TUFTS UNIVERSITY DEPARTMENT OF URBAN AND ENVIRONMENTAL POLICY AND PLANNING

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1 TUFTS UNIVERSITY DEPARTMENT OF URBAN AND ENVIRONMENTAL POLICY AND PLANNING Introduction to Urban and Environmental Policy and Planning: Linking Urban and Environmental Policy, Planning and the Law (UEP 178) Wednesdays: 4:10-6:40 pm Instructor: Summary: SYLLABUS A comprehensive course on urban and environmental policy and planning issues, the functions of local and regional governments and their relationships to natural resources management and the United States legal system. Discussion of the framework for city and town management and land use planning and land use controls. Focus on the roles of federal, Tribal, state and local governments in urban and environmental policy. Discussion of planners and public administrators as key decision makers in the future of urban, suburban and rural growth, management and protection. Course Requirements: 1. Class attendance and participation. 2. Final paper on a topic of your choosing in the field of urban and environmental planning and policy. Suggested length of the paper is no less than fifteen (15) pages. Relevant Web Sites: Date September 5, 2012 Title and Description Course Overview: Framework for urban and environmental policy and planning and the elements of planning and the plan and the techniques of planning. We will discuss the planner s role in urban and environmental policy and planning. Urban and Environmental Policy and Planning 1

2 September 12 Topic 1: The Relationships between State, Local and the Federal Government: The Good and Bad of Federalism. As we will discuss in detail, local governments are merely creatures of the state, considered disposal and fungible and voidable at the whim of the state legislature. This fact highlights the supremacy doctrine and sets the stage for a thorough analysis of just how much power local governments have and the range of their mobility in crafting solutions to current natural resource, social and financial problems. Do cities and towns have the power to limit growth, impose taxes and fees, demand that all buildings conform to a specified architectural style? What is the distinction between Dillon s Rule and Home Rule states and how does that influence the growth and development of the urban, suburban and rural environment? As Dillon s Rule teaches us, local governments are simply creatures of the state and have limited authority to raise revenue and spend tax dollars. These inherent restrictions define the extent to which municipalities can adapt to changing economic times and demands for municipal services. Cases: Hunter v. City of Pittsburgh, 207 U.S. 161 (1907), Purvis v. City of Little Rock, 667 S.W.2d 936 (1984), Haney v. Development Authority of Bremen, 271 Ga. 403 (1999), Lowell v. City of Boston, 111 Mass. 454 (1873), Ragsdale v. City of Memphis, 70 S.W.3d 56 (2001). September 19 Topic 2: The Logic of Making Plans : The Comprehensive Plan, Regional Planning and the Consistency Doctrine. One half of the states in the United States require cities and towns to prepare a plan as a prerequisite to land use regulation, award of state financial support or other assistance. We will explore why these states impose this requirement and why others do not in a review of the history of plan making in this country. We will review the current trends in mandatory plan states as well as review the handful of highly successful regional planning programs across the nation. Readings: Introductory Guide to Land Use Planning in Oregon, Oregon Department of Land Urban and Environmental Policy and Planning 2

3 Conservation and Development, 2007, Bay County v. Harrison, 13 So.3d 115 (2009), National Amusements, Inc. v. City of Boston, 29 Mass.App.Ct. 305 (1990) and Daniel Curtin and, Windfalls, Wipeouts, Givings, and Takings in Dramatic Redevelopment Projects: Bargaining for Better Zoning on Density, Views and Public Access, 32 B.C. Envtl. Aff. L. Rev 325 (2005). One page summary of Final Paper Due October 3 Topic 3: The Elements of the Comprehensive Plan: A Detailed Review of Vertical and Horizontal Consistency. This week we will explore the common elements of the plan, including, but not limited to, discussion of: housing, transportation, infrastructure, land use, open space, recreation, public safety and financial security. We will discuss the requirements of vertical and horizontal consistency and analyze the consequences of a failure to achieve consistency. Readings: Cape Cod Commission July 31, 2012 Buildout Analysis, other materials distributed in prior week s class. inal_rpt_to_dep.pdf October 10,17, 24, 31 Topic 4: Implementing the Plan and Adopted Policies: The Tools and Techniques of Urban and Environmental Policy and Planning (4 classes): The police powers (eminent domain, taxation and regulation) are the heart and soul of local government. They represent the breadth of power and provide broad opportunities to develop creative means for protecting and providing for the urban environment. We will explore these powers in detail and discuss new methods of applying these historic tools to address current problems. In addition, we review the power relationship between governments and the conflicts represented in the fields of affordable housing, telecommunication and religious practices. We will explore Urban and Environmental Policy and Planning 3

4 these areas in detail and discuss alternatives to current practices employed by the federal government and several states with respect to so-called locally undesirable land uses. Readings: Affordable Housing: A key element of local land use plans is the provision of affordable housing within the community. Affordable is a function of many factors, as affordable in one city or town may be highly un-affordable in another. What have states done to encourage or require affordable housing in local governments? What are inclusionary ordinances and how do they work? We will review these questions and present a series of regulatory approaches to mandating affordability. We will explore a range of mechanisms that the Courts, state legislatures and local and state governments have employed to develop affordable housing and will dissect the Massachusetts Anti-Snob Zoning Law (G.L. c.40b 20-23) in detail. Cases: Home Builders Association of Northern California v. City of Napa, 89 Cal.App.4 th 897 (2001); Building Industry Association of Central California v. City of Paterson, 171 Cal.App.4th 886 (2009) and, Adult Supervision Required: The Commonwealth of Massachusetts s Reckless Adventures with Affordable Housing and the Anti Snob Zoning Act, 35 B.C. Envtl. Aff. L. Rev 217 (2008). Impact Fees: Impact fees are authorized in numerous states as a means of requiring the developer of certain projects to compensate the local government for the project s impact on local government services. The payor of the fee has typically challenged the fee as an illegal tax and has argued that impact fees are unconstitutional, a regulatory taking and anti-growth. Cities and towns have responded, yet there is no clear consensus on whether impact fees are growth neutral and comport with the long-standing tests established to differentiate fees from taxes. Cases: Holman v. City of Dierks, 217 Ark. 677 (1950), New Jersey Builders Assn v. Mayor of Bernards Tp., 108 N.J. 223 (1987), Ehrlich v. City of Culver City, 911 P.2d 429 (1996), Urban and Environmental Policy and Planning 4

5 Home Builders Assn of Dayton v. Beavercreek, 89 Ohio St.3d 121 (2000). Impact Fees and Job Growth, Arthur Nelson, Takings: Governments are generally empowered to condemn take private property for public uses. While government is often required to pay more than it originally offered the landowner, few eminent domain actions are reversed. However, landowner challenges based on regulatory taking claims are often upheld by state and federal courts and some local governments have been forced to pay large damage awards to regulated landowners, whereby the challenged regulation has been voided as well. These classes will focus on the taking issue and try and resolve the controversy that has inspired bills at the federal and many state levels to restrict government s ability to impose regulatory controls on private property. Do these proposals conflict with government s police power obligations? How far can regulations go in limiting development before the regulation serves as a de facto physical taking? Is it equitable that government can regulate private property without paying the landowner for the loss incurred? If so, under what circumstances? Lingle v. Chevron USA, 544 US 528 (2005), Agins v. City of Tiburon, 447 U.S. 255 (1980), Gove v. Chatham, 444 Mass. 754 (2005), Nollan v. California Coastal Commission, 107 S.Ct (1987), Dolan v. City of Tigard, 114 S.Ct (1994), Lorreto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Transfer of Development Rights: Feasibility of Successful TDR Programs for Maryland s Eastern Shore, Eastern Shore Land Conservancy, Inc., Brief outline or table of contents of Final Paper Due. November 7 Topic 4, continued: Eminent Domain: The Power to Take Private Property as the Ultimate Tool for Planning and Policy. Urban and Environmental Policy and Planning 5

6 In light of the U.S. Supreme Court s holding in Kelo, many are likely to consider eminent domain powers as simply another bilateral technique for policy and planning. The bilateral element is, of course, the requirement that the landowner be compensated by government in exchange for relinquishing her real property. We will debate this concept and review the powers (and limitations) of eminent domain in land use planning. Readings: Kelo v. New London, 545 US 469 (2005), Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), Blakeley v. Gorin, 365 Mass. 590 (1974), Using Eminent Domain as a Redevelopment Tool: Scalpel, Saw or Sledgehammer?, BNA, 2005 and Urban Blight: An Analysis of State Blight Statutes and Their Implications for Eminent Domain Reform, Robinson & Cole, November 14 Topic 5: Slips and Falls : Tort Liability and Municipal Government. Pedestrian X crosses the street and is injured by a speeding motorist. The motorist failed to stop at the traffic light as the light had long since burned out, despite repeated calls to City Hall demanding the light be repaired. Is the city liable for Pedestrian X s injuries? Should the City be liable and if so, what limits on liability should be imposed? Are municipal governments liable for poor land use or financial planning? Should they be? Readings: Assigned during prior week s class. November 28 Topic 6: Economic Development, Taxation and Government as a Market Participant: Local governments have always been fixated on revenue generation and have historically relied on the property tax as their primary source of income. Yet property taxes are a regressive form of taxation and rapidly growing communities have recognized that property taxes rarely pay their way in terms of new growth. What other, creative and progressive forms of revenue generation exist, how are they implemented and what potential conflicts does each raise with respect to the previous weeks conflict and supremacy Urban and Environmental Policy and Planning 6

7 discussions? An often-proposed solution to the financial constraints experienced by local government is to privatize traditional local government services. Privatization has hidden costs and risks, however, as the cases to be reviewed reveal. Cases: Griffen v. County School Board of Prince Edward County, 377 U.S (1964), Washington State Major League Baseball Stadium Public Facilities District v. Huber, Hunt & Nichols-Kiewit, 165 Wash.2d 679 (2009), Maio v. Ilg, 98 R.I. 71 (1964), Richardson v, McKnight, 521 U.S. 399 (1997). December 5 Course Review and Summary We will review the entire semester and leave time for openended questions and discussion. Final paper due. *NOTES: I am pleased to answer questions raised during the course and discuss matters related to it anytime. Please feel free to schedule an appointment with me, me or call me anytime. My address is: jon.witten@tufts.edu or jon@hugginsandwitten.com On days when I am not on campus, I can be reached at In an emergency, I can be reached at Urban and Environmental Policy and Planning 7