Wednesday, June 29, 2011
Eduardo Penalver (Cornell) and Stewart Sterk (Cardozo) have a new Land Use textbook that hits the shelves this August. Here's a letter from the publisher's website on what makes the new book distinctive:
(1) An intensely practical focus. Although our book is not short on theory, we emphasize questions and problems that land use lawyers have to face on a regular basis – not just before appellate courts, but before zoning boards, planning commissions, and other administrative bodies. In fact one entire chapter of the book is devoted to three extensive development problems that force students to confront the issues central to land use practice. The problems provide an excellent vehicle for classroom role-playing.
(2) Manageable coverage and length. We have designed our book as a teaching book, not as a desk reference. Because we focus heavily on questions and problems rather than long textual excerpts, the daily reading load will be reasonable for busy students, and will focus their attention on critical issues. We believe that an ambitious teacher will be able to cover the entire book (or almost the entire book) in a three-credit course. Our teachers manual also provides suggestions for adapting the book to a two-credit course or seminar.
(3) An extensive teachers manual that will make it particularly easy to switch casebooks. Our manual does more than summarize the material in the book. We have provided a “Teaching Strategy” for every section of the book. In effect, these strategies are themselves a set of teaching notes that indicate what questions we raise in class, and how we elicit student discussion of the issues raised by the casebook materials. The manual also summarizes each of the principal cases in the book, and provides answers (although not always black-and-white answers) for all of the questions and problems in the casebook.
I always value both Penalver's and Sterk's work, and look forward to cruising thourgh of copy of this text. Currently, you can peruse page proofs at the Foundation Press website: http://www.westacademic.com/Professors/ProductDetails.aspx?productid=161376&tab=1
Ken Stahl (Chapman) has posted All Power to the Neighborhoods?: The Delegation Doctrine and Neighborhood Control of Zoning on SSRN:
Whether cities should delegate some of their zoning power to neighborhood groups is one of the most hotly contested issues in municipal politics, yet it is also essentially a moot point. Since a bizarre series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners in a certain proximity to a proposed land use change.
This article argues that the judicial prohibition on delegating zoning power to proximate landowners – a scheme I designate a “neighborhood zoning district” – is doctrinally illogical and indefensible as a matter of public policy. As a doctrinal matter, the cases barring the neighborhood zoning district are at odds with another line of cases in which courts have upheld municipal schemes that empower landowners within a territorial area to authorize the financing of services or improvements through a mandatory assessment, known as a “special assessment district,” or in its modern incarnation as a “business improvement district.” As I argue, neighborhood zoning districts are conceptually identical to special assessment districts. Both restrict the franchise to individuals deemed to have a particularly substantial interest based on land ownership in proximity to a proposed change in the character of the neighborhood. As such, both devices offer landowners the ability to efficiently manage local externalities and enable large, diverse cities to effectively compete with small, homogenous suburbs by mimicking the most attractive features of suburban government. The article attempts to reconcile the two doctrinal lines on several policy grounds, but finds that, in many cases, neighborhood zoning districts actually represent sounder public policy than special assessment districts. The article concludes that courts should broadly defer to municipal delegations of power to sublocal groups, so that cities can work out their own desired relationship between neighborhoods and city hall, and their own strategy for surviving in an era of intense inter-local competition.
Monday, June 27, 2011
Jane Scoular (University of Strathclyde, Glasgow) has posted Legal Geographies, Controlling Sexually Orientated Businesses: Law, Licensing, and the Geographies of a Controversial Land Use on SSRN. Here's the abstract:
In this article, we explore both a neglected geography (the location of sexually oriented business) and a neglected instrument of sociospatial control (premises licensing). Arguing the former is increasingly shaped by the latter, we suggest that licensing provides a flexible means by which the state is able to reconcile the growing demand for “adult entertainment” with concerns about community standards, urban aesthetics, public safety, and property prices. We demonstrate this through an examination of the role of UK licensing legislation in controlling the location and visibility of such controversial businesses in London’s West End. It is demonstrated that, in this case, licensing has encouraged the “upscaling” of sex-related businesses while reducing their overall number and visibility. We conclude that licensing, as a means of controlling contentious urban land uses, constitutes a “field of governance” whose legal geographies remain to be adequately theorized and explored.
Thursday, June 2, 2011
Patricia Salkin (Albany) has posted Facility Siting and Permitting (book chapter) on SSRN. Here's the abstract:
The manner in which governments approve facility siting and permitting for renewable energy projects is a key consideration in both project design and the cost-benefit analysis of project feasibility. A variety of federal, state and local laws may be implicated depending upon the magnitude of the project and the geographic location of the project site. In addition to the application of a suite of environmental review related statutes for proposed clean energy projects, public participation issues as well as land acquisition issues may be present. At times, federal and state preemption may factor into the siting and permitting analysis, and local zoning and building code laws and regulations may also affect projects. This chapter is designed to provide an overview of whether and how these laws apply to siting and permitting applications.
Wednesday, May 25, 2011
The new residents of the apartment building may sometimes be of lower economic status, on average, than the individual owner of the home that was replaced, but collectively, the economic productivity of the land (in the form of rental income and/or property taxes) has dramatically increased. Homeowners may object to the presence of the new building, or possibly the presence of its residents, but they are nonetheless the beneficiaries of the increased land values should they decide to sell.
I think there's some truth to this argument, but I'm not sure that the author fully considers how profoundly land use regulations limit the supply of housing, and thus drive up prices.
Monday, May 23, 2011
From the Atlantic:
Istanbul is one of the world's great cities with a population of 15 million spread out over 700 square miles of land. While that's no Los Angeles-level of sprawl (L.A.'s metro area is pegged at 4,800 square miles), the Turkish city has been growing and spreading rapidly over the past few decades. The city has tripled in area over the last 35 years. In this false color satellite image taken by the German space agency, the DLR, the yellow areas reflect human buildings.
Wednesday, May 18, 2011
Tim Mulvaney (Texas Wesleyan) has posted Proposed Exactions on SSRN. Here's the abstract:
In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than it has placed on the government in justifying the underlying regulations by which such approval could be withheld. Moreover, there remain a series of unanswered questions regarding the scope and reach of exaction takings scrutiny that plague the development of a coherent body of law upon which both landowners and regulators can comfortably rely. This Article explores whether these problems are amplified where the exaction takings construct that is ordinarily applied when an exaction is imposed is also applicable at the point in time when an exaction is merely proposed. The piece seeks to move beyond the cursory analysis in the few reported decisions addressing this issue by identifying and exploring the competing normative justifications underlying it.
[Comments are held for approval, so there will be some delay in posting]
A story about the Vancouver metroplex's struggle to balance its citizen's need for more residential spaces with its politician's desire to preserve some land for industrial uses and create new jobs:
We have reaffirmed the city’s commitment to protect industrial land and to look at increasing job density on that land base in the years ahead,” said Vancouver Mayor Gregor Robertson, who believes developers and land speculators are holding on to industrial land in the hopes of getting it rezoned to residential under friendlier administrations. “Industrial lands are crucial for our economy and job creation. There is a need to maintain that land base and to prevent speculation that will result in turning that land into residential.”
Wednesday, May 11, 2011
Keith Hirokawa (Albany) has posted Sustaining Ecosystem Services Through Local Environmental Law (Pace Environmental Law Review) on SSRN. Here's the abstract:
In the early decades of modern environmental law, local governments retained their prerogative over community design and other essentially local matters, but were largely excluded from the debate on national environmental policy. More recently, environmental lawyers have reignited the question of how and where the local government regulation of land use impacts intersects with environmental quality. It is interesting to note that as the national dialogue has turned to the important role of local governments in achieving our environmental quality goals, there has been a corresponding emergence of an "ecosystem services" approach to understanding nature. It is more interesting to note how many of the stories of ecosystem services – successes, explanations, and illustrations – take place in local governments and in community decision making. Perhaps by coincidence, but likely due to design, local environmental law and ecosystem services have evolved in a complementary manner.
This article looks at the recent trends in recognizing and regulating ecosystem services at the local level. Local governments are adopting regulations aimed at capturing the benefits of functioning ecosystems by transcending aesthetic values of local nature and focusing on ecological processes and the services they provide. Section II introduces the topic by arguing that because of the manner in which local governments regulate environmental impacts, the value embedded in ecosystem services is commensurable with local regulation. Section III illustrates the relationship between local governance and ecosystem services, as well as the opportunities presented by this relationship, by examining some of the ways that local environmental law has embraced the advantages of an ecosystem services perspective. This article concludes that local governments are leaders in the implementation of ecosystems services-based regulation, that communities are the direct beneficiaries of such action, and that this is exactly as it should be.
Thursday, May 5, 2011
Patricia Salkin (Albany) has posted Environmental Justice and Land-Use Planning (American Planning Association) on SSRN. Here's the abstract:
This issue brief explores many opportunities for members of planning and zoning boards, professional planning staff and local elected officials to incorporate environmental justice principles into land use decisionmaking.
Monday, May 2, 2011
Lawrence Okrent, a planning and zoning consultant who moonlights as an aerial photographer, has put together a series of "before" and "after" pictures that document how Chicago has changed over the last 25 years.
The Chicago trib has a nice write-up on the photos and the book that Okrent has put together (“Chicago From the Sky: A Region Transformed” Books Press, $49.50, hardcover, 245 pp.). The paper says, "Okrent’s images are sharp and his text is lucid, shedding light on little-known corners of the region. Who knew, for example, that the number of single-story distribution buildings along the Stevenson Expressway skyrocketed from 12 in 1999 to 193 in 2009 — or that low tax rates in Will County contributed to this little-noticed boomlet (above and left)? Okrent illustrates and explains this change to the landscape with admirable succinctness, writing that the area shifted from “farmland to big boxes in less than a generation.”
Friday, April 29, 2011
Peter Salsich (St. Louis) has posted Keystone Bituminous Coal, First English, Nollan: A Framework for Accommodation? (Journal of Urban and Contemporary Law) on SSRN. Here's the abstract:
This article focuses on three Supreme Court cases that produced important developments for land use laws and redefined property rights: Keystone Bituminous Coal Association v. De Benedictis, First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, and Nollan v. California Coastal Commission. The article discusses these cases and the implications they have for both landowners and regulators. Keystone favors property regulators while First English and Nollan favor property owners, but the article emphasizes that when these cases are read together what emerges is a sense that both landowners and regulators have important common interests which the American property law system can accommodate. The article suggests alternative approaches for future developments in the land use regulatory process. Finally, the article concludes that the best response to this trilogy of cases is the effective use of an early review system, along with regulations carefully tailored to specific land use policies. This would enable municipalities to plan and regulate land in comprehensive, flexible, and innovative ways.
Thursday, April 28, 2011
Lisa Alexander (Wisconsin) has posted The Promise and Perils of ‘New Regionalist’ Approaches to Sustainable Communities (Fordham Urban Law Journal) on SSRN. Here's the abstract:
This Article argues that "new regionalism" is a form of "new governance." New regionalist approaches include collaborative efforts between cities and outlying suburbs to resolve metropolitan challenges such as affordable housing creation, transportation and sprawl. Such practices focus on regions as key sites for the resolution of public problems that transcend traditional local government and state boundaries. New regionalist praxis responds to local government law's failure to advance equity and sustainability throughout metropolitan regions. New regionalism promotes voluntary agreements and interlocal collaborations, rather than formal government or mandated regulation to resolve regional problems. New regionalism, then, is a form of new governance. The term new governance describes problem-solving processes that shift away from traditional government and regulation, towards voluntary, public/private collaborations including multiple stakeholders. New governance supporters assert that such approaches can enhance the participation of traditionally marginalized groups in reform and lead to more equitable outcomes. This Article examines the institutional design of the Obama Administration's Sustainable Communities Regional Planning Grant Program (the "Grant Program"), as well as its initial implementation in the Madison, Wisconsin/Dane County area, as a test of these claims. This Article identifies the Grant Program's promise and perils in advancing meaningful stakeholder participation and distributive justice. The Article concludes by making recommendations to improve the Grant Program and by outlining the implications of these observations for new regionalist and new governance practice.
Wednesday, April 27, 2011
Rick Hills (NYU) and David Schleicher (George Mason) have posted Balancing the 'Zoning Budget' (Case Western Law Review) on SSRN. Here's the abstract:
The politics of urban land use frustrate even the best intentions. A number of cities have made strong political commitments to increasing their local housing supply in the face of a crisis of affordability and availability in urban housing. However, their decisions to engage in “up-zoning,” or increases in the areas in which new housing can be built, are often offset by even more “down-zoning” or laws that decrease the ability of residents in a designated area to build new housing as-of-right. The result is that housing availability does not increase by anywhere near the promises of elected officials.
In this essay, we argue that the difficulty cities face in increasing local housing supply is a result of the seriatim nature of local land use decisions. Because each down-zoning decision has only a small effect on the housing supply, citywide forces spend little political capital fighting them, leaving the field to neighborhood groups who care deeply. Further, because down-zoning decisions are made in advance of any proposed new development, the most active interest group in favor of new housing – developers – takes a pass on lobbying. The result is an uneven playing field in favor of down-zoning.
Drawing on examples of “extra-congressional procedure” like federal base closing commissions and the Reciprocal Trade Act of 1933, we argue that local governments can solve this problem by changing the procedure by which they consider zoning decisions. Specifically, they should pass laws that require the city to create a local “zoning budget” each year. All deviations downward from planned growth in housing supply expressed in the budget should have to be offset by corresponding increases elsewhere in buildable as-of-right land. This would reduce the degree to which universal logrolling coalitions can form among anti-development neighborhood groups and would create incentives for pro-development forces to lobby against down-zonings in which they currently have little interest. The result should be housing policy that more closely tracks local preferences on housing development.
Thursday, April 21, 2011
New Urbanist heavyweight, Andres Duany, has come out swinging in the recent issue of Metropolis Magazine. Duany has penned a pretty stirring defense of New Urbanism's accomplishments, and makes time to attack the "postmodernists," "architecture students from elite schools," and members of the "avant-garde," that have poo-pooed the movement.
The New Urbanism is in reality an expanding web of ideas, techniques, projects, and people. The Congress for the New Urbanism (CNU) is an institution chartered 18 years ago with a budget, a board, and a staff. . . .New Urbanists wrote HUD’s HOPE VI standards and are thereby responsible for about 111,000 new and renovated units of affordable housing—virtually the entire supply of the last 15 years, with a good proportion designed by CNU members. . . . A diverse array of techniques has been rescued from oblivion and tested in hundreds of built projects. New Urbanist architecture’s visible “nostalgia” is easily dismissed by critics, but its power is really in software and other methods . . .
Wednesday, April 20, 2011
For those of you that don't follow Glenn Beck, you may have missed this address on federally owned property. Although Beck's outburst is filled with a few a million nutty conspiracy theories, I think he's asking a pretty important question: Why is so much land in the West owned by the federal government? Check out the following maps - the first shows all federally owned land (including Indian reservations) and the second shows federal land as a percentage of total state land area:
If we really believe in the power of private ownership to incentivize useful activity, why isn't there more of a push to auction off some (a lot?) of this land? Currently, driving across much of the West is like driving across the moon - it's wasted, desolate space. Why not turn that over to private entrepreneurs? Maybe we'd get fewer moon craters and more Las Vegases.
Tuesday, April 12, 2011
Bernard Arnault, the man who runs the Louis Vuitton fashion house, finds himself in a bit of a donnybrook with a local nighborhood association over the construction of a museum to house his art collection. Arnault has begun construction of his art palace in the middle of the Bois de Boulogne Park, upon land donated by the City of Paris. According to the NY Times, local neighbors object to this intrusion and make a simple argument: "the park is intended for the public, the museum is next to a children’s playground, and the building itself violates the rules governing the park by blocking a paved roadway that should be open to the public." This reasoning carried the day in a recent court battle. A judge annulled the building permit with construction on the museum half-finished.
Arnault and his powerful friends frame the issue differently. They argue that the neighbors “show a blind and pernicious individualism that goes against the general interest. They oppose any change for the sake of it. In their tight little suits, they want to put Paris in formaldehyde. It’s quite pathetic.”
The Times concludes that "this being France, and Mr. Arnault being a sort of Ozymandias, he is likely to get his pyramid anyway" - the French Parliament is in the process of overriding the court's decision and granting the museum a special waiver.
Wednesday, April 6, 2011
Troy A. Rule (Missouri) has posted Airspace in a Green Economy on SSRN. Here's the abstract:
The recent surge of interest in renewable energy and sustainable land use has made the airspace above land more valuable than ever before. However, a growing number of policies aimed at promoting sustainability disregard landowners' airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners' existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners’ incentives and capacity to make optimal use of the space above their land. The article also introduces a new abstract model to argue that policymakers should weigh the likely impacts on both rival and non-rival airspace uses when deciding whether to modify airspace restrictions to encourage sustainability.
[Comments are held for approval, so there will be some delay in posting]
Wednesday, March 2, 2011
The New York Times has an interesting story today about Vernon, California, a municipality in Los Angeles County that has only 95 residents and 1,800 (mostly industrial) businesses. The human residents (and sole voters) live in small homes, all of which are owned by the City. Given this set-up, the City has a reputation for corruption and anti-democratic practices.
It has clearly monopolized the property tax revenue from the businesses located within its borders (Vernon has a tax base of $4.1 billion) while freed from providing services to the 55,000 workers who work in Vernon and live elsewhere (neighboring Bell, with a population of 40,000, has a property tax base of $1.1 billion).
Now, state government officials have mounted a campaign to legally abolish Vernon and make it part of Los Angeles County. Vernon is fighting back with a PR campaign, and expensive lobbyists and lawyers.
[Comments will be held for approval and may be delayed]