Land Use Prof Blog

California Building Industry Ass'n - Cert Petition Denied

Stephen Miller and I have previously blogged about California Building Industry Ass'n v. City of San Jose, a case in which the California Supreme Court upheld the constitutionality of the City of San Jose's inclusionary zoning ordinance.  The California Building Industry Association had filed a petition for cert with the U.S. Supreme Court. Today, that petition was denied. However, Justice Clarence Thomas warned that the court may yet take up the issue of the constitutionality of such ordinances.

Until we decide this issue, property owners and local governments are left uncertain about what legal standard governs legislative ordinances and whether cities can legislatively impose exactions that would not pass muster if done administratively. These factors present compelling reasons for resolving this conflict at the earliest practicable opportunity. Yet this case does not present an opportunity to resolve the conflict. The city raises threshold questions about the timeliness of the petition for certiorari that might preclude us from reaching the takings-clause question. Moreover, petitioner disclaimed any reliance on Nollan and Dolan in the proceedings below. Nor did the California Supreme Court's decision rest on the distinction (if any) between takings effectuated through administrative versus legislative action. Given these considerations, I concur in the court's denial of certiorari.

In other news, today Justice Thomas asked his first question from the bench in over a decade. Given Justice Scalia's passing, perhaps Thomas feels it is time for him to take a more visible role on the court.

Jamie Baker Roskie

Building Industry Seeks Cert in California Inclusionary Zoning Case

Earlier this summer Stephen Miller blogged about the California Supreme Court's decision in the California Building Industry v. City of San Jose case, in which the court held that San Jose's inclusionary zoning ordinance was a valid exercise of police power and not an exaction.  However, the folks at Perkins Coie are reporting on their California land use blog that the California Building Industry Association, through their counsel at the Pacific Legal Foundation, have filed a petition for cert.  The jury is still out on whether inclusionary zoning is an effective affordable housing tool, but if SCOTUS grants cert, the issue may be moot. Stay tuned.

Jamie Baker Roskie

Online Professional Development Course in Adaptive Planning & Resilience

Land Use Prof colleagues -- please share the following information about an online self-paced course in adaptive planning and resilience as broadly as possible.  It's especially relevant for professionals who are engaged in planning and would benefit from skills to make their planning processes more adaptive and resilience-oriented.  Students, professors, and other professionals are welcome too.  Thanks for your interest and help!  All best wishes, Tony Arnold

I’m writing to let you know about an online self-paced professional development course in adaptive planning and resilience.  This course is aimed at any professional who engages in planning under conditions of uncertainty, complexity, or unstable conditions, whether in the public sector, private sector, local community, or multi-stakeholder partnerships. 

The course is ideal for professionals in sectors such as urban planning, community development water supply, water quality, disasters/hazards, environmental protection, land management, forestry, natural resources management, ecosystem restoration, climate change, public infrastructure, housing, sustainability, community resilience, energy, and many others.  I hope that you and the employees and/or members of your organization will consider enrolling in this course.

 The 12-hour course is offered by the University of Louisville for a cost of $150 and is taught by Professor Tony Arnold, a national expert in adaptive planning and resilience, and a team of professionals engaged in various aspects of adaptive planning.  The online lectures are asynchronous, and the course is self-paced; this offering will last until November 22.

 More information is provided below and at the registration web page: http://louisville.edu/law/flex-courses/adaptive-planning.  This offering of the course begins October 12 but registration will be accepted through November 15 due to the self-pacing of the course.  We are seeking AICP CM credits for the course in partnership with the Kentucky Chapter of the American Planning Association, but cannot make any representations or promises until our application is reviewed. 

Please share this blog post or information with anyone who might be interested.  Please contact me at [email protected], if you have any questions. 

Adaptive Planning and Resilience

Online and self-paced

Oct. 12 – Nov. 22, 2015

Adaptive Planning and Resilience is a professional development course in which professionals will develop the knowledge and skills to design and implement planning processes that will enable their governance systems, organizations, and/or communities to adapt to changing conditions and sudden shocks or disturbances.

Adaptive planning is more flexible and continuous than conventional planning processes, yet involves a greater amount of goal and strategy development than adaptive management methods. It helps communities, organizations, and governance systems to develop resilience and adaptive capacity: the capacity to resist disturbances, bounce back from disasters, and transform themselves under changing and uncertain conditions. Adaptive planning is needed most when systems or communities are vulnerable to surprise catastrophes, unprecedented conditions, or complex and difficult-to-resolve policy choices.

The course will cover the elements of adaptive planning and resilient systems, the legal issues in adaptive planning, how to design and implement adaptive planning processes, and case studies (including guest speakers) from various communities and organizations that are employing adaptive planning methods.  Enrollees will have the opportunity to design or redesign an adaptive planning process for their own professional situation and get feedback from course instructors.

The six-week course totals about 12 hours broken into 30-minute segments. It is conducted online and is asynchronous. Cost is $150.

 About Professor Tony Arnold

Professor Craig Anthony (Tony) Arnold is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in both the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility. Professor Arnold is an internationally renowned and highly-cited scholar who studies how governance systems and institutions – including planning, law, policy, and resource management – can adapt to changing conditions and disturbances in order to improve social-ecological resilience. He has won numerous teaching awards, including the 2013 Trustee’s Award, the highest award for a faculty member at the University of Louisville.

Professor Arnold has clerked for a federal appellate judge on the 10th Circuit and practiced law in Texas, including serving as a city attorney and representing water districts. He served as Chairman of the Planning Commission of Anaheim, California, and on numerous government task forces and nonprofit boards. He had a land use planning internship with the Boston Redevelopment Authority, did rural poverty work in Kansas, and worked for two members of Congress. Professor Arnold received his Bachelor of Arts, with Highest Distinction, Phi Beta Kappa, in 1987 from the University of Kansas. He received his Doctor of Jurisprudence, with Distinction, in 1990 from Stanford University, where he co-founded the Stanford Law & Policy Review and was a Graduate Student Fellow in the Stanford Center for Conflict and Negotiation. He has affiliations with interdisciplinary research centers at six major universities nationwide and is a part of an interdisciplinary collaboration of scholars studying adaptive governance and resilience.

 Professor Arnold will be joined in co-teaching the course by a team of his former students who are

professionals knowledgeable in adaptive planning. They include:

• Brian      O’Neill, an aquatic ecologist and environmental planner in Chicago
• Heather      Kenny, a local-government and land-use lawyer in California and adjunct      professor at Lincoln Law School of Sacramento
• Sherry      Fuller, a business manager at the Irvine Ranch Conservancy in Orange      County, California, and former community redevelopment project manager
• Andrew      Black, who is Associate Dean of Career Planning and Applied Learning at      Eckerd College in St. Petersburg, Florida, and a former field      representative for two U.S. Senators in New Mexico
• Andrea      Pompei Lacy, AICP, who directs the Center for Hazards Research and Policy      Development at the University of Louisville
• Jennifer-Grace      Ewa, a Postdoctoral Fellow in Inequality and the Provision of Open Space      at the University of Denver
• Alexandra      Chase, a recent graduate of the Brandeis School of Law who has worked on      watershed and urban resilience issues with the Center for Land Use and      Environmental Responsibility and now lives in St. Petersburg, Florida.

Dates

October 12 – November 22, 2015,

Online, asynchronous, and self-paced

Cost

$150

For more information

Visit louisville.edu/law/flex-courses.

 

Free Monthly Program on Land Use Law

As the Vice Chair of the Land Use Committee of the ABA State & Local Government Law Section, I’m pleased to share a number of opportunities for land use law profs, students and practitioners. Committee Chair Jessica Bacher, Executive Director of the Pace Land Use Law Center, will be guest blogging in October, so subscribers to the Land Use Prof blog can also expect live reporting from the Section’s Fall Meeting in Louisville, Kentucky.

ABA State & Local Government Law Section members are welcome to join the Land Use Committee for its monthly teleconference, at which we briefly discuss business before turning to a substantive program featuring cutting edge subjects in the area of land use, planning and zoning law. ABA law student members can join the Section for free. (Join by clicking here or calling 1-800-285-2221.)  

The Land Use Committee’s next meeting is scheduled for Friday, September 11, 2015, at 2:00 pm EST, and we will feature as speakers David L. Callies, FAICP, Kudo Professor of Law at the University of Hawaii, and Tim Iglesias, Professor of Law at the University of San Francisco School of Law. Professor Iglesias organized and co-authored an amicus brief in support of the City of San Jose. They will be presenting a 30-minute program on the Law of Affordable/Workforce Housing Exactions and Set-Asides.

The speakers will discuss the holding and rationale of the recent California Supreme Court decision in California Building Industry Association v. City of San Jose, which challenged an inclusionary zoning ordinance, and the effect of this decision on the law of affordable/workforce housing exactions and set-asides, and implications for exactions and impact fees generally. The court found that the challenged inclusionary zoning ordinance was a land use regulation subject to rational basis review and not an exaction subject to heightened judicial scrutiny.

The Law of Affordable/Workforce Housing Exactions and Set-Asides

Friday, September 11, 2015

2:00 p.m. EST

Dial-in 888-3967955

Passcode 797687#  

Sarah J. Adams-Schoen, Assistant Professor of Law and Director of Touro Law’s Institute for Land Use & Sustainable Development Law, and managing author of the blog Touro Law Land Use here.

The Guardian Calls Out Donald Sterling for Being a Racist...Landlord

Usually the intersection between land use law and sports comes in the siting of sports arenas.  But, today I happened across an article in The Guardian about the LA Clippers/Donald Sterling racism scandal that takes issue with the NBA's non-action, for years, on his racism in his business practices:

But all those years, not enough people looked at Donald Sterling as the racist landlord the law so bore him out to be.

Neither the league, nor the players, nor the sports media paid much if any attention to Sterling's agreement in 2003 to pay upwards of $5m to settle a lawsuit brought by the Housing Rights Center charging that he tried to drive non-Korean tenants out of apartments he bought in the Koreatown section of Los Angeles. Only a few observers noted in 2006 that the Justice Department sued Sterling for allegations of housing discrimination in the same neighborhood. The charges included statements he allegedly made to employees that black and Hispanic families were not desirable tenants.

And while a handful of us in the media excoriated Sterling and the NBA in 2009 when Sterling settled the lawsuit by agreeing to pay $2.73m following allegations he refused to rent apartments to Hispanics, blacks and families with children, the story didn't resonate – despite it being the largest housing discrimination settlement in Justice Department history.

Read the entire article, "The real tragedy of Donald Sterling's racism: it took this long for us to notice," here.

Jamie Baker Roskie

Blumm & Paulsen on the Public Trust in Wildlife

Michael C. Blum (Lewis & Clark) and Aurora Paulsen (Lewis & Clark) have posted The Public Trust in Wildlife, Utah Law Review (2013).  The abstract:

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine — sovereign ownership of wildlife — is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should be merged, and that state sovereign ownership of wildlife means that wildlife — like navigable waters — is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states with the authority to manage their wildlife populations but also the duty to do so and would equip members of the public with standing to enforce the states’ trust duties in court. This paper shows that the public trust in wildlife has already been employed in California and in several other states, and suggests that it deserves more widespread judicial recognition, particularly — as we demonstrate — in view of the fact that no fewer than forty-seven states use trust or trust-like language in describing state authority to manage wildlife. We include an appendix citing the sources of the wildlife trust in all forty-seven states for reference.

Matt Festa

Green Siting for Green Energy

I have been lucky enough to find myself in collaboration with Amy Morris of Aspen Environmental Group. We have been working on three papers about the renewable energy development, specifically the utility-scale solar projects in the California desert. As often seems to happen, our initial paper got too long and cumbersome and we ended up breaking it up. Two of the papers should be out this fall (depending on the pace of the student editors) and the first is available on SSRN in draft form.

This first piece, Green Siting for Green Energy, gives some broad strokes about solar energy siting and some of teh environmental tradeoffs. Particularly interested in the tradeoffs with agricultural lands, we'll have a whole separate paper on that topic some day soon. Hopefully this short piece (presented at George Washington last April) will whet your appetite.

One of the weirdest things about this article for me: we don't once use the phrase conservation easement. Although we do say conservation a lot and easement a few times. Just not together. We do talk about solar use easements though, which are nowhere near almost as exciting.

Amy Morris, Jessica Owley & Emily Capello, Green Siting for Green Energy, 4 J. Energy & Envt’l L. _ (forthcoming 2013).

Renewable energy development is critical to reducing greenhouse gas emissions. Solar energy projects can replace polluting fossil fuels, but because they are land-intensive, solar projects also have environmental costs. Large projects have the potential to provide hundreds of megawatts of electricity, but could also disrupt huge expanses of undeveloped land. Arrays of solar panels on commercial rooftops or capped landfills allow beneficial reuse of developed sites, but these projects are typically small-scale (less than 1 MW). This tension between renewable energy development and protection of precious landscapes (particularly desert landscapes) creates a conundrum for environmentalists.

This paper examines the tradeoffs involved in siting solar projects, with a particular focus on California. The unique ecosystems and biodiversity in the California desert have made the tradeoffs between environmental benefits and costs of solar projects especially apparent. We look at the current hurdles for “greener” siting of projects in disturbed and developed areas, including the obstacles to permitting distributed generation (DG) projects, smaller-scale projects that may be built on parking lots or rooftops. While both large and small scale renewables are necessary to reduce greenhouse gas emissions, there are many opportunities for greener renewable energy siting. Greener siting must proceed on two fronts. First, as large utility-scale solar facilities will be an important component of a sustainable energy future, we need to improve the environmental review and sustainability of those facilities while being wiser about where we locate such projects. Marginal agricultural land and abandoned mine lands can provide untapped opportunities. Second, distributed generation with solar photovoltaics located across the state will be vital. The key to greener siting of DG is fostering the expansion of renewable projects in disturbed areas, particularly contaminated sites and rooftops and parking lots. A challenge of DG is the number of actors, permits, and environmental review process required. Facilitation and coordination of these processes will speed the journey to a solar energy future.

Jessie Owley

Overdrive--Getty Exhibition on LA Development

This past weekend I was in Southern California for a family wedding, and we had the chance to go over to the Getty Museum.  It is a spectacular place for many reasons including land use and architecture.  Right now, and through July 21, the Getty is featuring an incredibly interesting exhibit called Overdrive: LA Constructs the Future, 1940-1990.  It tells the story of how LA was the archetype for American land use and development in the postwar era through the end of the 20th Century.  

My family and I really enjoyed the exhibition (as well as the Getty experience overall), so I encourage you to check it out, if possible, before it closes on July 21.  Even if you can't get there, I'd recommend the book about the Overdrive exhibition, which has most of the images.  

-

Matt Festa

Job Opening at Golden Gate Environmental Law and Justice Clinic

Helen Kang, director of the environmental law and justice clinic at GGU has informed us about a temporary staff attorney position.  See the details below, and act quickly if you're interested.  The application period closes July 12, 2013; with tentative start date of August 15, 2013

BASIC FUNCTION AND SCOPE OF JOB:

The Environmental Law and Justice Clinic at Golden Gate University School of Law in San Francisco is seeking a staff attorney with significant litigation experience to serve full-time, from August 15, 2013 to December 31, 2013; and from January 1, 2014 to April 30, 2014, to job share with another staff attorney.  This is a temporary position and will not be extended.

ABOUT THE CLINIC:

Established in 1994, the Clinic is part of the law school and is staffed by students, two graduate fellows, and two full-time professors. The Clinic trains students to become effective, ethical lawyers, while providing excellent service to low-income communities and communities of color bearing disproportionate environmental burdens. The Clinic has successfully reduced pollution from refineries, power and manufacturing plants, and military facilities. Its work has also contributed to landmark decisions ensuring that California relies on renewable energy, conservation, and efficiency to fight climate change. See http://digitalcommons.law.ggu.edu/eljc/18/.

ESSENTIAL FUNCTIONS:

The attorney will have primary responsibility in fast-paced California Public Utilities Commission proceedings and in cases against pollution sources and government agencies, co-teach the Environmental Law & Justice Clinic seminar, and closely supervise law students in all aspects of case work.

QUALIFICATIONS:

Member of the California State Bar in good standing

Extensive litigation experience, with aptitude and ability to take primary responsibility in Clinic cases, including those involving trials

Superb analytical, research (factual and legal), writing, and oral communication skills

High degree of professionalism in all aspects of lawyering, including in dealings with staff, colleagues, and opponents

 Familiarity with energy and administrative law preferred

Strong interpersonal skills to be able to effectively supervise students, collaborate with colleagues, and job share

Strong work ethic

 Ability to adhere to the school’s policies, including the ability to handle confidential and sensitive information, and to deal with a wide variety of student concerns

Apply by July 12, 2013, through http://www.ggu.edu/jobs. Applicants must apply online via the GGU job board and upload a cover letter highlighting your qualifications, resume, writing sample, and list of references.

Jamie Baker Roskie

Brinig & Garnett on Accessory Dwelling Unit Reforms and Local Parochialism

Margaret F. Brinig (Notre Dame) and Nicole Stelle Garnett (Notre Dame) have posted A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism, forthcoming in The Urban Lawyer (2013).  The abstract:

Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. Our analysis suggests that the seeming success story masks hidden local regulatory barriers. Local governments have responded to local political pressures by delaying the enactment of ADU legislation (and, in a few cases, simply refusing to do so despite the state mandate), imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted “as of right,” requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details likely dramatically suppress the value of ADUs as a means of increasing affordable housing.

This looks really interesting.  Here in Houston we have a significant number of ADUs--so-called "granny flats" because--stop me if you've heard this before--Houston has no zoning to make it illegal, as this article shows it has been in single-family residentail neighborhoods around the country.  These ADUs provide an important supply of affordable "inside-the-Loop" (i.e. central city area) housing. 

Matt Festa

Talking Energy in Minnesota

It's been a whirlwind of conferences for me this month. Two weeks ago I was at GW. Last week, we had a conference at Buffalo. Now, I am sitting in sunny but snowy Minnesota attending the 2013 Consortium Annual Conference, entitled "Legal & Policy Pathways for Energy Innovation."

My co-author Amy Morris (of Aspen Environmental) and I presented one of our current works-in-progress (yes we have three). This one we are currently calling Mitigating the Impacts of the Renewable Energy Gold Rush. In this paper, we take a close look at the mitigation being done in association with the large-scale solar projects in the California Desert. One of the challenges has been just to untangle all of the agencies and laws at play. We have been particularly concerned with the mitigation projects and methods. Projects are approved (and indeed construction often begins) before mitigation projects are finalized or land identified. And of course, the use of exacted conservation easements is prevalent throughout... something that always makes me nervous.

Most of the mitigation projects are about endangered species protection and our paper focuses on that aspect. Thus, we were  not too surprised when we were placed on a panel about endangred species and renewable energy (with Kalyani Robbins and Jeff Thaler). It was one of the more contentious academic (they've got nothing on the land trust folks) panel presentations I have been a part of. It was a lively discussion about whether it makes sense to protect endangered species if the protection will in any way hamper development of renewable energy projects. Most folks agreed that climate change is likely to have bigger impacts on endangred species and ecosystem health than renewable energy development is. This raises big questions about tradeoffs with renewable energy projects and even introduced proposals to amend the Endangered Species Act!

And things are only getting started. Conference organizer extraordinare Hari Osofsky tells us that the recordings and videos of the conference will be available. You should contact her to learn more.

Conference Summary

The Legal & Policy Pathways for Energy Innovation conference will bring together leading scholars, practitioners, policymakers, and business people to address current energy law and policy challenges, particularly at the intersection of environmental law and policy. The panels will focus on four primary topics: (1) clean energy infrastructure; (2) environmental and energy governance; (3) climate, energy, and environmental justice; (4) sustainable regions and communities.

- Jessie Owley

 

Talking Energy at GW

Greetings from George Washington Law School where the 2013 J.B. and Maurice C. Shapiro Conference is wrapping up. Entitled Laying the Foundation for a Sustainable Energy Future: Legal and Policy Challenges, there has been an impressive array of panelists from industry, governements, NGOs, and academia.

My co-athour Amy Morris (of Aspen Environmental Group) and I presented some of our work on the land use tradeoffs involved in renewable energy projects. We have been looking at these issues through the lens of solar projects in California, but the issues come up in many contexts. To give you some broad strokes of the project: In California, we see development of main types of projects--utility scale and distrbuted generation. The large utility-scale solar facilities in the California desert have been under heavy scrutiny and criticized for their potential impacts on environmental and cultural values. In an effort to avoid pristine desert ecosystems, agencies and environmental groups have been championed the use of distrubed lands. Such lands are not completely controversy-free either. As a threshold question, we have to figure out what lands should qualify as "distrurbed." In some cases, it may be that we are too quick to label something as disturbed. Generally though the big categories are brownfields, former landfills and mines, hardscapes (parking lots and rooftops), and marginal agricultural lands. I won't get into here, but trust me each of those categories has a host of issues surrounding its use.

I've been feeling a little out of my league as the land use lawyer in the midst of the energy experts but have learned a lot and have been impressed with GW's organization of the conference. I also really enjoy attending conferences in Washington DC where the audience is always filled with a great mix of people from agencies and nonprofits.

- Jessie Owley

Climate & Energy Law Symposium at USD

The University of San Diego School of Law will host the Fourth Annual Climate & Energy Law Symposium on Friday, Nov. 9, 2012.  This year's title is Law in a Distributed Energy Future.  Here is the symposium overview:

The University of San Diego School of Law's fourth annual Climate and Energy Law Symposium will examine emerging law and policy approaches to encourage and accommodate distributed energy solutions. Historically, electricity has been generated by large power plants located far from consumers and delivered via long transmission lines. While that model remains largely intact, a gradual shift is occurring toward more localized energy production.

The symposium will bring together legal and policy experts from across the country to address a variety of key issues including the latest developments in the rules that govern the electricity grid change to incorporate distributed generation, possibilities for generating energy at the neighborhood and community levels, the legal and policy innovations at the federal, state and local levels that are most needed to usher in a distributed energy future.

Keynote addresses will be given by Commissioner Carla Peterman of the California Energy Commission, and Ken Alex, senior policy advisor to California Governor Jerry Brown and director of the Office of Planning and Research.  The program and registration info are at the website.  

Anaheim Police Shooting and At-Large Elections: Is there a link?

A major news item here in Orange County has been the rash of protests in the county's largest and most well-known city, Anaheim, sparked by a pair of police shootings of two suspected Latino gang members.  Activists and the media have drawn a link between the shootings and Anaheim's system for electing city councilmembers.  In Anaheim, as in most cities in California, all five members of the city council (technically four members plus the mayor, but the mayor is really just a fifth councilmember who gets to hold the gavel at meetings) are elected at-large, meaning the city as a whole is a single electoral district and candidates can reside anywhere in the city.  It has been alleged by the ACLU that the at-large system dilutes Latino voting power because it diminishes the ability of geographically concentrated groups (which often include minority communities) to elect representatives from their own neighborhoods, and places a premium on the ability to gather a huge war-chest, which advantages candidates with support from the more affluent constituencies.  In Anaheim, indeed, there is not a single Latino member of the city council despite Latinos representing more than 50% of the city's population, and four of the five councilmembers live in Anaheim's wealthy, largely white "Anaheim hills" area.  Thus, the argument goes, it is because the city government is out of touch with the concerns of its major constituency that incidents like these police shootings are able to happen.

This story hits home to me because I wrote an article a few years ago that made a very similar argument, although it was more focused on land use: The at-large electoral system deployed in most California cities means that neighborhoods have little voice on land use matters, which tends to favor the interests of the pro-development "growth machine."  I further argued that this system tended to dilute minority voices on land use issues (especially eminent domain, of blessed memory).  In my article, however, I argued that neighborhood interests did not simply fade away but necessarily expressed themselves outside the political system, either in the form of the initiative process or in the form of urban riots.  Indeed, the famous anti-tax initiative Proposition 13 has been referred to (although I could not definitively verify the original quote) as "the Watts riot of the middle class."   In the paper, I called for the jettisonning of the at-large system and the implementation of district or ward systems, which is precisely what the activists in Anaheim are calling for. 

It appears in Anaheim we may be seeing "the Proposition 13 of the disenfranchised."  Stay tuned.

Hat tip to my colleague Ernesto Hernandez-Lopez for some of these links and for alerting me to some of the details of the story.

Ken Stahl

California flirts with new environmental review exemptions for infill projects

Anyone who has practiced or studied land use law in a state with a strong environmental review process knows how that environmental review process often comes to override the land use permitting process.  In particular, urban projects have often suffered from an environmental review process that works better for reviewing greenfield projects, and also from more litigious groups of neighbors that use environmental review procedures either to oppose the project, or seek "mitigations" that benefit neighboring property owners.  On the other hand, efforts to ease the environmental review burdens on infill projects often run into a roadblock of environmental groups that believe exemptions for infill projects will likely only lead to more exemptions and a gutting of the entire law itself (the "slippery slope" argument). 

This fight has been ongoing in California, and other states, for decades.  Several infill exemption provisions from the state's California Environmental Quality Act ("CEQA", pronounced "SEE-kwa") look good on paper, but are essentially unworkable if there are litigious parties involved.  Such unworkable exemptions are in the state's landmark SB375 legislation that seeks to link land use and transportation:  the list of requirements for applicability of the exemption apply to, well, about absolutely nowhere.  Another unworkable exemption is CEQA Guidlines section 15332, which is seldom used where litigation is possible.

With the passage of SB 226 in 2011, however, the state is once again taking a hard look at exemptions for urban infill projects.  Under a mandate of SB 226, the Governor's Office of Planning and Research, now headed by Ken Alex, a well-respected former senior assistant attorney general who ran the California Attorney General's environmental division, has drafted a proposed new CEQA Guideline for urban infill exemptions that was released on June 25, 2012 after epic public commenting.  The proposed CEQA Guideline is now going through formal rulemaking processes at the state's Natural Resources Agency. A cheat sheet on the new proposed infill exemption is available here.  If you want to keep up-to-date on the California infill exemption hearings, you can do so by adding your name at this link.

California's purpose for pursuing the infill exemption is now structured in terms of the climate change debate, but decades ago, the need for such legislation was structured in terms of "sprawl" or "smart growth."  We all know that it is harder to build in urban areas than in greenfields, and there needs to be a way to level that playing field and encourage urban infill.  Following this latest effort in California will be a chance to watch this debate unfold once more, and now in the framework of the climate change debate.

Stephen R. Miller

San Diego Climate & Energy Law Symposium

Lesley McAllister recently announced a symposium on Climate and Energy Law that might be of interest to our readers. Land use is so closley entwined with energy sprawl, electricity distribution, and facility siting, I am sure it will be discussed extensively in San Diego in November.

USD Climate & Energy Law Symposium, SAVE THE DATE - Nov. 9, 2012

The University of San Diego School of Law will host its Fourth Annual Climate & Energy Law Symposium on Friday, November 9. The 2012 symposium will bring together leading academics and practitioners to explore the theme of Law in a Distributed Energy Future with questions such as:

• How should the rules that govern the electricity grid change to incorporate distributed generation?
• What possibilities exist for generating energy at the neighborhood and community levels?
• What legal and policy innovations at the federal, state and local levels are most needed to usher in a distributed energy future?

Confirmed speakers include: Carla Peterman, Commissioner, California Energy Commission (Keynote) Scott J. Anders, Director, Energy Policy Initiatives Center, University of San Diego School of Law Sara C. Bronin, Associate Professor of Law & Program Director, Center for Energy & Environmental Law, University of Connecticut School of Law Timothy Duane, Associate Professor of Law, Vermont Law School Joel B. Eisen, Professor of Law, University of Richmond School of Law Michael B. Gerrard, Andrew Sabin Professor of Professional Practice, Columbia Law School Lesley K. McAllister, Stanley Legro Professor in Environmental Law, University of San Diego School of Law J.B. Ruhl, Matthews & Hawkins Professor of Property, Vanderbilt Law School Katherine Trisolini, Associate Professor of Law, Loyola Law School Hannah Wiseman, Assistant Professor, Florida State University College of Law

 

Jessie Owley

New report on west coast sea-level rise

The National Research Council has just released a major report on sea-level rise along the California, Oregon, and Washington coasts. From the news release:

The sea level off most of California is expected to rise about one meter over the next century, an amount slightly higher than projected for global sea levels, and will likely increase damage to the state's coast from storm surges and high waves, says a new report from the National Research Council.  Sea levels off Washington, Oregon, and northern California will likely rise less, about 60 centimeters over the same period of time.  However, an earthquake magnitude 8 or larger in this region could cause sea level to rise suddenly by an additional meter or more. 

Global sea level rose during the 20th century, and projections suggest it will rise at a higher rate during the 21st century.  A warming climate causes sea level to rise primarily by warming the oceans -- which causes the water to expand -- and melting land ice, which transfers water to the ocean.  However, sea-level rise is uneven and varies from place to place.  Along the U.S. west coast it depends on the global mean sea-level rise and regional factors, such as ocean and atmospheric circulation patterns, melting of modern and ancient ice sheets, and tectonic plate movements.  

. . .  

The committee that wrote the report projected that global sea level will rise 8 to 23 centimeters by 2030, relative to the 2000 level, 18 to 48 centimeters by 2050, and 50 to 140 centimeters by 2100.  The 2100 estimate is substantially higher than the United Nation's Intergovernmental Panel on Climate Change's projection made in 2007 of 18 to 59 centimeters with a possible additional 17 centimeters if rapid changes in ice flow are included. 

For the California coast south of Cape Mendocino, the committee projected that sea level will rise 4 to 30 centimeters by 2030, 12 to 61 centimeters by 2050, and 42 to 167 centimeters by 2100.  For the Washington, Oregon, and California coast north of Cape Mendocino, sea level is projected to change between falling 4 centimeters to rising 23 centimeters by 2030, falling 3 centimeters to rising 48 centimeters by 2050, and rising between 10 to 143 centimeters by 2100.  The committee noted that as the projection period lengthens, uncertainties, and thus ranges, increase. 

The committee's projections for the California coast south of Cape Mendocino are slightly higher than its global projections because much of the coastline is subsiding.  The lower sea levels projected for northern California, Washington, and Oregon coasts are because the land is rising largely due to plate tectonics.  In this region, the ocean plate is descending below the continental plate at the Cascadia Subduction Zone, pushing up the coast. 

Extreme events could raise sea level much faster than the rates projected by the committee.  For example, an earthquake magnitude 8 or greater north of Cape Mendocino, which occurs in this area every several hundred to 1,000 years with the most recent in 1700, could cause parts of the coast to subside immediately and the relative sea level to rise suddenly by a meter or more. 

"As the average sea level rises, the number and duration of extreme storm surges and high waves are expected to escalate, and this increases the risk of flooding, coastal erosion, and wetland loss," said Robert Dalrymple, committee chair and Willard and Lillian Hackerman Professor of Civil Engineering at Johns Hopkins University. 

Most of the damage along the west coast is caused by storms, particularly the confluence of large waves, storm surges, and high tides during El Niño events.  Significant development along the coast -- such as airports, naval air stations, freeways, sports stadiums, and housing developments -- has been built only a few feet above the highest tides.  For example, the San Francisco International Airport could flood with as little as 40 centimeters of sea-level rise, a value that could be reached in several decades.  The committee also ran a simulation that suggested sea-level rise could cause the incidence of extreme water heights in the San Francisco Bay area to increase from about 9 hours per decade, to hundreds of hours per decade by 2050, and to several thousand hours per decade by 2100. 

You can view a video produced by the Council below.

 Stephen R. Miller

Lefcoe on California Redevelopment Decision

George Lefcoe (USC) has posted CRA v. Matosantos: The Demise of Redevelopment in California and a Proposal for a Fresh Start.  The abstract:

This paper describes how redevelopment in California came to an end with the California Supreme Court’s decision in California Redevelopment Association v. Matosantos and how redevelopment could be resuscitated. The first part of the paper highlights the precipitating events leading up to the case: California’s unique property tax history, the successes and drawbacks of redevelopment, how redevelopment is financed, and the text and politics of Proposition 22, the state constitutional predicate for the Court’s opinion. The second section describes the arguments and outcome of the case in which the Court upheld a statute dissolving redevelopment agencies (RDAs) and simultaneously struck down a companion bill — a “pay-to-stay” law — that would have enabled cities and counties to preserve their RDAs by pledging local funds to the state. A concluding section proposes that California legislators consider a new redevelopment enabling law, modeled along the lines of Texas’s tax increment reinvestment zones (TIRZs). Such a statute would conform to the guidelines for constitutionality from the concluding paragraph of the Court’s opinion in Matosantos, and it would be fiscally responsible because it limits the use of tax increment financing.

Matt Festa

New Lawsuit Challenges San Francisco Billboard Settlement

Most land use profs are familiar with Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), a U.S. Supreme Court case that helped to clarify the extent to which billboards could be regulated under the First Amendment.  In the years following Metromedia, several cities have adopted billboard restrictions based on the case's holding, which generally allows for greater restrictions on offsite and commercial signage.  Still, despite decades of case law on the subject, billboard regulation remains a relatively risky and controversial endeavor.  A new lawsuit against the City of San Francisco is the latest example of cities' ongoing difficulty in restricting billboards.

In 2002, San Francisco voters passed Proposition G--a ballot measure later codified as City Planning Code Section 611 that severely restricts offsite commercial billboards within city limits.  Earlier this month, the citizen group "San Francisco Beautiful" filed a complaint alleging that a settlement agreement between an outdoor advertising company and the City of San Francisco violated the provisions of Proposition G.  According to local newpaper articles posted here and here, the settlement required Metro Fuel LLC, a billboard company, to remove several large billboards and pay $1.75 million in fines. However, the settlement also effectively forgave more than $5 million in other fines and allowed Metro Fuel to replace its decommissioned billboards with an even greater number of smaller signs. 

In a new complaint filed in a California Superior Court, San Francisco Beautiful is alleging that the City's settlement violated Proposition G by allowing an overall increase in billboards.    Assuming that Metro Fuel's aggregate square footage of signage is reduced under the settlement, should it matter that the company's actual number of signs is allowed to increase?  This may be a worthwhile case for land use profs to follow in the coming months, particularly since most of us will be covering Metromedia in our courses again next year.

Troy Rule

The biking bug

Coming this July, New York City will launch a bike share program with 10,000 bikes at 600 stations across lower Manhattan (below 59th Street) and the hipster enclaves of west Brooklyn.

David Byrne, former-Talking Heads front man turned biking proselytizer (maybe you've read his Bicycle Diaries about biking in cities around the world), has a great piece about biking in the Big Apple in last Sunday's New York Times. In the article, he focuses on the practical aspects of the bicycle program for daily activities, like getting some groceries or going across town to a meeting.

Byrne notes that some 200 cities around the world have bike-share programs. I've never used a bike-share program, but not for want of trying. When we were in London last summer, my wife and I were trying to find a rack in that city's bike-share program with two bikes for the both of us, and in London's Soho, we had no such luck. The good news is that the program was obviously immensely popular in London, and I have no doubt it will be in New York. (In particular, I predict Ess-a-Bagel on 1st Avenue will see an even longer line as its bagels become just a short bike-ride away for that many more people).

As a matter of policy, however, I wonder whether the best use of bikes is really the freedom it offers for complete trips, or whether biking's long-term value for large cities isn't the ability for people to use bikes to access other forms of public transportation, such as trains. For several years in San Francisco, I rode my bike, rain or shine, from Potrero Hill to the 24th Street BART station, and then took the train in to work. There were a lot of others doing the same. That requires a different biking infrastructure than bike share programs. Instead of the rental bike stands, it requires secure places to park bikes at train stations and safe pathways through more distant parts of the city. The value, of course, is making public transportation options, such as trains, more readily available to more people. Imagine such a program in the far reaches of Brooklyn or Queens linking to the city's established subway system.

Biking programs can take a long time to develop. For instance, San Francisco's bike plan went through litigation and was required to conduct an extensive environmental impact report under the California Environmental Quality Act. As such, thinking through the variety of ways that bikes can assist getting around a city, should be conducted and evaluated up front. Bike shares and bike-to-transit, I'd suggest, are both important parts of the project.

For those cities contemplating such bike-friendly options, I have two free ideas I'm offering to you. First, a bike commuter greenbelt. This is not new, by any means, but this year I've discovered the joys of bike commuting along Boise's Greenbelt, and it is such a remarkable daily experience down by the cool river. For any city that has the option of making this a reality, just do it. Second, parking squids. That's right, parking squids. Parking squids are being deployed by Seattle as a means of creating bike parking within existing parking spaces. The parking squids each park eight bikes and fit within a traditional car parking space. The squids provide utility and whimsy in the same fixture. Could there be anything better in ending a work commute than locking a bike up to a squid before heading to office?

Stephen R. Miller