Friday, August 3, 2018

CFP: Preparing for Climate Change in the Planned and Unplanned City - Texas A&M - Feb 18-23

From Tim Mulvaney at Texas A&M Law:

PLPR'19-CallForPapers-email

August 3, 2018 | Permalink | Comments (0)

Graphic: How America Uses Its Land

Bloomberg recently posted a scrollable info-graphic about how America uses its land.  Well worth a look here.  Below is a screenshot, though since it's a scrollable graphic, it's best to visit the page for the whole effect.

 

Screen Shot 2018-08-03 at 2.47.38 PM

August 3, 2018 | Permalink | Comments (0)

Tuesday, July 31, 2018

Seeking collaborators on Sustainable Development Code: Jon Rosenbloom

From Jon Rosenbloom:

Dear colleagues,

The Sustainable Development Code is a model local code providing the best sustainability practices to local governments. The Code focuses on local development practices that implicate a wide array of sustainability issues, including climate change, wildlife habitats, water quality, and affordable housing.

I am co-managing the Code with the University of Colorado at Denver, School of Architecture and Planning. We are working with practitioners, academics, and students from around the country.

Would you be interested in incorporating drafting Code provisions into your environmental, land use, energy law, water law, or state and local government course, as was done at several law schools last semester. Overwhelmingly, the response from those that have incorporated the Code into their courses has been that it provides excellent educational opportunities to understand local environmental issues, local regulations, and, more generally, federalism and decentralization. In addition, it is a good chance for students to hone their researching and writing skills.

The Code is divided into 32 chapters, covering topics such as “water supply quality and quantity,” “coastal hazards,” and “wind energy” (a list of chapters can be found in the prezi presentation linked below). Each chapter consists of 30-40 concrete policy actions local governments can take to become more sustainable in that particular area. Each action has a corresponding brief describing:

  • The specific recommendation;
  • The effects the recommendation is projected to have;
  • At least two local governments’ code provisions that have implemented the recommendation; and
  • 4-6 additional local code citations and parentheticals with similar recommendations.

Drafting the briefs has been primarily incorporated into coursework. The idea is that the briefs will provide local governments with quick and easily accessible information that can be used to enact local legislation. The briefs were designed by a multidisciplinary group of experts and practitioners (a list of the Advisory Committee can be found in the prezi presentation). I’m glad to forward sample briefs.

If you would like additional information on the Code, in 5-7 minutes I could walk through the prezi presentation found at:

https://prezi.com/view/cdEnRwvramAieQGsIbWl/

I will make myself fully available to anyone interested in this project. We expect to launch the Code in summer/fall 2019.

I hope this project interests you and, if so, please contact me.

Jon Rosenbloom

jonathan.rosenbloom@drake.edu

 

July 31, 2018 | Permalink | Comments (0)

Saturday, July 28, 2018

POSITION ANNOUNCEMENT – ASSISTANT/ASSOCIATE/PROFESSOR OF LAW AND DIRECTOR OF THE DRAKE AGRICULTURAL LAW CENTER

DRAKE UNIVERSITY LAW SCHOOL invites applications for a tenured/tenure-track position as Assistant/Associate/Professor of Law in the field of Agricultural Law and Director of the Drake Agricultural Law Centerbeginning in the fall of 2019. Applicants must hold a J.D. degree (or the equivalent) and should have outstanding records of accomplishment in scholarship, teaching, and service as well as substantial practice experience. 

The successful candidate will teach agricultural law courses and serve as the Director of the Drake Agricultural Law Center. Drake was the first American law school to offer a specialization in agricultural law, offering courses not only on agricultural and food law but also on agriculture’s effect on social, economic, and political systems. Drake is the only accredited law school in the nation with a student-published legal journal, the Drake Journal of Agricultural Law, focusing solely on these issues.

Founded in 1983, the Agricultural Law Center provides opportunities for students to explore how the legal system impacts the global food system and the agricultural sector's ability to produce, market, and use agricultural products. The Center promotes and supports research and scholarship andhas hosted distinguished agricultural law scholars from all over the country and the world to teach students and share their unique cultural perspective on food and agricultural law. Students can earn a Food and Agricultural Law Certificate by completing 21 credits of coursework, a major legal research and writing project, and an internship.

The Agricultural Law Center also provides information and resources for American farmers, landowners, and agricultural entrepreneurs to help these key agriculture stakeholders make profitable and sustainable decisions regarding our nation’s land and agricultural production.

Applicants with backgrounds in all areas of Agricultural Law are welcome. Over 85% of Iowa’s land is used for agriculture. Drake’s location in central Iowa places it at the heart of a state that leads in production of soybeans, corn, eggs, and pork.

Drake University is an equal opportunity employer and actively seeks applicants who reflect the nation’s diversity.  No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status.Diversity is one of Drake’s core values and applicantsneed to demonstrate an ability to work with individuals and groups of diverse socioeconomic, cultural, sexual orientation, disability, and/or ethnic backgrounds.

Confidential review of applications will begin in August 2018. Applications (including a letter of interest, a complete CV, teaching evaluations (if available) and the names and addresses of at least three references) should be sent to Professor Ellen Yee, Chair, Faculty Appointments Committee, Drake University Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: ellen.yee@drake.edu

July 28, 2018 | Permalink | Comments (0)

Monday, July 23, 2018

John Nolon on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 8:  Hot Topics in Takings

by John Nolon

While Stephen and Jonathan explore upcoming cases and concepts, my focus here is on the fundamental aspects of takings cases. I find that the basics are tough and need a patient hand to be turned so that students truly understand constitutionally protected property rights and remedies for their violation.  I spend a lot of time on Lingle, which, along with Palazzolo, handle the basics well.

In Lingle, the majority dispenses with the two-part, disjunctive Agins test, including the incomprehensible notion that a regulation can be a taking if fails to substantially advance legitimate state interests.  “Correcting course,” Mrs. Justice O’Connor, writing for the majority, properly characterizes that test as a due process standard. Understanding due process claims is as critical for students as understanding takings jurisprudence. Many, many of the cases in our book are disposed of on due process grounds, beginning with Euclid. These waters should not be cloudy and Lingle does an excellent job of separating due process from takings cases and explaining the prevailing rules of interpretation in each category.

The district court decision in Lingle held that a taking occurred because it found Chevron’s economist more credible than the state’s expert who argued that no state interest was advanced by the state’s control of rents charged to lessee-dealers by oil companies. It reasoned that the substantially advance test of Agins was violated because the law was ineffective and that a taking had occurred, even though no damages were proved. 

This is a can of worms. If there are no damages, what is the remedy if the Constitution provides that just compensation must be paid for the taking by the offending regulating entity?  What does the Constitution mean when it says no person shall be deprived of property without due process of law?  How is that different from the provision that protects private property from being taken for a public use, without just compensation? What is a court doing choosing the plaintiff’s expert over the one relied on by the state legislature, to which it owes deference?.   In addition to dispensing with the substantially advance rule for takings, O’Connor also reminds us that courts do not heavily scrutinize substantive due process challenges to government regulation?

Having clarified takings waters this much, the Justice further explains that there are four categories of takings including per se cases like Loretto and Lucas (“two relatively narrow categories”) and Penn Central, which articulates specific factors for resolving regulatory takings claims that do not fall within the other categories.  The fourth type of takings case she mentions is “the special context of land-use exactions” that arise mostly in context of conditions imposed by adjudicatory bodies, like planning boards, as part of the project review and approval process. Although Koontz rendered this fourth category fundamentally cloudy, the categories themselves are clear enough to guide law students’ understanding of this field of law. 

In explaining the Penn Central factors, Justice O’Connor refers us to the Court’s 2001 Palazzolo case, in which a developer was approved to build one residence on two dryland acres in a 20 acre tidal wetland site that he owned.  He had asked the relevant agency for permission to build 74 homes on individual lots and claimed damages of over $3 million, which he claimed constituted a total taking under Lucas. The Court disagreed finding that “the petitioner failed to establish a deprivation of all economic value [one of the Penn Central factors] for it is undisputed that the parcel retains significant worth for the construction of a residence.” In other words, the Court considered the Lingle takings categories and placed this in the Penn Central rather than Lucas bucket.  On remand, the Rhode Island Superior Court affirmed that there was no taking -- under Lucas there was no total taking and under Penn Central the petitioner’s investment backed expectations were not frustrated.  

Although takings law is anything but free of nuance and ad hoc applications, there is a degree of clarity in these categories and the Lingle decision. .  Most takings cases fall into the Penn Central category, rather than the relatively narrow per se categories, unless they involve an exaction.  Within Penn Central, the Court imposes the burden of proving the taking on the challenger, defers to legislative discretion, and presumes the validity and constitutionality of its actions.  If the other categories are narrow or specific and most takings cases are decided under Penn Central,  one would expect that takings claims are hard to win.  This is affirmed in a recent William and Mary Law Review article by Professors James Krier and Stewart Sterk who conduct “An Empirical Study of Implicit Takings.” They find that “takings claims based on government regulation almost invariable fail.” 

If students can be taught this much, they will know more than land use attorneys who advise their clients that regulations that prevent the highest and best use of their properties are takings or that simple diminution of property values caused by regulations should be actionable under the takings clause.  Unfortunately there are too many such cases, suggesting that lawyers don’t understand the basics or are misrepresenting the law to their frustrated clients.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2018-19 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

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

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

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin

Question 8:  Hot Topics in Takings [Miller | Rosenbloom | Nolon | Salkin]

July 23, 2018 | Permalink | Comments (0)

Monday, July 16, 2018

Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 8:  Hot Topics in Takings

by Jonathan Rosenbloom

Continuing Stephen’s line of inquiry, another hot topic in takings jurisprudence is whether a takings claim may be recognized against a local government for failing to adapt to climate change. Once the students review most of Chapter 5, I might ask them whether attorneys representing local governments should counsel those governments on potential takings claims based on the failure to adapt to climate change. While yet decided, these claims may have the capacity to result in massive damage awards and to encourage local action.

In Incentivizing Municipalities to Adapt to Climate Change: Takings Liability and FEMA Reform as Possible Solutions, 43 B.C. Envtl. Aff. L. Rev. 281 (2016), Professor David Dana (Northwestern) identified the following four potential takings claims against local governments based on the failure to adapt to climate change:

  • Inaction Claims: Takings claims against governments for failing to take action to adapt to climate change.
  • Ineffective Action: Takings claims against governments for taking adaptive actions that were insufficient to prevent property loss.
  • Counterproductive Action: Takings claims against governments for taking action that not only was ineffective in preventing property loss, but also caused greater losses than otherwise would have occurred.
  • Improper Diversion: Takings claims against governments for diverting the effects of climate change, such as flooding or fire, from one area/community to another, such that the latter area/community incurred greater property losses than it otherwise would have incurred, although the former area/community incurred less loss then it otherwise would have.

Id. at 285-86 (relying heavily on another excellent article, Christopher Serkin, Passive Takings: The State's Affirmative Duty to Protect Property, 113 Mich. L. Rev. 345 (2014) (Serkin argued that “passive takings” liability should be recognized whether a government acts or fails to act when it asserts regulatory control such that it is responsible for harm in the face of ecological change)).

Dana’s four potential takings claims set up a nice intellectual exercise for the students to explore the contours of the takings clause and whether it could fit a claim based on adaptation (Dana is skeptical of whether local action will change in the face of such a takings finding, see Dana, supra, at Section II). Compared to recent successes under federal substantive due process and public trust, see Juliana v. U.S., 217 F.Supp.3d 1224 (2016) (denying defendants’ and intervenors’ motions to dismiss), denying mandamus,In re U.S. v. U.S. Dist. Ct. for the Dist. Of Oregon, 884 F.3d 830 (2018), plaintiffs still, I think, have a way to go before not only finding success under the takings clause, but also encouraging or compelling local action on climate adaptation. Nonetheless, it is a developing area of takings jurisprudence and offers a good opportunity for students to explore the application of takings to new circumstances.

As a callous and inept federal administration fails to protect communities from a rapidly changing environment, local communities continue to suffer (see one of many federal administrative actions abandoning communities battling climate change, see, e.g. Christopher Flavelle, U.S. Disbands Group That Prepared Cities for Climate Shocks, Bloomberg (Dec. 4, 2017)). If local governments fail to address more-and-more foreseeable uncertain disasters, citizens will look for a remedy. And local governments just may be in the crosshairs.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

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

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

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin

Question 8:  Hot Topics in Takings [Miller | Rosenbloom | Nolon | Salkin]

July 16, 2018 | Permalink | Comments (0)

Tuesday, July 10, 2018

Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 8:  Hot Topics in Takings

by Stephen R. Miller

 

We are back from a summer break and continuing our series on contemporary issues in teaching land use, which follows the general arc of our new casebook.  In this set of questions, we dive into takings, which is also the basis of Chapter 5 of the book.  

In many ways, takings is probably the one thing students know will be covered in a land use law class.  Professors can choose how much they want to emphasize the subject, however.  A bread-and-butter approach would focus on the general categories of takings that you could find in any land use law book.

Our casebook also offers several opportunities to go further in depth in ways that also relate to several hot topics in takings.  I'll mention two.  First, we include Williamson County, which is still the primary case about ripeness of a takings claim.  However, this Fall, 2018 term, the U.S. Supreme Court will hear Knick v. Township of Scott, Pennsylvania, which presents the following question:

(1) Whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims; and (2) whether Williamson County’s ripeness doctrine bars review of takings claims that assert that a law causes an unconstitutional taking on its face, as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits hold, or whether facial claims are exempt from Williamson County, as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits hold.

While land use profs might have glossed over Williamson County in the past, they might choose to assign it this year in light of Knick.

In addition, an underlying issue in takings jurisprudence, which will likely rear its head again in coming years, is whether an agency action under review was legislative or administrative (adjudicative) in function.  To bring this hot topic to the fore, we include in our casebook a portion of Justice Thomas' statement in the Court's decision deny cert in the case of California Bldg. Indus. Ass’n v. City of San Jose, Calif., 136 S. Ct. 928, 928–29, 194 L. Ed. 2d 239 (2016) where he wrote as follows:

. . . Our precedents in Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), would have governed San Jose’s actions had it imposed those conditions through administrative action. . . .

For at least two decades, however, lower courts have divided over whether the Nollan/Dolan test applies in cases where the alleged taking arises from a legislatively imposed condition rather than an administrative one. See Parking Assn. of Georgia, Inc. v. Atlanta, 515 U.S. 1116, 1117, 115 S.Ct. 2268, 132 L.Ed.2d 273 (1995) (THOMAS, J., dissenting from denial of certiorari). That division shows no signs of abating. The decision below, for example, reiterated the California Supreme Court’s position that a legislative land-use measure is not a taking and survives a constitutional challenge so long as the measure bears “a reasonable relationship to the public welfare.” 61 Cal.4th, at 456–459, and n. 11, 189 Cal.Rptr.3d 475, 351 P.3d, at 987–990, n. 11; compare ibid. with, e.g., Home Builders Assn. of Dayton and Miami Valley v. Beavercreek, 89 Ohio St.3d 121, 128, 729 N.E.2d 349, 356 (2000) (applying the Nollan/Dolan test to legislative exaction).

I continue to doubt that “the existence of a taking should turn on the type of governmental entity responsible for the taking.” Parking Assn. of Georgia, supra, at 1117–1118, 115 S.Ct. 2268.

Given that the Court may well have a more conservative future, it will be interesting to see if this question about the character of governmental action should matter in takings analysis comes back in the coming years.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

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

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

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin

July 10, 2018 | Permalink | Comments (0)

Monday, June 18, 2018

CFP: Chapman Law Review 2019 issue on "The Commerce Clause and the Global Economy"

 

Invitation to Submit Articles for

Chapman Law Review's 2019 Issue provisionally entitled

“The Commerce Clause and the Global Economy

Chapman Law Review is pleased to invite article submissions on the theme: “The Commerce Clause and theGlobal Economy.” Publications will appear in a symposium edition, and authors will receive an honorarium.

With the growth of online retailers and the rise of the global marketplace, federal and state governments have beencharged with the task of navigating the waters of the global economy and its inevitable collision with the CommerceClause. In June, the United States Supreme Court is expected to render a decision in South Dakota v. Wayfair, Inc., inwhich South Dakota has asked the Court to reconsider its ruling in Quill Corp. v. North Dakota and allow states to requireout-of-state retailers that do not have a physical presence in the state to collect local sales taxes from their customers.Regardless of the outcome, this case has opened up a series of questions about the scope of the Commerce Clause in anincreasingly global economy—specifically the ability of state and local governments to regulate global economic actorsin order to protect communities against the adverse effects of globalization.

Article submissions may cover topics about aspects of the Commerce Clause and the Global Market, including (but notlimited to):

  • South Dakota v. Wayfair, and its overarching implications,
  • Quill Corp. v. North Dakota, and its survival or demise,
  • State and local government’s ability to regulate global economic actors, for example:
    • Should cities be able to ban big-box stores to protect local retailers?
    • Should cities be able to give hiring preferences to local residents?
    • Should states be able to ban the importation of products that will compete with locally produced goods?

Chapman Law Review has dedicated its written symposium issue to these timely questions. We are open to submissionswith other perspectives as well, related to this general topic. Chapman Law Review would be honored to publish yourwork.

Submission Information:

We are looking for papers at a minimum of 20 pages (with a suggested length of 25 pages). If you would like to apply toparticipate in the Symposium, please submit an abstract of no more than 500 words by June 30, 2018, to Carlos Bacio.A flexible deadline for the completed paper will be on August 27, 2018. The Chapman Law Review will be offering anhonorarium to authors who choose to write for the 2018 journal.

Although there is not a live symposium attached to this themed Issue, papers can resemble what one might submit for asymposium, and the Issue will be identified as a themed issue so that you may also designate it as such, if you wouldlike. Papers selected for this issue will be published in a special issue of the Chapman Law Review in approximatelyMarch 2019.

Thank you and we look forward to receiving your submission.

If you have questions, please contact Carlos Bacio, Senior Articles Editor, at bacio101@mail.chapman.edu.

June 18, 2018 | Permalink | Comments (0)

Thursday, June 14, 2018

Annual housing report shows divergence in wages and housing rents across the country

The National Low Income Housing Coalition's annual report, Out of Reach, presents some staggering data about how housing rental prices are diverging radically from wages, not just in big coastal cities, but all across the country.  Here is a part of the intro:

The 2018 national Housing Wage is $22.10 for a modest two-bedroom rental home and $17.90 for a modest one-bedroom rental home. Among the 50 states and the District of Columbia, the two-bedroom Housing Wage ranges from $13.84 in Arkansas to $36.13 in Hawaii. The five metropolitan areas with the highest two-bedroom Housing Wages are Stamford-Norwalk, CT ($38.19), Honolulu, HI ($39.06), Oakland-Fremont, CA ($44.79), San Jose-Sunnyvale-Santa Clara, CA ($48.50), and San Francisco, CA ($60.02).

A full-time worker earning the federal minimum wage of $7.25 needs to work approximately 122 hours per week for all 52 weeks of the year, or approximately three full-time jobs, to afford a two-bedroom rental home at the national average fair market rent. The same worker needs to work 99 hours per week for all 52 weeks of the year, or approximately two and a half full-time jobs, to afford a one- bedroom home at the national average fair market rent.

In no state, metropolitan area, or county can a worker earning the federal minimum wage or prevailing state minimum wage afford a two-bedroom rental home at fair market rent by working a standard 40-hour week. In only 22 counties out of more than 3,000 counties nationwide can a full-time minimum- wage worker afford a one-bedroom rental home at fair market rent. These 22 counties are all located in states with a minimum wage higher than $7.25. Higher minimum wages are important, but they are not the silver-bullet solution for housing affordability. Thirty-eight local jurisdictions have their own minimum wages higher than the state or federal minimum-wage, but all fall short of the local one-bedroom Housing Wage

June 14, 2018 | Permalink | Comments (0)

Tuesday, June 5, 2018

CFP: ABA Journal of Affordable Housing & Community Development Law seeking articles

From Tim Iglesias...

ABA Journal of Affordable Housing & Community Development Law 

Call for Papers

Abstracts due August 1, 2018

Drafts due October 1, 2018

The Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays exploring any of the Journal’s traditional themes: affordable housing, fair housing and community/economic development. Topics could include important developments in the field; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies. Articles and essays could analyze new issues, tell success stories and draw lessons, or explore problems and propose legal and policy recommendations. The Journal welcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words). 

The Journal is the nation’s only law journal dedicated to affordable housing and community development law.  The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at iglesias@usfca.edu by August 1, 2018. Submissions of final articles and essays are due by October 1, 2018.The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

June 5, 2018 | Permalink | Comments (0)

Monday, May 14, 2018

Save the date! Feb 18-23, 2019: Texas A&M: Preparing for Climate Change in the Planned and Unplanned City

This save the date from Tim Mulvaney at Texas A&M Law:

 

PLPR Conference @ TAMU-1 proof

May 14, 2018 | Permalink | Comments (0)

CFP: Georgia State Urban Studies Institute: Comparative Urbanism: Global Perspectives conference | March 7-8, 2019

CALL FOR CONFERENCE PAPERS

 

Urban Studies Institute | Georgia State University

Comparative Urbanism: Global Perspectives

 

Date and Location

March 7-8, 2019

Georgia State University, Atlanta, GA, USA

Theme

The purpose of the conference on Comparative Urbanism: Global Perspectives is to advance empirical and conceptual thinking on comparative urban research across the Global North, South, and East. Reflecting near a decade of tentative theorization and intense debate, the field of urban studies is awash with calls for more explicit comparative research that adopts a global perspective. Post-colonial critiques of North American and Euro-centric urban conceptualizations have done much to problematize the purportedly ‘universal’ experiences of the Global North and bring ‘ordinary cities’ and subaltern urbanisms in the Global South to light. However, disputes around the portability of theory between different urban worlds and attempts to theorize the ‘complete urbanization of society’ appear to have reached a stand-off, often with ideological overtones.

The Global East as Third Dimension

The conference aims to shake up this stalemate by introducing a third dimension: urbanisms of the Global East (especially the experiences of China, Japan, and South Korea), which are not easily reconciled with the histories or political economies of either North or South. Approaching urban studies through a comparative lens honed to cities in the Global North, South, and East is an increasingly important orientation because it shifts urban comparative gestures beyond comparisons within these (albeit complex heterogeneous) contexts towards rigorous analysis of urbanization between them. Reloading 'global urban studies' across these three worlds offers new empirical grounds for theory generation and presents a provocative intervention that can disrupt the ideologically polarized camps that characterize field at the present juncture.

Theory, Empirics, Methods, Policy

The conference will incorporate perspectives on urban development from the global urban North, South, and East in deliberations across a variety of sessions. These may take the form of theoretically-informed empirical comparison, conceptual reflections on the North-South-East construct itself, methodological challenges, or other critical approaches to a truly global comparative urbanism. The critical practice of comparison as a method for theory-building will form a substantive component of the conference, in addition to the insights realized through comparative research findings and policy analysis. This highly interdisciplinary event will encourage critical, open, and reflexive debate and lead to concrete outputs that will help define the future agenda for global comparative urbanism.

The Event

The 2-day conference will feature a variety of sessions from traditional research presentations and keynote addresses to moderated panel discussions and interactive workshops. Sessions will be structured to enable extensive time for discussion and debate, with special attention paid to facilitating on-going and near-future collaborative research, focused around target concrete outputs, including articles, special issues, and research symposia in international urban journals, as well as external grant funding proposals.

Keynote Speakers
We are delighted to announce our 3 keynote speakers:

  • Professor George Lin, Hong Kong University
  • Professor Ananya Roy, UCLA
  • Professor Kevin Ward, University of Manchester

 

Call for Proposals

To promote interdisciplinary discussion and debate, the conference will focus on three core prisms: Urban Development and Resiliency; Equity and Social Inclusion; and Sustainable Urban Environments. We welcome paper proposals on the challenges of global comparative urbanism from a variety of disciplinary backgrounds, especially those incorporating perspectives from the Global North, South, and East. Topics include, but may not be limited to:

  • Theoretical and methodological approaches to comparative urban research
  • The (global) urban commons
  • Urbanization and development
  • Inclusive housing policy
  • Urban social movements
  • Urban environments and public health disparities
  • Gentrification and neighborhood transformation
  • Global suburbanization
  • Comparative urban policy and law
  • Networked urbanism (e.g., global urban security, terrorism, health, food, etc.)
  • Policy mobilities
  • Climate change, sustainability, and urban resilience
  • Globalization, migration, and labor markets
  • Infrastructure governance, policy, and planning

Interested authors are requested to submit 500-600-word abstracts to urban@gsu.edu by August 1, 2018. Papers will be selected based on their fit with the conference theme and sessions. Participants will be asked to submit a first draft of their papers by February 15, 2019.

Accommodation Information:

The Urban Studies Institute has arranged for a block of rooms at the discount rate of $139/night from March 6- March 9 at Home2Suites. Home2Suites is located at 87 Walton St, in downtown Atlanta, close to public transit and Georgia State University, and a 10-minute walk to the conference venue. More information can be found at: http://home2suites3.hilton.com/en/index.html

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The Urban Studies Institute at Georgia State University conducts top-level urban research from a variety of disciplinary and interdisciplinary perspectives; offers an innovative and specialized interdisciplinary curriculum; and engages with stakeholders in metropolitan Atlanta and in other cities around the world. The Institute’s research agenda ranges from local to global, from urban theory to policy research, and is particularly geared to comparative urban approaches. Research themes emphasize urban economic resilience, inclusive development, and urban sustainability. The Institute is housed in the Andrew Young School of Policy Studies. For more information, visit  http://urbaninstitute.gsu.edu/

May 14, 2018 | Permalink | Comments (0)

Monday, April 2, 2018

Patricia Salkin on Contemporary Issues in Teaching Land Use: Question 7: How Do You Teach the Contract Transformation in Land Use Regulation?

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 7:  How Do You Teach the Contract Transformation in Land Use Regulation?

by Patricia Salkin

Rounding out new ideas in approaching the material in Chapter 4 as previously posted by my co-authors Stephen, John and Jonathan, one way to look at the chapter is from the perspective that everything is negotiable.  Yes, municipal land use regulations may include subdivision regulations that must be followed, but at the end of the day, developers and applicants are looking to get to yes on their projects.  Everything in this chapter ties back to the discussion in Chapter 2 and my August 2017 post about the economics of land use regulation. The bottom line is that applicants want their projects to be approved and the community wants certain protections from quality of life (tax burden, jobs, public infrastructure, affordable housing, etc) to the environment. 

Taken in this context, we can ask our students about conditions the government places on subdivision approvals.  Some are grounded in statutory authority and some are evolved from the common law.  For example, from statute we see the room for design flexibility and negotiation in conservation and/or cluster subdivisions.  In some states, like New Jersey, the applicant may choose to propose the cluster to help accomplish a community goal, and in other states like New York, the locality may require the submission of a cluster plat as part of the process. Discussing the economic and conservation benefits of subdivision design helps students to better grasp the benefits of more compact development as opposed to sprawl since it comes at a financial savings in infrastructure costs (e.g., less asphalt for one thing) and community amenities in terms of land left undisturbed (e.g., not physically built) for the aesthetic and environmental benefits.

The chapter then moves to a discussion of development agreements and community benefits agreements (CBAs).  This creative combination of statutory authority (minority of states have development agreement statutes) and common law (CBAs are based in private contract law) offers an opportunity for much policy discussion and small group skill development around negotiation and drafting of agreements. In prior years I tended to focus on the promise of development agreements as there seemed to be a trend towards statutory authorization.  However, it is still not the majority view.  More recently, I have emphasized the value of the CBAs.  One key difference between the two is that the government is a party to a development agreement, but the government is not typically a party to a CBA, which is a private contract between the project sponsor and the community stakeholders.  The government need not recognize or give credence to a CBA.  For students who might not yet have taken classes in negotiation and/or mediation, the CBA introduces students to the concepts of finding out what each party wants or needs in order to get to yes.  It also provides a good opportunity to review 1L contracts issues (e.g., what is the bargained for consideration since the final project approval rests with the government who is not a party to the CBA; who has authority to enter into a binding contract for the neighborhood; who can enforce the contract; and what remedies are available for breach). 

There is a wealth of information about CBAs developed in the last decade on the Community Benefits Blog, and although it has not been updated in a while, the information is still valuable.  I understand plans are underway to provide more current content. A more recent index was prepared by The Public Law Center at Tulane and it can be accessed here

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

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

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

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin] 

April 2, 2018 | Permalink | Comments (0)

Thursday, March 29, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 10: Theoretical Underpinnings of the Paris Agreement and Corollary Benefits: A Series by John R. Nolon

This post is the final issue in a series. See below for links to previous issues.

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

Theoretical Underpinnings of the Paris Agreement and Corollary Benefits

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

 

The Conference of the Parties in Paris called for Nationally Determined Contributions to climate change mitigation, embracing bottom-up state and local mitigation strategies. Surprising to some, this move is supported by sound theory emanating from many sources and disciplines.  These include, inter alia, the United Nations Environmental Programme (UNEP), the Intergovernmental Panel on Climate Change (IPCC), two Nobel Laureates (one in Physics, the other in Economics), two prominent law professors, and a sociologist. This blog series ends with a restatement of the theoretical underpinnings of Low Carbon l=Land Use and its corollary benefits, which transcend climate change and further demonstrate the wisdom of relying on local land use power.

The UNEP calls for the adoption of national framework laws for environmental protection. Such laws begin with a statement of goals and policies and create logical institutional arrangements among levels of government.  They create nested hierarchies of governmental agencies that coordinate responsibilities based on the competencies of each level of government.

The IPCC added a chapter on the relationship between the shape of human settlements and climate change mitigation in its Fifth Assessment Report, published in 2014, a year prior to the Paris Conference of the Parties. The chapter addresses the effects of urban growth on climate change, focusing on urban form, infrastructure, and land use mix. It notes that “areas with a high mix of land uses encourage a mix of residential and retail activity and that mixed land uses reduce the amount of Greenhouse Gasses by creating efficient use of energy and reducing vehicle miles travelled and auto emissions.” It recognizes that local governments are critical actors who shape these kinds of neighborhoods.

Yale law professor Robert C. Ellickson warns against the “Yale disease,” which he calls the propensity of his students to look entirely to federal laws and federal courts for solutions. He refers to the “principle of subsidiarity,” which holds that responsibility for dealing with a problem should be delegated to the most decentralized institution capable of handling that problem.   His instinct is supported by Nobel Laureate in Economics, Dr. Elinor Claire Ostrom. Her view of governmental strategies is that they should be “polycentric”. She warns against the “panacea effect,” which is akin to the Yale disease. She too would assign key decision responsibility to those who are as close to the scene of relevant events and to the actors involved. 

Law professor I. Michael Heyman, with whom we met when we founded the Land Use Law Center 25 years ago, headed the Smithsonian Institution at the time and was known to us as a former Professor of Law and of City and Regional Planning at Berkeley and former Chancellor of the University of California. We had just completed a study of the sustainability of the Hudson Valley Region and were deeply concerned about the damage to natural resources caused by sprawl: the result of land use plans adopted by over 200 constituent local governments. He suggested that, to foster sustainable human settlements, we build interconnected networks of local land use leaders, as he and others had done with the several communities that share land use jurisdiction in the Bay Area in San Francisco.

Nobel Laureate in Physics, Dr. Murray Gell-Mann, attended our meeting with Professor Heyman. He had just been dubbed the “man who knows everything” by the New York Times. Dr. Gell-Mann helped to establish the Santa Fe Institute, was on the board of the MacArthur Foundation, and had just published his book on sustainability, The Quark and the Jaguar. As a physicist, he based much of his thinking on the function of “complex adaptive systems” in nature and human communities.  His writings focused on how ecological systems and human communities adapt to stress and crises. He discovered that healthy systems are divided into components that communicate regularly and rapidly to sense impending threats and to determine how to respond effectively. Both he and Professor Heyman pointed out that the land use boards within the typical local government are not communicating effectively and need to be trained to do so. Similarly, local governments that share challenges regionally do not plan together, and thus have difficulty perceiving the threats of sprawl and developing strategies for responding.

All change related to land use manifests at the local level and it is there that land use plans and regulations need to be changed to reorder human settlements. Sociologists study how change happens. One term for what they observe is the “diffusion of innovation,” popularized by Dr. Everett Rogers. Diffusion, he notes, includes the planned and spontaneous spread of new ideas, such as methods of containing sprawl, or implementing measures to mitigate climate change. We adopted his notions in establishing the Land Use Alliance Leadership Training Program and selected local “champions of change,” as Rogers labels them, to attend our training program. We learned from Rogers that change happens when local champions reach out beyond their jurisdictions to peers and respected change agents to solve local problems, so we brought these resources into our training programs. When my Yale students explored why communities adopted exemplary local environmental laws they found out that most resulted from the work of community leaders reacting to damage to the local environment and they named these perturbations and called this the “perturbation effect.”

Shortly after we met with Professor Heyman and Dr. Gell-Mann, we started working with the City of Yonkers on the Hudson Park development, where we learned about the corollary benefits to the environment of transit-oriented development, a key climate change mitigation method. We knew that capturing the expanding population of the region in well-planned urban developments would counter sprawl, but we did not recognize the numerous other benefits of such projects.  Hudson Park is a compact, mixed-use development at the Yonkers train station: an express stop on the MetroNorth commuter rail line. The project was built at a density of 130 du/acre to create the ridership needed by the railroad. Compared to sprawling subdivision developments, Hudson Park reduces average per household impervious coverage by 96%, lowers per capita water use by 60%, and avoids disrupting wetland and watercourse environments needed for adaptation to climate change. At 90% coverage, Hudson Park paved over 36,000 sq. ft. per acre and at 130 du/acre that amounts to 275 sq. ft. coverage per household. The average suburban single-family home on a half-acre, in contrast, will create 8,000 sq. ft. of impervious coverage per household.

The conclusion here is that working at the local level on developments that mitigate climate change leverages many other environmental benefits. These include stormwater management, water conservation and quality, public health, and natural resource conservation. Paris and the IPCC adopted mitigation strategies supported by sound theoretical underpinnings and turned the attention of policy makers and critical actors to the local scene. Basing climate change management strategies on a sound local footing leverages a range of other needed changes. It takes advantage of that level of government’s significant legal authority, which is in the hands of champions of change who will not abide other environmental perturbations.

See Champions of Change:  Reinventing Democracy Through Land Law Reform

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

Post 7:  The Land Use Stabilization Wedge:  Sequestration

Post 8:  Distributed Energy

Post 9:  Community Power and Renewable Energy

 

 

March 29, 2018 | Permalink | Comments (0)

Wednesday, March 21, 2018

CFP: ABA Journal of Affordable Housing & Community Development Law: The Interconnections between Health and Housing

ABA Journal of Affordable Housing & Community Development Law

Call for Papers

The Interconnections between Health and Housing

For its next issue the Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays exploring the interconnections between health and the Journal’s traditional themes: affordable housing, fair housing and community/economic development. Topics could include creative housing developments; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies. Articles and essays could analyze new developments, tell success stories, or explore problems relating to issue such as affordable independent/assisted living, aging in place, or in-home care, and propose legal and policy recommendations.The Journal welcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words) on the theme. 

The Journal is the nation’s only law journal dedicated to affordable housing and community development law.  The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at iglesias@usfca.edu by April 15, 2018. Submissions of final articles and essays are due by May 1, 2018. The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

March 21, 2018 | Permalink | Comments (0)

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 9: Community Power and Renewable Energy: A Series by John R. Nolon

 

This post is the penultimate issue in a series. See below for links to previous issues.

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

Community Power and Renewable Energy

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

 

Community power is an emerging tool for implementing renewable energy technology. It is also a metaphor for the power of local governments to further or frustrate that resource.  Historically, land use regulations were more of a hindrance than a help. In some communities, the soft costs of renewable energy facilities, including the expense of securing local approval for wind and solar energy systems, remained high while the cost of the systems declined. In others, these facilities were simply zoned out. This is changing and the pace of change is rapid. 

The Pittsburgh Zoning Code defines distributed energy systems to include “a range of smaller-scale technologies designed to provide electricity and thermal energy closer to consumers,” including renewable energy facilities. The source of power for Microgrids, which is incentivized by this zoning law, can be small-scale renewable energy systems, such as community solar systems and small- to mid-sized individual or clustered wind turbines or on-site solar panels.

Communities, like Pittsburgh, using their land use power, are mitigating climate change by defining the types of emerging sources of renewable power, permitting those sources in zoning districts, and some are requiring property owners to accommodate these sources or   creatively incentivizing them in a variety of ways.   The facilities supported by local land use laws can be called community power systems.

Distributed energy facilities are increasingly studied as part of land use planning, being called for in comprehensive plans, defined by zoning codes, and permitted in certain districts, either as-of-right, as accessory or secondary uses, or as special permitted uses. Larger, higher intensity systems can be permitted by zoning, but subject to protective standards. 

A few state legislatures have preempted local authority to regulate renewable energy systems, particularly large-scale projects that are subject to state agency regulation and licensing. But most mid-sized and smaller systems remain subject to local regulation under the plenary authority delegated to local government to control private development. This is understandable; the risks and impacts of energy systems are experienced first-hand locally by the residents of these communities.

When, for example, wind power companies first approach a community with a proposal to develop towers over 200 feet high, with blades nearly as long as a football field, neighbors naturally oppose them until their risks are understood and mitigated by regulation. Less dramatically, a proposal to cluster a few smaller towers to serve on-site needs or even a single wind turbine on a residential roof will meet opposition initially. Residents, particularly adjacent neighbors, are concerned about the noise, visual interruption, ice throws, the strobe effect, change of neighborhood character, and the consequent diminution of their property values. Since land use laws are based on intense democratic participation by the public, these risks have to be examined and, where they are well founded, reduced or eliminated.

Local governments typically begin the regulatory process by doing studies of wind generation systems, exploring both the risks and benefits, and memorializing their findings in a comprehensive land use plan amendment or adopting a land use policy.  They then define various types and sizes of wind energy systems and prohibit them in inappropriate locations and permit them in others, with needed safeguards.  These laws create spacing and set back requirements, limit or buffer noises, require aesthetic controls, and impose regulations on noise levels, viewshed interruptions, heights, location, size, lighting, color, or design. Some laws require local licenses and even provide for decommissioning.

Zoning for solar energy facilities proceeds in the same way. When the Land Use Law Center was retained to draft a model solar energy law for communities in New York, we started by working with industry representatives to understand the various types, shapes, intensities, and other characteristics of these facilities. We realized that building integrated systems are part of the structure itself and exempted them from land use regulation. Small scale roof-top and ground mounted systems were permitted as-of-right or as accessory uses, and larger scale systems were subject to special permits and site plan regulations.  

Most states have adopted the International Codes Council’s Energy Conservation Code as a baseline to conserve energy in new and substantially rehabilitated buildings.  State law in some states allows local governments to adopt enhancements to the state energy code that achieve even greater conservation. The New York State energy agency, NYSERDA, has circulated a draft “stretch code” that localities may adopt to strengthen energy conservation requirements locally.  Among its provisions is this: “New buildings shall comply with one of five standards including the use of on-site renewable energy with a total minimum rating of, for example, “not less than 1.71 Btu/hr/ft2…or 0.50 w/ft2 of conditioned floor area….”

NYSERDA has also promulgated the Unified Solar Permit (USP) to reduce costs for solar projects by streamlining municipal permitting processes. Local governments in the state may, and many have, adopted the USP. It applies to solar systems with a capacity of 12 kW or less that are not subject to architectural or historical review board approval, do not require a zoning variance or a special use permit, and that are roof-mounted, compliant with building and related codes, and meet mounting and weight distribution requirements.

Without assured access to the rays of the sun, property owners may be discouraged from installing solar panels because the cost of the systems may not be recouped over time if sunlight is diminished by development on adjacent parcels.  In most states solar easements or nuisance actions for blocking the sun’s energy are not recognized by common law. However, they can be created by local government regulation. Typically, these regulations require written and recorded solar easements that define easement dimensions, how the easement will terminate, and compensation for easement maintenance or interference, among other provisions. This is an especially viable technique when applied through subdivision regulations to new developments.

Some localities are requiring developers to install solar energy systems or, short of that, to make buildings solar ready. Other communities incentivize, rather than require, these solar facilities, typically by providing density bonuses for solar panels, solar readiness, and solar access easements.

Local governments have not yet fully transitioned from Zoned-Out to Zoned-In and fully facilitated community renewable systems, but the trend is definitely moving in that direction.

For solar power regulation, see Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation  

For wind power regulation, see Wind Power: An Exploration of Regulations and Litigation, https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1665&context=lawfaculty

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

Post 7:  The Land Use Stabilization Wedge:  Sequestration

Post 8:  Distributed Energy

March 21, 2018 | Permalink | Comments (0)

Wednesday, March 14, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 8: Distributed Energy: A Series by John R. Nolon

This post is the eighth in a series. See below for links to previous issues.

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

Distributed Energy - Lost in Transmission

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

When President Trump announced his epic decision to withdraw the U.S. from the Paris Accord, he quipped that he was elected to represent the residents of Pittsburgh, not Paris. His clever alliteration was hugely ironic.  Pittsburgh has long been a leader in mitigating climate change, using its local land use power and democratic processes to reduce energy consumption and fossil fuel emissions.  The City’s zoning code, in fact, aggressively facilitates one of the most promising mitigation measures, that of promoting distributed, or on-site, power generation.

In a previous blog, we reported that the most recent EPA Greenhouse Gas Inventory estimates that residential and commercial buildings emit nearly 40% of domestic CO2, consume over 70% of the electricity produced in the U.S., and are responsible for over 40% of total energy used.  Shockingly, two-thirds of the fuel used to generate electrical power in the U.S. is lost as escaped heat at the point of generation and in transmission. Many of our electrical generation plants are located at sites far removed from where the power is needed: where people live and work and industry operates.  Much of the energy lost to generate electricity for the conventional power grid can be saved by on-site or distributed energy generation.

Pittsburgh, apparently unbeknownst to President Trump, is a model smart city. In response to the U.S. Department of Transportation’s Smart City challenge in 2015, the City developed a plan to create innovative, interconnected infrastructure that responds efficiently and affordably to the transportation and energy needs of local residents. It implemented SmartPGH: a plan to integrate multiple interconnected systems including a “grid of micro-girds” that generate electricity on-site, greatly reducing the energy lost in remote generation and transmission.  

The Department of Energy’s R&D Program defines a microgrid as “a group of interconnected loads and distributed energy resources within clearly defined electrical boundaries that acts as a single controllable entity with respect to the grid. A microgrid can connect and disconnect from the grid to enable it to operate in both grid-connected or island-mode.” Microgrids can capture the heat used to generate power by converting it to energy needed to cool and heat connected buildings. This is called Combined Heat and Power (CHP). 

Microgrids usually operate at the scale of multiple buildings, a city block, or a larger neighborhood and are, therefore, ideally subject to local planning and regulation. They can be prevented or furthered by land use standards. At the local level, on-site generation and CHP facilities cannot be developed if not permitted by local zoning. Pittsburgh used its delegated power to adopt zoning and land use regulations to enable microgrids to develop. The City Council amended its municipal code to add a Performance Point System that incentivizes sustainable development. It awards developers density bonuses for points that they accumulate by developing sustainably, including the development of distributed energy systems such as microgrids.

For zoning to permit or promote a land use, it must define that use and specify where it may be located and how it is to be regulated or facilitated.  In one of the first such definitions of its kind, the Pittsburgh Zoning Code says: “Distributed Energy Systems shall mean a range of smaller-scale technologies designed to provide electricity and thermal energy closer to consumers. These approaches include fossil and renewable energy technologies, micro-grids, on-site energy storage, and combined heat and power systems.” See Pittsburgh Zoning Code, Article VI Chapter 915, section  915.07C (7)

Pittsburgh enacted into law what the USGBC encourages developers to do to qualify for certification under the LEED-ND program.  That program points out that zoning can allow for district heating and cooling facilities, as well as solar and wind systems, to be installed in certain buildings or their sites; land use review protocols can be used to encourage owners to provide them, and density bonuses can be granted to provide a financial incentive for them.

As demonstrated here, many energy technologies and facilities cannot be built if they are not permitted at the local level by zoning.  Localities, like Pittsburgh, have the ability to incentivize energy conserving development through density bonuses and partnerships involving funds from local capital budgets.  Innovations in energy technology can be furthered and assimilated by an informed public that understands the seriousness of current problems and the feasibility of new solutions. Since zoning is required to be in conformance with a comprehensive land use plan developed with robust citizen participation, land use planning provides a valuable opportunity to engage and inform the public.

See Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

Post 7:  The Land Use Stabilization Wedge:  Sequestration

March 14, 2018 | Permalink | Comments (0)

Tuesday, March 13, 2018

Pace Law seeks graduate fellow / LLM applications for Land Use Law Center

The Land Use Law Center at Elizabeth Haub School of Law at Pace University in White Plains, NY is seeking a graduate fellow for next academic year. During the fall and spring semesters, the Fellow will work half-time with the Center on its cutting edge projects, while completing requirements for an LLM in Land Use and Sustainable Development Law.  Compensation for this position includes the full waiver of tuition and a modest stipend.  The School is ranked as one of the top three law schools in Environmental Law. The Land Use Law Center celebrates its 25th anniversary this year as one of the most active and well-known legal centers of its kind.  The Center has helped create frameworks for sustainable development, local environmental, and low carbon land use law and conducts research and field work in nearly all aspects of sustainable development, with current projects in public health, resilience, urban revitalization, gentrification, distressed property remediation, agricultural land preservation, renewable energy, watershed conservation, green infrastructure, green buildings, the sharing economy, and transit oriented development.

Please encourage interested 3Ls to consult the program’s requirements. 

Land Use and Sustainable Development LLM Graduate Fellow: https://careers.pace.edu/postings/4656

March 13, 2018 | Permalink | Comments (0)

Wednesday, March 7, 2018

Low Carbon Land Use: Paris, Pittsburgh, and the IPCC: Post 7: The Land Use Stabilization Wedge: Sequestration: A Series by John R. Nolon

[This post is the seventh in a series. See below for links to previous issues.]

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

The Land Use Stabilization Wedge: Sequestration

by John R. Nolon, Distinguished Professor of Law

Elisabeth Haub School of Law at Pace University

The green edge of the land use stabilization wedge is the biological sequestration of CO2.  It occurs within the vegetated environment: resources such as forests, pastures, meadows, crop lands, urban trees, and green infrastructure. These landscapes naturally absorb and store approximately 15% of domestic CO2 emissions. Perpetuating and expanding the sequestering environment is fundamentally a land use issue, one that is well within the capacity of land use law to address.  

The previous blog on transportation described how shaping human settlements to promote walkable, livable communities directly mitigates climate change by reducing vehicle miles travelled and energy consumed in buildings. Compact, mixed-use and sustainable neighborhood development promoted by land use regulations are, therefore, essential strategies for lowering emissions. Fortunately, they also promote biological sequestration. Such development attracts population growth to urban places by creating healthy neighborhoods for living, working, and recreating, which preserves existing open space in outlying areas.  One estimate calculates that doubling urban density alone would accommodate the entire projected population increase by mid-century, thereby saving an area the size of Connecticut – and all of its sequestering resources -- from development.

Strategies that create green infrastructure in developing and developed places, while adding marginally to sequestration, are necessary if urban communities are to attract additional residents and workers.  They are essential adaptive techniques as well. In developed cities, for example, tree canopies can be increased; green infrastructure added; urban gardens promoted; and buildings oriented to cool living environments, lessen the heat island effect, make cities attractive places to live, and soften the effects of higher densities

If urban places do not accommodate population growth, outlying lands become targets for residential and commercial development.  In these places, land-use law can be particularly effective in designating and protecting lands that sequester carbon. As suburban subdivisions are developed, they can be better situated into the existing vegetated landscape through thoughtful land use regulations. Furthermore, local governments can shape suburban and ex-urban land development to reduce land coverage and impervious surfaces, limit flooding, retain and add vegetation, protect community character, and prevent ground and surface water pollution. Together, such strategies limit development densities and tend to push population growth back toward developed centers and corridors.

Municipal governments in suburban and ex-urban areas have a long history of concern for the loss of open space and eco-system services to encroaching development.  Decades-old local open space preservation laws and programs yield a number of strategies that can now be employed as sequestration techniques These include standards regarding environmentally sensitive area designation, erosion and sedimentation control, grading, filling, drainage, soil disturbance, removal of vegetation, floodplains control, natural resource management, watershed, groundwater, watercourse, and wetland protection, landscaping requirements, ridgeline, steep slope, scenic resources, shoreline regulation, stormwater management, timber harvesting regulations, tree protection and canopy expansion, and the transfer of development rights from lands to be preserved to developable areas.

Most local environmental laws and natural resource protections of this type are enacted because of perturbations at the community level: the loss of a treasured viewshed, the gradual decline of visible open space, surface water or groundwater contamination, increased flooding, or the disappearance of treasured wildlife, among others. These disturbing influences motivate local stakeholders, and their elected officials to act to address their causes.  As a result, local governments are becoming increasingly reliable partners in the global effort to manage climate change. 

This comes at a critical time.  Local legal strategies that preserve and enhance the sequestering environment now have a place on the global stage due to the advent of Nationally Determined Conditions (NDCs) in the Paris Agreement of the 21st Conference of the Parties. NDCs include contributions to climate change mitigation adopted by local governments that can be counted toward participating countries’ efforts to achieve international climate mitigation goals.

See Managing Climate Change Through Biological Sequestration: Open Space Law Redux

Material from this series will appear in Low Carbon Land Use: Paris, Pittsburgh, and the IPCC, an article to be published by the Arkansas Law Review.

Previous posts in this series are available here:

Post 1:  Paris, Pittsburgh, and the IPCC

Post 2:  Post-Paris Contagion

Post 3: Carbon Emissions: The Land Use Connection

Post 4:  Shaping Human Settlements

Post 5:  The Land Use Stabilization Wedge: Buildings

Post 6:  The Land Use Stabilization Wedge:  Transportation

March 7, 2018 | Permalink | Comments (0)

Tuesday, March 6, 2018

Mulvaney: Non-Enforcement Takings

Tim Mulvaney (Texas A&M) has a new article, "Non-Enforcement Takings," now available on SSRN.  Here is the abstract:

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution’s Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same “fairness and justice” grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly entitled to the Takings Clause’s constitutional remedy. Rather, it simply suggests that courts should resist the temptation to formulaically and categorically prohibit non-enforcement takings claims in favor of assessing those claims on the merits.

March 6, 2018 | Permalink | Comments (0)