Land Use Prof Blog

Mandelker & Alexander: Minority Discrimination Through Popular Vote in the Land Use Process

Dan Mandelker and Trevor Alexander have posted Minority Discrimination Through Popular Vote in the Land Use Process on SSRN.  Here is the abstract:

Voter participation in the land use process can discriminate against minorities. Assume a city council approves an amendment to the zoning ordinance that authorizes an affordable housing project. The amendment attracts opposition because the project will be open to minorities. Voters who oppose the project place a referendum on the ballot, an election is held, and the amendment is rejected by popular vote. Similar problems arise when voters adopt a constitutional or city charter amendment that bars effective action to prevent minority discrimination. Assume a city adopts an inclusionary housing program that requires developers to provide affordable housing and prohibits minority discrimination. Voters place an initiative on the ballot that would amend the city charter to prohibit inclusionary housing programs, an election is held, and they adopt the charter amendment.

Initiatives and referenda like these are facially neutral but raise minority discrimination problems, which the Supreme Court considered in a series of cases. Its decisions are mixed, and it rejected initiatives that had racially discriminatory impacts in some cases. The constitutional basis for these cases was not always clear, and some preceded the critical holding in Washington v. Davis that proof of racial discrimination under the Fourteenth Amendment requires proof of discriminatory intent. The Court changed direction in a recent case, where a plurality upheld an initiative that prohibited affirmative action in higher education.

Commentary suggests that cases holding initiatives unconstitutional applied a political process doctrine based on a famous footnote in U.S. v. Carolene Products Co. In that footnote, Justice Stone asked “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” The footnote’s application to the land use process is clear. In the examples at the beginning of this article, a referendum or an initiative rejected a decision made by legislative representatives, and curtailed a political process used to protect minorities. Rezoning for housing available to minority groups was displaced by popular referendum, and an initiative rejected a legislative program that benefited minorities.

The political process doctrine has two prongs. The first prong requires that an issue that raises a political process problem must be minority sensitive “in that it singles out for special treatment issues that are particularly associated with minority interests.” The second prong requires a showing that voters removed a decision associated with minority interests to a higher level of government, where it was insulated from change except through change at the higher level. A mere repeal of protective legislative action does not satisfy this prong. There must be repeal plus a modification of the normal political process for making political decisions. An initiative can accomplish this change.

Supreme Court cases that rejected initiatives because they were racially discriminatory did not explicitly embrace or explain a political process theory, but acceptance of this theory is implicit. A recent plurality decision by the Supreme Court, Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, damaged these early decisions, damaged judicial protection against racial discrimination by popular vote, and rejected the political process theory. We begin with Supreme Court cases, discussed in Schuette, that invalidated racially discriminatory initiatives. We then discuss Schuette, and what it means for the future of racial plebiscites as they affect the land use process. We then discuss two Supreme Court cases not discussed in Schuette where the Court upheld racially discriminatory initiatives, and what these cases mean for the Schuette decision.

GMU Law Podcast: The Expanding Scope of Public Nuisance and Locality Litigation: The Role of Precedent, Consistency, and the Rule of Law

This just in from Donald Kochan, which I think might interest some readers...

Law & Economics Center, George Mason University Antonin Scalia Law School
Civil Justice Fest: A Month of Dialogues On the Most Pressing Civil Justice Issues:

The Expanding Scope of Public Nuisance and Locality Litigation: The Role of Precedent, Consistency, and the Rule of Law

Trevor S. Cox, Counsel, Hunton Andrews Kurth LLP 
John Culhane, Professor of Law and H. Albert Young Fellow in Constitutional Law, Widener University Delaware Law School 
Walter Olson, Senior Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute

Moderator: David J. Porter, Judge, US Court of Appeals for the Third Circuit 

Land Use, Human Health, and Equity Project, Post 5: State & Local COVID-related Emergency Powers: Individual Rights

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 5 of the Land Use, Human Health, and Equity Project
Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss
Contributing Researcher: Jillian Aicher[*]

State & Local COVID-related Emergency Powers: Individual Rights

 

[This is the fifth in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  This post also appears on the law school's GreenLaw blog.]

The pandemic has fostered many cases challenging emergency powers of government to limit or control personal behavior. The judicial standards used and the outcomes have not been uniform, but they inform future public health and climate change land use planning. The individual rights claims vary, covering freedom of religion, free speech and assembly, takings, right to travel, right to abortion, and the right to work, among others. An important threshold issue in these cases is whether the deferential Jacobson v. Massachusetts standard will apply or whether traditional constitutional principles will govern. 

In the 1905 case Jacobson v. Massachusetts, the Supreme Court upheld Massachusetts’ vaccination law during a smallpox outbreak and affirmed the defendant's guilty verdict for failing to comply. The court stated, “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” It then exhibited significant deference to the public health statute due to the smallpox emergency. District courts, Circuit Courts, and even the Supreme Court (Chief Justice Roberts, concurring in South Bay United Pentecostal Church v. Newsom) have cited Jacobson’s deferential standard when considering COVID-related orders’ restrictions on individual rights. Others, however, reject that Jacobson deference should apply and instead employ more recent constitutional principles and standards of scrutiny. 

• Illinois Republican Party v. Pritzker: The Seventh Circuit declined to issue a preliminary injunction for a COVID-related executive order, which Plaintiffs argued violated free speech. When considering the order’s “overall validity,” the court found Jacobson applicable, stating, “[a]t least at this stage of the pandemic, Jacobson takes off the table any general challenge to EO43 based on the Fourteenth Amendment's protection of liberty. Like the order designed to combat the smallpox epidemic, EO43 is an order designed to address a serious public-health crisis.”

• County of Butler v. Wolf: A Pennsylvania district court declined to apply Jacobson to analyze the constitutionality of several executive orders and instead used ordinary scrutiny standards. The court found the governor’s and health commissioner’s orders – imposing gathering limits, stay at home requirements, and business closures –unconstitutional. 

While precise litigation risks surrounding emergency laws (regarding separation of powers, scope of authority, and individual rights claims) remain unclear, some general takeaways can be discerned. First, many courts apply Jacobson deference when analyzing whether COVID-related executive orders violate constitutional rights. When Jacobson is not applied, many courts uphold orders as furthering a compelling government interest, but some strike down the orders as not narrowly tailored or arbitrary (depending on the order itself and the constitutional standard used). Second, state actors must pay close attention to procedural requirements set out in emergency laws (such as rulemaking procedures and declaration timelines). Third, local public health actions (grounded in public health, not emergency, legislation) will play an important role when planning for local land use measures. 

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

Land Use, Human Health, and Equity Project, Post 4: Novel Coronavirus Claims Implicate Age-Old Property Rights Questions

Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 4 of the Land Use, Human Health, and Equity Project
Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss
Contributing Researcher: Jillian Aicher[*]

Novel Coronavirus Claims Implicate Age-Old Property Rights Questions

[This is the fourth in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  This post also appears on the law school's GreenLaw blog. ]

New legal challenges to COVID-19-related government actions, including mask mandates and business closures, address old questions: How far can the police power be stretched to protect the public against dangers? To what extent do property rights limit governmental actions? When does diminution of existing property rights require compensation? Do localities have implied emergency powers, do they need specific authorization, and can they supplement state orders? What rights do property owners, landlords, and tenants have during crises?

Common law principles and a century’s worth of U.S. Supreme Court opinions balancing property rights and public interests contribute to a better understanding.

Blackstone’s Commentaries demonstrate that even under early common law, government regulation could limit personal liberties and property rights.  Many Supreme Court cases build on this concept through Due Process and Takings jurisprudence.

1922, Penn Coal v. Mahon: In this seminal Supreme Court case, a property owner sought to enjoin mining under his house based on a Pennsylvania statute regulating coal mining. The Court denied the injunction, finding the statute may have constituted a taking. Before this case, we did not know police power regulations could constitute “regulatory takings.” Pre-1922 challenges to property regulations were based on Fifth and Fourteenth Amendment Due Process claims that laws did not reasonably protect the public interest. Property “takings” are different. As Justice Holmes declared in Penn Coal, when a regulation goes too far, it can constitute the equivalent of a physical taking, which the Fifth and Fourteenth Amendments prevent unless implemented for a public purpose and accompanied by just compensation. The Penn Coal Court held Pennsylvania’s mining restriction law could not be sustained as a police power exercise.

1906, Strickley v. Highland Boy Gold Mining Co.: 16 years before Penn Coal, Justice Holmes wrote Strickley, limiting a property owner’s ability to enjoin a Utah police power law. The plaintiff challenged the state’s action condemning an easement over the plaintiff’s property and conveying it to a private mining company. Justice Holmes upheld the challenged legislation, finding that the state’s action taking private property and conveying it to another private party was not unconstitutional.

1915, Hadacheck v. Sebastian and Rienman v. Little Rock: These cases address the legitimacy of using police power to prevent property use that constitutes a nuisance or causes injury. The Supreme Court validated property restrictions of a brick kiln and livery stable, land uses it found injurious to the public health and safety.

1928, Miller v. Schoene: The Miller Court found the Takings Clause did not require Virginia to compensate an owner of cedar trees after the state ordered them destroyed to prevent disease to nearby apple orchards. The Court upheld the state’s action as “controlled by considerations of social policy which are not unreasonable.”

1926, Euclid v. Ambler Realty: The famous Euclid decision rejected another Due Process claim and upheld zoning as constitutional. The Euclid Court presumed the validity of police power enactments and imposed a heavy burden of proof on challengers. Euclid demonstrates that the scope of Constitutional principles expands and contracts in a changing world.

1988, Pennell v. San Jose: Plaintiffs challenged the City of San Jose’s rent-control ordinance, enacted to alleviate elevated rents during a housing shortage. The Court held the ordinance did not violate Due Process but was rationally crafted to protect landlords’ investments and prevent tenants’ rent increases. The ordinance – with its purpose to prevent unreasonable rent increases – legitimately exercised police power.  

2002, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency: This case demonstrates that temporarily suspending land development rights is not a taking. SCOTUS held a 32-month moratorium on development (issued to allow the Agency time to adopt measures to mitigate environmental impacts to Lake Tahoe) was not a regulatory taking.

These cases do not offer much hope for takings claims’ success against public health emergency regulations. As for the seminal takings doctrines – Loretto, Lucas, Nollan, Dolan, and Penn Central – a study of 2,000 takings cases establishes that SCOTUS’s categorical rules govern almost no state takings cases and regulatory takings claims almost invariably fail. Public health protection laws accomplish valid public objectives; they are likely to be valid under Due Process jurisprudence.

These cases also illustrate the role that local governments can play during public health crises, which can vary depending on the power granted in local charters, home rule provisions in state constitutions or state laws, or special and general enabling acts. 

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

Oregon adopts new housing production strategy rules

LCDC Adopts New Housing Production Strategy Rules

Oregon Department of Land Conservation and Development sent this bulletin at 11/13/2020 03:04 PM PST

Having trouble viewing this email? View it as a Web page.   NEWS RELEASE   FOR IMMEDIATE RELEASE: November 13, 2020   CONTACTS:  Ethan Stuckmayer, 503-302-0937, [email protected] Samuel De Perio Garcia, 971-375-5970, [email protected] Land Conservation and Development Commission Adopts Housing Production Strategy Rules SALEM - At their meeting on November 12, 2020, the Land Conservation and Development Commission (LCDC) passed new rules to implement House Bill 2003 from the 2019 legislative session. The primary goal of the bill is to help satisfy unmet housing needs in Oregon through the development of housing production strategies. Forty-nine (49) cities in Oregon with a population over 10,000 will be subject to these new rules. The adopted rules require cities to develop housing production strategies to achieve fair and equitable housing outcomes. These strategies seek to increase housing production while addressing the location of housing, fair housing, housing choice, housing options for residents experiencing homelessness, opportunities for affordable rental housing and homeownership, gentrification and displacement, and encouraging housing stabilization for historically marginalized community members. “This is a historic moment - created by a diverse volunteer Rules Advisory Committee and staff. We are grateful for their extensive contributions. It’s rare that we have cities telling us we did everything right,” said Chair McArthur after hearing a range of testimony. Director of the Homelessness Research and Action Collaborative, PSU Professor Marisa Zapata served on the state’s advisory committee. Dr. Zapata advised commissioners of the far-reaching implications of this work: “Oregon has set a standard on homelessness and housing that is the first of its kind in the country. These new rules will incorporate the needs of people experiencing homelessness for the first time in planning for unmet housing needs.”   Commissioner Anyeley, the commission’s liaison to the advisory committee, made the motion to approve the new rules. Commissioner Nick Lelack seconded the motion which passed 5-0.  “The rulemaking process has been very intentional on encouraging equitable housing outcomes for all Oregonians. This work has required the participation of diverse stakeholders not traditionally included in land use decision making processes and a deliberate focus on providing opportunities and eliminating barriers to the production of needed housing”, said Commissioner Hallova. “We look forward to partnering with cities, housing providers, and community organizations to implement these new rules”. Adopted without amendment, the new rules to implement House Bill 2003 may be found on DLCD’s website here: https://www.oregon.gov/lcd/Commission/Documents/2020-11_Item-5_Attach-B-Proposed-Housing-Production-Strategy-Administrative-Rules.pdf With funding provided by the Oregon Legislature via the Department of Land Conservation and Development (DLCD), two cities are currently working on prototype versions of Housing Production Strategies this year. Last year, the Oregon Legislature also passed House Bill 2001 aimed at providing Oregonians with more housing choices, especially housing choices more people can afford. This new law lets people build certain traditional housing types, like duplexes, in residential zones. These housing types already exist in most cities, but have been outlawed for decades in many neighborhoods. The Land Conservation and Development Commission continued the hearing to implement House Bill 2001 to December 9, 2020 where final rules are expected to be reviewed and approved by the commission. ### Oregon’s statewide land use planning program — originated in 1973 under Senate Bill 100 — protects farm and forest lands, conserves natural resources, promotes livable communities, facilitates orderly and efficient development, helps coordination among local governments, and enables citizen involvement.   The program affords all Oregonians predictability and sustainability to the development process by allocating land for industrial, commercial and housing development, as well as transportation and agriculture.   The Department of Land Conservation and Development (DLCD) administers the program. A seven-member volunteer citizen board known as the Land Conservation and Development Commission (LCDC) guides DLCD.   Under the program, all cities and counties have adopted comprehensive plans that meet mandatory state standards. The standards are 19 Statewide Planning Goals that deal with land use, development, housing, transportation, and conservation of natural resources. Periodic review of plans and technical assistance in the form of grants to local jurisdictions are key elements of the program

Land Use, Human Health, and Equity Project, Post 3: The Role of Density in Combatting Climate Change and COVID-19

Elisabeth Haub Law School of Law

Pace University

Land Use Law Center

Supervisor: John R. Nolon, Distinguished Professor

Blog No. 3 of the Land Use, Human Health, and Equity Project

Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss

Contributing Researcher: Gabriella Mickel[*]

The Role of Density in Combatting Climate Change and COVID-19

[This is the third in a series of posts by Prof. John R. Nolon and series editors Jessica Roberts, Jillian Aicher, and Colt Watkiss from the Land Use Law Center at the Elisabeth Haub Law School, Pace University.  This post also appears on the law school's GreenLaw blog. ]

High population density might seem an unlikely pillar of sustainable development. Take, for instance, New York City. While it is the most densely populated city in the U.S., few would characterize it as particularly "green." By significant measures, however, there are few greener communities in the country. In 2016, New York City's per-capita carbon dioxide equivalent emissions averaged less than one-third of the national per-capita average.

The key to this lower level of emissions is density. Concentrating people, businesses, and services makes public transportation more feasible, apartment buildings (which are generally more energy-efficient than single-family homes) more common, and ultimately preserves more land. If all of New York City's residents spread out at the population density of Vermont, the city would consume "the land area of six New England states plus New Jersey, Delaware, Maryland, and Virginia." Compared to such sprawl, compact urban development is associated not only with lower emissions and greater environmental preservation but also greater economic productivity, innovation, traffic safety, air quality, social capital, and opportunities for upward mobility. It further results in less car dependency, “less likelihood of obesity and related chronic diseases,” and “increased overall life expectancy.”

But is compact urban development better for the public's health in the wake of COVID-19? It may seem intuitive that the higher the density, the higher the risk of disease contagion and mortality. Yet, evidence suggests that density, in and of itself, may not be to blame. In a recent study, researchers analyzed the COVID-19 infection and mortality rates in 913 U.S. metropolitan counties. When factors such as race, education, and metropolitan size were taken into account, the researchers found that "county density is not significantly related to the infection rate." Further, "counties with higher densities have significantly lower virus-related mortality rates than do counties with lower densities."

One possible reason for such a lower mortality rate in higher-density areas is the availability and quality of health care. In one survey, almost all low-income respondents who live in suburban and rural areas cited transportation as "a significant barrier to obtaining health care services." Not only do suburban and rural residents travel farther to medical facilities, but many people in these car-dependent areas do not own cars. Since public transportation seldom serves these areas, many are left without a reliable means of obtaining medical care. To make matters worse, "a substantial portion of the US population residing in these areas lack[] health insurance," and their medical providers are "less likely to receive public funds" to support care for the uninsured.                                  

In contrast, dense urban areas provide more medical care options (including free or low-cost alternatives). In addition, the options provided in denser communities are often more accessible. Since high-density areas can support public transportation, many people living in these areas need not rely on cars to obtain medical care. These factors can reduce disease mortality.

But what about disease contagion? While it may seem logical that high-density areas would have high infection rates, this is not necessarily true. Research indicates that connectivity between areas "matters more than density in the spread of the COVID-19 pandemic." By itself, density may even work to reduce infection rates since high-density areas have the infrastructure to more effectively implement measures that promote social distancing. In addition, high-density makes it easier to provide services to people most in need while social distancing orders are in place.

These findings suggest that density can play a critical role in promoting public health and building a more sustainable future. While cities must continue working to reduce disease contagion and mortality, density can be a valuable tool in doing so. However, to maintain high-density levels, cities must continue working to make density appealing by integrating public health into urban planning and design. At the Land Use Law Center, the Land Use, Human Health, and Equity Project is developing strategies for how cities can do so in a post-pandemic world.

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.  Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.  Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.  Gabriella Mickel is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.

New documentary on RLUIPA: America's Holy War

There is a new documentary on RLUIPA available on Amazon Prime (free with Prime membership) called America's Holy War.  Here is the summary:

An elderly widow is pressured to sell her beloved home.  Her neighbors harassed to sell theirs too to developers who want to replace them with multi-story buildings for a rapidly growing religious community.  The story of a battle triggered by the Religious Land Use and Institutionalized Persons Act (RLUIPA) which was meant to fight religious discrimination but instead has ignited a holy war.

Hat tip to Patty Salkin.