Law Commons^™

California Supreme Court Unanimously Upholds Inclusionary Zoning As Land Use Regulation And Not An Exaction, Tim Iglesias

Tim Iglesias

Local governments, housing advocates, and people who need affordable housing won a solid victory in the California Supreme Court's unanimous opinion in California Bldg. Indus. Ass'n v. City of San Jose. In a complex 64-page opinion that is clearly drafted and rigorously argued, the court held that inclusionary zoning is a constitutionally permissible strategy to produce affordable housing and to promote economic integration that is subject to rational basis review and not heightened scrutiny.

This article outlines the factual and legal background of the case and discusses the court's reasoning in reaching its decision, including the court's refusal to find …

Smart Growth-Oriented Density And Parking Regulations, Michael Lewyn

Michael E Lewyn

Many articles have been written about pro-sprawl land use regulation, such as minimum parking requirements. This speech, by contrast, focuses on the frequency of land use regulation designed to increase walkability- in particular, minimum density requirements and maximum parking requirements. I conclude that the first type of regulation is quite rare and usually very lenient. The second type of regulation is more frequent; however, the impact of maximum parking requirements is not yet clear.

A Taxing Endeavor: Local Government Protection Of Our Nation's Coasts In The "Wake" Of Climate Change, Simone Savino

Simone Savino

A storm is brewing, and not just in our nation’s coastal waters. The effects of climate change are becoming alarmingly apparent: sea levels are rising, storm surges are intensifying and ocean temperatures are warming at increasing speeds. Higher storm surges have led to increased flooding in coastal zones and nearby low-lying regions. The need for greater disaster preparedness in areas vulnerable to storm surges is evident, not just in the United States, but worldwide. As a direct result, coastal towns and cities have been left with the daunting task, and cost, of implementing littoral adaptation measures such as beach renourishment …

Maximizing Inclusionary Zoning’S Contributions To Both Affordable Housing And Residential Integration, Tim Iglesias

Tim Iglesias

Inclusionary zoning is a popular policy that can uniquely serve both affordable housing and fair housing goals at the same time. Assuming the U.S. Department of Housing and Urban Development finalizes its proposed “Affirmatively Furthering Fair Housing” regulation, inclusionary zoning will become more broadly used. But more extensive use of inclusionary zoning poses both opportunities and risks for housing advocates because of the following three issues: (1) Unacknowledged tradeoffs between affordable housing and fair housing goals in inclusionary zoning design and implementation; (2) Conflicting concepts of residential integration; and (3) Legal challenges to inclusionary zoning. The challenge facing inclusionary zoning …

Local Home Rule In The Time Of Globalization, Kenneth Stahl

Kenneth Stahl

Cities are increasingly taking the lead in tackling global issues like climate change, financial regulation, economic inequality, and others that the federal and state governments have failed to address. Recent media accounts have accordingly praised cities as the hope of our globally networked future. This optimistic appraisal of cities is, however, undermined by local governments’ cramped legal status. Under the doctrine of home rule, local governments can often only act in matters deemed “local” in nature, and cannot regulate “statewide” issues that may have impacts beyond local borders. As a result, the global issues that local governments are being praised …

Against The Neighborhood Veto, Michael Lewyn

Michael E Lewyn

American zoning often gives neighborhoods elective veto power over nearby real estate development. This “neighborhood veto” sometimes artificially reduces housing supply and urban density, thus making housing more expensive and making American cities more dependent on automobiles. This article criticizes the common arguments that neighborhood activists use to restrict development.

The (Somewhat) False Hope Of Comprehensive Planning, Michael Lewyn

Michael E Lewyn

Some commentators equate municipal comprehensive plans with "smart" growth (that is, development that considers the needs of nondrivers as well as the needs of automobiles). However, comprehensive planning. although desirable, is neither necessary nor sufficient for smart growth. Plans are not necessary because zoning reforms can achieve the same smart growth objectives as plans, and are not sufficient because many comprehensive plans support sprawl rather than smart growth.

The (Somewhat) False Hope Of Comprehensive Planning, Michael Lewyn

Michael E Lewyn

Many commentators treat municipal comprehensive planning as necessary (or at least sufficient) for smart growth. This essay argues that comprehensive plans, although desirable, are neither necessary nor sufficient for "smarter" (that is, more nondriver-friendly) development.

The Promises And Pitfalls Of Micro-Housing, Tim Iglesias

Tim Iglesias

This is a primer on the new and growing phenomenon of micro-housing. It defines micro-housing, discusses policy arguments and outlines regulatory issues.

Let Educators Educate, Let Builders Build: Making A Case For School Facility Privatization, John Pizzo

John Pizzo

No abstract provided.

Amicus Brief On Behalf Of The Leo T. Mccarthy Center For Public Service And The Common Good And 44 Housing Scholars To California Supreme Court In California Building Industry Association V. City Of San Jose (S212072), Tim Iglesias, David Rusk, Jan Breidenbach, Nico Calavita, Steven Menendian, John Powell, Ofurhe Igbinedion, Samir Gambhir, Eli Moore

Tim Iglesias

The briefs of other parties in the litigation emphasized inclusionary zoning’s goal of increasing the supply of affordable housing. This brief focuses on inclusionary zoning’s goal of promoting social inclusion and integration by locating affordable housing in the right location. The brief explains how economic and racial segregation deny equality of opportunity to low and moderate income families because segregation limits their potential for economic and social mobility by restricting access to the primary means of mobility, e.g. employment and education. Drawing from a wide array of empirical and other studies the brief demonstrates how inclusionary zoning is an effective …

Amicus Brief On Behalf Of The Leo T. Mccarthy Center For Public Service And The Common Good And 44 Housing Scholars To California Supreme Court In California Building Industry Association V. City Of San Jose (S212072), Tim Iglesias, David Rusk, Jan Breidenbach, Nico Calavita, Steven Menendian, John A. Powell, Ofurhe Arnica Igbinedion, Samir Gambhir, Eli Moore

john a. powell

The briefs of other parties in the litigation emphasized inclusionary zoning’s goal of increasing the supply of affordable housing. This brief focuses on inclusionary zoning’s goal of promoting social inclusion and integration by locating affordable housing in the right location. The brief explains how economic and racial segregation deny equality of opportunity to low and moderate income families because segregation limits their potential for economic and social mobility by restricting access to the primary means of mobility, e.g. employment and education. Drawing from a wide array of empirical and other studies the brief demonstrates how inclusionary zoning is an effective …

Defining “Family” For Zoning: Contemporary Policy Challenges, Legal Limits And Options, Tim Iglesias

Tim Iglesias

Single family zones are ubiquitous, diversely-defined and both popular and controversial. Much of the controversy stems from who is excluded from living in these zones by the definition of “family.” After reviewing single family zones, policy rationales for them, and the basic types of definitions of family, this article surveys contemporary policy challenges and legal limits to definitions of “family.” Recognizing localities’ diverse contexts, the article articulates how localities can reassess their definitions and identifies relevant considerations.

Suburban Sprawl: Weaker But Still Alive, Michael Lewyn

Michael E Lewyn

Review of The End of the Suburbs, by Leigh Gallagher.

How Real Is Gentrification?, Michael Lewyn

Michael E Lewyn

Some commentators argue that gentrification is turning many cities into a playground for the rich. This article rejects that view, pointing out that even relatively affluent cities are still poorer than the average suburb.

The (Somewhat) False Hope Of Comprehensive Planning, Michael Lewyn

Michael E Lewyn

Comprehensive planning at the municipal level, although useful in a variety of ways, is neither necessary nor sufficient to promote "smart" (that is, pedestrian and transit-oriented) growth. Comprehensive plans can be used to support sprawl as easily as to support smart growth, while smart growth may be promoted effectively through zoning reform or statewide legislation as well as through local planning.

How Comprehensive Planning Makes Suburbia More Sprawling, Michael Lewyn

Michael E Lewyn

Many commentators associate comprehensive land use planning with smart growth- but in fact, municipal plans can be used to further sprawl as well as smart growth.

Neighborhood Empowerment And The Future Of The City, Kenneth Stahl

Kenneth Stahl

In any given metropolitan region, there are scores of municipalities locked in a zero-sum struggle for mobile sources of jobs and tax revenue. This competition appears to advantage small, homogenous suburbs over large, diverse cities because the former can directly enact the uniform will of the electorate rather than becoming ensnarled in conflict between competing interest groups. Cities can level the playing field with suburbs, however, by devolving municipal power to smaller, more homogenous subgroups within the city, such as neighborhoods. Indeed, one such effort at neighborhood empowerment, the “business improvement district,” (BID) has been widely identified as a key …

Plans Are Not Enough, Michael Lewyn

Michael E Lewyn

Some commentators see comprehensive municipal plans as a remedy for suburban sprawl. But in fact, a plan can be used to promote sprawl as well as to prevent sprawl.

Framing Inclusionary Zoning: Exploring The Legality Of Local Inclusionary Zoning And Its Potential To Meet Affordable Housing Needs, Tim Iglesias

Tim Iglesias

Whether local inclusionary zoning (IZ) ordinances can make significant contributions towards meeting affordable housing needs depends in large part on its legality. Courts have not developed a consistent jurisprudence regarding IZ ordinances. The legality of IZ ordinances depends upon how they are framed by the governments who enact them, the opponents who challenge them, and the courts that decide the cases. After a brief introduction, this article explores why framing is possible and likely in judicial review of IZ as well as why it matters. Next, the article analyzes the case law to demonstrate how framing has operated to affect …

Community-Scale Renewable Energy, Sara C. Bronin, Hannah Wiseman

Sara C. Bronin

As the movement toward cleaner energy has gained momentum within the United States, a growing number of scholars and policymakers have made the case for community-scale renewable energy: mid-sized energy sources supported by resources pooled from several private parties in close geographic proximity. When built and utilized at the community level, these energy facilities may allow for economies of scale that their owners could not achieve working individually. Individual distributed generation, such as solar infrastructure on the roofs of homes, involves high transaction costs and creates relatively small impacts. At the same time, community-scale renewable energy has advantages over large-scale …

Exclusionary Zoning Enforcement, Passé Or Alive And Kicking?, Tim Iglesias

Tim Iglesias

This article reviews several recent state cases challenging zoning actions as exclusionary. It identifies patterns in the cases and finds that under certain circumstances courts will limit local governments’ exclusionary actions.

Land Use Regulation: It Just Gets Worse, Michael Lewyn

Michael E Lewyn

Some commentators treat suburban sprawl (by which I mean automobile-dependent land development) as the result of the free market at work. This article reviews City Rules, by urban planning professor Emily Talen. In this book, Talen shows not only how zoning and similar land use regulations generate automobile-dependent suburban sprawl, but also how these regulations have become stricter, more pro-sprawl, and more complex over time. Talen proposes to reform these regulations through municipal codes that promote more walkable, less automobile-dependent development.

Fair Housing At 30: Where We Are, Where We Are Going, Tim Iglesias, Susan Saylor

Tim Iglesias

California has long been a leader in anti-discrimination law including in housing. Thirty years after the founding of the California Real Property Journal, this article asks: How effective have the fair housing laws been in achieving their twin goals of ending housing discrimination and promoting community integration? Much progress has been made during this time, but stubborn patterns of bias and segregation persist. At the same time, our laws have expanded to encompass more people and more situations, making the goalpost more distant and elusive. This article (1) describes at how fair housing laws have changed since the first issue …

Reflections On Fair Housing Law, Tim Iglesias

Tim Iglesias

This presentation offered reflections on the state of fair housing law in light of numerous studies evaluating its effectiveness. It argues that while enforcement needs to be improved, fair housing advocates must also employ complementary strategies to reform social norms.

Greening Historic Dc: Challenges And Opportunities To Incorporate Historic Preservation Into The District's Drive For Sustainable Development, Andrew Stein

Georgetown Law Historic Preservation Papers Series

This paper focuses primarily on the District of Columbia, a city with a robust past and a bold agenda for a sustainable future. However, it may not be obvious why historic preservation - a movement typically concerned with aesthetics - can play an integral role in a city's sustainability initiative. Therefore, this paper first sets forth the basic argument why historic preservation can be a tool to promote sustainable development. Part II examines the scientific data indicating that historic preservation is a green building practice. Next, Part III posits that investment in historic districts is an investment in sustainability. Then, …

The Unbearable Cost Of Skipping The Check: Property Rights, Takings Compensation & Ecological Protection In The Western Water Law Context, Scott A. Shepard

Scott A. Shepard

Western-state non-riparian water-law regimes remain legally vital and highly useful in the age of increased scarcity and ecological concern. Claims that the property rights central to these regimes can be revoked without Fifth-Amendment takings implications – as a result of applying various doctrines or of limitations inherent in the rights as granted – are historically and legally unsound, and doctrinally unwise. Declaring water rights non-compensable would require accepting a maxim of legal interpretation that could not be limited to the water-rights (or even property-rights) context, and would render all constitutional guarantees liable to negation without constitutional process. Moreover, such a …

Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan

Erin Ryan

As climate change, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But energy reform efforts may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule and ushered in the New Federalism era in 1992. This dry technicality also poses ongoing regulatory obstacles in such critical interjurisdictional contexts as stormwater management, climate regulation, and disaster response. Such is the enormous power …

Katrina’S Window: Localism, Re-Segregation And Equitable Regionalism, David D. Troutt

Rutgers Law School (Newark) Faculty Papers

The worst national disaster in United States history also showcased the dire consequences of localism as the cultural and legal successor to de jure segregation. Long before Hurricanes Katrina and Rita devastated the Gulf Coast, New Orleans’ status as an exceptional city had been lost to Americanizing trends. Its resistance to the conventional racial binary was overcome after Reconstruction; its unique densities and accommodation of the physical landscape were transformed into sprawling divisions by technology and suburbanization. From the Brown decision forward, New Orleans and the metropolitan area around it developed much like the rest of the nation. Localist tendencies …

Plenty Of Bark, But Not Much Bite: Putting Teeth Back Into Historic Preservation Enforcement In D.C., Winston Sale

Georgetown Law Historic Preservation Papers Series

Washington, D.C. has one of the largest inventories of protected historic buildings of any city in the United States. Over 25,000 structures stand within the city's borders that are either individually landmarked or contributing buildings within a historic district. These buildings are covered by statutory protection designed to prevent alteration or demolition without consultation with the Office of Historic Preservation (HPO) and/or the D.C. Historic Preservation Review Board (HPRB). Enforcement of these protections relies on HPO's inspectors.

While the District currently employs two historic preservation inspectors, recent changes in the structure of HPO and other D.C. bureaucracies brought about a …