Planetizen Podcast 05/18/09: The American Law of Zoning

FULL TRANSCRIPT

PLANETIZEN: Welcome to the Planetizen Podcast, I’m Tim Halbur, Managing Editor.

Patricia Salkin is a professor at Albany Law School in Albany, New York, and is one of the most interesting and prolific writers on the topic of land use law. She is the author of several books on the topic, and has a blog called The Law of the Land, covering everything from eminent domain to religious land use. Her latest book is actually an update to a classic reference guide, Andersen's American Law of Zoning.

PLANETIZEN: So the The American Law of Zoning spans five volumes. Do you think America is suffering from too many regulations, or are all of these necessary?

SALKIN: You know, I don’t think this is too many regulations. I think we have to sit back and look at what this covers. Really, American Law of Zoning covers how the courts have interpreted various aspects of land use regulation, and so it’s a combination of federal regulatory issues, statutory issues, local regulatory issues, public policy, and how all of this fits together so that planners and communities have the best tools possible and use them effectively within legal parameters in order to create the places where people want to live.

PLANETIZEN: And what got you interested in land use law in particular?

SALKIN: I think that I’ve always been interested in local government issues, and intergovernmental dynamics. While I was in law school, I had an opportunity to work in my state’s community planning office, which is called our Department of State here in New York. And had an opportunity to work with some of the leading land use lawyers here in New York through that opportunity, and I just realized quickly that everything about our quality of life, our sense of place, comes down to how we use land. It’s not just about housing, but it’s about schools, and it can be about crime and crime prevention, and it can be about economic development, and it can be about transportation, and it can be about the environment and environmental issues, like air quality and clean water. And it doesn’t have to be all of those federal statutes, because we can manage all that through local land use planning and zoning techniques.

PLANETIZEN: It has become more fashionable over the last few years to think of zoning as the bad side of planning, or the side that has carried out a lot of the destructive type of planning that we’re trying to move away from now. So there are things coming up like form-based codes that work away from zoning. Do you believe that?

SALKIN: Yes, but I don’t think that I would use the word zoning, I think I’d modify it with Euclidean zoning. What we’ve realized is that the zoning of the early 1900s where we decided that uses that were not similar had to be separated, so you couldn’t have housing where you had retail or commercial space because they must be incompatible because they’re not the same, so we separate that. So now we’ve realized that what that means is that to get from point A to point B people have to get in their cars. And that’s not creating walkable, livable communities, it’s having lots of health impacts, both because people are not out walking and the carbon that’s being emitted from automobiles and other kinds of vehicles, in addition to now the climate change issues and asthma and other kinds of public health issues as well. So I think the New Urbanism movement got people to start to rethink things, and ask, “Why is it incompatible to have residential living near where people might work?”

And now we’re starting to make a move back to how things used to be. But zoning can accomplish that! Euclidean zoning cannot, but zoning is just a legal technique that’s used in order to implement the plan.

PLANETIZEN: And what are the most significant revisions from the past version of the guide that you worked on?

SALKIN: Well, in the 3rd and 4th edition of the set, it was 32 chapters and a series of forms. And quite frankly, planners and land use attorneys know that the forms that you have to use are really state- and locality-specific. So I got rid of those, because I don’t think you can have national forms. And what we did was take the book from 32 chapters to now 48 chapters.

And some of the new topics that are addressed in the book or are significantly redone in the book to consider to be new [are]: In 2005, the Kelo decision really took an eminent domain issue that used to be in the purview of real estate attorneys who did compensation law and looked primarily at just compensation and it turned eminent domain into an issue that planners and land use attorneys really started looking at on a day-in and day-out basis, because of redevelopment issues and economic development, which has now taken over much of the thought process of community planners. And so there is now a chapter on eminent domain specifically, with an eye towards the issues that come up in planning and zoning.

There’s a brand new chapter that didn’t exist before on initiative and referendum. This has been a growing issue around the United States. Initiative and referendum is also referred to as “ballot box zoning.” People that might be unhappy with the way a state or local government is going with respect to community development and wanting to put issues on the ballot. Every state doesn’t authorize it, but a lot of states do, and there’s a lot of citizen movement to get this in states that don’t have it.

There’s a chapter that didn’t exist before on senior housing. And this is important because, as we all know, the baby boomers are aging. And there are a whole host of housing issues that we need to look at, particularly for this fastest growing segment of our communities.

There’s a new chapter on siting of religious uses. In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act. In the last 24 months, there’s been more than 50 reported decisions just on siting of religious land uses. And that’s not to mention all of the unreported decisions and all of the settlement negotiations that are going on between religious organizations and communities.

There’s a chapter on regulating adult entertainment facilities that did not exist before, a new chapter on energy and climate change for land use planners and land use attorneys. Again, this was not an issue before the last time the book came out. Another chapter that didn’t exist before is on ethics and land use that talks about ethics from the perspective of planners, from lawyers, and from the people who make decisions and appear before the decision makers like the members of planning boards, zoning boards, and local legislative bodies. This is about 60 single-spaced pages talking about reported decisions from all over the country in the last 12 or 15 years dealing with allegations of conflict of interest and bias and prejudgement in the land use context.

PLANETIZEN: The book comes in 5 volumes, and it sounds like you’re going to be creating addendums.

SALKIN: Yes, that’s one of the other changes we made with this 5th edition. The other editions had been hardcover, perfect-bound, and the 5th edition is in looseleaf format. This way the pages can be replaced easier and it can be kept up to date really to the minute. So the protocol is that I’ll be sending out updates twice a year, and those updates will include new chapters and/or replacement chapters if there have been significant changes in the law that really cause you to have to redo the approach to the whole chapter. In addition, every six months you’re getting about 150-200 new reported decisions of significance on all of these topics. There’s 48 chapters in the book, and you’re getting them on the pages where they belong. So it will be seamless. Every six months you’ll have everything that is current.

PLANETIZEN: And how do you see people using the book?

SALKIN: For lawyers, it’s called treatise. And a treatise means that it is a reference resource. So it’s not a book except for people like me, and maybe you, that would open it up and just read a chapter because you’re curious about the subject matter. It’s really there more for people who say, “Gee, we have a group that’s coming in that wants to site a food pantry in a neighborhood where it might not be appropriate, but the group that wants to site the food pantry is a part of a religious denomination in town. Does this fit within the Religious Land Use and Institutionalized Persons Act? What rules are there for food pantries, what rules are there for religious groups? What rules are there so that we don’t violate a federal statute, a state statute, the 1stAmendmentof the United States Constitution?” You would go to this book and you’d be able to get answers to you questions, and at the very least, a path to how to get the answers in your very own state.

PLANETIZEN: We’ve been talking with Patricia Salkin, author of Andersen’s American Law of Zoning, 5th Edition, published by Thompson West.