Wednesday, June 29, 2016

Contemporary Issues in Climate Change Law & Policy, Part 5: The Local Official and Climate Change, by Stephen R. Miller

Land Use Prof Blog is hosting a series of posts that are excerpts from book chapters in the recently released Contemporary Issues in Climate Change Law and Policy:  Essays Inspired by the IPCC.  The book was co-edited by Robin Kundis Craig (Utah) and me.  The posts will progress in the order of the book's chapters.  This fifth post is an excerpt from Prof. Stephen R. Miller's chapter, "The Local Official and Climate Change."  The entire chapter is available here.  Links to previous excerpts are at the bottom of this post.

Buy the book here.

Cover

 

 

 

III. Ineffective Institutions for Regulating or Planning Land Use

The Fifth Assessment identified “[t]he urban institution conundrum”: “rapidly urbanizing cities—cities with the greatest potential to reduce future GHG emissions—are the cities where the current lack of institutional capacity will most obstruct mitigation efforts.”[1] The same is true with regard to adaptation efforts as well.[2] This section looks at several aspects of why local development institutions are ineffective and what local officials can do with an eye towards addressing climate change.

Among the reasons urban development institutions fail is not only resources, but also organizational design. Three examples serve to illustrate these failures and their effect on climate change planning: ineffective commission structures; ineffective public participation structures; and ineffective alliance of staff professional goals with climate change goals.

A.    Overcoming Ineffective Commission and Permitting Structures

The proliferation of land use controls in the last 100 years has led to the belief, in some cities, that there is a need for multiple boards or commissions to review different parts of a project.[3] For instance, the rise of historic preservation has led many advocacy groups to create a specific historic preservation committee or commission.[4] In some cities, these commissions give recommendations to planning commissions; in other cities, these commissions have equal status as planning commissions in determining whether a project obtains a certificate of appropriateness or similar entitlement.[5] Other commissions or committees common in many cities include design review boards that apply design guidelines, and transportation-focused groups that address traffic-related issues.[6] Add to these approval complications the bifurcation of land use and building permits, and it becomes clear that decisions about any one project can become highly segmented. This fragmentation can cause problems that lead to either over-regulation—in which case the various regulatory bodies fail to see the burdens imposed by other regulators and duplicate regulation—or under-regulation, in which case the developer can segment the approval process in a manner that frustrates holistic decisionmaking and collective review of the project. 

Such problems could affect climate change in a number of ways, several of which are discussed here.  First, climate change factors should be integrated into permitting processes at the front-end of the development cycle. For instance, the building efficiency of a project should be a factor in whether it obtains a discretionary land use permit.[7] However, in most American jurisdictions, the building permit, and compliance with efficiency codes, occurs in a typically ministerial review and against energy codes that are often not sufficient to meet climate change mitigation necessities.[8] Decisionmaking could be improved by integrating even energy code compliance into land use entitlement processes, something easily done by placing such goals into the comprehensive plans with which most conditional use permits for larger land use projects must comply.[9] If the project does not meet the comprehensive plan energy mandates, it might not receive the discretionary land use entitlement, even if it might otherwise meet the ministerial requirements of an outdated building code.

Second, local permitting should require demonstration of compliance with other state and federal laws prior to obtaining the local permit. Local land use decisionmaking is often not effectively coordinated with other state and federal agency processes that evaluate the project for compliance with other laws, which may currently include, or may come to include, climate change mitigation and adaptation.[10] The facts of Sackett v. Environmental Protection Agency provide a useful example.[11] In Sackett, local officials issued building permits for a project applicant’s local code-compliant home near a lake; the applicant proceeded to build on the bases of those properly issued local permits.[12] However, the U.S. Environmental Protection Agency issued an administrative compliance order to stop work when the project was already under construction because, the agency argued, the project was placing fill material into a jurisdictional wetland and thus needed a Clean Water Act Section 404 permit from the Army Corps.[13] While the outcome of the Sackett case ultimately turned on a procedural question of administrative law,[14] the facts of the case illustrate important institutional issues regarding the lack of integration of local government and other permits. Many local governments issue land use and building permits with standard conditions, which typically include the requirement that the project applicant must comply with all other state and federal laws. Problems arise, however, where local government issues land use and building permits without verifying compliance with those other laws. As in the case of Sackett, the local government likely could have foreseen the necessity of a Clean Water Act fill permit for a home being built near a lake—even though the Sacketts as developers contested that requirement—but the local government did not require that the fill permit be on file or otherwise ensure compliance with other laws before issuing its building permits.[15] This is poor institutional practice. 

It is true that it can be difficult for local governments, especially those in states that do not require environmental review of private projects, to ensure compliance with the raft of potentially applicable state and federal environmental regulations. However, local governments need not shoot in the dark: the local government could simply have a policy of sharing all applications with local offices of state and federal permitting officials seeking their guidance, as is common with the lead agency and cooperating agency distinction under the National Environmental Policy Act.[16] By using the local government permit as the coordinating permit for compliance with other state and federal laws, local officials can ensure that a situation like that in Sackett is avoided, which also aids the project applicant in ensuring that the applicant does not necessarily spend money or time on a project that will run afoul of other regulations. This coordinated approach, while valuable for many land use and environmental purposes, would also prove useful in ensuring climate change mitigation and adaptation compliance. Further, it should be noted that this process should not lengthen the entitlement timeframe because the project applicant cannot properly begin construction until all permits are obtained in any case.

B.     Overcoming Ineffective Public Participation

The last several decades have seen a great emphasis on public participation in local government decisionmaking.[17] This has included, among other changes, increased participation for neighborhood groups, as well as increasing access to GIS tools that permit the community to offer their own project alternatives.[18] Nevertheless, despite these additional procedural and technological tools to enhance community engagement, public participation routinely fails to prove effective in basic ways. Most importantly, public participation is typically focused on quasi-judicial proceedings against particular projects where the community shows up solely to oppose the project. In these situations, despite hours long meetings in which tens or even hundreds of community members offer comments, there is typically no real discussion of project alternatives. Instead, public participation typically involves a litany of reasons that oppose the particular project.

This is a poor use of the public process. Surely, in some cases, the project under review deserves wholesale rejection. However, if the project complies with the community’s basic land use documents—the comprehensive plan, zoning, and so on—then it is likely not without some merit. A better public participation process would address not only whether the project should be approved in its current iteration, but more importantly, how the project might be altered or otherwise provide mitigations that would make the project acceptable to the community.[19] This broader analysis requires a far more searching review of community goals than simply rejection or acceptance of the project; indeed, it invites conversation between city officials, the community, and the developers as to what the future of the community should be. That conversation is seldom had in quasi-judicial proceedings, but it should be, especially in situations where climate change mitigation and adaptation are at stake.

Further, in many communities, public participation is simply not a component of those processes where the real planning for the future takes place:  in the legislative determinations of how to structure the comprehensive plan and zoning. For the interested public seeking to make a difference with regard to climate change, participation in these legislative processes is instrumental to ensuring that the community’s development rules are climate-friendly.[20] Local officials can make climate change part of the legislative process by actively engaging the conversation in a manner that is appropriate to the community.[21] This engagement can include public meetings, but, increasingly, online and social media participation can be valuable. Many local communities have adapted climate action plans over the last decade, but many have taken the approach of primarily providing a common language for engaging climate rather than providing actionable regulatory compliance measures.[22] The common language assists with the previously noted goal of providing a common vision, but ultimately communities will need to find a way to move climate compliance from policy to law.

C.    Overcoming Staff Reluctance To Engage

While staff can be a great resource both for implementing existing policies as well as creating new policies, there are often significant barriers to staff effectively addressing long-term problems such as climate change. These impediments can be doubly strong in fast growth communities.

First, planning departments are often funded from fees paid by developers.[23] This mandate for planning departments to “pay their own way” can create a culture in which leadership establishes a mandate to please its perceived customer—the developer—because the department’s continued existence is dependent upon such applications. Clearly, such a mindset can make it difficult to have hard conversations with developers; it can also obscure calls in existing plans to require or encourage types of development that may not be popular with the community’s extant development sector but that might assist with climate mitigation or adaptation. Staff who work under such conditions can find themselves evaluated on the basis of how they please the customer-developer rather than with respect to the verve with which they maintain the integrity of the code or exhibit creativity in assisting project applicants with climate-friendly alternatives. 

            Second, planning is an occupation in which there is continued ambivalence about professionalization.[24] While many planning departments in major cities require some form of advanced graduate work in planning for their staff, fast growth areas often do not. As a result, many planners faced with the inordinate challenges of fast growth have no formal training in the history of land use regulation, much less regarding cutting-edge strategies for addressing long-term issues like climate change. What training that does occur in fast-growth areas tends to focus on assisting processing of applications—making the day-to-day business of the department function smoothly—rather than on contemplating alternatives that could improve a community’s mitigation of and adaptation to climate change. In these circumstances, with project applications piling up and pressure from developers to get to a hearing, finding time to learn about climate change, much less draft language and engage departmental leadership on the issue, can feel like trying to shoot the moon.

 

[1] 2014 IPCC Mitigation Report, supra note 9, §12.6.1.

[2] 2014 IPCC Adaptation Report, supra note 9, §8.4.3.4.

[3] For instance, Boise is a prime example of a still small but fast-growth city with multiple agencies. See, e.g., City of Boise, Idaho, City Code §§ 2-02-01 et seq. (Airport Commission); id. §§2-06-01 et seq. (Planning-Zoning Commission); id. §§2-07-01 et seq. (Development Impact Fee Advisory Committee); id. §§2-16-01 et seq. (Public Works Commission); id. at §§ 2-17-01 et seq. (Arts and History Commission); id. §§2-20-01 et seq. (Irrigation Commission); id. §§2-21-01 et seq. (Housing and Community Development Advisory Committee); id. §§2-23-01 et seq. (Foothills Conservation Advisory Committee); id. at §§ 2-25-01 et seq. (Boise City Accessible Parking Committee); Ada County Highway Dist., Policy Manual, http://www.achdidaho.org/AboutACHD/PolicyManual.aspx (district controls all roads in Boise City).

[4] City of Boise, Idaho, City Code § 4-13-03 (2015) (designating Boise City Historic Preservation Commission as entity tasked with reviewing historic buildings).

[5] Id.

[6] See supra note 38.

[7] See, e.g., City & Cty. of San Francisco, Cal., General Plan, Environmental Protection Element, Objective 13, Enhance the Energy Efficiency of Housing in San Francisco, http://www.sf-planning.org/ftp/general_plan/I6_Environmental_Protection.htm#ENV_EGY_12 (last visited Oct. 9, 2015).

[8] See, e.g., 7 Miller & Starr Cal. Real Est. §25:25 (4th ed. 2015) (“As a general rule, the building official is required to issue a permit if the application is in order, the proposed use is one permitted by the zoning ordinance, the proposed structures comply both with zoning conditions and with the applicable building codes, and any other conditions imposed on the development or subdivision approval.”).

[9] See supra note 41.

[10] 2014 IPCC Mitigation Report, supra note 9, §12.5.3.

[11] 132 S. Ct. 1367 (2012).

[12] Complaint for Declaratory and Injunctive Relief, Sackett v. United States Environmental Protection Agency, 2010 WL 7634112 at *7 (2010) (“[The Sacketts] applied for and obtained the requisite building permits.”).

[13] Sackett v. E.P.A., 132 S. Ct. at 1370.

[14] Id. at 1371 (holding that the administrative compliance order was a final agency action for purposes of the Administrative Procedure Act and thus petitioners could seek judicial review of the order under the Act).

[15] Id. at 1370.

[16] 40 C.F.R. § 1501.5 (2015) (duties of lead agencies); 40 C.F.R. § 1501.6 (2015) (duties of cooperating agencies).

[17] See, e.g., Lawrence Susskind et al., Mediating Land Use Disputes: Pros and Cons (Policy Focus Report) 2–5 (Ann LeRoyer ed., Lincoln Institute of Land Policy 2000).

[18] Craig Anthony Arnold, The Structure of the Land Use Regulatory System in the United States, 22 J. Land Use & Envtl. L. 441, 476 (2007) (noting that “increasingly neighborhood residents are actively participating in developing plans and land use regulations for their neighborhoods through techniques like design charrettes, scenario development, impact assessment, [and] participatory land use mapping”).

[19] Some have argued that the current air of uncertainty created by Koontz would make such consideration of alternatives more difficult. See Lee Anne Fennell & Eduardo M. Peñalver, Exactions Creep, 2013 S. Ct. Rev. 287, 287–88 (2014) (“By beating back one form of exactions creep—the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny—the Court [in Koontz] left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence.”). On the other hand, it is ironic that environmental review statutes typically require the presentation of project alternatives and thus, in those states with mini-NEPAs, the environmental review process necessitates that the land use process also envision alternatives. See Cal. Pub. Res. Code § 21002 (2015) (California Environmental Quality Act requires that “public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects” of the project.).

[20] 2014 IPCC Adaptation Report, supra note 9, § 8.4.2.2.

[21] See Maarten K. van Aalsta, Terry Cannonb & Ian Burtonc, Community Level Adaptation to Climate Change: The Potential Role of Participatory Community Risk Assessment, 18 Global Environmental Change 165 (2008).

[22] See, e.g., California Jurisdictions Addressing Climate Change, Cal. Office of Planning & Research (July 7, 2014), http://www.ca-ilg.org/sites/main/files/file-attachments/california_jurisdictions_addressing_climate_change_pdf_0.pdf (list of local governments in California that have adopted plans “to address climate change and/or to reduce GHG emissions”).

[23] See, e.g., Facts, City & Cty. of San Francisco Planning Dept., http://www.sf-planning.org/index.aspx?page=3419 (noting that, in 2012, total revenue was $24,604,399 and fees accounted for $19,630,295 of costs with just $1,905,311 in General Fund support).

[24] Becoming a Planner, Am. Planning Ass’n, https://www.planning.org/aboutplanning/becomingaplanner.htm (“In 2004, 43 percent of all APA members (note: approximately one-sixth of the APA members are planning commissioners, officials, or students, who do not have a degree in planning) had earned a master's degree in planning.”).

 

Part 1:  Climate Change, Sustainable Development, and the IPCC’s Fifth Assessment Report, by Robin Kundis Craig

Part 2:  Creating Legal Pathways to a Zero Carbon Future, by John C. Dernbach

Part 3:  Thinking Ecosystems, Providing Water:  The Water Infrastructure Imperative by Keith Hirokawa & Jonathan Rosenbloom

Part 4:  Flexible Conservation in Uncertain Times, by Jessica Owley & David Takacs

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