Land Use Prof Blog

Call for Submissions – Journal of Comparative Urban Law and Policy

Call for Submissions – Journal of Comparative Urban Law and Policy

The Center for the Comparative Study of Metropolitan Growth at Georgia State University College of Law seeks submissions for the second edition of the Journal of Comparative Urban Law and Policy.  Submissions that align with the international and comparative focus of the journal in the following areas will be considered:  land use; equitable and sustainable development; taxation and infrastructure finance; social mix, affordable housing, and housing finance; historic preservation; and climate change, environmental law, and greenspace preservation. Research articles, notes on recent developments and book reviews will also be considered.

The Journal of Comparative Urban Law and Policy is a resource for lawyers, planners, policy-makers and scholars working on metropolitan growth issues and interested in learning more about how cities around the world tackle the same issues.  It launched in May 2017 as an open-access, online journal with articles resulting from the Study Space Program offered annually by the Center.  Subscriptions to the journal are free by joining the email list.

Submissions should be made online on the journal’s webpage. A decision will be made within six weeks of submission.

Pre-submission inquiries should be directed to Julian Juergensmeyer, editor in chief, at [email protected] or Karen Johnston, managing editor, at [email protected].

Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 3: Teaching the Economics of Land Use Regulation and Ethics

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, and we are now up to Chapter 2. 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 3:  Teaching the Economics of Land Use Regulation and Ethics

by Jonathan Rosenbloom

On the question of how to engage students in the debate of balancing economic interests in the planning process, Patty, John, and Stephen set forth many great ideas on focusing classroom discussion. One additional consideration for students to understand is where and when lawyers raise these economic issues.

Throughout the book we discuss the economics of land use regulations in a variety of contexts. The context in Chapter 2 is the planning process. One slightly confounding issue for students—and ultimately for practitioners—is where and when to make economic arguments in the context of comprehensive planning. It is a particularly vexing issue because important parts of the comprehensive plan are often drafted and enacted before a client’s economic interest is actually implicated. For example, it’s not uncommon for a local government to draft a comprehensive plan before overhauling or amending the zoning code, which occurs before amending the zoning map. Whether one’s financial interests are implicated, however, is not clear until the map is proposed.

It’s important for students to realize that the drafting or amending of the comprehensive plan is a critical time to be involved, even though it may be unclear as to how or whether one’s interests are implicated. Each step of the drafting process provides an opportunity to help craft future land use patterns. In addition, each step serves as a foundation for the next step. For example, comprehensive plans’ vision statements establish a foundation with which comprehensive plans are built. Zoning codes are then drafted, amended, and/or interpreted in light of comprehensive plans depending on state law (something we discuss in Chapter 2, Section 3). Thus, even though vision statements may set in motion inevitable economic impacts for a variety of parties, they are often drafted with little fanfare. This is particularly true in jurisdictions that require some economic analysis as part of comprehensive planning.

Des Moines’ comprehensive plan provides a good illustration. Adopted in April 2016, the entire vision statement is progressive in its outlook for Des Moines and I plan to spend a couple of classroom minutes to review it (it is located on page nine of the comprehensive plan). The vision statement makes eleven broad statements, such as “In 2040, Des Moines will have . . . Vibrant, healthy, and walkable neighborhoods with a mixture of housing, recreational opportunities, public spaces, schools, and mixed-use commercial centers.” Those eleven statements clearly guided the entire comprehensive plan. But reading the vision statement and the full plan do not provide a clear indication as to whether one’s economic interest is affected. The Des Moines’ plan is now the basis for the drafting of a new zoning code, which will implicate some citizens’ economic interests that can likely be traced back to the comprehensive plan and its vision statement.

The process of drafting of a comprehensive plan is an invaluable learning experience. Students can see whether and what economic interest are raised and by whom. Students can see those interests arise at a variety of stages, including public presentations, committee meetings, neighborhood meetings, council workshops, council hearings, and others.

Engaging with economics at the comprehensive planning level requires law students and lawyers to have foresight and to understand the economic implications of planning and to be engaged at all levels of the planning process. Of course, economic interests (as well as environmental and social interests) can change over the life of the comprehensive plan, particularly when state law does not require a plan for ten or twenty years. See, e.g., R.I. Gen. Laws 1956 §45-22.2-6(a) (minimum 20 years); 53 P.S. §10301 (c) (minimum 10 years). Further, it requires a forward-thinking client to pay for such services, but the non-pecuniary benefits of being involved and being a part of the planning process can lead to a host of pecuniary and non-pecuniary opportunities.

 

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]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom ]

Adaptive Planning for Resilience, Harvey, & the Gulf Coast Region

Recently, on Facebook, I posted about my personal reactions to what's happening in the Houston area and the Gulf Coast Region as it gets deluged by Harvey.  First, and foremost, I'm continuing to pray for my family and friends in Texas and the Gulf Coast region, and -- even more so -- to pray for the most vulnerable and marginalized people in the region, who are most at risk and have the least resources to adapt.  Everyone, be safe!  Second, though, this is a tragic, heart-wrenching example of what I've been teaching, speaking, and writing about for the past several years (all the way back to my time teaching at the University of Houston Law Center in Spring 2010): plan for the unprecedented. This is fundamental to adaptive planning for resilience. The predictions of 30 inches of rain and advice to shelter in place have now been replaced by predictions of up to 50 inches and regret that there wasn't mandatory evacuation. Why can we not seem to learn and apply core lessons from Katrina and so many other climate disasters?  For two years, the University of Louisville offered an online professional development course in Adaptive Planning and Resilience, which I developed and taught with 7 of my former students and which was taken by several dozen planning professionals nationwide and worldwide.  Unfortunately, no one from the South/Coastal Texas area took it.  It's very difficult to get public officials and members of the public to accept and plan for extreme and unprecedented shocks and changes, but, time and again, we face the consequences of minimizing risk and instability in complex multi-system dynamics.  Moreover, why can't we think in terms of Resilience Justice?  Resilience justice is about the structural inequities in adaptive capacities and vulnerabilities of marginalized communities, such as low-income communities of color.  It is about addressing these inequities through policy analysis and reform.  This is the work that my Center and I are doing these days, arising out of last year's collaborative work with The City Project and Robert Garcia in Los Angeles.  The need for policy and planning reform to address the vulnerabilities and capacities of marginalized communities is critical, yet we make so little progress and advance so slowly -- too slowly for events like Harvey. Breaks my heart.  Tony Arnold, University of Louisville

Real Estate Review's Winter, 2017 and Spring, 2018 editions seeking articles

I am pleased to announce that I am the new editor-in-chief of West's Real Estate Review, a venerable 47-year old publication aimed at providing cutting-edge information on planning, real estate, and development-related issues to practitioners in the broad array of development-related industries.  

One of my goals as the new editor is to bring some of the best of academics--legal and otherwise--to this practitioner-focused publication.  For instance, perhaps you are holding on to a 70-page law review article that will go into a law review that most practitioners won't read, but maybe you condense the same article into a pithy, short article for RER that becomes something that practitioners can use in practice.  It's a great way to do outreach to the practicing development community while also getting the word out about scholarly research.

Practitioners in the development world--lawyers, planners, finance folks--are also welcome to propose articles.

We are currently seeking articles for the upcoming Winter, 2017 edition, which needs first drafts by October 16; and Spring, 2018 edition, which needs first drafts by January 16.  

Articles are typically short by legal academic standards:  7 to 25 pages double-spaced (about 3,000 - 6,250 words, including citations).  Real Estate Review is available through the general secondary sources searches; authors can get a license to use their publication for non-commercial uses.

If you are interested or have article proposals, please feel free to contact me at [email protected] and we can discuss more.

Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 3: Teaching the Economics of Land Use Regulation and Ethics

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, and we are now up to Chapter 2. 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 3:  Teaching the Economics of Land Use Regulation and Ethics

by Stephen R. Miller

There is so much to say about economics and land use—and much of it beyond the traditional tropes of law and economics analysis—that it can be hard to know how to introduce the subject without going down the rabbit’s hole.  The casebook provides a rich hypothetical for investigating these concerns.  I believe there are three important lens through which students must begin to see the economic consequences of land use decisions and I focus on these.

 

The project sponsor.  In considering the project sponsor, I try to get students to see two important economic issues.  First, the project sponsor typically engages in development to make money.  This is not always the case; many nonprofits build buildings and their purpose is to have a location that suits their mission.  But most development in the U.S. occurs to either develop property, or otherwise enhance its value. That ability to create value is both limited, and often enhanced, by traditional land use regulation.  Further, sometimes project sponsors impose additional private land use controls, through CC&Rs, to enhance value.  So, while land use controls might initially be seen as limiting value (and they may do so in a broader economic sense), for many project sponsors, sometimes land use controls—public or private—can also increase value.  Second, I think it is important for students to be begin to think about how project finance effects the economics of projects.  Real estate development is among the most money-intensive industries there are, and that means that project sponsors are often constrained in what they can do not just by regulations, but also the requirements of their creditors, many of whom demand significant potential profits—upwards of 20% or more is common—in order to lend.  That puts another type of pressure on the developer that is often hidden from sight.  The system only works if there is profit; while that can be lucrative for the project sponsor, it is also a limitation on what the project sponsor can build that is not just about the sponsor’s individual financial situation.  Project finance often has as much to say about what a project turns out to be as land use controls.  To that end, I encourage students to learn something about project finance if they are interested in representing developers.

 

The neighbors.  Much of the property rights debate right now is awkwardly circumscribed by a contrived focus on just the project sponsor.  It is as if no one else exists in the world in many of these arguments.  But, of course, the people that live around the project sponsor also have property rights of their own, and beyond rights, they have economic interests.  Real estate is often the largest single investment of any family; leases are often the largest single commitment of any company, especially for non-manufacturing companies.  As a result, a failure to think about the economic effects of a project on neighbors is really a bizarre framing that belies how most land use fights play out.  Indeed, the reason so many land use battles become battles is just how much people have at stake economically.  

 

The local government.  I find that most of my students have not had considerable exposure as to how land use development affects the finances of local governments.  The issues involved here are too numerous to be fully expounded in one class, but they can be introduced early.  Notably, a reminder that local governments are uniquely land-based jurisdictions in an era when we live across jurisdictions from where we work, and we purchase from retailers that are states away through the Internet.  Local governments need to balance budgets, and that means they must, to some extent, engage in the “fiscalization of land use.”  Those that don’t pay attention to the economic impacts of land use decisions will almost certainly face financial constraint that could be enduring for decades to come.  But how much should local governments explicitly make choices about land use to maximize the public fisc?  If we know that apartment buildings tend to bring families with children, and those children need schools, is it okay for a city to simply say that it cannot afford apartments because it cannot afford the schools?  What if the local government is in a state that has severely limited the ability to raise money through property taxes and has constitutional limitations on bonds?  What about police, ambulances, and fire?  And if those local governments are circumscribed in their ability to raise funds, is it ethical for them to require HOAs and private land use controls that make individual developments economically liable for improving private roads, placing sidewalks, and replacing the water sewer when it breaks?  

 

By introducing these three lens through which to think about economics, students can then begin to add on additional knowledge and perspectives as they go.  Indeed, as Chapters 3 and 4 will show, economics has even changed the fundamental character of how zoning is done and brought about strange legal beasts like “floating zones,” “planned unit developments,” and “development agreements."

 

Finally, I also try to get students to think about whether economics fully explains the way land use works today.  Of course, the answer is "not entirely."  We prioritize all kinds of non-economic interests through public and private land use controls that matter to us.  Aesthetics, a good place to raise a family, the strange alliance between land use and educating children, historic preservation, the preservation of sensitive environments:  these are just a few.  For all of the importance of economics in land use, how important is maximizing value to how we live and think about the city we want?  These issues will play out over the course of the semester, and introducing them early gives a rich framework to the rest of the course.

 

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]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom ]

 

Rosenbloom: Fifty Shades of Gray Infrastructure: Land Use & the Failure to Create Resilient Cities

Jonathan Rosenbloom (Drake) has just posted Fifty Shades of Gray Infrastructure:  Land Use & the Failure to Create Resilient Cities, on SSRN.  Here in the abstract:

Land use laws, such as comprehensive plans, site plan reviews, zoning, and building codes, greatly affect community resilience to climate change. One often-overlooked area of land use law that is essential to community resilience is the regulation of infrastructure on private property. These regulations set standards for developers’ construction of infrastructure in conjunction with millions of commercial and residential projects. Such infrastructure provides critical services, including potable water and energy distribution. Throughout the fifty states, these land use laws regulating infrastructure on private property encourage or compel “gray infrastructure,” as part of private development. Marked by human-made, engineered solutions, including pipes, culverts, and detention basins, gray infrastructure reflects a desire to control and manipulate ecosystems. Often these ecosystems are already providing critical services. This article assesses how current land use laws focus too heavily on engineered, gray infrastructure and how that infrastructure is reducing community resilience to change. By creatively combining human engineered solutions with ecosystem services already available and by incorporating adaptive governance into the regulation of infrastructure for private development, the article describes how land use laws can enhance community resilience. The article concludes with several examples where land use laws are relied upon to help build cost-effective, adaptive infrastructure to create more resilient communities.

John Nolon on Contemporary Issues in Teaching Land Use: Question 3: Teaching the Economics of Land Use Regulation and Ethics

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, and we are now up to Chapter 2. 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 3:  Teaching the Economics of Land Use Regulation and Ethics

by John Nolon

Patty Salkin’s post raises the question of balancing the public welfare with individual property rights and interests.  The query provides an excellent opportunity, early in the semester, to focus students on the governmental entities and processes through which this balancing is done and calling to their attention the impressive number of interests that comprehensive plans have to consider and balance. 

The Chapter is about land use plans, which are not regulatory. Students learn that the plan is to guide subsequent land use regulation, notably zoning, which directly affects property values and protects surrounding areas and promotes larger-scale public interests.  The local legislative body adopts laws, including zoning, and students generally understand how the legislative process works. But, who is engaged in planning?  How is the public involved in planning as opposed to adopting laws and regulating? 

The answers vary from state to state, so we start by looking at a state of interest to our students. Where are the rules for the adoption of a comprehensive plan found?  Is the official adoption of the comprehensive plan the responsibility of the local legislature, the planning commission, or some hybrid body?  How is that board constituted: who makes the appointments and what are the criteria for serving? What are the elements of a typical comprehensive plan?  Are property values and developer economics considered?  What about environmental protection and natural resource conservation?  Does traffic congestion,  transit oriented development, or complete streets get included? What about historic preservation, cultural values, affordable housing, jobs and housing,  community character, agricultural land protection, resiliency, urban agriculture, green buildings and infrastructure, even climate change mitigation? Did students realize that land use law comprises such an exciting menu of societal interests? This should make them want to go home and tell their housemates what an exciting course they are taking.

If the comprehensive plan truly guides the adoption of zoning then how important is it for developers, brokers, business owners, environmentalists, conservationists, preservationists, housing advocates, community groups, and homeowners to become involved?  What is the process by which the local comprehensive plan is adopted? Are public hearings held?  Are less formal meetings held?  When, at what time of day, and in what place?  Are special topic advisory groups created to help?  How effective are they for getting the general public involved?  And what about special interest groups? Once the process is known, then possibilities of advancing public and special interests become clearer.

Speaking of balancing disparate interests, what is the role of the lawyer and the legally-required process in facilitating productive dialogue, building consensus, and looking for pie-expanding solutions rather than zero sum, win/lose results?  How can required public processes involving such a large number of issues be held so that productive discussions can be held?  Returning to Patty’s questions, is there necessarily tension between public and private interests, or can our land use system affirm them both and use them to mutual advantage?

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]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom ]

CFP: Planning Theory Special Issue: Simplifying Narratives of Power: Ideology, Discourse, and Planning

From Robin Paul Malloy:

Patricia Salkin on Contemporary Issues in Teaching Land Use: Question 3: Teaching the Economics of Land Use Regulation and Ethics

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, and we are now up to Chapter 2. 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 3:  Teaching the Economics of Land Use Regulation and Ethics

by Patricia Salkin

Chapter 2 of the casebook introduces students to land use plans and the planning process. Section 2 begins an important conversation about the economics of land use regulation. Students may have danced around the periphery of this issue in property law and/or constitutional law when the Fifth Amendment takings clause was discussed, but it is a critical lens within which land use public policy and regulatory decisions are made.  Who gets an economic windfall and who is subject to a diminution or wipe-out in value and why are important questions in the politics of land use planning and zoning.  Tip O’Neill’s famous quote, “All politics is local,” sings loud and clear in the land use decision making context.  Section 2 begins with a hypothetical that begins to frame the tension.  Section 5 of Chapter 2 is a good companion to this discussion as it focuses on the issues of ethics and professionalism for the players in the land use game raising conflicts of interest among other ethical dilemmas.

Question: How do you engage students in debating the delicate balance between the government’s power and responsibility to protect the public health, safety and welfare (the police power introduced to students in Chapter 1 through the Euclid case) and the rights of individuals to the quiet enjoyment of their property (the Chapter 1 nuisance cases) including protecting the economic value of their land?

I begin by organizing students in groups of two or three (depending on the size of the class) and I give them the following five questions to discuss for 5 to 7 minutes.  I typically assign each group just one or two of the questions,

• How should we balance the public interest with the private interest? Should it be a balancing act at all? What standard or test should be applied?
  • Should landowners resolve all disputes among themselves between themselves? Why or why not?
  • Should we leave property use to market forces? Why or why not?
  • When, if at all, is it appropriate for government to get involved in deciding what you can and cannot do with your land?
  • Should government regulate some uses and not others? How would you decide?

When the class comes back together, each small group shares their thoughts on the questions assigned and it leads to some terrific debate about issues including: How does the government decide its proposed allowable use(s) of the property is best for the community as a whole? How much influence do the voters have in the decision making process?  Is this is a good thing or does it raise concerns?  Should land use lawyers be politically active at the local level?  Why or why not?  What does it mean to be politically active in counties, cities, towns and villages?  Where is the line between being politically active and advocating on behalf of clients and hitting ethical quagmires?

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]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Mandelker 2017 Supplement on First Amendment Law for On Premise Signs

Dan Mandelker (Wash U Law) has issued a supplement to his work on First Amendment Law for On Premise Signs, which reviews sign cases from the last year.  Here is the summary from the preface:

This supplement reports cases decided and articles published since the 2016 revision. For the most part, recent cases have confirmed trends noted in the revision, especially refusing to extend Reed to sign ordinances that apply to commercial speech. When ordinances make content-based distinctions, however, as by treating similar types of signs differently, the courts do not hesitate to apply Reed and hold them unconstitutional. Cases striking down exceptions included in state highway beautification acts are also common. Surprisingly, several cases applied the time, place and manner rules to free speech claims against commercial speech regulations, rather than the Central Hudson factors. Some issues, such as whether evidence is required to prove an ordinance substantially advances governmental objectives, drew mixed decisions.

The full document is available at landuselaw.wustl.edu, and can also be downloaded from the link below:

Download First Amendment - On Premise Signs

Sept 12: Community Planning Assistance for Wildfire (CPAW) pre-conference training at Western Planners Conference