Land Use Prof Blog

Boise and the Battle for a Sense of Place @ CityLab

The Atlantic’s CityLab published a nice article on Friday about the growth in Boise, especially how it has crescendoed around a proposed CVS that wants to tear down 20-some affordable housing units, three historic-eligible homes, and build an entire block of surface parking in the urban center.  

It is a remarkable story of how this small city is realizing it is growing up, and really fast.  It has choices to make, and the clunky CVS proposal here put those choices in stark relief.  How many times previously have there been over 500 commenters on one project in Boise?  I think never.

I have spent considerable time over my sabbatical advising the community groups—some established, some that seemed to come out of nowhere—to oppose this project.  Sometimes I have wondered if this type of civic activism is making the most of my time on sabbatical (and as a professor), but I do believe that helping growing communities learn the tools to make better places is part of what being a professor is all about.  Sometimes those lessons coalesce around the strangest of projects—here, a banal chain store—but we seize the opportunities as they are presented to us.  

I do hope this is a turning point where Boiseans start to imagine a future beyond what Phoenix, or Las Vegas, or many other Mountain West towns now regret they built for themselves and are trying to undo.  By developing late, Boise has a chance to learn from the mistakes of other places.  But it has to want the better place, and it will have to fight for it.  

CFP: ABA Journal of Affordable Housing & Community Development Law Student Writing Competition

From Tim Iglesias:

The ABA Journal of Affordable Housing & Community Development Law sponsors an annual student writing competition. I'm attaching the competition guidelines to this email. The deadline for submissions is ‪March 3, 2018‬. The winner gets: (1) the article published in the Journal; (2) a $1,000 cash prize; and (3) up to $1,000 reimbursement for hotel (Mandarin Oriental Hotel) and transportation expenses (not to exceed $500) to attend the Forum's Annual Conference occurring ‪May 23-25, 2018‬, in Washington, D.C. where the winner is honored in front of all conference attendees.

See the details in the pdf below:

Download Revised_2018_writing_competition_guidelines.authcheckdam

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 2: Post-Paris Contagion: A Series by John R. Nolon

[This post is the second in a series that will appear over the coming months.] 

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC  

Post-Paris Contagion

by John R. Nolon Distinguished Professor of Law

 Elisabeth Haub School of Law at Pace University

 Low carbon land use is a logical subject to be included in the periodic assessment reports of the Intergovernmental Panel on Climate Change (IPCC).  The IPCC was formed by the World Meteorological Organization and the United Nations Environment Programme in 1988. It began issuing climate change assessment reports in 1990 warning, from the outset, that business as usual will result in unprecedented warming of the planet. The first three assessment reports ignored the potential of shaping human settlements to mitigate climate change.

There was a tip of the hat to that strategy in the Fourth Assessment report, issued in 2007. While the report noted that climate change can be managed by controlling sprawl, promoting compact, mixed-use development, and modern land use planning, the IPCC was reluctant to go further and include a full chapter on the details because there was insufficient evidence in the literature documenting that strategy. 

I attended an Expert Meeting on Human Settlement and Infrastructure organized by the IPCC in Calcutta in 2011.  The correspondence that I received stated that “[o]ne motivation for this meeting is the significant percentage of global greenhouse gases attributable to human settlements and their infrastructure.”  We knew then that land use patterns can be shaped by land use law to mitigate climate change. Our task was to demonstrate that there was ample research to support a chapter on human settlement in the next assessment report.

We prepared for this Expert Meeting with a report on the literature that was published in 2011. A Report to the IPCC on Research Connecting Human Settlements, Infrastructure, and Climate Change Our report demonstrated what many of the assembled experts knew: that the techniques mentioned in the Fourth Assessment Report, and many more like them, can be employed to reduce carbon emissions at the local level. The input of this group of experts was instrumental in convincing the IPCC to add a full chapter on the subject in the Fifth Assessment Report, which was published in 2014. Chapter 12: Human Settlements, Infrastructure and Spatial Planning ...

Chapter 12 addresses the effects of urban growth on climate change. It focusses heavily on urban form, infrastructure, and land use mix. The chapter notes that “areas with a high mix of land uses encourage a mix of residential and retail activity and that mixed land uses reduce the amount of GHGs by creating efficient use of energy and reducing vehicle miles travelled and auto emissions.  Strategies that cities can use to mitigate climate change are noted including use restrictions, density regulations, urban containment instruments, building codes, parking regulations, design regulations, and affordable housing mandates. The chapter discusses land acquisition and management through transfer of development rights and increasing green space and urban carbon sinks.

This Assessment Report was published before the gathering of the Conference of the Parties in Paris. The keen interest of local governments in managing climate change was evident in their response to the agreement of the parties in Paris, which invited their participation in mitigating global climate change. Bottom-up mitigation strategies were memorialized as NDCs: Nationally Determined Contributions. This approach broadened international climate policy by including state and local government actors and inviting them to demonstrate how they can contribute to climate change mitigation.

The outpouring of support for state and local actions to manage climate change following adoption of the Paris Climate Accord demonstrates that commitment. ­1,300 non-party stakeholders, for example, signed the “Paris Pledge for Action” to demonstrate their commitment to the Accord’s goals.  It was not intended to replicate the “good work being done by local governments” but to demonstrate “the breadth of support and scale of momentum for a transition to a low-emission and climate resilient economy.

“The Under2 MOU” was created in 2015 and signed by 205 jurisdictions representing 43 countries on six continents, 17% of the global population, and nearly 40 percent of the global economy. Among the signatories were numerous large cities in the U.S. including Pittsburgh, Portland, New York City, Sacramento, and San Francisco.

Earlier this year, 385 “US Climate Mayors” committed to “adopt, honor, and uphold Paris Climate Agreement goals. This commitment followed President Trump’s decision to withdraw the U.S. from the Paris Accord.  Their statement was clear: “We will increase our efforts to cut greenhouse gas emissions, create a clean energy economy, and stand for environmental justice. In withdrawing, the President noted “I was elected to represent the citizens of Pittsburgh, not Paris.” Shortly thereafter Pittsburgh city leaders pledged to implement their own climate action plans.

These mayors know what the IPCC learned: that the legal system we use to control development touches on approximately two-thirds of the sources of carbon emission.  This connection between land use law and carbon emissions is the topic of the next blog in this series.

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, Arkansas Law Review.

Below are links to the previous posts in this series:

Post 1:  Grassroots Mitigation of Climate Change

Patricia E. Salkin on Contemporary Issues in Teaching Land Use: Question 5: How to Create a Practical Context for Learning?

[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 3. 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 5:  How to Create a Practical Context for Learning?

by Patricia E. Salkin

Chapter 3 in our casebook is probably my favorite chapter to teach and the chapter I dedicate the most class hours.  This is the “nuts and bolts” chapter and the information discussed is where most land use lawyers earn their “bread and butter” with routine zoning cases.  I agree with my colleagues who all posted about having students visit zoning and/or planning board meetings, and more importantly reflecting on these meetings from social and political sciences and from legal perspectives.  This is also the first chapter in the book where most students in the classroom can personally relate to the material.  For example, they can understand about the desire of neighbors to sometimes want pools, decks or additions to their homes and the challenges when setbacks fall just shy of those required by zoning.   I like to spend time discussing the legal strategies and the division of decision making authority when it comes to use variances versus rezoning and how this ties back to the material in Chapter 2 on the comprehensive plan and conformance with the plan.

Like Stephen Miller and our other colleagues, one of my goals in Chapter 3 is to make sure that the students are comfortable with reading and navigating through a zoning ordinance. These laws are not on Westlaw and Lexis and while they may be relatively easy to find on-line today (assuming we can access the most up-to-date version), before this course most students have never works with a local law.   In my July 24, 2017 post I discussed how I use the local zoning ordinances/laws to draw comparisons with the Standard Zoning Enabling Act in Chapter 1.  When we get to Chapter 3 I am focused on using the ordinance in practice to best advise and represent clients.  We start with the definition section.  Each person in the class selects a different zoning law of their choice and to start class I begin by asking the students how select words are defined in their zoning ordinances.  The class quickly realizes that words and phrases are defined differently in each local law and that in some zoning laws some of the words are not defined at all.  This best exemplifies what it means to work with local laws that lack the uniformity of statewide statutes.  It brings home the point that they can’t assume that what works in one town, city or village will be the same as a neighboring jurisdiction.  More so than looking up legal terms of art in Black’s Law Dictionary, good zoning lawyers have to look up the meaning of every word in the ordinance since it can make a difference for their client.  We also discuss what happens when certain words are not defined and yet a zoning decision hinges on the interpretation of that undefined word.  Statutory construction from first year legal process/lawyering springs into action and students who have been exposed to legislative drafting now hone in on statutory interpretation and consequences for vague and/or provisions.

Another way in which I use zoning ordinances is for in class team problem solving.  I use the zoning ordinance for our host community, the Town of Islip, NY.  I organize the class into three teams of associates of my law firm, and I assign each team to a new client of our firm who desires to site a particular use in a particular area of the Town.  Of course some of the uses are not defined in the definition section but they or related uses are allowed in certain districts.  Some uses have restrictions, some decisions are made by the legislative body and others have been delegated to the planning board or to the zoning board.  They must work with the zoning ordinance navigating through various sections in order to arrive at reasonable advice for our clients and be able to articulate the challenges and opportunities.  One of my favorite “client cases” involves someone who wishes to site a pet cemetery in the town in a district where cemeteries are allowed by special use permit.  Of course the word “cemetery” is not found in the definition section – so is a pet cemetery the same as a cemetery for the burial of human remains?    This is a fun but very real simulation.

While on the subject of simulation, some semesters I balance the visit to the zoning board meeting with a mock zoning board in class.  This works particularly well with classes of 15-20 students. For this exercise I assign some students the roles of members of the zoning board (3 to 5 students), I designate a chair of the zoning board, and appoint a counsel to the board.  I divide the rest of the class into three groups and I give each individual person in the group an envelope with instructions inside as to what they are to say to the zoning board of appeals on the pending matter before the board that is of interest to their group.  One person is designated as the applicant, and one to two people are designated as neighbors/community members opposed to the application.  Each of the made-up fact patterns resembles one of the variance cases in the textbook (obviating the need to specifically review by rote the cases, but rather bringing them to life through the simulation).  I ask the Board Chair to begin the meeting and to call each matter one at a time, and to allow for presentation, speakers and questions, if any, from the Board.  When the meeting is concluded, I ask each person in the class to vote on how the application should be decided and we discuss why (this also involves application of our State enabling statutes which contain statutory tests for the granting of use and area variances). When we debrief after the mock meeting, we have a lot to discuss from the running of public meetings, the pros and cons of board member questions, the role of Board counsel, the length of time applicants and opponents can and should speak, and then the substance of the decision.

Both of these simulations are very well received by the students and they are additional tools to bring the practical side of zoning and land use controls to the forefront for our students.  I am happy to share my materials (although they are ordinance and state specific) with readers.  Feel free to send me an email at [email protected]. I am also interested in learning about your team-based problems in this chapter and with your permission (and attribution) would be happy to share with 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] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]