Land Use Prof Blog

Buchanan v. Warley Centennial Symposium on Race & Zoning

On November 5, 1917, the U.S. Supreme Court struck down Louisville’s race-based zoning ordinance in a landmark case, Buchanan v. Warley. The centennial of this famous case will be marked on Friday, November 10, 2017, at the University of Louisville Brandeis School of Law with a national symposium on Racial Justice in Zoning: 100 Years after Buchanan. The symposium will explore current racial injustices in land use, housing, and environmental conditions, as well as the history of race and zoning in the U.S. and Louisville. It will feature presentations on eight nationally renowned scholars, as well as a presentation on redlining in Louisville.

 

The symposium begins at 8:30 a.m. and ends at 2:30 p.m. on Friday, November 10, and will be held in Room 275 of Wyatt Hall, which is the Brandeis School of Law on the University of Louisville’s Belknap campus, 2301 S. Third Street. The symposium is free and open to the public, and includes a free light continental breakfast at approximately 8:30 a.m., and a free lunch at approximately 1:00 p.m., both on a first-come, first-serve basis until food runs out. Please do not confirm your attendance; just come. If you have questions, please contact Tracie Cole at [email protected] or 502-852-1230. Individuals requiring accommodations should also contact her as soon as possible.

 

All attendees will be responsible for finding and paying for their own parking. Visitor parking passes are available for purchase through the U of L Parking website.  On this page, you are able to pay for and print your visitor permit that you will place on the dash board of your car while you are parked on campus.  You are also able to view maps and directions to campus.  To obtain your visitor pass, click on “Printable Visitor Permits”, under “Permits” click on “Get permits” and under “Customer Authentication, click on “create a guest account”.  From here, you will create an account, and be able to select the $5 per day printable visitor permit.  You are able to park in the Green Lot on 3^rd Street across from the Reynolds Lofts. The UofL Parking website also contains information about other visitor parking options, such as the lot at 4^th and Cardinal or the Floyd Street Garage, which charge based on the length of time you park. Also, the Speed Museum (not the University) operates a parking garage next to the Speed Museum on Third Street, which charges by the hour.

 

The symposium is sponsored by the University of Louisville Brandeis School of Law, with support from the Caudill-Little Speakers Fund, and co-sponsored by the Anne Braden Institute for Social Justice Research at the University of Louisville.

 

The details of the symposium schedule and speaker information are provided below:

 

Buchanan v. Warley Symposium Agenda

Racial Justice in Zoning: 100 Years after Buchanan

Friday, November 10, 2017

 

8:30 a.m.: Light continental breakfast

8:40 a.m.: Dean's Welcome: Lars Smith, Interim Dean

8:50 a.m.: Organizers' Welcome: Tony Arnold, Symposium Chair

 

Session I: The History of Race, Zoning, and Buchanan Case

9:00 a.m.: Cate Fosl, The Buchanan Case and the Long Movement for Civil Rights in Louisville

9:20 a.m.: Laura Rothstein, What Would Louis Do?  The “Brandeis Brief” on Zoning and Its Present Impact on Racial Segregation

9:40 a.m.: Michael Wolf, Caudill-Little Distinguished Presenter, There’s Something Happening Here: Affordable Housing as a Nonstarter in the U.S. Supreme Court

10:20 a.m.: Q&A for Session I

10:30 a.m.: Break

 

Session II: Contemporary Perspectives on the Persistence of Racial Inequality in Land Use

10:40 a.m.: Cedric Merlin Powell, Race Displaced: Buchanan v. Warley and the Neutral Rhetoric of Due Process

11:00 a.m.: Michael Lens, Caudill-Little Distinguished Presenter, Why Segregation Matters: The Inequality of Opportunity

11:40 a.m.: Audrey McFarlane, Caudill-Little Distinguished Presenter, The Properties of Integration: Managing Discrimination Through Mixed Income Housing

12:20 p.m.: Tony Arnold, From Zoning Injustice to Environmental Injustice to Resilience Injustice

12:40 p.m.: Q&A for Session II

12:50 p.m.: Break

 

Session III: Luncheon Keynote

1:00 p.m.: Lunch

1:10 p.m.: Keynote by Sheryll Cashin, Caudill-Little Distinguished, Integration as a Means of Restoring Democracy and Opportunity

1:50 p.m.: Q&A for Keynote

 

Session IV: Bringing It Home

2:00 p.m.: Jeana Dunlap, Redlining Louisville: The History of Race, Class and Real Estate

2:15 p.m.: Final Remarks by Organizers and Conclusion

2:30 p.m.: Symposium Ends; Book-Signing by Sheryll Cashin

 

Speakers:

Craig Anthony (Tony) Arnold, J.D. is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility.

Sheryll Cashin*, M.A., J.D., is Professor of Law at Georgetown University, and an active member of the Poverty and Race Research Action Council.

Jeana E. Dunlap, M.P.A., M.S., is the Director of Redevelopment Strategies, Louisville Forward.

Catherine Fosl, Ph.D., is Professor of Women's and Gender Studies at the University of Louisville, where she also teaches in the History Department and directs the Anne Braden Institute for Social Justice Research.

Michael Lens*, Ph.D., is Associate Professor of Urban Planning at the UCLA Luskin School of Public Affairs, where he is the Associate Faculty Director of the UCLA Lewis Center for Regional Policy Studies.

Audrey McFarlane*, J.D., is the Dean Julius Isaacson Professor of Law at the University of Baltimore.

Cedric Merlin Powell, J.D., is Professor of Law at the University of Louisville Brandeis School of Law, where he is the Interim Associate Dean for Academic Affairs.

Laura Rothstein, J.D., is a Distinguished University Scholar and Professor of Law at the University of Louisville Brandeis School of Law.

Michael Allan Wolf*, J.D., Ph.D., is the Richard E. Nelson Chair in Local Government Law and Professor of Law at the University of Florida Levin College of Law.

* denotes Caudill-Little Distinguished Presenter

Marco Rubio was a land use lawyer

Land Use Prof Blog is a completely non-partisan forum, but I was fascinated to read this recent article in the Colorado Springs Gazette (apparently picked up from AP) about Marco Rubio's early career as a land use lawyer.  (I'm guessing the article appeared in a Colorado publication because the Colorado caucuses are on "Super Tuesday," March 1, although the Colorado Republicans will not actually be caucusing for Presidential candidates, leaving that to their delegates at the national convention.)  

It's not often that a zoning lawyer rises to national political prominence.  The article is also interesting because it discusses Rubio's work for clients vis a vis his position in the Florida Legislature, and seems exemplary of the role of politics in local land use decisions.

Jamie Baker Roskie

Atlantic Interview of Myron Orfield on Sustainable Integration

The Atlantic uploaded yesterday an interview by Amanda Kolson Hurley of Myron Orfield (Minn).  Titled "The Persistence of America's 'Easy White Enclaves,'" the interview explores policy decisions about the siting of subsidized housing development, which issues are so topical now that SCOTUS has remanded the Inclusive Communities litigation.  But, Orfield also discusses what his research has shown about what levels of integration (read: diminution of white predominance) lead to resegregation.  The short piece links to a 2013 Housing Policy Debate article Orfield co-authored with Thomas Luce as well as a more recent study of the causes of segregation in the Twin Cities.

Jim K.

Federal Judge Re-Opens Connecticut "Definition of Family" Case

Zoning ordinances that restrict occupation of single family homes to "families" are quite common.  My family and I have lived in two college towns - Athens, Georgia and Fort Collins, Colorado, both of which have and enforce these ordinances to restrict groups of young adults from living in single family neighborhoods. Challenges are not uncommon, but those challenges have had mixed success.

The latest battleground is Hartford, Connecticut, where a group of families are living in a mansion they jointly purchased.  From today's article in the Hartford Courant: 

The neighborhood controversy escalated to a federal lawsuit in March, when the adult members of the 11-person household — two couples with children, a couple with no children and two individuals collectively dubbed the Scarborough 11 — argued that the city was violating their constitutional rights to live together and raise children as a family through a partnership among good friends.

Since the plaintiffs in these types of challenges tend to be groups of single young adults living together, it will be interesting to see how this family group fares.

Jamie Baker Roskie

Sink or Swim: In Search of a Model for Coastal City Climate Change Resilience

New York City, like other major cities around the world, has acknowledged the problem of climate change, undertaken a comprehensive risk assessment, created a suite of adaptation and mitigation planning initiatives, and begun to implement policies to both decrease the city’s contribution to the problem and make the city less vulnerable to the effects of climate change. In an article published in the Columbia Journal of Environmental Law, I provide a detailed analysis of the city’s climate change resilience initiatives and conclude that many of the city’s initiatives provide a model for other coastal communities, but the city's initiatives nevertheless fall short of what is likely required to sufficiently moderate harm from dangerous interference with the climate system.

The city’s robust suite of initiatives put it ahead of the pack as compared to most other U.S. municipalities, especially with respect to comprehensive reform of zoning and building codes, integrated mitigation and adaptation planning, transparent climate change-related data analysis initiatives, and commitment to reduce GHG emissions 80% by 2050 from 2005 levels and progress toward that goal. However, the city also faces a host of wicked policy binds, ineffective regional structures, a lack of support at the federal level, and numerous conditions that constrain its ability to remain resilient. In light of this, the “toughness” theme that runs throughout the city’s plans risks undermining its robust data analysis and reporting initiatives by instilling in New Yorkers a false sense of security with respect to both the scope of the problem and their local government’s ability to protect them from it. The city faces an equally wicked policy bind with respect to waterfront development. Given the foreseeable risks of increasingly intensive and frequent coastal storms, flooding and storm surges, coastal municipalities must carefully evaluate their waterfront development policies to assure consistency with future climate risks and adopt regulations that curtail or eliminate waterfront development in high-risk areas, encourage or require relocation away from vulnerable areas, and take maximum advantage of opportunities to develop natural flood-mitigation infrastructure.

See Sink or Swim: In Search of a Model for Coastal City Climate Change Resilience, 40 Columbia J. Envt’l L. 433 (2015), available here.

 

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

Online Professional Development Course in Adaptive Planning & Resilience

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

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

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

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

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

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

Adaptive Planning and Resilience

Online and self-paced

Oct. 12 – Nov. 22, 2015

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

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

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

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

 About Professor Tony Arnold

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

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

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

professionals knowledgeable in adaptive planning. They include:

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

Dates

October 12 – November 22, 2015,

Online, asynchronous, and self-paced

Cost

$150

For more information

Visit louisville.edu/law/flex-courses.

 

Two Great Long Island, NY Land Use Planning and Zoning Programs this Week

Are you in the New York metro area? Join planners and attorneys, municipal board members and others this Thursday for the APA's 2015 East End Planning Conference and this Friday for Touro Law's Bagels with the Boards program.

• 2015 East End Planning Conference

Thursday, September 24, 2015, 3 PM – 7:30 PM

Tour of Marine Sciences Center 2pm – 3pm

Stony Brook University

Tuckahoe Road, Southampton, NY 11968

For more information visit here. 

• Bagels with the Boards

Friday, September 25, 2015, Program 9 – 10 AM (breakfast 8:30 – 9 AM)

Telecommunications Law for Planning and Zoning Boards by Christopher B. Fisher, Charles J. Gottlieb and Anthony F. Morando, of Cuddy & Feder LLP

For more information and to register visit http://www.tourolaw.edu/landuseinstitute/ or email [email protected].

New cases, including recent U.S. Supreme Court cases, continue to shift the legal landscape relevant to planning for, permitting and siting telecommunications infrastructure. This one-hour program will provide participants with an update on recent changes in the law, and is especially relevant as municipalities continue to see increased deployment of wireless communications infrastructure to address the explosion in data use and demand for mobile broadband. To harness these advancements and growth in technology, municipalities must fully understand recent developments in Federal law to ensure that their local codes are not only compliant with the most recent Federal law and policy, but properly balance their own administrative burdens with the nature of the infrastructure being deployed. Tools to aid in the deployment of wireless infrastructure includes as-of-right sites, town wide planning, amendment of local laws including zoning regulations, as well as development of ongoing policies at the municipal level including use of municipal rights-of-way and properties. Successful use of these tools, however, requires staying abreast of federal law--which is evolving quickly as federal statutes and regulations are amended and as federal courts issue opinions interpreting these laws.

And save the date for future Land Use & Sustainable Development Law Institute programs:

• Oct. 16, 2015 – Land Use & Zoning for Fair and Accessible Housing including Overview of Regional Trends and Impediments by Chris Jones of the Regional Plan Association; Fair Housing Act Nuts and Bolts by Kevin Dwarka, land use and economic consultant and Senior Fellow at Pace's Land Use Law Center; Fair Housing Is Accessible Housing by Robin Malloy of Syracuse College of Law, Brian Baer of The Elevated Studio, and Marcie Roth of FEMA; Affirmatively Furthering Fair Housing by George D. Williams, Sr., Deputy Assistant Secretary, Office of Policy, Legislative Initiatives, and Outreach at HUD/FHEO, and Lorraine Collins, Assistant Commissioner/Director Fair and Equitable Housing Office at NYS HCR; and Disparate Impact by Michael Goldberger, Chief of Civil Rights, Civil Division, Assistant US Attorney, USAO Eastern District of NY, and Peter L. Contini of L'Abbate, Balkan, Colavita & Contini.
• Oct. 30, 2015 – Bagels with the Boards: Planning & Zoning for Disaster Resilience by Maggie Palmer, Sam Capasso & Chelsea Holland of the New York City Environmental Law Leadership Institute (NYCELLI)
• Nov. 20, 2015 – Bagels with the Boards: Reed v. Town of Gilbert – Signs of Our Times by A. Thomas Levin of Meyer Suozzi English & Klein PC
• Feb. 26, 2016 – Bagels with the Boards: Form Based Codes by Joel Russell, Executive Director of the Form-Based Codes Institute
• Mar. 11, 2016 – Second Annual Long Island Coastal Resilience Summit
• Apr. 22, 2016 – Bagels with the Boards: The Grasping Hand – Kelo v. City of New London and the Limits of Eminent Domain by Ilya Somin, Professor of Law at George Mason University School of Law
• May 27, 2016 – Bagels with the Boards: Planning & Zoning for Small and Medium Wind Energy by Sarah Adams-Schoen and Evan Zablow, Land Use & Sustainable Development Law Institute Director and Graduate Fellow
• June 24, 2016 – Bagels with the Boards: Ethics Update by Touro Law Dean Patricia Salkin

 

All Land Use & Sustainable Development Law Institute programs at Touro Law Center are accredited for CLE (professional practice credits), AICP CM Law credits are anticipated for the Sept., Oct., Mar., April and June programs, and AICP CM general credits are anticipated for the Nov., Feb., and May programs. The Law Center issues certificates of attendance for self-accreditation for architecture, engineering and municipal board continuing education credits.

Edsall in NY Times on Milliken v. Bradley and Overconcentration of Poverty

Last week in the NY Times, Thomas Edsall (Columbia-Journalism) had an op-ed that looks at the past, present and future of overconcentration of poverty in the U.S.   In "Whose Neigborhood Is It?", Edsall begins with the U.S. Supreme Court's refusal in Milliken v. Bradley to extend school desegregation remedies across a municipal boundary without a showing that a defendant suburban district had a history of de jure racial segregation.   Legal scholars have frequently pointed to this 1974 case as a signal from SCOTUS that the suburban schools would be protected from inner-city decline. Interestingly, Edsall emphasizes the resulting exodus of middle-class African-American families to inner-ring suburbs.  The op-ed moves on to discuss the findings of Thomas, David Card and Paul Jargowsky, quickly bringing the reader into strong insights on a crucial issue. 

Today's op-ed is just one in a series that Edsall has written this year on the metropolitan geography of poverty.  Although  I found his criticism last month of low-income housing developers misplaced, that op-ed and others on the political fallout from the Inclusive Communities litigation and educational opportunities for low-income children make good resource material for supplemental assigned reading.

Jim K.

Free Monthly Program on Land Use Law

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

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

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

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

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

Friday, September 11, 2015

2:00 p.m. EST

Dial-in 888-3967955

Passcode 797687#  

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

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

"Basic Human Right" to Farm Your Lawn?

A bill has been introduced into the Michigan legislature to allow urban dwellers to keep a "reasonable" number of livestock on their property. This article refers to the bill as guaranteeing the "basic human right" to farm your lawn. Really?

As many of you are probably aware, many cities across the country are confronting the dilemma of what to about allowing "urban agriculture" (an oxymoron in my mind- perhaps "urban gardening" is more appropriate) in light of state right to farm laws. Each of the 50 states have right to farm laws, prompted by the decision by the Supreme Court of Arizona in Spur v. Del Webb, 108 Ariz. 178, 494 P.2d 700 (1972). These laws were enacted to address housing developments leapfrogging, or even slowly growing, out into rural areas and basically makes "coming to the nuisance" a true defense, in certain circumstances.

There are many health and planning reasons to bar livestock in urban areas. However, there are also many very passionate fans of keeping livestock in urban areas. I come down on the side of banning livestock in urban areas, but allowing vegetable gardens. I hope I don't receive any threats. Should I mention raw milk to evoke more emotional responses?

Right to Farm laws, already heavily criticized and having been found to be a taking of private property for private use by at least two courts (Iowa and Washington) need to be amended to exclude urban agriculture from the protections of the act. The acts were passed to address a totally different context.

Jesse Richardson

Fennell and Peñalver on Exactions Creep

For those of you who have not already figured out exactly how land use planning officials are expected to proceed in the wake of the U.S. Supreme Court's 2011 decision in Koontz v. St. Johns River Water Management District, Lee Fennell (Chicago) and Eduardo Peñalver (Cornell) have posted Exactions Creep, __ Sup. Ct. Rev. ___ (forthcoming).   Rather than deny that the Court has aggravated the uncertainty faced by local governments, Lee and Eduardo explore the nature of the confusion in the Court's exactions jurisprudence and call for a significant revision.  Here's the abstract:

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.

Jim K.

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

West Virginia University's Land Use and Sustainable Development Law Clinic

The Land Use and Sustainable Development (LUSD) Law Clinic at West Virginia University's College of Law has been at full strength for a little over two years. One of only a handful of land use law clinics in the country, the LUSD Clinic staff includes five attorneys (one of whom is an AICP land use planner), and an additional AICP land use planner. We are also fortunate to have our first LLM Fellow this year, Ann Eisenberg, a Cornell Law School graduate. West Virginia University College of Law established a LLM degree program in Energy and Sustainable Development Law in the Fall of 2014. The LUSD Law Clinic class includes 6-12 J.D. students each year, and the students work with the staff and clients across the state.

Three main areas form of the focus of the clinic. The clinic director, Katherine Garvey, formerly with the Environmental Law Clinic at Vermont Law School, heads up the wastewater portion of the clinic. Nathan Fetty, the Managing Attorney, and Jason Walls, Land Conservation Attorney, spearhead the land conservation work conducted by the clinic. Last, and certainly not least, Jared Anderson, J.D., AICP, Supporting Land Use Attorney, Christy DeMuth,  AICP, and I, as the Lead Land Use Attorney, guide the land use law activities of the clinic. The land use mission of the clinic includes, in addition to representing local governments across the state, education of local land use leaders in West Virginia. Although this education takes many forms, the clinic's Mountain State Land Use Academy holds two major educational workshops each semester.  Although the clinic staff includes these three teams, the clinic as a whole operates as one team, working together to address these interrelated issues.

The clinic was established, in part, to aid in putting West Virginia on equal footing with surrounding states in terms of the land use and land conservation issues. West Virginia has lacked such a resource for a very long time. The LUSD Law Clinic seeks to remedy that long-standing lack of resources and has already helped many communities in the state make incredible progress.

During the 2013-2014 academic year, the clinic worked with with 18 local government clients, helping develop comprehensive plans and zoning ordinances, and facilitating over 50 public meetings. For example, the City of Wellsburg successfully adopted a comprehensive plan written by Clinic planners, attorneys and students. The next step is for the LUSD Law Clinic to assist the Wellsburg Urban Redevelopment Authority with redevelopment plans for identified slum and blighted areas in the community.

In the area of land conservation, the LUSD Law Clinic worked with non-profits and government agencies on land transactions aimed at protecting over 25 different properties. For example, the Clinic helped permanently protect 665 acres of land which fronts six miles of the Gauley River. Working in five counties, legal services included title examinations, contract drafting, drafting of title opinions and negotiations.

In partnership with the Northern Brownfields Assistance Center, the LUSD Law Clinic started a program to provide legal resources to local governments to address abandoned and neglected properties. The Clinic interviewed stakeholders such as building inspectors and municipal attorneys throughout the state to identify local concerns. A future blog post will provide more information on this exciting and transformative initiative.

I look forward to continuing to work with my wonderful colleagues, professionals across the country and the wonderful citizens of the great state of West Virginia for many years to come. West Virginia is a beautiful state with a committed and dedicated citizenry. I am very priviledged indeed to have the opportunity to work here. 

 

Jesse Richardson

Urban Decay Theory v. Broken Windows Theory

Brent White (Arizona) , Simone Sepe (Arizona) and Saura Masconale (AZ-Gov't & PP) have published Urban Decay, Austerity, and the Rule of Law, 64. Emory L.J. 1 (2014).  In the article, the authors offer a "make 'gov', not war" alternative to the Broken Windows Theory (BWT) and its support for order-maintenance policing.  Building upon an intuitively compelling social contract theory insight, the article sets out the theoretical and empirical cases for the authors’ contention that sustained investment in highly visible, essential local public goods provides crucial support for rule of law. Focusing on the refusals of the U.S. and Michigan governments to bail out Detroit and avoid the need for it to file for bankruptcy, the authors use their Urban Decay Theory (UDT) to support their proposal that all municipal governments receive at least some level of fiscal insurance to sustain continuous investment in urban infrastructure, which, according to the UDT is predictive of citizen commitment to rule of law.

At the invitation of the editors of the Emory Law Journal, I wrote a response to Urban Decay for the Emory Law Journal Online.  In "All Good Things Flow . . .":  Rule of Law, Public Goods, and the Divided American Metropolis , 64 Emory L. J. Online 2017 (2014),  I welcome the article’s introduction of the rule of law paradigm to domestic urban policy, find fault with its selection of public goods that purportedly influence rule of law, and contend that the UDT has far greater potential than the poor support it can offer the authors’ flawed policy proposal. By conceptualizing the domestic urban policy goal as rule of law rather than order, the authors open measurements of success to go beyond crime rates and majoritarian perceptions of personal safety. Without losing the groundedness necessary for empirical investigation, rule of law can incorporate ideal aspects of lawful order that address sustainability and inclusion of minority perceptions of legitimacy. While the White/Sepe/Masconale article does not succeed in constructing as compelling an understanding of the most salient public goods, an improved analysis of the root causes of the fiscal degradation of America’s legacy cities can unlock a potentially valuable reframing of urban, metropolitan, and regional policy debates.

In focusing their policy proposal on fiscal guarantees for municipal creditors, the authors, from my perspective, have missed the role that the urban-suburban divide has played in the inability of city governments to provide basic public goods.  But, their expansion of the public policy goal to rule of law allows us to get a more holistic picture of the foundation of a truly inclusive, flourishing community. All in all, I think that, by altering the paradigm from order maintenance to rule of law, the authors have, in formulating the Urban Decay Theory, offered a useful complement to the Broken Windows Theory rather than a truly competitive alternative to it.  

 

Jim K.

Addressing American Indian Land Tenure – by Jessica A. Shoemaker

For my last guest post this month, I want to return to my primary area of research to date: American Indian land tenure. As I’ve written about here already, one of my primary interests is in thinking broadly about the many varied factors that influence landowners’ decision-making about how they use their lands. Our essential land tenure institutions are foundational in this sense and directly impact land use decision-making before anything like zoning or other direct regulation of land use even has a chance to take effect. Nowhere is the influence of the design of foundational property rights more apparent than in the land tenure relationships in the modern American Indian reservation, where significant swaths of Indian-owned lands are currently not used by Indian landowners themselves but instead sit idle or are leased to non-Indian users. In fact, I have a hard time imagining a property system better designed to discourage Indian prosperity on Indian land than the top-down system of property imposed on indigenous people in this country today. 

In this post, I want to give at least an overview of some of what I think are the most important and influential aspects of American Indian land tenure and then talk just a bit about why I think further scholarly engagement in this arena would be incredibly valuable in a range of settings.

    I.    The Indian Land Tenure Challenge

To start, I appreciate that there is a wide spectrum of knowledge regarding the nuances of modern American Indian land tenure. For some of us, it’s just a mystery how land is owned and held within reservation boundaries. For others, the system is so complex that once we start to study it at all, conversations and work regarding indigenous land rights devolve into a level of generality that isn’t as productive as it could be. Thus, a significant part of my current research agenda is trying to do the deep work required to develop a really rigorous understanding of the modern property rights framework within this very complex reservation setting. This post won’t be able to do all of this work justice.  Nonetheless, here is a brief overview.

Two of the biggest and most widely recognized challenges for Indian landowners are the federal trust status on many Indian-owned lands and the fractionation (or extreme co-ownership) conditions within many of those same properties.

Many, but not all, Indian-owned lands within federal Indian reservations are held in a special trust status over which the federal government acts as trustee for the benefit of the individual or tribal landowner. This trust status’s history is complex, but the important point for this purpose is that the trust status has been extended indefinitely and, to many eyes, appears to be perpetual.

This federal trust status certainly has some legal advantages—as evidenced, for example, by ongoing efforts by many Indian tribes to have additional lands taken into trust. The primary benefits include cementing a stronger case for exclusive federal/tribal (as opposed to state) jurisdiction over the space and also clarifying that state property taxes may not be imposed on that trust land. (The property tax issue is not quite that black and white. Many tribes still make special payments in lieu of taxes to state and local government in exchange for services and to help eliminate conflicts over fee-to-trust conversions.)

The trust status, however, also has significant disadvantages for Indian landowners. It is restrictive and extremely bureaucratic. The federal government exercises significant land management control, and most Indian-owned trust lands cannot be sold, mortgaged, leased, or otherwise developed or used without a formal approval from the Department of Interior after a cumbersome process of appraisals, oversight, and multi-level review. This trust system very dramatically increases the transaction costs for any land use and is often inefficient and even demoralizing for Indian landowners (not to mention extremely expensive for the federal government to maintain).

The second problem, fractionation, is closely related to the trust status issues. Fractionation refers to the fact that many individually owned Indian trust lands (often called allotments) are now jointly owned by many, many co-owners—sometimes as many as several hundred or more. Fractionation makes any kind of coordinated decision-making among all of these co-owners practically difficult and, as an individual co-owner’s interest size diminishes, reduces the likelihood that the co-owners will so cooperate. This then increases co-owners’ reliance on the federal government’s ongoing trust management role over these lands.  All of these tiny interests, in turn, overwhelm the federal trust system, as evidenced by the recent Cobell class action litigation which uncovered the federal government’s gross inability even to account accurately for all of these small interests. 

The federal government has explicitly acknowledged that this fractionation problem is a direct consequence of its own failed federal policies on Indian lands. For example, historic prohibitions on will writing for Indian landowners and the modern alienation restraints on Indian trust land have all exacerbated fractionation. Implementing any kind of solution to consolidate these small interests has been exceedingly difficult. This is true both because of the general idea that it’s much harder to reassemble property than it is to disassemble it and because of a host of other political, legal, economic, and even moral issues. Possible solutions do exist, and part of the Cobell settlement funds are currently going to fund a limited buy-back program that will purchase some individual small interests from willing sellers and re-consolidate them in tribal ownership. However, the general trend has been that any such effort at a solution moves so slowly and addresses such a small proportion of the problem that new tiers of fractionation outpace any improvements, with exponentially more small interests continually being created through further subdivision of already small interests over new generations of heirs. 

While these two issues—the federal trust status and the fractionated ownership patterns—are complex enough, I don’t think they give a complete picture of all of the issues going on in American Indian land tenure. For example, in a piece called No Sticks in My Bundle: Rethinking the American Indian Land Tenure Problem that I’m currently wrapping up edits on for the Kansas Law Review, I argue that a third significant problem for Indian land use is the gradual elimination over time of any informal use and possession right for co-owners of Indian trust land. Although co-owners in any non-Indian tenancy in common would have a default right to use and possess their own jointly owned land presumptively and informally and without any prior permission from their other co-owners, that is not the case in fractionated Indian lands. Modern federal regulations have recently evolved to require Indian co-owners to get permission or a formal lease from co-owners before taking possession of their own land and also to pay those co-owners rent. I think preserving some route for direct owner’s use of jointly owned land is important and valuable, even in highly fractionated properties, and as noted, I am writing about this more here. 

In addition, in another piece I’m currently writing and calling Emulsified Property, I am exploring the problem of uncertain and sometimes overlapping jurisdictional authorities within Indian Country as it relates to land use. This piece explores new dimensions of these property-related jurisdictional issues, but at a high level, the fact is that modern Indian reservation are uniquely plagued by a mind boggling array of unsettled, case-specific, or otherwise unresolved jurisdictional questions. Part of this stems from the fact that most reservations include not only Indian-owned trust lands but also fee lands, which might be owned by non-Indians, Indians of another tribe, tribal citizens, or the governing tribe itself. The state or local government is likely to assert jurisdiction at least over the non-Indian fee properties, but where that state and local jurisdiction ends, and when and if it overlaps with tribal or federal jurisdiction as well, turns on a complex balancing of multiple factors, depending on the type of jurisdiction being asserted. It continually shocks me (and my research assistants) how many unresolved questions there are in terms of who governs what in Indian Country.  In my property law class, we often talk about the importance of certainty in property rules. So many of our social and economic institutions rely on having clearly established, easily communicated entitlements and responsibilities with respect to a given thing. In Indian law, there is often very, very little of that certainty.

This just scratches the surface of the American Indian land tenure paradigm, but it is already easy to see why land use is such a challenge in Indian Country. Despite significant reserved lands and natural resources, Indian people suffer some of the worst poverty in the United States.

    II.    Why It Matters

Now for my plug for why I think more of us should be engaging in this important work around Indian property and land use. Of course, immediately and most importantly, there is the compelling problem of justice and fairness for indigenous people, who suffer the consequences of these failed property systems most directly. The Harvard Project on American Indian Economic Development has found repeatedly that Indian people having the power and the liberty to make their own decisions with respect to their resources and their futures is the best and most effective solution to the persistent problems, including persistent poverty, in Indian Country. In many respects, it is the law that stands most in the way of this, and it will take legal minds to dismantle the current ineffective system. And legal minds who are uniquely interested in the transformative potential of property institutions are especially well suited to begin this task. 

On another practical note, the problem of American Indian land tenure also matters economically for all of us. The federal government has acknowledged again and again that it using (wasting) incredible resources continuing to maintain this broken property system.

However, as land use legal scholars, there are other important reasons to work in this rich area. I believe a sustained and careful understanding of these unique Indian property institutions, and the evolution of these property relationships through various federal land reforms over time, can help us address property and land use challenges not only in Indian Country but in other venues as well. Other scholars have sometimes analogized to Indian land tenure issues for this kind of purpose, but that work has sometimes lacked a real detailed and deep understanding of how complex Indian land tenure issues actually are. However, with more careful analysis, there could be very fruitful comparative work.  Let me give just two immediate examples, both of which I'm just beginning to work on.  

First, the co-ownership institutions in Indian Country are unique, but the fractionation (or heir property) issues are not. Paying attention to the default co-ownership rules for individually owned Indian lands can help us learn about and address co-ownership challenges in other settings—such as the role of default co-tenancy rules in balancing flexible use arrangements with land preservation strategies for at-risk communities. It can also inform property theory and practice on how co-ownership institutions can best be designed to promote coowner cooperation and efficient use of resources more generally, how anticommons properties actually work, and what methods are most useful to re-aggregate overly fractionated property rights.

Second, I am also excited about how learning from indigenous land planning practices across multiple potential stakeholder jurisdictions within a given reservation (i.e., local municipalities and county governments, state governments, federal governments, and the tribe itself) may translate to inform other work on moving land use planning more generally to more regional, cross-jurisdictional models. Cooperation among multiple levels of government is a persistent challenge in efforts to plan more broadly on a regional, resource-based, or ecosystem level, and yet almost any natural resources or planning person would tell us that this is the kind of decision-making we must do. These kinds of jurisdictional conflicts are being addressed at the reservation level on an ongoing basis, and work on indigenous planning may teach us a lot about how we can plan across jurisdictional boundaries in wider settings. (This is not to suggest that there is a broad literature on indigenous planning or land use issues within reservation legal settings that already exists. There is not. However, for anyone looking to start to review the literature, I recently read an interesting dissertation on comprehensive planning on American Indian reservations and on the Oneida reservation in Wisconsin specifically by Dr. Rebecca Webster, a former law school classmate of mine, that provides a nice place to start and can be found here.) The challenges of planning within a reservation are different and, in some ways, arguably even more complex than the challenges of regional planning generally. Notably, within reservation boundaries, jurisdictional uncertainty may increase concerns about any decision that would jeopardize a future case for asserting jurisdiction, and there are long conflicted histories between neighboring sovereigns. Still, it is a comparison I hope to continue to explore.

This long post only barely skims the surface of all the rich and fascinating land use issues at play in American Indian land tenure. Please consider this an invitation to reach out any time for further discussions on this subject. I would love to continue to engage with more colleagues in this critical subject area and to build more critical learning connections across subject areas and disciplines.

Thanks again for the opportunity to discuss this and other issues here this month.

-          Jessica A. Shoemaker

State of Plains - by Jessica A. Shoemaker

On this theme of public participation in land use planning and creating community-driven solutions to ecosystem-level challenges, I want to take this post to share a bit more about a particular tool that I have been working on developing called Plainsopoly.  Plainsopoly is a land use simulation “game.”  Participants engage around a large game board made up of an image of a hypothetical landscape that looks similar to, but is not exactly, a real space within the Great Plains region.  We call the hypothetical space of the game the “State of Plains.”  The State of Plains is depicted on the board by an amalgamation of aerial images including the edge of a large city, several small towns, both irrigated and dryland farming areas, the foothills of a larger mountain range, sensitive sandhills habitat, a winding river, and a recognized federal Indian reservation. Participants play the game in small, randomly assigned groups of four to six people and are assisted by a table facilitator.  Players roll the dice, move the game piece to a correspondingly numbered geographic square on the game board, and then answer and discuss an open-ended question that poses a specific land use challenge for that particular space. 

The questions are intentionally wide-ranging.  I developed the question set last year with invaluable input and feedback from a great and generous interdisciplinary group of law students, graduate students, professors, and other experts from across the University and beyond.  We incorporated a range of disciplines, including law, planning, natural resources, applied ecology, business, and economics, and as a group, we worked hard to make sure the most difficult and provocative current land use challenges in the Great Plains are incorporated into the game.  (Two of my students, Jerry Jefferson and Preston Peterson, were particularly instrumental in this process.)  In the current question set, there are questions and challenges relating to urban growth; rural depopulation; infrastructure needs; drought and other climate issues; tourism; new energy siting, including fracking, renewables, and transmission line expansion; invasive species control; water quality and quantity; jurisdictional conflicts; and many other topics. 

In addition to covering a wide spectrum of substantive issues, the questions are designed to touch on four bigger themes: (1) Values (values choices as reflected in land use), (2) Making Connections (who should make decisions about land use and land use planning and at what level), (3) Ecosystem Services (how public benefits from private land, especially environmental benefits, are valued and accounted for in land use ordering and landowner decision-making), and (4) Temporal Perspectives (which timeframe land use planners and landowners should consider in assessing the consequences of any land use decision). These four themes are not explicitly addressed during game play; however, the questions are designed implicitly to provoke thinking and dialogue around these larger issues.

This Plainsopoly project came about only because of Professor Alister Scott and his group’s original idea for a land use planning, decision-making, and visioning game that they call Rufopoly.  Rufopoly is a game focused on the unique landscapes of the rural-urban fringe spaces of Europe, and the themes of our questions grew out of Professor Scott’s work with stakeholders in this context.  In developing Plainsopoly, we collaborated closely with Professor Scott of the Birmingham School of the Built Environment in the United Kingdom and Professor Richard Wakeford, who is currently directing the Kazan Centre in Russia and was previously the Chair of the Organization for Economic Cooperation and Development’s Rural Working Party.

As many readers of this blog may know, the use of games or other simulation exercises is an area of increasing scholarly interest in a range of disciplines, including public engagement and political science studies, natural resource management and applied ecology, psychology, business, and behavioral economics.  (For a few brief examples, particularly in the natural resources sector, you might look here and even here.)  Although our Plainsopoly tool has been used purely for informal discussion facilitating at invited events to date, it may also have broader potential.  My sense is that the game could be used to speed participants’ learning about complex land use interactions and may provoke a valuable period of self-reflection regarding resource and planning challenges across the region.  As one participant in one of the Plainsopoly games at the Rural Futures Conference last year said, the game forced him to think not only about his “little piece of land” but also about everyone else’s lands around him:  “I was forced to give opinions on what somebody else should do with their little piece of land. You have to challenge yourself at that point and say, if it’s good for them, maybe I have to relook at my opinion about others giving opinions about my land. It’s a very interesting way of taking a landowner and suddenly forcing me to reevaluate my position regarding my piece of ground.”

I have also found that the experience of engaging in a shared, civil dialogue around the game table on hypothetical (but still very realistic) topics that are otherwise highly charged and sometimes difficult to discuss (like private property rights, community planning, and actual land use conflicts) may have significant value in and of itself.  There is something very provocative about talking about these actual resources issues in the context of just a slightly modified hypothetical game setting that seems to really liberate people to have a much more open and comfortable conversation on these issues.  If we could effectively shape and harness this, I think games like Plainsopoly and Rufopoly could have very useful applications in assisting particular groups in solving real-world problems or developing consensus around specific planning challenges, and in an action-research model, these games might be used to help inform future policy making.

I’ve noticed two big themes in the few times we have played Plainsopoly to date.  First, overwhelmingly, participants envision a land use future focused on a very long-term view of sustainability and a vast appreciation for the non-economic values of natural resources.  At least in this hypothetical space, a vast majority of participants seem to prefer decisions that are not made based on short-term economic gains and that consider not just one square parcel of property but rather look to an entire region’s interlocking resource dynamics.  Of course, in this game space, immediate things like grocery bills and retirement savings accounts do not exist, and the transaction costs of considering issues at a regional level are dramatically reduced.  But still, how do we, or could we, translate what appear to be relatively broadly shared values like this into more actual community action?  

The second major notable point of interest for me, so far, is implicit in how we designed the game, but it also comes up very often in participants’ reactions to the questions.  This relates to the extreme breadth of the range of factors that potentially influence an individual landowner’s decision-making about how he or she uses his or her land.  Often, we might think more simply of land use planning and zoning as the relevant forces; however, the game reminds us that so many different law and policy instruments influence landowners—including, as just a few examples, our crop insurance structures, property tax systems, and energy markets.  A much harder issue is not only how do we develop a shared vision for the future of these shared spaces but, more importantly, how do we execute it?  A persistent theme emerging anecdotally from the game play to date is the way in which top-down strategies have a host of unintended and mix-matched interactions that complicate decision-making and implementation at the ground level.  How do we better coordinate these influences?   

Happily, we have the opportunity to explore the potential of games like Plainsopoly and Rufopoly to address these and other issues in a more concentrated way over the next year or so.  We are just embarking on a new partnership with Professor Scott and several others on a  Knowledge Exchange Opportunities grant that we just recently learned has been approved from the Economic and Social Research Council (ESRC) in the UK.  The goal of the new grant is to learn from the existing models of Rufopoly and Plainsopoly and another sister game in Sweden and think intentionally about all of the possibilities of this kind of planning, visioning, and decision-making tool.  One end goal is to try to develop a flexible resource kit that maximizes the potential of these tools to assist in planning processes and that hopefully is adaptable to a range of settings. 

As I am entering this new work, I’ve become an eager student of some new areas of scholarship.  For example, I’ve been doing some great reading on critical planning theory as it relates to whether we currently include all of the relevant voices in our typical planning processes and how, if we did achieve greater inclusiveness, such careful collective decision-making about the future of our shared spaces may be powerfully transformative.  I have also been looking at the work of others on effective and innovative new governance models.  This list includes, for example, Professor Beth Noveck and The Governance Lab at NYU; the procedural justice and group engagement work of Professor Tom Tyler; and the thinking on deliberative democracies and the capacity for informed “bottoms up” decision-making by Professor James Fishkin and the Center for Deliberative Democracy at Stanford.  It’s all fascinating stuff, which I also read with a healthy and growing awareness of the potential framing influence of the person who poses the questions – as reflected, for example, in the “nudge” work of Professors Cass Sunstein, Richard Thaler, and others. 

I would more than welcome any other thoughts, comments, or ideas as we embark on further work on this endeavor.  I’m eager to see where it takes us.

(This last picture has nothing to do with the game, per se, but it's my little girls running in a preserved prairie not too far from our house.  One of many special places in the Great Plains worthy of some intentional thinking for its future.)

- Jessica A. Shoemaker

Growth Management In Canada - by Deborah Curran

The municipal elections concluded in British Columbia on Saturday night. As I watched the results roll in for my region of Greater Victoria where we have 13 municipalities and a large unincorporated rural area I was unconsciously tallying what kind of leadership would be at the table over the next four years (this will be the first four year local government election cycle in B.C.) to champion the adoption and implementation of the new Regional Growth Strategy (RGS). The current regional plan, renamed for the current process as the Regional Sustainability Strategy, has been surprisingly successful over the past decade - over 90 percent of new development has occurred within the awkwardly named Regional Urban Containment and Servicing Area - due to a number of factors that include a relatively low rate of growth (just over 1 percent), a provincial agricultural land protection regime that limits development on farmland, rural areas that want to stay rural, urban areas that agree to densify to an extent, and available land within the urban containment boundary for a variety of new uses. Metro Vancouver's Livable Region Strategic Plan and new plan Metro Vancouver 2040: Shaping Our Future mirrors this success in a much faster growing region that is more significantly geographically constrained by oceans, mountains and the agricultural land reserve.  

Part 25 of the Local Government Act, enables the local government growth management regime in B.C., the centrepiece of which are these RGS's. As I describe the purpose and effect of RGS I am sure you have heard if before: a regional board may adopt a RGS to guide decisions on growth, change and development. The purpose of a RGS is to “promote human settlement that is socially, economically, and environmentally healthy and make efficient use of public facilities and services, land and other resources” (section 849). A RGS must cover a twenty-year period and must include a comprehensive statement on the future of the region, including the economic, social, and environmental objectives of the governing board in relation to projected population requirements for housing, transportation, regional district services, parks and natural areas, and economic development. It is an agreement between the local governments (municipal and regional) in a region and should work towards a wish list of smart growth goals: avoiding urban sprawl, ensuring development takes place where adequate facilities exist, settlement patterns that minimize the use of the automobile and encourage walking, bicycling and public transit, protecting environmentally sensitive areas, etc. (s.849). Individual municipalities bring their comprehensive plans, called official community plans (OCP), into conformance with a RGS by including a regional context statement in the OCP stating how it will become consistent with the RGS over time (s.866). The bottom line is that these are voluntary plans that have a circuitous impact on local comprehensive plans, which means they are tenuously binding. [And I will not go into the courts' recent treatment of whether or not bylaws are consistent with local and regional plans in this post. I will save that for my next post on the Death of Community Plans].

However, interestingly last time I looked all RGS' in B.C. have urban growth boundaries. They may not be in the right place from a planning perspective, they may simply follow the lines of our provincial agricultural land protection zone, or they may mirror the jurisdictional boundary between private and Crown land, but it seems that the language of urban containment is alive and well in B.C. A line on the regional map that is adopted into each municipal official community plan is also the best type of policy to have in the RGS because it is clear and there is no discretion in its interpretation. Municipalities agree not to extend water or sewer service beyond that urban containment line except where needed to address public health or fire suppression needs.

In contrast, the relatively recent Ontario regime called "Places to Grow" involves provincially-imposed land use plans that were motivated by untenable increases in infrastructure, primarily road, costs in the Greater Toronto region around Lake Ontario. The foundation is the Places to Grow Act, 2005 that allows for the identification and designation of growth plan areas and the development of strategic growth plans. The Growth Plan for the Greater Golden Horseshoe 2006 establishes the modest goal of 40 percent of all residential development occurring annually within designated built up areas, and meeting intensification targets for density based on predicted growth rates for each municipality. Municipalities must achieve intensification and meet intensification targets through their official plans and other documents. The Minister of Public Infrastructure Renewal has established a built boundary for each municipality, and urban growth centres are identified to take much of the new growth. 

The growth management regimes in B.C. and Ontario are an interesting long term study in different legal approaches. In B.C. each RGS is an awkward negotiation between urban and rural municipalities that is facilitated by a regional government. One could argue that such a structure would lead to agreement on the lowest common policies. However, whether unwittingly or not, several of the RGS have proven to be remarkably effective in relation to urban containment. In Ontario the provincial government controversially imposes intensification targets and built boundaries in very large regional plans (the Greater Golden Horseshoe is many hundreds of kilometres deep and wide). Although mandatory and imposed by the provincial government, which raises the ire of local councils, the growth management targets are modest. Perhaps I am spoiled with our 90 percent urban containment rate here in Greater Victoria, but in a North American context intensification of 40 percent is seen as a gold standard as evidenced by the American Planning Association awarding the Daniel Burnham Award for a Comprehensive Plan to the Growth Plan for the Greater Golden Horseshoe (apparently the first time the award has been presented to an organization outside the United States).

 

 

Land Use in Canada - Where "Extensive and Restrictive Land Use Regulation is the Norm" by Deborah Curran

Greetings from Canada where most of the water flows north and there is no Canadian equivalent to the Fifth Amendment. Arguably the biggest difference in land use law between Canada and the U.S. is that we have no constitutionally protected property rights in Canada. Of suprise to many of you and, indeed, to many landowners in Canada, this approach to land use regulation allows provincial and local governments to restrict virtually all use of land without compensating the property rights holder for loss of land value as long as the regulation is in the public interest. As Justice Cromwell of the Supreme Court of Canada reasoned in Mariner Real Estate Ltd. v Nova Scotia (Attorney General), (1999) 177 D.L.R. (4th) 696, 178 N.S.R.(2d) 294 (NSCA) when he was a judge of the Nova Scotia Court of Appeal in a judgment that thoroughly canvassed this area of law (at paras. 41-42):

These U.S. and Australian constitutional cases concern constitutional limits on legislative power in relation to private property. As O'Connor, J. said in the Unites States Supreme Court case of Eastern Enterprises v Apfel 118 S. Ct. 2131 (U.S. Mass. 1998), the purpose of the U.S. constitutional provision (referred to as the "takings clause") is to prevent the government from "...forcing some people alone to bear public burdens which, in all fairness and justice, should be born by the public as a whole." Candian courts have no similar broad mandate to review and vary legislative judgments about the appropriate distribution of burdens and benefits flowing from environmental or other land use controls. In Canada, the courts' task is to determine whether the regulation in question entitles the respondents to compensation under the Expropriation Act, not to pass judgment on the way the Leiglature apportions the burdens flowing from land use regulation.

In this country, extensive and restrictive land use regulation is the norm. Such regulation has, almost without exception, been found not to consitute compensable expropriation.

However, the principle that a government or expropriating entity must pay compensation when expropriating an interest in property is alive and well in Canada. Its foundation rests in the royal perogative, powers bestowed on the Crown or government from the common law, and the common law principle that unless a statute explicitly provides, it is not to be construed as taking away property without just compensation (Attorney General v DeKeyser's Royal Hotel [1920] A.C. 508 H.L.). As a common law principle for which the courts have set a high bar when testing whether regulatory behaviour equals regulatory or de facto expropriation. The claimant must prove that:

1. The legislation or government action must so restrict a landowner's enjoyment of property as to constitute confiscation an interest in property; and

2. That interest in property must be acquired by the Crown (government).

It is the second part of the test that is the hardest to meet. Courts have found that simply benefitting Crown land such as a park is not sufficient to prove acquisition by the Crown.

In many provinces this common law rule is codified in a modified form in provincial land use law. For example, sections 914 of the Local Government Act in British Columbia and 621 of the Alberta Municipal Government Act state that no compensation will be paid for changes in the value of land caused by specified decisions made under a land use bylaw or permitting function. It is only when regulation takes away virtually all incidents of private ownership that the regulation will be found to be improper. The precise wording in British Columbia under s.914 is:

(1) Compensation is not payable to any person for any reduction in the value of that person's interest in land, or for any loss or damages that result from

(a) the adoption of an official community plan or a bylaw under this Division [zoning and other development regulation] or the issue of a permit under Division 9 [development permit] of this part,

***

(2) Subsection (1) does not apply where the bylaw under this Division rstricts the use of land to a public use.

These regulatory or de facto expropriations are few and far between in Canada. Although we hear about successfully argued "takings" cases in the U.S. courts, in Canada a court has never found land use regulation by a local government to result in a regulatory expropriation for which compensation is owed. See Mariner Real Estate Ltd. v Nova Scotia (Attorney General) 1999 CanLII 7241 (NSCA) for an excellent discussion of this area of law, and Canadian Pacific Railway Co. v Vancouver (City) [2006] 1 SCR 227, 2006 SCC 5 for the most recent Supreme Court of Canada discussion in the municipal land use context. Courts have ruled that significantly curtailing development on land that is environmentally sensitive, freezing development, development moratoria, and requirements to plant a vegetated buffer adjacent to a watercourse to protect a drinking water source do not require compensation.

The cases where courts have awarded compensation for loss of an interest in property centre around federal or provincial regulation that essentially prohibits an otherwise existing lawful activity or prevents access to a property right. Several cases in British Columbia award compensation for mineral rights that the provincial government rendered inaccessible upon creating a provincial park [R v Tener [1985 1 SCR 533; Casamiro Resource Corp. v British Columbia (Attorney General), 1991 CanLII 211 (BCCA)]. The classic case is Manitoba Fisheries v The Queen [1979] 1 SCR 101 where the court found a de facto expropriation by the federal government when it enacted legislation that created a monopoly in favour of a Crown corporation dealing with a freshwater fishery that removed all economic viability, including the goodwill, of one business.

Before I seal your view of Canada as the quiet socialist neighbour to the north ("What? No constitutionally protected property rights?") I must add that in practice land use regulation by local governments works much the same in Canada as in most parts of the U.S. Zoning typically awards development potential or development rights, and once an application is submitted to a local government that zoning and other regulations vest. Few local governments attempt to curb growth in any comprehensive way. There is little coordination at a regional scale about where new development will occur, and most cities are challenged with revitalization of a formerly industrialized water front or downtown core that has to compete with the big box periphery. Proposals for a slight increase in residential density in existing neighbourhoods result in an eight hour public hearing, and there is, of course, no accounting for municipal bad taste in what was kind of development council believes is in the public interest. Although we have somehow resisted building freeways through most of our urban centres and do have a few somewhat successful provincial growth management or agricultural land protection law in place (more on that this month), the local politics of land use law often favours individual property rights.

If we conducted a poll I would be willing to wager that most Canadians and, in particular, municipal elected officials believe that compensation is owed if development "rights" are taken away by regulation. Most intersting is the fact that the Canadian law of regulatory expropriation has remained unchanged since land use regulation came into vogue yet it is popularly trumped by the law of eminent domain from the U.S. Perhaps telecommunications law has more impact on land use than land use regulation itself.

Malloy on Land Use Law and Disability

Cambridge University Press has just announced the release of Robin Paul Malloy's new book, Land Use Law and Disability: Planning and Zoning for Accessible Communities (2014).   In it, Robin argues for a new generation of inclusive design standards to foster more housing opportunities for persons living with mobility impairments.  Robin's scholarly work in this area has further developed land use law as a basis, independent of civil rights statutes and constitutional guarantees, for inclusionary claims made by marginalized persons.

Jim K.