Land Use Prof Blog

United States District Court Strikes Down Mora County's Fracking Ban

As expected, the United States District Court for the District of New Mexico, struck down Mora County, New Mexico's ban on hydraulic fracturing. In the case styled SWEPI, LP v. Mora County, New Mexico, the court's 199-page opinion on SWEPI's Motion for Partial Judgement on the Pleadings did not rule in SWEPI's favor on all matters, but comprehensively and completely rejected the notion, advanced by the defendants, that local governments could supersede state and federal law, as well as the attack on the established principle that corporations do not hold rights in the United States. Although I have not been able to digest the entire opinion, for obvious reasons, the court delivered a well-reasoned opinion that strikes another blow to the Community Environmental Legal Defense Fund's (CELDF) effort to advance "novel" legal arguments to block a variety of Locally Undesirable Land Uses (LULUs).

CELDF advances "Rights-Based" ordinances that assert the rights of local governments to override state and federal law. The group also opposes Dillon's Rule by advancing an incorrect understanding of Home Rule. For a more thorough and nuanced understanding of Dillon's Rule and Home Rule, see my monograph, written for the Brookings Institute.

In brief, the court granted the Motion in part and denied it in part, and invalidated the Ordinance.  SWEPI, LP has standing to bring each of its claims, because it has suffered an injury in fact. Because the Mora County has already enacted the Ordinance, andbecause SWEPI, LP would suffer harm if the Court delayed considering its claims, each of SWEPI, LP‟s claims are ripe, except for its claim under the Takings Clause. Because SWEPI, LP has not sought just compensation through a state inverse condemnation action, its takings claim is not ripe. SWEPI, LP may bring its claim under the Supremacy Clause, because it could bring independent claims, through 42 U.S.C. § 1983, under the constitutional provisions that it asserts trumps the Ordinance. Additionally, the Ordinance violates the Supremacy Clause, because it conflicts with federal law. The Ordinance does not, however, violate SWEPI, LP‟s substantive due-process rights or the Equal Protection Clause, because the Defendants had a legitimate state interest for enacting the Ordinance. The Ordinance violates the First Amendment by chilling protected First Amendment conduct. Because the Defendants lack the authority to enforce zoning laws on New Mexico state lands, they may not enforce the Ordinance on state lands. Also, because there is room for concurrent jurisdiction between state and local law, New Mexico state law does not preempt the entire oil-and-gas production field. The Ordinance conflicts, however,with state law by prohibiting activities that state law permits: the production and extraction of oil and gas. Finally, the invalid provisions are not severable from the valid provisions, making the Ordinance, in its entirety, invalid.

The court, therefore, concurred with my assertion, in "Local Regulation of Hydraulic Fracturing",  117 W.Va. L. Rev 593 (2014), that a ban is distinguishable from regulation of an activity. New York remains the outlier in this regard. Also, as argued in that article, the court reaffirms that local governments hold concurrent jurisdiction with states to regulate hydraulic fracturing, but that local regulatory authority falls short of a ban. My article lists other tools, such as impact fees and reasonable setbacks, that are appropriate for local government land use regulation.

The court's rejection of a provision in CELDF's ordinance that purports to prohibit challenges to the ordinance, and which the court repeated from an earlier ruling in the SWEPI case, bears repeating hear as well:

The Ordinance, thus, appears to state that no one can challenge it, or any other
Mora County ordinance, as long as the ordinance concerns the health, safety, or
welfare of its residents. See Ordinance § 5.6. The Intervenor-Applicants‟
argument is that SWEPI, LP, cannot challenge the Ordinance‟s constitutionality,
because the Ordinance deprives SWEPI, LP, of its constitutional rights. If this
argument has validity, it would signal the end of all civil rights that the Constitution
protects. A county could pass an unconstitutional ordinance, but then say that
anyone who challenged the ordinance lacks constitutional rights to support the
challenge. The county could enforce its unconstitutional ordinance free of
constitutional restrictions, because no one could challenge the validity of the
ordinance. The consequences of such an outcome could be devastating to the
Union as the Nation has known it since the Civil War. Some counties could
prohibit speech on certain viewpoints. Others could deny basic rights to members
of certain racial ethnicities. Still others could prohibit religious practices; others
could require participation in religious services. The Constitution would be
applied in a cookie-cutter fashion across the United States with such inconsistency
from place-to-place that it would cease to be a Constitution of the United States at
all.

SWEPI, LP v. Mora County (page 133), citing SWEPI, LP v. Mora Cnty., 2014 WL 6983288, at *48.

Rights-based ordinances are being passed across the country to attempt to ban land application of biosolids, hydraulic fracturing and other LULUs. In addition, some communities are using rights-based ordinances to promote "food sovereignty". The latest ruling in SWEPI, LP v. Mora County provides more evidence that this approach is not only wrong, but can prove to be devastating to the enacting localities. The fact that many of these localities are poor, meaning that they must turn to CELDF instead of costly, but well-qualified, consultants, exacerbates environmental justice concerns. 

Meanwhile, Conestoga Township, PA recently rejected a rights-based ordinance. One supervisor offered an eloquent rationale for his rejection of the ordinance. More local governments should follow the Conestoga example.

Jesse

Local Regulation of Hydraulic Fracturing

In my recent article, Local Regulation of Hydraulic Fracturing, 117 W.Va. L. Rev. 593 (Winter 2014), I review recent case law in New York, Pennsylvania, Colorado and West Virginia that delves into the extent of local authority to regulate hydraulic fracturing. I also list zoning and planning regulations and tools that may properly be implemented by local governments, and tools that should be reserved to state governments.

I conclude that the New York and Pennsylvania courts miss the mark. New York courts fail to distinguish between reasonable regulation of hydraulic fracturing and outright bans of the practice. Some questionable precedents in that state, one of which even a lower court labeled as "flawed", but felt obligated to follow, have skewed the results. New York also fails to acknowledge that bans are likely preempted, particularly where state statutes seek to prevent waste and protect correlative rights. Bans contravene both of those goals.

Pennsylvania oddly perverts the notion of Dillon's Rule to strike down a state regulation limiting local government action. My colleague, Joshua Fershee, perceptively breaks down the Robinson decision in "Facts, Fiction and Perception in Hydraulic Fracturing: Illuminating Act 13 and Robinson Township v. Commonwealth of Pennsylvania, 116 W.Va. L. Rev. 819 (Spring 2014). My analysis focuses on the Dillon's Rule issue, which the dissenting opinion correctly explains. Professor Fershee delves more deeply into that case, for those that are interested.

I conclude that, while local governments should not be able to ban hydraulic fracturing, many tools exist for local governments to employ. These tools include setbacks, common in zoning ordinances, impact fees and “adequate public facilities ordinances.” Zoning ordinances cover issues like noise, light and other visual impacts, road damage, blasting, dust, traffic, compatibility of the activity to nearby property uses, impact of the activity on property values in the area, adequate off-site infrastructure, adequate services (such as police and fire protection), affordable housing, the general health, the safety of the community, odors, potential groundwater contamination, methane emissions, habitat fragmentation, and degradation of environmentally sensitive areas. Local governments should not overreach their authority and infringe upon legitimate state interests, however.

I am presently working on a follow-up to that article, examining the environmental justice ramifications of the present state of affairs. Specifically, wealthy communities, like Santa Fe County, New Mexico can hire costly consultants to draft ordinances that purport to allow hydraulic fracturing, but present so many hurdles that the practice is essentially banned. On the other hand, poor communities, like Mora County, New Mexico, must rely on activist organizations that draft "Rights-Based Ordinances" that ban hydraulic fracturing, and are highly unlikely to withstand legal challenge. Although these organizations draft the ordinances free of charge, and sometimes will even represent the community in the court challenge, the communties are not protected from possible sanctions for frivolous court pleadings. In the end, wealthy communities can exclude LULUs like hydraulic fracturing, while poor communities will bear the burden. Although this circumstance is not new, the contrasts seem to be especially dramatic with respect to hydraulic fracturing.

Jesse Richardson

Should More Land Use Professors be Libertarians? Part III (Final Post)

This is (hopefully) the last in a series of three posts, again cross-posted from Concurring Opinions. In the first, I asked why more land use professors are not libertarians, considering the strong leftist critique of local government. In the second, I suggested that one reason for the leftist commitment to local government (and specifically to local government land use control, albeit often in the guise of “regionalism”) is that the relevant libertarian alternatives – namely, the marketplace and the common law of nuisance – are far worse. Nevertheless, I conceded that this answer was unsatisfactory, considering that many leftists – myself included – betray a Tocquevillian optimism about local government that is difficult to square with the position that local governments are merely the least bad of all the alternatives. So I am left here, in this third post, with the hardest question: How can left-leaning local government scholars have any optimism about local government in light of the abusive local government practices we have witnessed (and documented)?

State Structuring of Local Governments

Alright, here goes… While there is no denying the manifold abuses of which local governments are guilty (see my initial post), the blame for these abuses really falls upon state governments, not local governments. The reason local governments act in the parochial fashion they do is because states have empowered and constrained local governments in such a way that effectively forces local governments to be parochial. In a variety of ways, states have facilitated and encouraged the proliferation of small local governments within metropolitan regions, each of which is thus coerced into a zero-sum competition with the others for scarce revenues. States have, at the same time, dumped all kinds of unfunded and underfunded mandates on local governments, which they must meet with whatever revenue they raise locally. Yet, there is one saving grace for local governments: states have given them an awesome power — the land use power. Is it any surprise that local governments use the biggest power states have given them to solve the biggest problem states have saddled them with –an ongoing obligation to provide costly services with limited funds? The local government abuses I mentioned in my initial post, including the “fiscalization” of land use, exclusion of undesirable land uses (and users), strategic annexation and incorporation efforts, and sprawl are thus not things local governments do because they are inherently corrupt; they do so because the state has structured local government law so as to make these abuses inevitable.  

That’s not even the interesting part. This is: Why have the states created a system in which local governments have such perverse incentives? According to Jerry Frug, states created the modern system of local government law because they were threatened by cities. Cities’ openness and spirit of participation stood in contrast to the bureaucratizing tendencies of the state. States created a system of local government law designed specifically to emasculate and frustrate cities’ ambitions. In other words, local government represents a vital aspect of human experience that has been actively suppressed by the state.  Frug and many others have argued ever since that in order to recover the essence of the local, we need to recalibrate local power and change cities’ incentive structures.

Local Governments and Participatory Democracy

Frug wrote in the tradition of the New Left, with its emphasis on participatory democracy, and in the aftermath of a period in which cities had been devastated by riots, white flight, urban renewal, disinvestment, and outright hostility from state and national political figures.  During the late 1960s, there had been a moment when cities appeared to be on the brink of realizing their potential as fora for public participation – a heady time of citizens’ councils and “maximum feasible participation” – but this potential was quickly squashed by nervous elites.

Frug’s argument echoes theorists of participatory democracy such as Hannah Arendt. Arendt writes that, despite the bureaucratization of modern life, there periodically erupt spontaneous displays of citizen activism that demonstrate a latent human desire for political participation. These moments, of which she includes the Paris Commune of 1871, the Hungarian Revolution of 1956, and others, are quickly snuffed out when powerful interests feel threatened.  Nevertheless, Arendt sees participatory democracy as lying at the core of the human condition, and the quest to recover the lost tradition of spontaneous citizen activism as a noble calling, which she refers to as “pearl diving.”  This “pearl diving,” this quest to recover the vital potentiality of the local, is I think what motivates many leftist local government scholars, and fuels our optimism.

A False Utopia?

Before we all choke on the sentimentality of the last paragraph, I should note that the nostalgia for the pre-Progressive era city is somewhat discomfiting. The Gilded Age city was no enlightened democracy; even before the political machines turned cities into cesspools of corruption, as legal historian Robin Einhorn writes, cities were highly privatized, “segmented” entities that almost exclusively served the will of propertied interests. Going back further in history, certainly very few of us would like to live in the “free” cities of the middle ages, which were basically totalitarian communes, or the Athenian polis, which was rooted in the exploitation of slave and female labor.

Moreover, it is hard for cities to fulfill their potential as fora for participation when they are so embroiled in the quotidian business of governing at the local level.   While states have the freedom to delegate hard decisions and devote their energies to ideological struggles, cities have to deal with the pragmatic daily chore of picking up the garbage, literally and figuratively. On a nearly daily basis, cities must address intractable issues such as homelessness, affordable housing, climate change, education, health care, security, immigration, and more, issues that, in an era of globalization, are only likely to intensify the pressure on cities as states and national governments recede in influence.  Managing all these issues will require shortcuts, and city governments will be forced to make unpopular decisions that are sure to anger significant segments of the community; these issues cannot possibly be addressed if we see urban politics as merely, or even principally, a forum for democratic deliberation.

But everything I have just said also explains why we leftists insist on putting all our eggs in the local government basket. Like it or not, cities are, and for the foreseeable future will be, the primary means of dealing with the messy everyday problems we confront. In some cases, as with the provision of clean water (see my earlier post on cities in the developing world) they have succeeded spectacularly. In others, such as the provision of affordable housing, they have failed miserably. But even where they have failed, as in the case of affordable housing, we can often point the finger at the way states have empowered local governments, rather than some inherent flaw in local government. In any event, as I mentioned in my previous post, we have few viable alternatives to local government. For reasons both practical and utopian, it figures to think that cities represent our best hope for the future, and to rest our efforts on improving urban governance rather than displacing it.

Ken Stahl

Should More Land Use Professors be Libertarians? Part II

This post is, again, cross-posted fom the Concurring Opinions blog.

In my previous post, I asked why more land use/local government law professors do not identify as libertarians, considering the role many of us have played in exposing the dysfunctional workings of local government.

If there is an obvious argument in favor of the status quo in land use/local government regulation, it is that all the alternatives seem worse. Let us consider some of the candidates:

The Market

 An unimpeded free market in land use development would apparently be the worst of all worlds, as there would be no way to prevent open space from being gobbled up by new housing, roads and schools becoming impossibly congested, or a refinery locating next to a single-family home (or, perhaps more likely, a landowner threatening to build a refinery in order to extort his neighbor, a common scenario in pre-zoning Chicago).  In a densely populated society, we need some way of ensuring that landowners consider the impact of their land use on neighbors.   The good people of Oregon realized this after an ill-advised ballot initiative a few years ago effectively wiped out zoning, and suddenly a single landowner could, for example, subdivide his parcel into 100 lots for single-family homes with no regard for the impact the development would have on local services or infrastructure. The ballot initiative was repealed by a subsequent initiative a few years later.

In my previous post, I mentioned Houston as a possible alternative to most places’ current system of land use regulation. Houston is often touted for its lack of zoning, and corresponding low home prices. I should point out, however, that Houston is not quite a free-market paradise. Houston has a full complement of land use laws, including subdivision regulations (to prevent the aforementioned 100 lot problem) billboard regulations, and the like. The city even enforces restrictions contained in private covenants.   As my friend and Houstonian Matt Festa points out, Houston has a quirky city charter that prohibits zoning without a voter initiative, so the city does lots of land use regulation but simply calls it something other than zoning.  And, while I’m on the subject, does anyone really think the reason Houston has lower land prices than San Jose is because of zoning?

Nuisance Law

The common law of nuisance, a favorite of libertarian land use scholars, would appear to solve some of the problems of a free-market system, such as the refinery locating near a single-family home. But what if, instead of a refinery, it’s a bowling alley?   A tavern? A cemetery? Are any of these nuisances? On that note, is subdividing my property into 100 new lots a nuisance? In all of these cases, the answer is … maybe. It depends on the severity and nature of the impact on my neighbors, the existing precedent on nuisance law in the particular state, and, most importantly, how the judge assigned to the case chooses to balance the interests involved.

This, of course, is exactly the problem. If local government land use control has been criticized for subjecting landowners to uncertainty about permissible uses of their property, for forcing developers to go through an expensive and time-consuming process to get permits, for picking winners and losers based on crass political concerns such as campaign contributions, the process of “judicial zoning” through nuisance law is little better. First, nuisance law is, if anything, more uncertain and expensive than local government land use control. Nuisance doctrine is so ambiguous that no landowner can ever know with certainty what his or her rights are without resorting to a highly fact-intensive litigation, which will inevitably involve a massive expenditure of time and money. (And Coasean bargaining won’t work if people don’t know their rights.) Second, judges inevitably pick winners and losers in nuisance cases, and while we might expect a judge – even an elected one – to rule on the legal merits of a nuisance case rather than political considerations, the nuisance inquiry is so vague and policy-driven (e.g., harm v. utility) that judges necessarily end up making value judgments about what land uses they find desirable and undesirable. Moreover, though judges – again, even elected judges – are surely less influenced than legislators by political concerns like campaign contributions, public choice research has shown that the judicial decision-making process shares many of the abuses that plague the political process – such as the dominance of repeat players and the ability of small, well-organized interests to exercise disproportionate influence.

To go a step further, the fact that local government decisionmaking is “political” whereas judicial decisionmaking is not (at least in principle) is precisely what makes local government land use control superior. When local officials make land use decisions, members of the community will at least have the opportunity to influence them through the political process. By contrast, a judge hearing a nuisance case is likely to be far less sensitive to the full array of interests affected by its decision, both because the adversarial nature of common-law litigation precludes anyone but the parties from being heard, and because judges, even when elected, are generally (and hopefully!) less amenable to pressure from voters than are local politicians.

The question, as my favorite economist Bill Fischel puts it, is whether we would rather be ruled by judges or by legislators. Though the choice, as I have presented it here, is an unpleasant one, the balance of the evidence seems to favor legislators. Judges have long understood this, and they have consciously assumed a passive and deferential role in the land use process from the beginning (Indeed, it is notable that the foundational 1926 case upholding the constitutionality of zoning, Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), was authored by perhaps the most libertarian justice of all time, George Sutherland. Sutherland’s opinion made a point that zoning was necessary because nuisance law had become an inadequate means of dealing with modern land use problems.)

Nevertheless, there is something unsatisfying about this justification for local government land use control, even for leftists. The leftist vision for local government is an optimistic one, rooted in the belief that local government offers an opportunity to realize our highest aspirations for democratic self-government.  The local-government-as-least-of-all-evils argument is for us an unacceptably pessimistic view of government, and its insistence on a merely quantitative accounting of the relative demerits of various systems of land use control invites every armchair empiricist to place a thumb on the scale in favor of his or her own preferred arrangement. On the other hand, given the unsparing descriptive account of local government detailed in my previous post, how can leftists be so optimistic? I will address that question in my next post.

Ken Stahl

Should More Land Use Professors be Libertarians?

In case you missed it, I am cross-posting something I initially posted to Concurring Opinions, that may be of interest to our readers here.  Parts II and III to follow:

Many professors who study land use and local government law, myself included, consider ourselves leftists rather than libertarians. That is, we have some confidence in the ability of government to solve social problems. Nevertheless, were you to pick up a randomly selected piece of left-leaning land use or local government scholarship (including my own) you would likely witness a searing indictment of the way local governments operate. You would read that the land use decisionmaking process is usually a conflict between deep-pocketed developers who use campaign contributions to elect pro-growth politicians and affluent homeowners who use their ample resources to resist change that might negatively affect their property values. Land use “planning” – never a great success to begin with – has largely been displaced by the “fiscalization” of land use, in which land use decisions are based primarily on a proposed land use’s anticipated contribution to (or drain upon) a municipality’s revenues. Public schools in suburban areas have essentially been privatized due to exclusionary zoning practices, and thus placed off limits to the urban poor, whereas public schools in cities have been plundered by ravenous teachers’ unions.

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Wiseman on Urban Energy

Hannah Wiseman (Florida State) has posted Urban Energy, published in the Fordham Urban Law Journal, (invited symposium), 2013.  The abstract:

The twenty-first century has seen important changes in the U.S. energy system, and most share a common theme: In some regions of the country, energy infrastructure is now located near human populations. As has always been the case; fuel in the form of oil, gas, sunlight, wind, water, or other energy sources must be extracted wherever it happens to be found; and humans have little control over its location. Energy companies must move to the areas of highest resource abundance and find available surface space from which to capture these fuels. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed. Sunlight and wind require thousands of acres of technology installations to be efficiently captured, and unconventional oil and gas resources exist at low densities over wide areas in shales or tight sandstone formations. As we tap these sources in ever more numerous locations, energy bumps up against certain human population centers. The city of Fort Worth, Texas, for example, now hosts thousands of natural gas wells, and San Diego has more than 4,500 solar projects. Indeed, with the rise of the Smart Grid; every American consumer could become a small source of electricity; sending electricity back into the grid from a plug-in hybrid vehicle, a solar panel or small wind turbine, a fuel cell, or battery storage. As the extraction of fuels and generation of electricity (“energy production”) become integral parts of certain population centers; the law will have to adjust; responding to land use and environmental disputes, nuisance claims, enhanced demands on local electricity grids, and concerns about equity, in terms of unevenly distributed effects. This Essay explores these new themes in energy law; investigating how certain populated areas have begun to embrace their role as energy centers; by addressing conflicts ex ante, creating systems for permitting and dispute resolution that balance flexibility with predictability, and managing the tradeoff between land-based energy demands and other needs. It also briefly proposes broader lessonsfor improving energy law, based on the piecemeal approaches so far.

Very important analysis; Prof. Wiseman (a former guest-blogger here!) has provided some of the most interesting recent scholarship on the new energy boom and land use.  

Matt Festa

Murfreesboro Mosque Supporters Obtain US District Ct. TRO

It's been exactly a year since we last blogged about the siting of the mosque in Murfreesboro, Tenn.  Last month, opponents of the mosque convinced a county judge to enjoin its construction by alleging that they were not given adequate notice of the zoning proceedings.  Today, US District Court Todd Campbell granted the proponents an injunction based on RLUIPA to allow construction to proceed.  The members of the local Muslim community were represented by the The Becket Fund for Religious Liberty.  Here's a copy of the TRO.

Jim K.

 

NYT Story on Siting of Affordable Housing in Texas

The New York Times, through its partnership with the nonprofit news organization Texas Tribune, published today a story on the powerful state law tools that support NIMBYism in the siting of affordable housing. Texas Tribune along with the San Antonio Express-News studied public records to learn the extent of the problem:

The examination of data from the Texas Department of Housing and Community Affairs, which administers the biggest federal housing subsidy program in the state, found that of $9.7 billion in tax credits awarded from 1990 to 2011, more than three-quarters subsidized the construction of apartments in neighborhoods mostly made up of poor blacks and Hispanics. Few units built with support from the Low-Income Housing Tax Credit program, which gives federal incentives to private developers to build or rehabilitate low-cost apartments, were in areas that are predominantly white.

The examination found that:

¶Of the 193,000 tax-credit units subsidized statewide, 78 percent are in census tracts where more than half of all residents are minorities. By comparison, only 59 percent of all rented apartments are in the same areas, according to census data.

¶Roughly 31 percent of the units across the state are in neighborhoods with high concentrations of minority residents — 90 percent or more — which is about twice the rate for all rental housing.

¶Eighty percent of the low-income apartments, but only 64 percent of all rented units, are in poor census tracts where residents earned less than the state median household income, $49,646.

Jim K.

Ballot Box Zoning -- A Response to Festa

OK, I'll bite.  Matt has laid down the gauntlet with his criticism of the initiative process.  This subject is of great importance to land use profs because, at least in many sunbelt states, a good deal of land use policy is made through direct democracy -- so-called "ballot box zoning."  In this post, I want to respond to some of Matt's criticisms and offer a very tentative defense of ballot box zoning.  For those who are interested, I have defended ballot box zoning at greater length (although I ultimately call for its abolition anyway) in this paper.

I must first concede to Matt that the initiative process has serious deficiencies.  He mentions transparency and voter ignorance.  The social science literature confirms that these are major problems.  I would also add a few more: the initiative process is often captured by special interest groups, as money and organizational resources are often decisive in initiative contests; the initiative tends to favor the affluent and well educated, which is not surprising since the affluent and well educated are more likely to vote on initiatives; voters are easily confused by deceptive wording on initiatives, and initiative advocates often deliberately use deceptive terms to confuse voters; the initiative process reduces complex issues to a simplistic yes/no dichotomy in which hyperbolic sound bytes replace rational discourse.  I suppose I could go on, but you get the point.

So what virtues could the initiative process possibly have?  I want to focus specifically on the land use initiative, although some of my comments may be generalizable.  Although it is often asserted that local politics are controlled by homeowners who seek to limit or manage growth, that is generally true only in smaller municipalities.  Sunbelt states like Texas and California, however, have a disproportionate number of medium to large-size municipalities, dubbed "boomburbs" by sociologists Robert Lang and Jennifer LeFurgy.  The larger size of these municipalities gives homeowners less political power.  At the same time, sunbelt boomburbs have often pursued headlong development as a means of economic growth and to overcome fiscal constraints imposed by constitutional or political limitations on raising tax revenue.  Lang and LeFurgy accordingly assert that these municipalities tend to be in thrall to the "growth machine," a matrix of developers and related cohorts who facilitate urban growth.  As I further argue in my paper, the fact that many of these boomburbs use at-large voting structures rather than ward voting systems further enhances the power of developers and dilutes the ability of neighborhood groups to fight development.

Obviously, this system is less than ideal for homeowners.  And let's face it: while we might hate those NIMBYs, they have some pretty good reasons for opposing new growth.  For years it has been national policy to induce Americans to purchase property through a combination of incentives, including low-interest mortgages and municipal zoning ordinances that provide some assurances to homeowners that their property values, and hence their ability to pay off their mortgages, will be protected against unpredictable declines.  New growth and the externalities that accompany it are very likely to diminish property values, and hence prejudice the ability of homeowners to finance what is likely to be by far their most significant asset.  Existing homeowners are in effect subsidizing new growth through diminished property values, and although city officials claim that everyone benefits from new growth, it is often a concentrated group of homeowners alone who must bear a disproportionate degree of the cost.  As I questioned in a previous post, it can even be argued that homeowners have a regulatory takings claim -- but courts have never recognized such a cause of action.

As envisioned by its Progressive-era architects, the initiative is supposed to correct the defects in the ordinary legislative process, particularly the dominance of special interests.  And that is exactly what ballot-box zoning appears to do in the sunbelt states -- the very states where boomburbs, at-large voting and the growth machine dominate the political landscape are also the states where ballot-box zoning is most robust.  Ballot box zoning has proven to be a powerful weapon with which homeowners can fight back against the growth machine, because prevailing on a local initiative requires only a one-time infusion of cash and a constituency that is easily organized and highly motivated -- ie, a group of neighboring homeowners who are all extremely ticked off about land use changes around their neighborhood.  This can counteract the repeat player and other advantages that the developer has in the legislative process.  Granted, the initiative process itself invites special interest abuses and all sorts of other problems, but it seems no less messy or dysfunctional than the system of government it is designed to counterbalance. 

Ken Stahl

NPR on Zoning out Hydrofracking in Upstate NY

From the "You Must Hear This" Dept., we have a really interesting NPR report this morning on attempts by some citizens of the town of Dryden, NY to zone out hydraulic fracturing ("hydrofracking") as a means of removing oil and gas from local shale deposits.  The report features commentary on crucial state preemption issues by Eduardo Peñalver (Cornell).  

I think siting of hydraulic fracturing operations is a terrific subject for discussion in a Land Use, Environmental or Property law class.  I even used a hydraulic fracturing hypothetical on my Property final last Spring to test on inquiry notice and reciprocal servitudes.  Focusing on public rather than private land use regulation, this story frames the state and local government issues nicely.  Enjoy.

Jim K.

Takings Jurisprudence, NIMBYS, and Scalia's Hypothetical Highway

After slogging through the Mahon and Penn Central cases (booorrring), it's always a relief to start talking about Lucas v. South Carolina Coastal Council.  The reason is simple: Justice Scalia knows how to keep us entertained.  In particular, Scalia loves to get sassy in his footnotes.  I'm sure readers have their favorites, but one of mine is footnote 8 of the Lucas opinion, which in addition to being enjoyable, is also very illuminating.  I spend about 20 minutes of class time discussing this footnote and its implications for both takings law specifically and land use law more generally, including the intractable NIMBY problem. 

The basic holding of Lucas is that a state regulation that deprives property of all economic value (i.e., a "total wipeout") is a per se taking, subject to a few caveats and exceptions that I'm not going to get into here.  Footnote 8 takes on Justice Stevens's argument, in dissent, that the "total wipeout" rule is arbitrary because the landowner who suffers a 95% wipeout gets no compensation while the landowner who suffers a 100% wipeout gets 100% compensation.  Scalia's response: that result "is no more strange than the landowner whose premises are taken for a highway (who recovers in full) and the landowner whose property is reduced to 5% of its former value  by the highway (who recovers nothing).  Takings law is full of these 'all-or-nothing' situations."  To illustrate this hypothetical, I draw the following picture on the board:

 I then ask my students the question left unanswered by this hypo: why does Owner "A," whose land is taken for the highway, get full compensation, whereas Owner "B", whose land is substantially devalued by the siting of a highway adjacent to his home, get nothing? 

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Seicshnaydre on Public Housing and Racial Segregation in Post-Katrina New Orleans

Stacy Seicshnaydre (Tulane) has posted How Government Housing Perpetuates Racial Segregation: Lessons from Post-Katrina New Orleans, 60 Cath. L. Rev. 661 (2011). In it, she explores how quantity-minded public housing advocacy and NIMBY-style public housing resistance has combined to perpetuate the racial segregation that federal law prohibits. Here's the abstract:

This Article contends that post-Katrina New Orleans exemplifies the exclusionary dynamic in which government-assisted housing operates throughout America and the fundamental failure of American housing policy at the federal, state, and local levels to prevent the racial segregation that inevitably results. Federal law has prohibited racial segregation in government-housing programs for decades, yet it has proven difficult to reverse entrenched patterns of segregation in these programs. Patterns of racial segregation have been particularly intractable in New Orleans, which, prior to Hurricane Katrina in 2005, boasted the second-highest level of poverty concentration in the nation and relatively high levels of poverty concentration in all of the major government-housing programs. Furthermore, low-income white residents in pre-Katrina New Orleans had greater access to middle-income neighborhoods throughout the metropolitan area of New Orleans than low-income black residents, who were overwhelmingly concentrated into high-poverty neighborhoods.

Hurricane Katrina, with its massive levee failures and neighborhood flooding, offered an opportunity for New Orleans to emerge as a more inclusive region; new government-assisted housing could have helped facilitate inclusion, while also responding to the regional-housing needs of the area. However, rental housing bans proliferated throughout the region, primarily in communities that had previously served as affordable suburban alternatives for lower- and middle-income whites in prior decades. These communities sought not only to prevent the development of new rental housing, but also to limit the repair of rental housing that preexisted the storm. At the same time, other communities in metropolitan New Orleans that were the least affordable, most homogeneous, and nationally recognized as desirable places to live were not targeted for government-assisted housing, and thus did not pass similar sweeping rental bans. Therefore, rather than using recovery efforts to reverse racially segregated housing patterns, the region took steps to exacerbate them.

This Article describes a perennial dynamic of two impulses pulling in opposite directions—the anywhere-ist and nowhere-ist impulses, which conspire to perpetuate segregation. The anywhere-ists are primarily focused on securing as much federally assisted housing as possible; the nowhere-ists are primarily focused on keeping it out of their communities. This dynamic has created a “path of least resistance,” whereby government-assisted housing continues to be provided in places where it already exists or in places that are already open and affordable.

Ultimately, federal intervention in the housing market must encompass more than providing a subsidy. It must open neighborhoods not already open, make affordable what is not already affordable, enable housing subsidies to act as gateways to educational and employment opportunity, and inform families historically excluded from housing markets about their choices. Any federal housing interventions that are not so designed will almost certainly exacerbate existing racial segregation and poverty concentration, as they have done for decades, and—as post-Katrina New Orleans illustrates—as they will continue to do, again and again and again.

Jim K.

Ostrow on Land Law Federalism

Ashira Ostrow (Hofstra) has posted Land Law Federalism, 61 Emory L.J. ___ (forthcoming 2012). A must-read, this foundational work explores the theoretical framework for appropriate federal intervention in the state/local-dominated area of land use regulation. Here's the abstract:

In modern society, capital, information and resources pass seamlessly across increasingly porous jurisdictional boundaries; land does not. Perhaps because of its immobility, the dominant descriptive and normative account of land use law is premised upon local control. Yet, land exhibits a unique duality. Each parcel is at once absolutely fixed in location but inextricably linked to a complex array of interconnected systems, natural and man-made. Ecosystems spanning vast geographic areas sustain human life; interstate highways, railways and airports physically connect remote areas; networks of buildings, homes, offices and factories, create communities and provide the physical context in which most human interaction takes place.

Given the traditional commitment to localism, scholars and policymakers often reflexively dismiss the potential for an increased federal role in land use law. Yet, modern land use law already involves a significant federal dimension resulting, in part, from the enactment of federal statutes that have varying degrees of preemptive effect on local authority. Moreover, this Article maintains that federal intervention in land use law is warranted where the cumulative impact of local land use decisions interferes with national regulatory objectives (such as developing nationwide energy or telecommunications infrastructure).

Finally, this Article advances an interjurisdictional framework for federal land law that harnesses (a) the capacity of the federal government, with its distance from local politics and economic pressures, to coordinate land use on a national scale and (b) the capacity of local officials, who have detailed knowledge of the land and are politically accountable to the local community, to implement land use policies.

Jim K.

 

Salkin on Bee Siting

Patricia Salkin (Albany), the quintessential "busy bee", has posted Honey, It's All the Buzz: Regulating Neighborhood Bee Hives (B.C. Env. Aff. L. Rev., forthcoming 2011).  Here's the abstract:

Urban beekeeping, along with other types of urban agriculture, sustainable development and green building, has generated quite a buzz in recent years. Small-scale beekeeping has proven to be especially popular among people looking to obtain more of their food from local sources and urban bees provide important pollination services to community gardens, home vegetable gardens and fruit trees. Some people also believe that honey contributes to a healthier lifestyle by providing a minimally-processed sweetener and through its various uses as a homeopathic remedy. Small-scale beekeeping may augment local economies too. Despite the benefits and growing popularity of backyard beekeeping, apiaries are not always welcomed by the neighbors. This article is designed to provide information to land use regulators about the benefits and drawbacks of beekeeping in residential areas, and it offers strategies for addressing beekeeping activities through local laws and ordinances.

Jim K.

Berry and Portney on Interest Groups and City Politics

Jeffrey Berry (Tufts-Political Science) and Kent Portney (Tufts-Political Science), nearly 20 years ago, published the award-winning study of grassroots citizen participation in five U.S. cities, The Rebirth of Urban Democracy.  Now they have posted The Group Basis of City Politics, a paper they presented at the 2011 American Political Science Association Annual Meeting.  Here's the abstract:

How do nonprofits empower themselves? In this paper we analyze nonprofit advocacy in city politics, emphasizing especially their interaction with local policymakers. First we discuss what we call the “politics of place” in cities, examining the participation of three types of citywide and neighborhood nonprofits. The second section develops two lines of inquiry and articulates a set of hypotheses that grow out of a theoretical construct relating to low barriers to entry. Next, after describing the empirical methodology, those hypotheses are tested with data derived from large scale surveys in 50 of the nation’s largest cities. The subjects of these three surveys are city councilors, agency administrators, and interest group advocates. We find that access to policymakers in city politics is relatively easy as the barriers to entry for advocates is quite low. Not surprisingly the evidence points to a privileged position for business, though neighborhood associations also stand out in terms of incorporation into the policymaking process.

Jim K.

[email protected]

 

Herman Cain vs. the Murfreesboro Mosque

Having apparently never heard of RLUIPA, Republican presidential candidate Herman Cain is arguing on freedom of religion grounds that a mosque should not be built in Murfreesboro, Tennesee. The US Justice Department apparently disagrees, as does the head of the Southern Baptists...

Jamie Baker Roskie

NIMBY Beverly Hills

In a kind of ultimate "not in my backyard" move, the City of Beverly Hills is setting aside $350,000 to fight the LA Metropolitan Transit Agency's attempt to run the subway under Beverly Hills High...

Jamie Baker Roskie

Salkin on the Regulation of Controversial Land Uses

Patty Salkin (Albany) has posted Regulating Controversial Land Uses, 39 Real Estate L. J. 526 (2011). Here's the abstract:

While the definition of what may constitute a controversial land use differs from community to community, the bottom line is that land use controls have been attempting to regulate these uses since the advent of zoning (and through nuisance law before that). When regulating many types of controversial land uses, constitutional issues may come into play and federal and state preemption issues may arise. However, local govenrments typically have wide discretion in designing standards and regulations for many types of controversial uses. This article explores four typically controversial uses - off-campus fraternity and sorority housing, tattoo parlors, medical marijuana and pawn shops - to demonstrate the types of regulations that may and may not be appropriate when it comes to planning and zoning laws.

Rather than prattle on along the where-she-does-find-the-time? theme, I will just note that this is the fourth piece she has posted in recent months. That count doesn't include the J. of Legal Ed. article that she and John Nolon published this Spring (see Jamie's post on the conference of the same name). In her down time, she also puts up a fine land use law blog of her own.

Jim K.

Smith and Bailey on Restrictive Zoning for Adult Uses/Sexually Oriented Businesses

George Smith (Catholic) and Gregory Bailey have posted Regulating Morality through the Common Law and Exclusionary Zoning, 60 Catholic L. Rev. 403 (2011).   Here's the abstract:

The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards. Broad, open-ended moral judgments should be eschewed as foundational bases for legal judgments. Indeed, advancing moral grounds as justification for regulating personal liberties of sexual expression and association are being seen by some as invalid reasons for enacting exclusionary land use regulations - here, for the containment of activities connected with sexually oriented businesses [SOBs]. No unequivocal standard of dispositive clarity will ever be formulated which determines when conduct is unreasonable in that it is lewd and obscene or when written, electronic and photographic material pornographic in content rises to the level of obscenity and thereby subject to strict regulation. The most logical and common sense approach to this quandary is for legislators, land use planners, zoning commissioners and courts, in trying to either eliminate or contain the operation of SOBs, is to rely upon and use several tools: common law nuisance fortified by either moral, anticipatory or aesthetic iterations or models, and exclusionary zoning techniques. Difficult though determining when, under nuisance law, conduct is so unreasonable as to warrant its cessation, the Restatement of Torts Second provides a workable construct for making that determination. Both strengthened and guided by the doctrine of secondary effects, nuisance actions of all types have a clear placement in the arsenal of legal weapons which may be used to regulate effectively SOBs. The implementation of a community-based standard of morality for proper regulatory control of SOBs will always present an issue of unpredictability inherent in its underlying flexibility. For the content-neutral regulation of sexually oriented businesses, the only limiting requirement analyzed, aside from ensuring adequate alternative channels of communication, is determining if the regulation serves a significant government interest. Further, while the Supreme Court has held repeatedly that preventing a multitude of secondary effects is a significant government interest, the manner in which that goal could be served has not been meaningfully defined or limited. The secondary effects doctrine places great power, and corresponding responsibility, in the hands of each local community - but it does so at the peril of uniformity. While uniformity is not an absolute necessity in the Federalist system, the type and severity of secondary effect that can be a justification for regulating the location of a sexually oriented business should be clarified. The time, place, or manner restrictions imposed can be left up to each locality to tailor to their needs, but the triggering events for those restrictions must be more clearly defined.

Jim K.

Callison on the LIHTC and Geographic Desegregation

Bill Callison (Faegre & Benson, LLP; also ABA Forum on Aff. Housing and Comm. Dev. Law) has posted Achieving Our Country: Geographic Desegregation and the Low-Income Housing Tax Credit, 19 S. Cal. Rev. L. & Soc. Just. 213 (2010).  Here's the abstract:

This Article, which blends educational policy, housing policy, and tax policy, argues that one path down the precipice of racial inequality is to reverse a path that led us to where this problem began; namely, the racial segregation of the places where we live. This Article examines the country’s most important subsidy for creating affordable housing, the Federal Low-Income Housing Tax Credit (“LIHTC”), and considers whether the tax credit program has served as a tool for desegregating metropolitan neighborhoods. After concluding that the LIHTC program has not been an effective tool for reducing or eliminating continuing patterns of racial segregation and poverty concentration, this Article proposes numerous programmatic changes that could allow the tax credit program to promote greater geographic desegregation. Others have considered the impact of fair-housing laws on the LIHTC program. This Article contributes to that literature by going beyond fair housing to examine both the “cooperative federalism” concepts embedded in the program and the economic structure of tax credits, and by making practical suggestions on how the program can be improved to obtain racial integration. It takes a two-prong approach: First, this Article encourages more robust national guidance in order to encourage states to use credits to foster desegregation. Second, this Article considers changes to the economic structure of the program to provide incentives to developers and investors who undertake to provide affordable housing that results in desegregation.

Jim K.