Land Use Prof Blog

Library of Congress begins digitizing its Sanborn Maps

You know you are a true land use junkie if the idea of an old Sanborn fire map gives you goose bumps (guilty, as charged).  If you haven't had the pleasure, Sanborn maps present extraordinarily detailed records of building conditions in almost every major--and most smaller--American cities.  The purpose, of course, was to determine relative fire risk.  From a perspective of history, they are invaluable tools that tell the story of how our cities evolved.  Just recently, the Library of Congress began digitizing its Sanborn Maps, and it plans to eventually digitize all of them.  You can view the current online collection here.  Below is a sample page from the New York City Sanborns.

Patricia Salkin on Contemporary Issues in Teaching Land Use: Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, beginning with Chapter 1. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 1:  Teaching the Crossroads Where Nuisance & Zoning Meet

by Patricia Salkin

Jonathan Rosenbloom posed the first question: “What do you consider to be some of the most important lessons stemming from the materials on the migration from nuisance to zoning and what do you want the students to understand?”

My favorite case in Chapter One is Boomer v Atlantic Cement Company from New York because it portends so many issues later chapters in the casebook discuss, and quite frankly if time permitted this case could take the entire class period (but alas, that is luxury not afforded the typically 3-credit class). For example, it demonstrates judicial activism in the land use area.  Where there is no useful regulatory solution and where existing case law is not developed to arrive at what the court believes is a “just result,” a court may craft solutions that address evolving community or societal challenges (for example in the area of affordable housing, the Mt.Laurel case from New Jersey).  Boomer was decided in 1970 just as the notion of environmentalism and the need for governmental regulation in the areas of clean air and clean water were beginning to be seriously debated at national and state levels. It can also segue into the later discussion in Euclid on the separation of incompatible land uses.   

A second take-away from Boomer is the role courts play in balancing various interests in the land use context.  Without government regulation to protect the air we breathe, here the court was left to balance the public health concerns of neighboring property owners with the greater community-wide benefits of an industrial factory that is an economic engine for the region in terms of jobs/employment and the fact that the product manufactured was needed for ongoing construction and development (which activities also produce jobs and fuel the economy).   The economics of land use regulation is more formally introduced to the students in Chapter Two and it is a critical foundational concept for the students to grapple with especially for the takings material in Chapter Five.

A third point of discussion with students is the dissent’s compelling argument that the majority does not go far enough to protect the public health. This discussion is a prequel to the environmental and social justice movement of today.  Is it reasonable to simply mandate that the polluter responsible for negatively impacting public health be solely responsible for paying permanent damages one time to the neighboring property owners?  In the full opinion the dissent queries whether the public health is for sale.  We should ask our students what happens when the property owners receive their payment and then move on to a healthier community and less affluent people move in to ongoing polluted area because it is what they can afford (presumable the market makes the housing less expensive).  The Company is no longer required to make payments to new people who may be coming to the nuisance.  Is it acceptable that new homeowners are assuming the public health risk or now almost fifty years later given the weight of the social justice movement would the balance achieve a different outcome (removing the fact that environmental regulation has since stepped in)?  Was or should notice be required to be given to new purchasers of property where there may be significant health concerns? This can be juxtaposed with more recent statutorily required notices in the right-to-farm protections raised in the notes in Chapter Six.

The Boomer case helps to bring students of land use regulation to the important questions of balancing property rights, economic protection, public health concerns and notice.  These concepts are necessarily threaded throughout the casebook and I find that many times during the semester I am referencing “the Boomer case we read at the start of the semester.”

The  ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Zach Arnold: Preventing Industrial Disasters in a Time of Climate Change: A Call for Financial Assurance Mandates

Zach Arnold (Independent) has just published "Preventing Industrial Disasters in a Time of Climate Change: A Call for Financial Assurance Mandates" in the Harvard Environmental Law Review.  The piece is available at HELR here and SSRN here.  The abstract is below:

In the current era of accelerating climate change, rising sea levels, and increasingly extreme weather, coastal industrial disasters pose a large and growing risk to society. The private sector and public officials are both failing to adequately respond to this risk, and the familiar regulatory tools in this context, such as design mandates and adaptation subsidies, have significant drawbacks. This paper proposes a novel policy framework to prevent coastal industrial disasters. I argue that financial assurance requirements (FAMs), such as insurance mandates, can induce coastal industry to adapt to the coastal impacts of climate change and can ensure that the public will be fully compensated for any disasters that nonetheless occur. FAMs can mobilize the considerable expertise of third-party financial assurance providers and provide efficient incentives for private adaptation. Moreover, they are relatively simple to implement, making them especially suitable for state, regional, and municipal policymakers facing locally concentrated climate impacts, tight resources, and federal gridlock. FAMs are a promising remedy for a significant and increasingly urgent danger.

 

 

 

Contemporary Issues in Teaching Land Use: Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet, by John Nolon

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, beginning with Chapter 1. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 1:  Teaching the Crossroads Where Nuisance & Zoning Meet

by John Nolon

Our casebook reviews the law of nuisance and the advent of zoning in the same chapter for a reason.  In Euclid, the Court notes that zoning is rooted in the police power of the state, which is exercised to protect the public welfare. The scope of legitimate zoning regulation, the Court states, can be discerned by consulting the law of nuisance for "the helpful aid of its analogies in the process of ascertaining the scope of... the power." 

In introducing nuisance law on p. 5 of Chapter 1, we write: "Offensive intrusions included the effects of smoke, dust, noise, odors, heat, or other discernable effects that interfered with or diminished the normal uses of nearby property."  In Euclid, the Court justifies the separation of land uses, particularly multifamily buildings from single-family uses, by noting that apartments interfere with the free circulation of air, monopolize the rays of the sun, bring disturbing noises, cause traffic congestion, and thus detract from safety, depriving children of the privilege of quiet and open spaces for play, until the residential character of the single family neighborhood is utterly destroyed.  "Under such circumstances, apartment houses...come very near to being nuisances."

The Chapter also makes a useful point about the evolution of the law as circumstances change. The Euclid Court states that regulations that would be invalidated as arbitrary and oppressive a half a century ago "are now uniformly sustained."  "And in this, there is no inconsistency, for while the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.  In a changing world, it is impossible that it should be otherwise." 

This same principle arises in the nuisance cases in the Chapter, as does the continuing viability of nuisance law.  In Prah v. Marietti, the Wisconsin court holds that interference with solar access can be an actionable nuisance, reversing settled law because it was based on principles that "are no longer fully accepted or applicable. They reflect factual circumstances and social priorities that are now obsolete."  Today, in Wisconsin, nuisance law can be used to support the viability of solar power systems just as our society is turning toward renewable energy resources as a critical method of mitigating climate change. That nuisance law is still viable is demonstrated by the fact that, under Prah, nuisance remedies can trump land use regulation.  The neighbor, who proposed building in the plaintiff's solar space, was in full compliance with zoning and site plan regulations, yet, under the holding, could be subject to a court-ordered revision of the approved building plans.

The  ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

 

 

Contemporary Issues in Teaching Land Use: Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet, by Jonathan Rosenbloom

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, beginning with Chapter 1. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 1:  Teaching the Crossroads Where Nuisance & Zoning Meet

by Jonathan Rosenbloom

One land use “coming-to-age” moment is the conceptual and legal shift from nuisance to zoning. This shift provides numerous teaching opportunities and valuable lessons concerning land use and the law generally. Thus, the first question in our series on teaching land use is:

What do you consider to be some of the most important lessons stemming from the materials on the migration from nuisance to zoning and what do you want the students to understand?

On one level, there are valuable lessons that can be gleaned by comparing the legal approach of zoning versus nuisance, including a discussion of proactive action (zoning) versus reactive action (nuisance), district-wide regulation (zoning) versus single lot(s) regulation (nuisance), and executive decision-making (zoning) versus judicial decision-making (nuisance).

However, in this brief blog I’d like to consider a more generalized educational moment. The nuisance/zoning materials provide a good opportunity to make clear that land use law has a concrete and significant impact on the physical conditions that form communities. While this seems like an obvious point, students can easily get lost in text and disassociate the law (cases, ordinances, statutes) from the physical manifestation of the law that really makes-up the community and its ecology.

In few topics is this more important than land use, as the law directly dictates physical form, structure, movement, and others. The nuisance/zoning materials are helpful to bring this point to the fore as they partially explain the value zoning adds and where nuisance is unable to address confrontations occurring in communities. In this regard, the nuisance/zoning materials present a great opportunity to explore how the law translates directly into the landscape we see around us. It is also a good chance for the students to begin to get out of the classroom and into the community to see the power of land use laws. As a topic that can be taught at the beginning of the semester (we have these materials in Chapter 1), this is a critical lesson that can be revisited throughout the course in more complicated ways, including asking the students to consider the ramifications of judicial decisions and ordinances on their community.

The  ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Future posts in this series will be archived 

Anatomy of a Land Use Hearing: You've Got Law and Urban Design on Your Side, But They've Got Matching T-Shirts and the Numbers

 

In an effort to promote the rule of law and principles of urban design and environmental stewardship, I found myself the enemy of about 150 parents and teachers on Tuesday night.  I came with the law and principles of school site design on my side; they came with coordinated t-shirts and a united sense of spite against me and a small band of smart growth advocates.  Anyone with experience in land use decisions knows how that decision ends at a city council.  They won the vote.  But in my opinion, admittedly biased, they lost the battle for a better school. 

The school district gave the parents and students in a “busting-at-the-seams” school for low income children a Faustian bargain:  a cheap-to-build school now or uncertain prospects for something better at a later, far-delayed time.  Faced with crushing overcrowding, the parents and teachers took the bird in the hand, even if they would privately admit their own misgivings. 

After a day’s reflection, I am writing this blog post to talk a little bit about how things went to remind all of us just how complicated it is to get cities right, even when law and policy would otherwise guide us towards urbanism and sustainability.  In the end, I am upset at none of the parents or students, and bearing the spite of 150 of my neighbors is part of what any land use lawyer has to accept upfront. 

I will admit that I am dismayed at the school district, an educational institution that chose to pit neighbor against neighbor rather than organize any meaningful effort at teaching or engaging the community about urban planning.  It was a lost opportunity to engage in a democratic, collective process aimed at making a better decision; instead, the school district took the road too common in today’s culture:  divide and conquer.

As background facts, the Whittier school in Boise serves primarily low income students, as well as a dual-language immersion program.  It was built for 300 students but now has 500.  The neighborhood is urban, near Boise’s downtown, though many of the students are currently bused in, a fact that wasn’t true a decade ago, and likely will change again in the course of the new building’s use.  A recent bond was passed allocating funds for a new Whittier school that would have room for up to 700 students.  That money was specifically earmarked for the Whittier school:  it could be used for no other purpose. 

The school district hired an architect who proposed a suburban campus for the location, which would pave over 46% of a 6-acre site.  In its original iteration, there was so much pavement that they could not even fit a soccer field; currently, there are three soccer fields on the site.  After initial opposition from me and several others, the school district moved the proposed new school slightly to permit one soccer field…if they tore down all of the mature trees on the southern end of the site.  The school was to be built to current energy standards in Idaho, which are notoriously among the lowest in the country.

We asked for something different.  Here were our proposed principles of school site design:

• Protect park-land and student outdoor play area on the interior of school sites.
• Keep parking on the exterior of sites to reduce potential conflict points with pedestrians and bicyclists and make better use of the land.
• Prioritize walking and biking to school (bulb-outs, curb cuts, striping, etc.).
• Build for life-cycle cost savings today (reduce long-term operations costs to save taxpayers money).
• Preserve history of Boise’s schools.
• Preserve mature trees.
• Involve the community early in the decision-making, including Neighborhood Associations, neighbors, teachers, and students, prior to the creation of a site plan.
• Follow Blueprint Boise, the City’s Comprehensive Plan.

All of these principles are supported by Boise’s comprehensive plan.  We purposefully made no effort to address the functioning of the school building itself, which we considered to be the prerogative of the educational mission of the school.  It seemed that ascribing to these principles were all kind of no-brainers.  But we were wrong.

The school district dug in.  They held several meetings presenting their proposed plan with neighborhood groups, but made only nominal changes.  They expressly refused any upgrades to energy efficiency, even though it was pointed out multiple times that it would actually lessen long-term costs of the district and taxpayer expenditures over time.

Moreover, the school began to spin a narrative of us-versus-them.  The “us” was the Whittier community, which simply wanted a new school.  The “them” were folks like me, who were standing in the way.  They managed to paint us as bad guys holding up a good thing long delayed to low income students. 

Of course, in fact, we were trying to stand up for those low income students who, we realized, were getting the “low bid” school.  We were trying to make it something better for them, but it fell on deaf ears.

We also tried to encourage a more robust engagement process that would model, both for the families and the students, a robust and community-centered planning process. We suggested working groups with facilitators.  I personally offered to fund and bring in facilitators from Growing Up Boulder, which works with students to help them understand urban decisionmaking and involve them in the process.  The school district never replied to either of those ideas.

In addition, I have had an ongoing effort to facilitate better legal procedure in the planning process here in Boise.  In my comments, I explained the origins of the substantial evidence test and the arbitrary and capricious test, as they apply here.  With no offense to the Boise city attorneys, they simply are not trained to handle these kinds of matters or advise decisionmakers on them.  In Idaho, local attorneys only utilize these standards in land use decisionmaking.  Most Idaho city attorneys grow up through the ranks as criminal attorneys, and it is a promotion to join the civil side.  But truth is, they receive little training in administrative law matters, and because the land use procedure in Idaho is imported from state agency law for just the purpose of land use decisions, the city attorneys do not really get it. 

For instance, the boilerplate language for land use memos the city uses speaks of “objective facts” and “subjective facts,” which is a distinction in Idaho criminal law, but is not a distinction used in any Idaho administrative proceeding, much less a land use hearing.  Similarly, the city attorney and the school district’s attorney both ardently proffered that “substantial evidence” was any information in the record; rather, Idaho case law clearly shows that the test focuses only on the written findings of the planning and zoning commission.

As someone who teaches administrative law in addition to land use, it is really hard for me to see the slippage between law on the books and law as practiced.  It is especially hard when, as here, it played an important part in the decision.  For instance, two council members expressly noted that they thought their review was limited to simply a finding of error.  It is, in a technical sense, but on a conditional use permit, which requires findings of compliance with the comprehensive plan, such a finding of error can simply be a failure to not consider other elements of the comprehensive plan in written findings, which would violate the substantial evidence test.  I, and others, had expressly shown about twenty sections of the comprehensive plan with which the plan did not comply, which would have certainly been sufficient for a finding of error.  But with a poor understanding of the law, the council members openly said they did not like the plan, but felt they were forced to vote in favor of it because they could not find error with the commission’s decision.  What frustrates me, in that case, is not that I lost their votes, but that I lost their votes because of a misunderstanding of law.

After the hearing, I could not sleep that night.  It was not that the school district had managed to vilify me; frankly, it was good to be back in the saddle arguing a case in that kind of a heated situation.  Moreover, some of my students came out for the hearing, and I think it gave them great pleasure to see a professor in action, not just as an academic, but as an advocate in a real setting for the rule of law.  But it was precisely the effect that the nature of the decision would have on my students that concerned me most.  When I teach administrative law and land use law, I take great pains to make sure students understand the details, and that we make sense of the parameters of these seemingly mushy standards—substantial evidence and arbitrary and capricious—that sound colloquial but in fact are quite technical.  My concern was that the hearing, and the clear violation of everything we’d talked about over that semester, would make them lose faith  that law, which reigns in the court, could ever be followed in an administrative proceeding.

I know there remains actionable legal claims in this case because of the numerous procedural errors in the proceeding.  But I will not litigate here, mostly because, by the time the school district has managed to convince 150 people to buy matching t-shirts and show up and talk about how bad the school is now, I realize that I have lost the battle for hearts and minds.  Despite the express funding in the bond for this school, the school district had convinced the parents that they could end up with nothing if they dared to ask for more than the bare bones.  Yes, they’ll give the low income kids a new school, and no doubt, it will be better than what they’ve got.  But now there will be 500 kids, and ultimately up to 700 in the new build out, with just one soccer field to play on instead of the current three (and there were no soccer fields in the original plan before I and others got involved).  Yes, there will be separated bus and car drop-off, but there will be 9 new points of pedestrian-vehicle conflict.  Yes, the school will meet decade-old energy minimums, but it won’t have a single solar panel or efficiency component that might be a way to engage students in a discussion of climate change.

And maybe most important, I worry about what this process has taught the students about civic engagement.  On the one hand, it did get them to mobilize for their school; they got out to a public hearing en masse and fought for what they thought was right.  I give them credit for that.  But I also worry that what students saw was the us-versus-them choice:  either we beat back this awful Miller guy and his smart growth cronies or we get nothing.  They probably don’t know that I wanted to bring in folks to engage them in learning about planning.  Their parents probably don’t know I wanted working groups to find alternative design solutions that wouldn’t create the problems the current proposal ensures.  Of all of the tens of folks that testified at the hearing, not a single one spoke about how to improve the design, their experience with the current school that might affect the design, or anything else related to improving what many, in private, would concede was not their ideal.  Their engagement was limited to ensuring they got something over nothing, which is how the school district played it out.  I think that is an unfortunate local version of the national polarization that our country now suffers:  all opposition is bad, even if it argues for a middle ground that could improve all lots.

It has been a remarkable few months back being an advocate.  The occasion does not have much to recommend it, unless you either you remain committed to ideals of law and urban design, or are a glutton for punishment and the vitriol of your neighbors.  Case in point, I was booed and given the thumbs down by a woman and her two sons as I walked from the meeting chambers to the restroom.  My response to her was simply, “I’m here for the civic engagement and a better school for your kids.”  She said, “I know, but…”  The elevator came, and she didn’t finish.

And so, the school will be built, and I hope it gives the parents and students what they want.  I had hoped it would give them something more, but maybe that was just naïve idealism.  We will all scatter back to our lives.  We will all take with us the experience and what it means for how we think of government and its processes.  Despite the loss, which was 5 votes against me to 0 for me, I remain committed to the ideals of law and urban design for which I fought, and I accept the pummeling as part of the good fight for the future. 

I will continue to teach the ideals of law, as well, to my students, no matter how little they are followed in practice, because done right, these standards are the guardians of democracy in the administrative state.  As I’ve quoted before, Scalia again on substantial evidence:

“Substantial evidence” review exists precisely to ensure that [a government] achieves minimal compliance . . . , which is the foundation of all honest and legitimate adjudication.

And on the arbitrary and capricious standard:

Reasoned decisionmaking, in which the rule announced is the rule applied, promotes sound results, and unreasoned decisionmaking the opposite. The evil of a decision that applies a standard other than the one it enunciates spreads in both directions, preventing both consistent application of the law by subordinate agency personnel . . . , and effective review of the law by the courts.

Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359 (1998).

Good process matters at the Supreme Court; it matters equally in the chambers of a city council out on the sagebrush steppe.

As a valedictory to the episode, I take some satisfaction that I and the other project appellants retained at least one soccer field for the students and ensured that a mid-century modern building will remain and become a community center.  It's something, even if the students deserved more.

 

 A picture of the hearing:

 

 Another picture of the hearing:

 The final site plan:

 A promo video from the school district focusing on over-crowding:

 

 

 

 

OECD publishes second report detailing country-by-country planning processes

Earlier this month, I blogged about OECD's excellent new report, The Governance of Land Use in OECD Countries.  OECD has also published a companion volume, Land-use Planning Systems in the OECD, that provides a background on the land use governance systems of each of the 32 OECD countries in the report.  It is a great comparative document that summarizes the land use planning systems of mostly western, developed countries.  

 

 

 

Vermont Law's Hot Topics in Environmental Law Lecture Series - Available by livestream throughout the summer

Vermont Law School’s Environmental Program is once again offering a full lineup of 17 notable speakers in the Hot Topics in Environmental Law Lecture Series. These talks offer a range of timely issues including human rights and the environment, ocean and wildlife, energy, environmental enforcement, and international issues. The talks take place every Tuesday and Thursday at noon throughout the summer, and are free and open to the public with CLE credit available.

View the online brochure (see p.2): http://www-assets.vermontlaw.edu/Assets/summer/Summer%202017/VLS.204.17_HOT_TOPICS_2017_POS_P3.pdf

To watch these talks, go to the VLS Livestream channel: http://vermontlaw.edu/live