Land Use Prof Blog

Thurs, Sept 28: Free webinar on Cambodia's New Environmental Code: A Primer on Environmental Governance Issues in the 21st Century

In September, 2017, I was lucky to travel to Cambodia to help work on its new Environmental Code assisting with land use and sustainability issues.  On Thursday, September 28, 2018, there will be a free webinar about the code process.  This was an extraordinary experience for me even in my small capacity. I think folks interested in comparative environmental and land use law would enjoy the webinar, which features several of the major consultants on the project.  Details below from the flyer.

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The ABA Section of State and Local Government Law's International Law Committee and the IMLA's International Committee are proud to sponsor this program: Cambodia's New Environmental Code: A Primer on Environmental Governance Issues in the 21st Century.

Cambodia has embarked upon a startling transformation of its environmental and land use laws. A new generation of political leaders seeks to modernize the country's approach to the entire spectrum of environmental issues from protected areas management to pollution control to land use planning. The proposed new Environment and Natural Resources Code would also provide drastically enhanced transparency and grievance mechanisms.

Cambodia's Ministry of Environment is the key proponent of the new Code and has tasked Vishnu Law Group, a Cambodian public interest law firm, to lead the effort of developing the contents with stakeholder input. Vishnu has in turn reached out to a range of experts over the two year process of creating the Code, including Retired Judge Peter Buchsbaum, member of the ABA's State and Local Government Law Section.

Please join us on September 28 at 6:30 p.m. EDT for a discussion about the process to create the new Code, particularly its sustainable land use planning provisions, the challenges and solutions in creating viable governance mechanisms such as the Code in developing countries, and the opportunities for value added engagement from US-based legal professionals in this ongoing effort and others like it. In addition to Mr. Buchsbaum, we will be joined for this webinar by Megan Quenzer, Project Manager, and Brian Rohan, Advisor, both based in Phnom Penh with Vishnu Law Group.

Registration: https://zoom.us/meeting/register/388352c47b89967366858a512be5123a

Can you name a well-functioning Planning / Zoning Commission or similar board?

I am working on a project and trying to find examples of well-functioning, respected administrative bodies that make decisions on land use permits.  Can you name any?

These bodies could be planning or zoning commissions, land use appeals bodies, boards of adjustment, or whatever your local community calls their land use administrative decisionmakers.  My interest is particularly in those bodies that are appointed by a local government and not staffed by professionals but by volunteers (or modestly paid citizens), but I would also be interested in any other recommendations, too. 

"Well-functioning" is admittedly a broad term, but right now I am looking for examples where these bodies have engendered respect for their work and decisonmaking, regardless of why or how.  I welcome any thoughts. 

E-mail me at [email protected] or reply in the comments below.  Thanks!  Stephen

Stephen R. Miller on Teaching about the Comprehensive Land Use Plan: Question 4 in the Contemporary Issues in Teaching Land Use Series

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 4:  Teaching about the Comprehensive Land Use Plan

by Stephen R. Miller

Teaching the comprehensive plan is complicated, and my approach probably has more personal history in it than it does for some professors.  I went to law school, planning school, and practiced land use law in California.  There I was taught the principle that the comprehensive plan—known in California as the general plan—is the “constitution of land use.”  See Concerned Citizens of Calaveras Cty. v. Bd. of Supervisors, 166 Cal. App. 3d 90, 97 (Cal. Ct. App. 1985) (“The general plan is atop the hierarchy of local government law regulating land use. It has been aptly analogized to ‘a constitution for all future developments.’”).  As a result, the general plan in California has primary control over the use of land in a local government and the zoning is the implementation of that general plan.  This arises through the consistency requirement, which is the best known and nationally applicable requirement used by several other states.  See id. at 97 (“If a general plan is to fulfill its function as a “constitution” guiding “an effective planning process,” a general plan must be reasonably consistent and integrated on its face.  A document that, on its face, displays substantial contradictions and inconsistencies cannot serve as an effective plan because those subject to the plan cannot tell what it says should happen or not happen.”). But in California, there are additional requirements of the general plan derived from Guidelines and case law that make the plan have teeth.  Perhaps most notably, an environmental impact report (EIR) is required for a general plan, which provides a whole host of environmental considerations, and intellectual honesty, to the process.  As an example, see this EIR for the general plan of Davis.

Where I now teach, in Idaho, the comprehensive plan is more like most states where the plan is considered an advisory document.  There is no requirement of consistency; in other words, a re-zone can flagrantly conflict with a land use map designation in the comprehensive plan.  See Evans v. Teton Cty., 139 Idaho 71, 76, 73 P.3d 84, 89 (2003) (“A comprehensive plan is not a legally controlling zoning law, it serves as a guide to local government agencies charged with making zoning decisions. . . . The “in accordance with” language of I.C. § 67–6511 does not require zoning decisions to strictly conform to the land use designations of the comprehensive plan.”).  Idaho courts have also made a facial challenge to a comprehensive plan almost impossible through heightened standing requirements to challenge the plan.  Indeed, in a recent case, a large family farm in a rapidly urbanizing agricultural county challenged the analysis in an agricultural element of a newly adopted comprehensive plan.  The Idaho Supreme Court held that the farmer did not have standing to challenge the agricultural element of the comprehensive plan, which makes it pretty clear that almost no one can facially challenge a comprehensive plan in Idaho.  See generally Coal. for Agric.'s Future v. Canyon Cty., 160 Idaho 142, 147–48 (2016).  Idaho also does not require any environmental review, which means commissioners and local decisionmakers often have little idea of the environmental effects of their decisions.

While many of my students will stay in Idaho, much of the real estate practice of local firms bleeds over state lines.  The Boise region reaches into Oregon; the northern panhandle of the state is close to Washington and Montana.  The ubiquity of California means many businesses here have operations in the Golden State.  All of the surrounding states—Washington, Oregon, and Montana—have approaches to comprehensive plans that are more like California than they are like Idaho.  As a result, I feel that I must teach both the “constitution of land use” and the “advisory” approaches.  And so, I spend more time on comp plans than most professors probably do. 

In addition, when talking about Idaho and the advisory approach, I also add in one other layer of analysis that foreshadows some of the later discussion of the administrative nature of land use decisionmaking.  I pull out the findings requirements for discretionary permits for the city of Boise, which are almost identical to every major city in the U.S.  In those discretionary permits, we find language that states the necessary findings for a conditional use permit, which are:

1. the location is compatible to other uses in the general neighborhood;
2. The proposed use will not place an undue burden on transportation and other public facilities in the vicinity;
3. The site is large enough to accommodate the proposed use and all yards, open spaces, pathways, walls, fences, parking, loading, landscaping, and such other features as are required by this Code;
4. The proposed use, if it complies with all conditions imposed, will not adversely affect other property of the vicinity;
5. The proposed use is in compliance with the Comprehensive Plan;
6. [several other project specific findings omitted.]

Boise City Code § 11-03-04(6).  In reviewing this language, I point out that here, there is a legally mandated requirement to find that a project is “in compliance with the Comprehensive Plan.”  Indeed, in heated battles over a discretionary permit, a denial of a project almost always relies upon findings that the project is not in compliance with the comprehensive plan.  If the commission or council cannot make these findings, they cannot deny the permit.  They also cannot grant the permit, of course, without making these compliance findings.

Even in states, like Idaho, where the comprehensive plan is advisory and facially hard to challenge, the comprehensive plan retains a special, legal importance in the granting of discretionary permits and the sufficiency of findings for those permits.  In this posture, the findings are legally mandated requirements subject to appeal, and it is in this use that the comprehensive plan becomes especially powerful and has legal value in the “advisory” states.  That this is why, even in states like Idaho, lawyers need to be well-attuned to the comprehensive plan:  the granting of discretionary permits normally turns on the sufficiency of findings about compliance with the comp plan.

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]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

John Marshall Law Conference: Sept. 28: Murr v. Wisconsin Produces Murky Results in Regulatory Takings Law

Thursday, September 28, 2017 8:30 a.m.–1 p.m. Register Online CLE Credit: 3 Hours (pending) This event is free to attend; however, registration is required. Co-presented by the Real Estate Law Students Group What does the recent U.S. Supreme Court regulatory-takings decision in Murr v. Wisconsin mean for the real estate industry, its attorneys, landowners, and local government? Before the opinion was issued, both sides in the Murr case had sought guidance on how to define the “property” that is the subject of a claimed regulatory taking. Now that the court has spoken, many argue that it continues the muddled analysis of the line of regulatory-takings cases that preceded it, rather than clarifying the tests to be applied. Hear those who were among the lawyers writing the briefs and arguing before the U.S. Supreme Court on the Advocates Panel. This group of attorneys and scholars will explain the public policy issues and significance of the decision in regulatory takings law. Our Practitioner/Industry Panel will look at the decision in the context of commercial real estate transactions. What are the lessons from the case? How can real estate owners, with the help of their attorneys, potentially avoid some of the adverse impacts of this case? Join us as we explore what this opinion will mean for the future of regulatory takings and the property rights of landowners. Schedule 8:30–8:45 a.m. Welcome & Introduction   Dean Darby Dickerson The John Marshall Law School Professor Celeste M. Hammond Director, Center for Real Estate Law The John Marshall Law School   8:45–10:45 a.m. Advocates Panel   Moderator David L. Callies Benjamin A. Kudo Professor of Law University of Hawaii at Mȧnoa   Owner's Argument John Groen Executive Vice President/General Counsel Pacific Legal Foundation Steven J. Eagle Professor of Law George Mason University Antonin Scalia Law School Government/Community Argument John Escheverria Professor of Law Vermont Law School   Michael Allan Wolf Professor of Law; Richard E. Nelson Chair in Local Government Law  University of Florida Levin College of Law   10:45–11 a.m. Break   11 a.m.–12:45 p.m. Practitioners/Commentary   Janet M. Johnson Partner (transactional and development attorney) Schiff Hardin LLP   David S. Silverman (’00) Partner (municipal and land use attorney) Ancel Glink Steven M. Elrod Partner (municipal, land use, and development attorney) Holland & Knight LLP   12:45–1 p.m. Questions & Answers   Sponsored by Sponsorships Opportunities Still Available Law firms and organizations interested in sponsorship options should contact Professor Celeste M. Hammond, Director, Center for Real Estate Law,  at [email protected] or 312.427.2737 ext. 366 About the Kratovil Conference on Real Estate Law & Practice The Kratovil Conference on Real Estate Law & Practice (the “Kratovil”) was established in 1994 to honor the memory of Robert Kratovil, the Dean of the Chicago’s real estate attorneys who served as Chicago Title’s Chief Underwriter before ending his career as a member of The John Marshall Law School’s faculty. The Kratovil Conference has been important in the Center’s mission of research and scholarship about the field, bringing together leading scholars, practitioners, and industry professionals to consider cutting-edge issues important to commercial real estate attorneys, their clients, and our society. The John Marshall Law School Center for Real Estate Law 315 S. Plymouth Court  Chicago, IL 60604 p. 312.427.2737 http://www.jmls.edu/realestate/

John R. Nolon on Contemporary Issues in Teaching Land Use: Question 4: Teaching about the Comprehensive Land Use Plan

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 4:  Teaching about the Comprehensive Land Use Plan

by John R. Nolon

Our chapter on the comprehensive plan contains several answers to the question Patty raises regarding the importance of the comprehensive plan.  First, starting with the basics, students are reminded that the local governments get their power to plan from enabling acts passed by the state legislature. Local sovereignty is derivative. Second, these enabling acts contain substantive standards and procedural requirements. Third, if these standards and requirements are not followed, the plan is void as ultra vires: beyond the power of the local government to enact.  Fourth, plans are advisory, not regulatory and property owners generally lack standing to challenge them for their effect on property values because of the difficulty of proving damages.  Fifth, this difficulty is exacerbated by the fact that properties designated in the plan for particular land uses do not necessarily have to be rezoned for those uses, if the legislative body can explain why, at this time, the articulated use is not appropriate. Relatedly, the difficulty of determining whether a proposed rezoning is in conformance with the plan is explained, in many cases, by the fact that plan provisions are often insufficiently detailed to provide guidance as to what in conformance with means for any given property. 

There is another, perhaps larger, lesson in this Chapter that helps students appreciate the legal significance of the plan. We hold our property subject to reasonable regulations that clearly advance public interests.  When a provision of a comprehensive plan can be referenced to explain a subsequent land use regulation, it is very difficult for a challenger to show that the regulation is unreasonable.  This turns the exercise of drafting plans and compliant zoning into a serious proposition, for it insulates regulation from substantive due process challenges. It also protects regulations from equal protection challenges by providing reasons why certain properties are treated differently from others. 

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]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Rachelle Alterman: Planners' Beacon, Compass and Scale: Linking Planning Theory, Implementation Analysis and Planning Law

Rachelle Alterman (Technion - Israel Inst. of Tech) has recently published a book chapter entitled "Planners' Beacon, Compass and Scale: Linking Planning Theory, Implementation Analysis and Planning Law," which is included in the new book from Routledge edited by Beatrix Haselsberger, Encounters in Planning Thought:  16 Autobiographical Essays from Key Thinkers in Spatial Planning. 

A pre-publication version of Alterman's chapter is available for download at this link:  Download Alterman - Linking Planning Theory Implementation Analysis and Planning Law

Here is a list of the rest of the chapter's in this book:

 

PART 1 Introduction

1 Encounters in Planning Thought: An Introduction

Beatrix Haselsberger

2 Autobiography as Method of Inquiry

Laura Saija

PART 2 16 Autobiographical Essays from Key Thinkers in Spatial Planning

3 Planning as a Vocation: The Journey So Far

John Friedmann

4 From Utopian and Realistic to Transformative Planning

Peter Marcuse

5 Visions of Contemporary Planning: Stories and Journeys in Britain and America

Peter Hall

6 An Ancient Future

Luigi Mazza

7 Understanding and Improving Planning Processes and Planning Institutions: A Moving Target

Andreas Faludi

8 Finding My Way: A Life of Inquiry into Planning, Urban Development Processes and Place Governance

Patsy Healey

9 Educating Planners: The Dream of a Better Future

Gerhard Schimak

10 From Informing Policy to Collaborating Rationally

Judith E. Innes

11 A Renegade Economist Preaches Good Land-Use Planning

Barrie Needham

12 Strategic Planning as a Catalyst for Transformative Practices

Louis Albrechts

13 Places Matter: Creativity, Culture and Planning

Klaus R. Kunzmann

14 Challenging Institutions That Reproduce Planning Thought and Practice

Cliff Hague

15 A Science of Cities: Prologue to a Science of Planning

Michael Batty

16 Planners' Beacon, Compass and Scale: Linking Planning Theory, Implementation Analysis and Planning Law

Rachelle Alterman

17 On the Evolution of a Critical Pragmatism

John Forester

18 Pragmatism and Plan-Making

Charles Hoch

PART 3 Epilogue

19 Back to the Future: A Personal Portrayal in the Interface of Past Planning and Planning Futures

Beatrix Haselsberger

Patricia Salkin on Contemporary Issues in Teaching Land Use: Question 4: Teaching about the Comprehensive Land Use Plan

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 4:  Teaching about the Comprehensive Land Use Plan

by Patricia Salkin

Sections 3 and 4 of Chapter 2 of the casebook introduces the comprehensive land use plan to students. The concept of planning preceding zoning and land use controls is important. After all, zoning enabling acts insist that zoning be in conformance with the comprehensive plan.  This of course forms the basis for land use regulations to withstand challenges of being arbitrary and capricious.  What exactly a comprehensive plan looks like, the process of how it is developed and adopted, and the legal significance of the plan are all important.

It is interesting to note the deliberate separation of plan­ning and regulation in the Herbert Hoover Department of Commerce in the late 1920’s. By writing a separate City Planning Enabling Act and a Standard Zoning Enabling Act, the message that went out to the states was that planning and zoning were two different animals. Consequently, while most states enacted the standard zoning act, fewer states enacted the city planning act. The thinking at the time, perhaps in light of the Euclid case in 1926, was that zoning could stand on its own sturdy feet and need not be viewed as a means to the end of carrying out the comprehensive plan. Many years passed before legislatures in most states were convinced of the need to relate regulation to the foundation of plan­ning, and in some jurisdic­tions the separation of regulation from planning is still the order of the day. Much of the confusion exhibited by courts when con­fronted with con­sis­tency arguments probably stems from this original separa­tion.

Question: What strategies do you employ in class to help develop an appreciation for the comprehensive land plan and its legal significance?  What do you think are the most important teaching takeaways when discussing the comprehensive plan? 

I typically use two teaching strategies.  First I ask students to access a copy of a comprehensive plan for a municipality of their choice. The hope is that they will then use the same municipality for an assignment in Chapter 3 where I ask them to obtain a copy of a zoning ordinance.  In class, I ask them whether they were able to find a written plan for the municipality of their choice.  It is not uncommon for one or two people to say they looked for one from a particular municipality but could not find one.  This is because in some states, the comprehensive plan need not be a written document.  That reality leads to a discussion as to whether plans should be written and what happens when communities change before plans formally change. Next I ask the students to look for the date when the plan was last adopted or updated. Invariably, students will report plans that are very recent, and then plans that are more than ten years old.  The wide variance allows for a discussion about appropriate intervals for plan review. The third major point to explore with the plans is how they are organized, the topics that are covered, and whether students can get a sense from the plan about the desired community sense of place.

Following this, I use the state enabling statute from our host State (NY) and I ask the students to answer the following questions:

1. With respect to preparation of a comprehensive plan:

• Who prepares it?
  • Professionals? Members of the public? Existing body/board? A new entity?
• How is it prepared?
  • How is community input collected? Who makes what decisions and when with respect to content?
• What is the timeframe for the preparation of a plan?
  • How long should plan preparation take?
• Is there any required coordination between boards and/or existing plans?
  • What is the role of the planning board, the legislative body, and other boards that might exist? Should other plans such as coastal zone management plans, disaster mitigation plans, and others be part of the comprehensive land use plan or should they be separate? Must they be consistent with each other?

        2. With respect to the process for adoption of the plan:

• How many hearings are required?
  • Is one enough? Are two enough? How long should the hearings last?
• Who holds the hearing(s)?
  • Are hearings held by the entity that developed the draft plan? Some other entity?
  • Where should the hearing(s) be held (e.g., accessible locations)?
  • What time of day should hearings occur and what days of the week?
• What notice is required?
  • How much notice is due (e.g., how much lead time)? Should the draft plan be published in full?  If so, where?
  • What happens when changes are recommended and the plan is altered after the hearing…is another hearing then required? If so, when would the cycle end?
• Which body is ultimately responsible for adopting the plan?
  • The planning board? The legislative body? Why, what difference does it make?

 

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]

 

Fennell & Keys: Evidence and Innovation in Housing Law and Policy now freely accessible on Cambridge UP website

A new collection of essays, Evidence and Innovation in Housing Law and Policy, edited by Lee Anne Fennell (U Chicago Law) and Benjamin J. Keys (Wharton, U Penn) and published by Cambridge University Press, was just made available through Cambridge UP's open access portal.  The book's contents are freely available here.

Contributors include:  William A. Fischel, David Schleicher, Richard A. Epstein, Ingrid Gould Ellen, Brian J. McCabe, Lior Jacob Strahilevitz, Georgette Chapman Phillips, Matthew Desmond, Stephanie M. Stern, Christopher Mayer, Ian Ayres, Gary Klein, Jeffrey West, Atif Mian, Amir Sufi, Patricia A. McCoy, Susan Wachter, Raphael W. Bostic, Anthony W. Orlando. 

Well worth a look!