and Economic Inequality (Routledge).  More about the book:

Cities are frequently viewed as passive participants to state and national efforts to solve the toughest urban problems. But the evidence suggests otherwise. Cities are actively devising innovative policy solutions and they have the potential to do even more. In this volume, the authors examine current threats to communities across the U.S. and the globe. They draw on first-hand experience with, and accounts of, the crises already precipitated by climate change, population shifts, and economic inequality. This volume is distinguished, however, by its central objective of traveling beyond a description of problems and a discussion of their serious implications. Each of the thirteen chapters frame specific recommendations and guidance on the range of core capacities and interventions that 21st Century cities would be prudent to consider in mapping their immediate and future responses to these critical problems. How Cities Will Save the World brings together authors with frontline experience in the fields of city redevelopment, urban infrastructure, healthcare, planning, immigration, historic preservation, and local government administration. They not only offer their ground level view of threats caused by climate change, population shifts, and economic inequality, but they provide solution-driven narratives identifying promising innovations to help cities tackle this century’s greatest adversities.

 

 

The effect of California's dissolution of redevelopment agencies on the State's affordable housing developers

A survey released in December, 2015 by the Federal Reserve Bank of San Francisco of affordable housing developers provides significant insight on the effects of the loss of State redevelopment agencies on affordable housing developers.  The responses, from 71 development organizations across the state, found the following:  

83 percent of respondents must pursue more funding sources than they did under RDA, 74 percent have projects that have been postponed or jeopardized, 80 percent of the projects have been negatively impacted by rising cost of lands and 61 percent  have had to reduce staff because of funding reductions. Only 26 percent say their jurisdictions have developed post-RDA regulatory reforms for affordable housing.

Hat tip to CD&PR.

 

 

Schleicher on reducing the power of NIMBYs and cutting housing costs

David Schleicher (Yale) has a new article,"Terms of enlargement: Clever reforms can reduce the power of NIMBYs and cut housing costs," in The Economist's April 16, 2016 print edition, which is also available here.  The first few paragraphs:

 

THE world’s great cities are engines of wealth creation. Places like London and San Francisco account for a disproportionate share of economic output. They are the combustion chambers in which ideas and capital are combined to generate new riches.

To an alarming extent, such cities are also playgrounds for the rich—and only the rich. The soaring cost of housing in these places pushes those of more modest means away, toward spots where homes are cheaper but opportunity is more limited. That pressure has serious consequences. A recent paper* reckons that over the past 50 years this dispersing effect left American output 13.5% below the level it would otherwise have reached. Poor Americans living in rich cities survive longer than their counterparts in poor ones. Finding more effective ways to reduce housing costs would thus not only save money but prolong lives.

 

Economics is all about supply and demand, and high housing costs are the product of too little of the former in the face of lots of the latter. Strict planning rules in pricey cities make building new homes a nightmare for developers. In London, for example, they face myriad rules about what they can build where, including one that states that nothing should impede the view of the dome of St Paul’s Cathedral from a gap in a hedge ten miles away. By the same token, a thicket of environmental rules in California has given NIMBYs (short for “not in my backyard”) a host of ways to stall, shrink or stop new projects.

Zoning’s Centennial, Part 16: Fracking as an Industrial Use under Zoning: A Series by John R. Nolon

Part 16

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

Fracking as an Industrial Use under Zoning

 

Is there currently a more controversial land use, environmental, and economic issue in America than fracking? Just listen to the ongoing debates:

“Fracking is great!”

“No, it’s terrible!”

“It will mitigate climate change.”

“No, it won’t.”

“Fracking cannot be made safe, even through proper regulation.”

“Yes, it can.”

“Even if it can be done safely, don’t go there, because it will take our focus away from promoting renewables.” 

To quote Kurt Vonnegut: “So it goes.”

Meanwhile, fracking is happening and local governments are subjected to many of its associated risks. They either need to act, or know - clearly and convincingly - why they should not. The federal government has stopped far short of comprehensive regulation of fracking; the states’ regulations range from fair to poor, sometimes preempting local regulation but most often sharing regulatory authority over land use impacts. 

The stakes couldn’t be higher. “Think about it,” as the fracking industry advertisement says; does the federal or state government, as part of their fracking regulations, control  any of these local impacts?

• Pressures on housing supply and costs;
• Radical changes in community character;
• Loss of habitat and species;
• Deterrent effects on local growth;
• Impacts on recreational resources;
• Effects on agricultural land and operations;
• Causation of soil erosion and sedimentation;
• Creation of visual blight; or
• Increases in the cost of public health services.

The Land Use Law Center and our partners at the Yale School of Forestry and Environmental Studies have examined dozens of local fracking regulations and identified three dozen local impacts and risks found in the purposes section of their laws. With respect to a few of these impacts, federal or state regulations may require some level of mitigation, but these fall far short of controlling highly specific impacts felt in existing neighborhoods and on local environmental assets. Federal and state regulations are indifferent, as well, to the land use objectives of the comprehensive plan in any given community.

This indifference and the preemption of local control of fracking in some states are hard to understand. Why should this be more complicated than regulating any other intense industrial use? (Cement manufacturing comes to mind.) Why don’t we allow it in industrial zones and subject it to a number of conditions as a specially permitted use? If imposing conditions can’t fully protect local interests, why can’t the fracking application be denied? Why should this one impactful land use be treated differently?

Consider that zoning is one of several responsibilities that local governments are delegated by their state legislatures. Think of these responsibilities as a three-legged stool. First, zoning determines how property is used and developed, and therefore dictates how valuable it will be. Second, localities have the power to impose property taxes on the assessed value of the land that they regulate. Third, municipalities are expected to use property tax revenues to fund municipal operations, provide capital infrastructure, and carry on the business of local government. 

Given the complexity, comprehensiveness, and utility of these linked powers and duties, the judiciary is rightfully cautious about implying that state statutes that regulate fracking are intended by the legislature to inhibit local prerogatives. The importance of local land use regulation and the intertwined functions of local governments raise a presumption against preemption, in my view, that must be overcome to convince most state judges that their legislatures intended to preempt local zoning. Judges are inclined to say that if the state legislature passed statutes integrating zoning, taxation, and expenditure, why would they, in the case of fracking, remove one leg of the stool?

What has happened in Pennsylvania is instructive. Under previous state oil and gas law, the state courts had determined that local governments could regulate but not prevent fracking under local zoning. Following these judicial decisions, the state legislature adopted Act 13, which preempted local control. The Act required local governments to include fracking as a permitted use in all zoning districts. This Act was invalidated by Robison v. Commonwealth, which held that it failed to protect neighboring property owners from harm and created irrational land use classifications. The power of municipalities to adopt comprehensive plans, to separate land uses through zoning, and the derivative rights of land owners, in the Robinson court’s view, trumped state oil and gas legislation that, on its face, preempted local regulation.

The court explained that zoning power was but “an extension of the concept of public nuisance which protects owners from activities that interfere with use and enjoyment of their property,” citing the seminal Village of Euclid v. Ambler Realty case. Essentially, the Act required municipalities to create zoning incompatible with their comprehensive plans; if mining and gas operations were to be included in all zones, as the Act required, zoning ordinances would inherently not comport with their comprehensive plans Thus, the court found, the state’s interest in regulating fracking processes sits in direct conflict with local zoning interests. 

For more information, see John R. Nolon & Steven E. Gavin, Hydrofracking: State Preemption, Local Power, and Cooperative Governance, 63 Case W. Res. L. Rev. 995 (2013); John R. Nolon & Victoria Polidoro, Hydrofracking: Disturbances Both Geological and Political: Who Decides?, 44 Urb. Law. 507 (2012).  See also, Pace / Yale Land Use Collaborative launches beta version of online fracking governance tool for local governments.  See also, Grace Heusner, Allison Sloto & Joshua Ulan Galperin, Defining and Closing the Hydraulic Fracturing Governance Gap, Harvard Envtl. L. Rev. (forthcoming 2016). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2759847

 

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

Part 12: Green Infrastructure

Part 12B: Land Use and Energy Conservation

Part 14: Transit Oriented Development

Part 15: Zoning in Solar and Clean Energy

Happy Earth Day!

Happy Earth Day!  

I thought about posting a serious discussion of land use and environmental policy, but then I just received this picture of my daughter planting a marigold as a natural bug deterrent in her pre-school's garden, and I thought that kind of summed up everything better than a long blog post could.  

Here she is...

 

New California firm-based sustainability law update

Allen Matkins, a well-respected California real estate law firm, has just started a "Sustainable Development Update" newsletter.  Looks like it could become a useful source for what's happening on the ground, at least in California.  Their first edition is below with a subscribe button.

[Note:  I have no connection with Allen Matkins, though I do know several attorneys that used to work there.]

 

Subscribe to our new Sustainable Development Update newsletter.

April 20, 2016 | Problem viewing? Click to view online.

Dear Stephen, Please accept our invitation to subscribe toSustainable Development Update. This free weekly publication is designed for readers who are trying to stay abreast of sustainability issues (in California and throughout the country) but do not have the time to sort through the numerous articles published each week on these topics. Every edition of Sustainable Development Updateincludes the following: 5-10 of the most important articles published each week Links to important studies, research, or guidelines We hope you find this publication valuable. Please let us know if you would like to continue receiving this newsletter by clicking on the "Subscribe" box below. Best regards, Patrick Perry and Elizabeth Clark Allen Matkins FOCUS   Green Buildings are good for the environment, occupants, and the bottom line CBRE - April 14 Green buildings are good for the environment—that is well known. But what benefits do they offer the people who inhabit them? A recent report from the World Green Building Council tackles that matter head-on, looking at the impact of environmentally friendly construction on user productivity and well-being in the retail sector. One notable example, cited both by the Council’s report, is a major global retailer that explored the effect of natural light versus artificial light on sales. Using a concept store in which one half of the store was naturally lit and the other half was lit artificially, the company found that sales per square foot were significantly higher in the naturally lit half. NEWS   The top tech to cut energy costs and emissions? You may be surprised GreenBiz - March 4 There are many ways to reduce a company’s carbon footprint and energy spending, but you may be surprised at the most popular. Based on revenue gains last year in the various advanced energy segments — including solar, wind, gas turbines, biofuels, energy storage, and building efficiency technologies — the last grabbed the biggest share of revenues, at $63.6 billion globally and $52.8 billion in the U.S., according to the Advanced Energy Economy group. In addition, solar revenues jumped 21 percent year over year to $22.6 billion - and tripled over the past five years. SunPower Vice President Tom Starrs, head of market development and policy, said he sees three changing dynamics in the solar market propelling big uptake by companies, residents and utilities, including that utility scale power plants are finally gaining acceptance in the utility sector overall, with solar becoming a significant piece of many utilities' electricity generation. Fresh facelift for Ford facilities Gizmag - April 13 A major redevelopment of Ford's Dearborn campus in Michigan is set to see it become greener, more high-tech, and better at fostering innovation. The Ford Research and Engineering Center Campus will be developed into a new product campus, designed to accommodate 24,000 people, with 4.5 million square feet of floor space. Employees will be able to get around using autonomous vehicles, on-demand shuttles and e-bikes, or via the walking trails, bike paths and covered walkways that will link the campus. The designs draw upon the WELL Building Standard, which is aimed at improving the wellbeing of employees based on air, water, nourishment, light, fitness, comfort, and mental and emotional health. Wastewater creates energy, products, and more KQED - April 13 Historically, we’ve treated wastewater as something to be treated and dumped – a liability and not a resource. But Sebastien Tilmans may change our minds about that. Tilmans is the director of operations at the William and Cloy Codiga Resource Recovery Center at Stanford University. The center is working to accelerate the path to commercialization of wastewater technologies. California’s drought has helped to highlight growing interest in wastewater reuse to provide water resources for drinking water and non-potable uses such as flushing toilets and irrigation. L.A. City Council adopts rules to ease health hazards in polluted neighborhoods Los Angeles Times - April 13 Addressing decades of complaints from some of the city's most neglected corners, Los Angeles officials last week launched a groundbreaking effort to reduce health risks from industrial and traffic pollution that have plagued neighborhoods from the harbor area to the San Fernando Valley. The City Council unanimously approved special land-use restrictions for some of L.A.'s most polluted neighborhoods and adopted citywide requirements for higher-rated air filters in new developments near freeways. The measures mark a significant effort to bring environmental justice to toxic hot spots where residents of largely low-income communities have for years fought for greater health protections from a heavy concentration of junk yards, auto body shops, oil refineries, factories, freeways and other pollution sources. Homeless veterans move into The Six in Los Angeles Affordable Housing Finance - April 15 The Six in Los Angeles, which had its grand opening this month, is Skid Row Housing Trust’s first development with permanent supportive housing specifically for veterans. The Six provides 52 units of permanent supportive housing for formerly homeless veterans and disabled individuals. With solar thermal panels, Energy Star appliances, water-efficient fixtures, and environmentally friendly building materials, The Six has also received LEED Platinum certification from the U.S. Green Building Council.		EDITORS   Patrick A. Perry Partner Los Angeles (213) 955-5504 E-mail me   Elizabeth Clark Senior Counsel San Francisco (415) 273-7427 E-mail me       UPCOMING EVENTS   A New Transbay Transit Crossing SPUR April 20, 2016 Oakland, California Water Sustainability in Silicon Valley SPUR May 4, 2016 San Jose, California Prepare for California’s Aggressive Energy Goals, Today: A Panel on Zero Energy Buildings ULI San Francisco May 5, 2016 San Francisco, California The ULI Panel on Zero Energy Buildings is being presented by the ULI San Francisco Sustainability Subcommittee on Zero Energy Buildings, which is comprised of: Elizabeth Clark, Allen Matkins Joshua Kagan, CleanFund Commercial PACE Capital Inc. Christian Park, Stok Dave Rhoads, Google We hope you can join us for this valuable presentation.       RELATED SERVICES     Land Use & Development       Labor & Employment           ABOUT ALLEN MATKINS   Allen Matkins, founded in 1977, is a California-based law firm with approximately 200 attorneys in four major metropolitan areas of California: Los Angeles, Orange County, San Diego and San Francisco. The firm's areas of focus include real estate, construction, land use, environmental and natural resources; sustainability; corporate and securities, real estate and commercial finance, bankruptcy, restructurings and creditors' rights, joint ventures and tax; labor, employment and OSHA; and trials, litigation, risk management and alternative dispute resolution in all of these areas.
INDUSTRIES & SERVICES  |  PROFESSIONALS  |  EVENTS  |  NEWS & PUBLICATIONS  |  OFFICES  |  CAREERS  |  ABOUT
Unsubscribe | Update my Preferences | Forward to a Friend © 2016 Allen Matkins Leck Gamble Mallory & Natsis LLP. All rights reserved. This email is intended for general information purposes only and should not be construed as legal advice or legal opinions on any specific facts or circumstances. This email was sent by: Allen Matkins Leck Gamble Mallory & Natsis LLP, 51‌5 S. Figueroa Street, 9th Floor, Los Angeles, California 90‌071. To stop receiving this publication, click on the "unsubscribe" button.

Sept 30-Oct 1: 2016 Society of American Law Teachers (SALT) Teaching Conference

Please see the attached call for panels and papers for the 2016 Society of American Law Teachers (SALT) Teaching Conference!  Proposals are due by June 15, 2016.  We look forward to seeing you in Chicago this fall!

Friday and Saturday, September 30 and October 1, 2016 

The John Marshall Law School, Chicago, Illinois

Download SALT - 2016 CFP

Posted for Sara Rankin.  Feel free to contact her with questions.

 

SAVE THE DATE: Central States Law Schools Scholarship Conference Sept 23-24

SAVE THE DATE: Central States Law Schools Scholarship Conference

The Central States Law Schools Association 2016 Scholarship Conference will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND.  

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Registration will formally open in July. Hotel rooms are already available, and more information about the CSLSA conference can be found on our website at www.cslsa.us.

Posting for Chris Odinet.  Feel free to contact him if you have questions.

New from ELI Press: Contemporary Issues in Climate Change Law and Policy: Essays Inspired by the IPCC (Craig & Miller, eds.)

I am delighted to announce that, just in time Earth Day this year, is the publication of a new book of essays, Contemporary Issues in Climate Change Law and Policy:  Essays Inspired by the IPCC, which I co-edited with Robin Craig (Utah).  The essays resulted from the second meeting of the Environmental Law Collaborative in Jackson, Wyoming, in August, 2014, which also resulted in a series of shorter essays, A Response to the IPCC Fifth Assessment, freely available here and published in the Environmental Law Reporter.  

The collection has a tremendous range that results from the varied interests and talents of the contributors, which included, in order of publication in the book:  Robin Kundis Craig;   John C. Dernbach; Keith Hirokawa; Jonathan Rosenbloom; Jessica Owley; David Takacs; Stephen R. Miller; Sarah J. Adams-Schoen; Cinnamon Pinon Carlarne; Katrina Fischer Kuh; Shannon Roesler; and Inara Scott.

Here is the book blurb and review:

About

The Intergovernmental Panel on Climate Change’s most recent set of reports, generally referred to collectively as the Fifth Assessment Report, present significant data and findings about climate change. But what role does law play in addressing and responding to these findings? This book, the second by the Environmental Law Collaborative, an affiliation of environmental law professors, focuses on the relationship between law and the Fifth Assessment Report in hopes of bridging this gap. This book’s chapters are illustrative of the overwhelming number of legal issues that climate change creates. Some of the contributions remain directly tied to the text of the IPCC’s reports, while others focus on climate change more generally. Together, this volume contributes to a constructive and helpful discussion about how to address the climate change challenge.

Book Reviews

The Environmental Law Collaborative has once again produced a volume of contributions on a theme of vital importance. Contemporary Issues in Climate Change Law and Policy uses the IPCC’s latest round of reports as the lens through which to assess the progress and trajectory of law for climate change mitigation and adaptation. The result is a collection of chapters that are remarkably diverse in coverage yet coherent and intent in focus. Topics span the waterfront from national security and water infrastructure to religious perspectives and local community action. Each chapter stands on its own as thorough, insightful, and engaging, as well as a bountiful resource of law and policy update and analysis. Unified in the book through its core theme, the authors provide much to be gained for everyone from a newcomer to the rough and tumble of climate policy to those already steeped in its discourse.

—J.B. Ruhl, David Daniels Allen Distinguished Chair of Law, Vanderbilt University Law School

 

 

Schleicher on how land use law impedes transportation innovation

Somewhat apropos of my rant earlier this week about the failure of the Bay Area to take advantage of its transportation infrastructure, David Schleicher (Yale) has a new paper out, "How Land Use Law Impedes Transportation Innovation."  Here is the abstract:

A certain breed of economists and techno-futurists regularly point to the potential for innovation in the transportation sector to spur economic growth. Such predictions, however, often fail to discuss why transportation innovation in the past was so central to economic changes. Innovations like the automobile or the elevator did not make it (much) easier to travel between and among existing homes, stores and offices. After all, existing developments had been built around previous technologies for moving people around, whether it was the streetcar suburb or the walk-up apartment building. Instead, most of the gains from new transportation technologies come from being able to move our homes, offices, and stores into more pleasing and efficient patterns. That is, to get the benefits from transportation technologies, we must change land use patterns.

But land uses in our cities and metropolitan areas do not simply follow changes market demand or technological progress. Laws and regulations from zoning codes to subdivision requirements to historic preservation limit the forms, densities, and uses of buildings. In order to understand the potential transportation technologies have to produce economic growth, we have to consider both how they will affect optimal land uses and whether the changes they suggest will be allowed and encouraged by local and state land use regulators. This Chapter will assess how well modern land use law has or might accommodate three major recent or soon-to-arrive transportation innovations: (1) Global Positioning Systems (GPS), mobile mapping, and real-time traffic information services (e.g. Google Maps, Apple Maps, TomTom, Garmin, and Waze); (2) e-hailing apps for taxis, shared rides, and shuttles (like Uber, Lyft, and their competitors); and (3) still-developing self-driving autonomous cars. 

These technological innovations should allow two types of changes to land use patterns. First, they allow “distributed density” within urban areas. Each technology should allow for greater overall density in cities without requiring as much extreme density. These technologies permit nodes of extreme density of uses (e.g., stores along a high street, or tall apartments within a quarter of a mile of train station) to spread a bit further without losing the gains of agglomeration. Second, the innovations will allow development on the edges of metropolitan areas, as they – particularly GPS and potentially autonomous cars – reduce the costs of travelling substantial distances, both in time and in effort.

Land use law does not equally permit these types of development. While building on the edge of metropolitan areas is generally easy in the United States, land use law and politics is particularly ill-equipped to produce distributed density. Its deep procedural rules and the multiple ways current residents can block new construction make incremental housing growth – building the “missing middle” of the U.S. housing market – particularly difficult. The extreme separation of uses common in zoning in the U.S. makes distributing retail or commercial development difficult as well. Unless zoning procedure and policy is reformed, many of the gains from these technologies will not be realized. Further, by failing to accommodate distributed density, cities will bias how technologists develop products, reducing the potential for economic growth. The Chapter concludes with some thoughts on how land use procedure and policy could be reformed and how transportation technologists might play a role.

A "modest proposal" for solving the Bay Area's housing problems

The endless stream of articles about housing pressures in the Bay Area may have reached a zenith in this Sunday's NY Times' article, "In Cramped and Costly Bay Area, Cries to Build, Baby, Build."  Sadly, the story focuses on a self-described "anarchist" who now fights NIMBYs and who (sigh) seems to think that the City of San Francisco--a tiny 7 x 7 mile enclave in the larger Bay Area--can somehow resolve the housing crisis for the region.  

But it got me thinking, again, about the Bay Area.  One thing that people seldom mention in any of these stories about housing there is how underbuilt the areas around BART stations are.  In far too many locations, the BART station is built right next to a superstore parking lot, or some other land use that does not take advantage of BART's immensely expensive transit infrastructure.  So here is my "modest proposal" for the Bay Area:  build 5,000 units of housing around each BART station at a higher density of your choice...say, Paris or even downtown San Francisco.  By my count, there are approximately 30 stations where dense, transit villages could be built.  With 5,000 units at 30 stations, we would be talking 150,000 units, sufficient to house approximately 380,000 persons by current household size (2.54 persons) standards--that would be connected by rail to the entire Bay Area.  

Like most western cities, the Bay Area is far underbuilt for the number of people that want to move west.  That's not the Bay Area's fault, but not properly utilizing the space around the BART stations does fall at the feet of the Bay Area's local governments.

Of course, here is why this is a "modest proposal" in the Swiftian sense; this proposal would almost certainly require the use of eminent domain, the "third rail" of land use policy.  As such, a proposal like this is probably politically dead before it could ever really get going:  the libertarians would call in PLF and talk about how it was tantamount to shredding the Constitution; the NIMBYs would hire someone to challenge the CEQA review; and it would be one enormous, litigious mess.

Or would it?  If you were going to house 380,000 people in the Bay Area with one simple plan, where else would you put them?  Is land use law in the U.S. so broken that a proposal that is so intuitively obvious never is mentioned, and instead the coverage of the issue resorts to an anarchist whose group goes by the acronym "BARF"?

 

Zoning’s Centennial, Part 15: Zoning In Solar and Clean Energy: A Series by John R. Nolon

Part 15

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

Zoning In Solar and Clean Energy

 

As zoning turns 100, it is showing its age by its exclusion of modern clean energy systems in many communities. It is also demonstrating its historical resiliency, as more and more progressive communities act to reform zoning to permit, require, and incentivize renewable and clean energy facilities. These rapidly evolving systems include building integrated solar systems, ground- and roof-mounted solar arrays, large- and small-scale wind generation, multi-building combined heat and power facilities, microgrids, on-site electricity generation, and geothermal systems.

For clean energy systems to be constructed, they must be permitted by local zoning and not subject to expensive regulatory barriers that discourage their use and increase their cost. Promoting clean energy systems under local land use regulations is one of the latest efforts on the part of local governments to mitigate climate change, which, in the aggregate, are most impressive.

It is an uphill battle. By analyzing the comprehensive plans and zoning codes of most local governments, it is evident that regulatory barriers to clean energy systems are ubiquitous. These range from the simple failure to define and permit clean energy systems, to excessive height and setback restrictions, to additional or outdated permitting requirements—which greatly increase the costs of systems or discourage their use due to the unpredictability or length and costs of the approval process. The battle is being fought first on the solar front, given the popularity, improved technology, and reduced costs of solar energy systems. 

Although both the federal and state levels of government have a strong interest in encouraging the deployment of renewable energy systems, the power to permit solar energy systems under land use law has been delegated by most states to local villages, towns, and cities. Most states are not willing to preempt local control of solar and other clean energy systems; as a result, it is state policy to defer to local discretion in these matters, allowing local policymakers to determine the types of solar and other clean energy systems that will be deployed in the state.

Local officials who want to encourage solar energy systems are adjusting the local land use system by first adding a solar energy component to the comprehensive plan or adopting a special solar energy policy or plan to guide the reform of land use regulations. These local governments are then amending zoning regulations to permit and encourage these systems.

The primary, and most common, barrier to solar energy system implementation occurs when solar energy systems are neither defined nor permitted in one or more zoning districts. Without explicit definitions of solar facilities, they cannot be permitted by reference in the district use provisions of local zoning. In addition, the lack of clear clean energy- or solar-related definitions misses the opportunity for municipalities to send a signal to developers, property owners, and installers that they are "open for clean energy business." Municipalities are beginning to fix this problem by amending their zoning code to include definitions of the different solar energy systems available, based on type, size, and/or energy capacity.

Municipalities chose to permit solar energy systems by designating them as principal, accessory, secondary, or specially permitted uses. They are subjecting them to modified and expedited site plan review, waiving design standards enforced by local Architectural Review Boards, and providing exemptions from Historic District Review standards for conforming designs and proper locations.

Solar easements, not recognized by common law in most states, can be created by local government regulation to ensure access to sunlight over the life of the solar system. Typically, these regulations require written and recorded solar easements that define easement dimensions, how the easement will terminate, and compensation for easement maintenance or interference, among other provisions.

Some localities are requiring developers to install solar energy systems or, short of that, make buildings solar ready. Other communities incentivize, rather that require, these solar facilities, typically by providing density bonuses for solar panels, solar readiness, and solar access easements.

The process for zoning to allow other forms of clean energy follows the pattern set by zoning for solar. First, local comprehensive plans should set forth as a goal furthering clean energy facilities; next, zoning should define each of these clean energy technologies; and finally, district use regulations should be amended to permit them in appropriate locations at appropriate scales. The processes used to regulate and approve such facilities should be streamlined as fully and prudently as possible.

There is a clear need for municipal attorneys, local land use leaders, and state agencies interested in reducing energy costs and harmful fossil fuel emissions to develop model laws and approval processes for all clean energy facilities, in order to further the important objectives that they accomplish. These will all aid zoning in its adaptation to meet yet another contemporary challenge.

For more information, see John R. Nolon, Mitigating Climate Change by Zoning for Solar Energy Systems: Embracing Clean Energy Technology in Zoning’s Centennial Year, Zoning and Planning Law Report (Dec. 2015).

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

Part 12: Green Infrastructure

Part 12B: Land Use and Energy Conservation

Part 14: Transit Oriented Development

Zoning’s Centennial, Part 14: Transit Oriented Development: A Series by John R. Nolon

Part 14

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

Transit Oriented Development

Transit Oriented Development, or TOD, is a modern zoning imperative with exceptional potential to reduce GHG emissions. According to the Presidential Climate Action Project, “[t]he greatest potential for reducing greenhouse gas emissions…is to reduce vehicle miles traveled—the miles Americans drive each year.”

TOD land use plans and zoning encourage mixed use, compact development in transit neighborhoods. They locate housing and jobs near transit stops and significantly reduce the number and distance of vehicle trips. Encouraging land use patterns that house and employ more people in urban, transit-connected areas will cause a significant reduction in VMT, while placing households in smaller, more energy efficient homes and offices will further reduce fossil fuel consumption and CO₂ emissions.

Transportation Efficient Development, or TED, is TOD’s country cousin. TOD and TED have many relatives. They bracket a profusion of terms that describe the rapidly increasing focus on reducing VMT through zoning. The terminology used is varied. Some authors write about “transit supportive” or “transit ready” development, or “transportation efficient” land use patterns. Others refer to “transit friendly zoning,” “station area planning,” “transportation demand management,” “traditional neighborhood development,” “planned unit development,” “development-oriented transit,” “transit supportive urban design,” “transit station communities,” “transit focused development,” and “transit villages.”

These terms encompass many different geographical contexts, populations, densities, and transportation modalities. Any attempt to describe a single approach is subject to a host of exceptions, but some common principles can be articulated to highlight the legal underpinnings of this important subject and to explain why zoning matters.

When neighorhood density is increased for both residential and commercial uses, the distance between origin and destination is shorter and walking, bicycling, and mass transit services are more feasible. In order for increased densities to be tolerated, standards requiring attractive building, landscape, and streetscape design must be employed.

The successful development of transit stations and rail and bus lines is dependent upon land use densities and mixed uses. There must be a large enough number of commuters in a relevant area to provide a base level of ridership. In addition, ridership must be sufficiently diverse to ensure that people are traveling to work, to shop, to seek entertainment, and to go home at various times during the day, thereby increasing the cost efficiency of the transit system.

Local land use plans and zoning, which determine population density and building uses, control how much the population will increase over time in a certain area, and what transportation needs new people will have. This, in turn, dictates the demand for various types of transportation services. Locally, this planning is done at the neighborhood level and should be guided by objectives contained in the city’s comprehensive plan. To make transit systems feasible, land use planning among localities in a transportation region must be coordinated with transportation planning and development, which occurs under federal programs in urban areas at the metropolitan-area scale.

Many state enabling statutes require or encourage local governments to include a transportation element in their comprehensive plans. Increasingly, these transportation elements have incorporated planning strategies intended to encourage people to drive less and to walk, bicycle, and use mass transportation more frequently.

Arizona’s planning enabling statute, for example, requires cities with more than 50,000 people to prepare a bike transportation element as part of their comprehensive plan. Nevada’s enabling legislation supports planning for mass transit, bicycle, and pedestrian infrastructure. This statute encourages local planning to include a transit element that “[s]how[s] a proposed multimodal system of transit lines, including mass transit, streetcar, motorcoach and trolley coach lines, paths for bicycles and pedestrians, satellite parking and related facilities.”

Even where communities are not currently served by transit systems, they can create compact, mixed use neighborhoods that reduce car trips and miles traveled. Zoning controls in TED zones can limit the size of housing units and combine retail, office, and residential land uses, putting services, shops, and jobs in closer proximity to homes. Zoning can also require new construction to meet energy standards and further reduce GHG emissions.

Communities not yet served by transit can design one or more priority growth districts and create overlay zones for them that allow greater densities and more land uses than permitted in the underlying zoning districts. By clustering development strategically, these growing localities position themselves for future service by commuter rail or bus rapid transit, thereby becoming “transit ready.”

Suburban areas that adopt higher-density, mixed-use zoning will find it easier politically to adopt strong environmental protection ordinances applicable to the land outside high-density zones. Where state law permits, density bonuses may be provided in TED zones and cash contributions made by developers in exchange. This money can be used to purchase development rights from landowners in sensitive environmental areas outside the higher-density zone, areas that mitigate climate change through sequestration. This balance between development and conservation can be accomplished within TOD areas as well – highlighting again zoning’s ability to create sustainable settlement patterns and to mitigate climate change.

For more information, see John R. Nolon, Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation, 27 Fla. State J. of Land Use & Envtl. L. 1, 25-31 (2012).

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

Part 12: Green Infrastructure

Part 12B: Land Use and Energy Conservation

Fresh Air episode on states preempting local laws

Fresh Air had a great interview yesterday on the increasingly popular state tactic of preempting local laws.  It's staggering to contemplate the far-reaching vision of this.  I wonder...is anyone keeping track of this in land use and/or environmental law regulation?

 

 

APA's 33rd Annual Smith-Babcock-Williams Student Writing Competition: $2,000 prize + publication in Urban Lawyer: June 3 submission deadline

The Planning & Law Division of the American Planning Association announces its 33rd Annual Smith-Babcock-Williams Student Writing Competition. The Competition, which honors the memory of three leading figures in American city planning law (R. Marlin Smith, Richard Babcock, and Norman Williams) is open to law students and planning students writing on a question of significance in planning, planning law, land use law, local government law or environmental law. The winning entry will be awarded a prize of $2,000 and submitted for publication in The Urban Lawyer, the law journal of the American Bar Association's Section of State & Local Government Law. The Second Place paper will receive a prize of $400 and one Honorable Mention prize of $100 will also be awarded. The deadline for submission of entries is June 3, 2016 and winners will be announced by August 22, 2016. Please refer to the enclosed official rules for further details. Our past experience has shown that teachers in planning, planning law, land use law, local government law or environmental law are in an ideal position to stimulate student interest in research and writing and to encourage participation in the Competition. Each year, many of the entries appear to have been prepared initially for various courses or seminars. We hope you will add your support to the Smith-Babcock-Williams Student Writing Competition by encouraging your current and past students to submit entries.

The full announcement here:   Download APA-PLD Student Writing Competition 2016

Hat tip to Alan Weinstein.

Zoning’s Centennial, Part 12B: Land Use and Energy Conservation: A Series by John R. Nolon

Part 12B

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

Land Use and Energy Conservation

This installment in the Centennial series should be Part 13. However, as a blog about land use and building, we choose to skip this superstitious number, like developers skip the 13th floor. A study done a year ago in New York City found that out of 629 residential buildings with 13 or more floors, only 55 labeled the 13th floor as the 13th floor. This means only 9% of the structures that actually have 13th floors label them as such. The remaining 91% of buildings with 13th floors have relabeled them, for example, as 12B or 14A. And so, this Part of the Zoning Centennial construction project is labeled Part 12B, out of a spirit of cooperation with the private sector.

In turn, the private sector is also cooperating with land use regulators. Together, they are dramatically reducing the energy use in buildings; a key, if not essential, strategy for reducing reliance on fossil fuels and mitigating climate change.

Approximately 40% of total U.S. energy consumption and 70% of all electricity consumed domestically are attributed to residential and commercial buildings. Two-thirds of the energy used to produce electricity is wasted, as heat escapes into the atmosphere during generation, and up to 15-20% of the net energy produced at these plants is lost in transmission.

The following is laundry list of energy conservation and climate change mitigation techniques that rely on land use law, assembled from real projects on the ground:

• Because of the enormous waste of energy at the point of generation in remote locations, the lowest-hanging fruit in the orchard of energy-conserving land use techniques is to permit or require on-site generation, which is now technically and financially possible in many situations. The LEED-ND rating system gives developers credit for on-site generation and many are earning those points. What LEED recognizes, local governments can make mandatory as part of zoning.

• The principal method of achieving energy efficiency in new building construction and the substantial renovation of buildings is the energy conservation code; promulgated by the International Codes Council, it has been adopted in most states, and is enforced by local governments. This code contains minimum standards for the design, construction, and installation of the building shell or envelope, mechanical systems, and lighting. By vigorously enforcing this code, dramatic progress can be made in energy conservation.

• Land use law in some states allows local governments to enhance the energy code by adopting additional standards aimed at achieving greater energy efficiency. A creative example is found in Marin County, California. The County requires large homes under 4,000 sq. ft. to exceed the energy conservation code requirements by 15%. If the home is over 4,000 sq. ft., but less than 5,500 sq. ft., it must exceed the state code in efficiency by 20%. For homes between 5,500 and 6,500 sq. ft., the requirement is 30%. Homes over 7,000 sq. ft. must be “net zero energy” users; a goal that green builders can actually achieve.

• In New York, the Town of Greenburgh amended its local code to require that all new homes comply with the Energy Star rating system, promulgated by the Environmental Protection Agency and the U.S. Department of Energy. Energy Star can achieve energy savings in excess of 30% greater than the base energy code. It governs appliances, heating and cooling systems, the thermal envelope, electrical, ventilation, and equipment efficiency.

• The Town of Blooming Grove, New York, uses a density bonus to encourage home developers to adopt Energy Star. The Town awards a 10% increase in the number of homes that can be constructed under local zoning in exchange for making them all Energy Star compliant.

• Local subdivision and site plan regulations can be amended to govern building orientation, layout, or landscaping on sites, which can be used to reduce energy consumption in new buildings. Land use laws can require homes in subdivisions to be clustered and designed to conserve energy, or equipped with solar panels (or at least to be wired and built to accommodate them).

• Solar and wind generation facilities can be either frustrated or facilitated by local land use law. Onsite solar arrays and rooftop wind turbines can be prohibited by use, setback, and height restrictions found in traditional zoning codes. Amendments to these provisions can designate renewable energy facilities as as-of-right uses, allow them by special permit, or permit them as accessory uses. Bonuses, like those used in Blooming Grove, can be used to incentivize renewables.  

• Local land use boards can require developers and their design consultants to follow an integrated design process, where they collaborate during the early stages of the project review process to achieve the greatest possible energy conservation and cost reduction. It is at this stage that decisions can be made about building orientation, form, shading, energy-efficient exterior lighting, window size and location, rooflines and extensions, reflective roofing, height-to-floor ratios, and building features that relate to passive ventilation and cooling.

• Local land use laws can achieve extraordinary energy efficiency by permitting and encouraging the use of combined heat and power (CHP) systems in individual buildings and interconnected energy systems in certain mixed use districts. By employing CHP - a mechanical system that can be used to produce electricity, heating and cooling, or both - in higher-density, mixed-use neighborhoods, the potential for energy efficiency, and therefore energy conservation, is remarkably greater than if used on an individual parcel of land.

• To increase the use of district energy systems (DESs), the local land use regulatory system can be adjusted to allow, or even to incentivize, them. DESs must be made an allowable use under local zoning and site plan regulations, as well as local building and energy codes. They, too, may be encouraged through bonus zoning provisions that provide additional development densities for developers who adopt DES technologies.

• Finally, the number of localities that are adopting Transit-Oriented Development (TOD) zoning ordinances has been growing exponentially over the past ten years. There are hundreds of examples of new zoning districts that create livable, mixed-use neighborhoods where new buildings are connected to transit systems through design and infrastructure enhancements. In these neighborhoods, per capita CO2 emissions can be two-thirds less than those in typically-zoned neighborhoods in the suburbs (more on this to come in Part 14).

For more information, see John R. Nolon, Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation, Journal of Land Use and Environmental Law, (2012).

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

Part 12: Green Infrastructure