The United States is a suburban nation with a majority of Americans living and working in this landscape. But the suburb is more than a physical location; it is also a social production. Built upon a middle class, white, nuclear family ideal, the suburb is now diversifying demographically and economically, yet zoning ordinances and the built environment continue to reflect this outdated ideal. Today's suburb is not your mother's suburb. We argue that these demographic changes create both a point of rupture that challenges traditional land use regulations and actual uses of space, and an opening for communities to embrace and plan for new residents. In order to respond to the needs of a diversifying suburban population, communities need to challenge the underlying assumptions of traditional zoning ordinances - the separation of uses and preference for single-family housing. We present an agenda for the future that includes planning responses that rethink the zoning hierarchy, promote new forms of densification, move beyond restrictive family definitions, and experiment with new forms of service delivery.
{"title":"Not Your Mother's Suburb: Remaking Communities for a More Diverse Population.","authors":"Amanda C Micklow, Mildred E Warner","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The United States is a suburban nation with a majority of Americans living and working in this landscape. But the suburb is more than a physical location; it is also a social production. Built upon a middle class, white, nuclear family ideal, the suburb is now diversifying demographically and economically, yet zoning ordinances and the built environment continue to reflect this outdated ideal. Today's suburb is not your mother's suburb. We argue that these demographic changes create both a point of rupture that challenges traditional land use regulations and actual uses of space, and an opening for communities to embrace and plan for new residents. In order to respond to the needs of a diversifying suburban population, communities need to challenge the underlying assumptions of traditional zoning ordinances - the separation of uses and preference for single-family housing. We present an agenda for the future that includes planning responses that rethink the zoning hierarchy, promote new forms of densification, move beyond restrictive family definitions, and experiment with new forms of service delivery.</p>","PeriodicalId":91179,"journal":{"name":"The urban lawyer","volume":"46 4","pages":"729-751"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4564258/pdf/nihms614574.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"34001835","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the United States, many important land use decisions are made, at least in the first instance, by administrative bodies composed of local citizens, appointed by the mayor or city council. These boards, typically designated the Planning and Zoning Commission and the Board of Zoning Adjustment, are often suspected of favoritism and bias, in exercising authority ranging from the adoption of comprehensive land use plans and zoning amendments to granting variances or special use permits. However, courts routinely give board decisions great deference, adopting a presumption of validity based on the notion that these boards are composed of the proper representatives of the community. In order to test that assumption, we surveyed the nation`s largest cities to determine the occupations of their zoning board members. The results indicate that zoning boards are dominated by citizens with white-collar occupations. About three-quarters of zoning board members hold professional, technical or managerial jobs, despite comprising only a third of the national workforce. In addition, over 30% of board members have a direct interest in property development. To determine the potential effects of this occupational skew, we conducted a survey of citizens to determine whether their attitudes toward controversial land use issues vary according to demographic factors, including occupation. We found significant differences, although not always in ways we expected. In the end, these results indicate that cities should attempt to appoint a broader cross-section of the community to zoning boards. Although planners, lawyers, and other professionals were necessary in the past, we question whether particular expertise is necessary to accomplish the tasks assigned to modern zoning boards. Finally, if zoning boards continue to be dominated by interest groups, courts may need to reconsider the deference they typically grant to board decisions.
{"title":"A Study of American Zoning Board Composition and Public Attitudes Toward Zoning Issues","authors":"Jerry L. Anderson","doi":"10.2139/SSRN.1119582","DOIUrl":"https://doi.org/10.2139/SSRN.1119582","url":null,"abstract":"In the United States, many important land use decisions are made, at least in the first instance, by administrative bodies composed of local citizens, appointed by the mayor or city council. These boards, typically designated the Planning and Zoning Commission and the Board of Zoning Adjustment, are often suspected of favoritism and bias, in exercising authority ranging from the adoption of comprehensive land use plans and zoning amendments to granting variances or special use permits. However, courts routinely give board decisions great deference, adopting a presumption of validity based on the notion that these boards are composed of the proper representatives of the community. In order to test that assumption, we surveyed the nation`s largest cities to determine the occupations of their zoning board members. The results indicate that zoning boards are dominated by citizens with white-collar occupations. About three-quarters of zoning board members hold professional, technical or managerial jobs, despite comprising only a third of the national workforce. In addition, over 30% of board members have a direct interest in property development. To determine the potential effects of this occupational skew, we conducted a survey of citizens to determine whether their attitudes toward controversial land use issues vary according to demographic factors, including occupation. We found significant differences, although not always in ways we expected. In the end, these results indicate that cities should attempt to appoint a broader cross-section of the community to zoning boards. Although planners, lawyers, and other professionals were necessary in the past, we question whether particular expertise is necessary to accomplish the tasks assigned to modern zoning boards. Finally, if zoning boards continue to be dominated by interest groups, courts may need to reconsider the deference they typically grant to board decisions.","PeriodicalId":91179,"journal":{"name":"The urban lawyer","volume":"61 1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2008-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83435850","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate Solomon-like balance can be developed under the Act to clearly recognize compelling governmental interests in protecting the public health, safety and welfare through land use planning and various land use and local environmental controls remains elusive at this point in time and may depend upon the wisdom of the individual federal courts. Section II of this article explores the uncomfortable relationship of government with religion, and the manner in which this relationship has affected the genesis of the constitutional interpretations of the Free Exercise Clause of the First Amendment. What constitutes the establishment of religion and whether RLUIPA aids government in the establishment of religion is beyond the scope of this article and will not be discussed in detail. Section II also examines the precursor to RLUIPA, the Religious Freedom Restoration Act (FRFA), enacted by Congress in 1993 and ruled unconstitutional in 1997. Understanding Congressional motivation for the enactment of RFRA, as well as its constitutional deficiencies, sets the backdrop for the last part of the section, which discusses the Congressional development and enactment of RLUIPA, including why Congress chose land use as a primary focus of religious freedom. Section III briefly reviews the arguments surrounding the constitutionality of RLUIPA, and while not attempting to fully analyze this issue, the discussion is provided since some believe that the statute's constitutionality as it relates to the land use provisions may be vulnerable to further constitutional attack. Section IV discusses the operative provisions of RLUIPA, including both the substantial burden rule and the Act's nondiscrimination provisions. It explores how the courts have interpreted RLUIPA and its ambiguous terms, and discusses how various cases have been decided. Attorney's fees are also touched on.Section V argues why RLUIPA, as drafted, may not necessarily bode well for local governments and their historical use of the police powers to guide community planning and community development. The article concludes with some final comments concerning the propriety of and need for RLUIPA.
{"title":"The Genesis of RLUIPA and Federalism: Evaluating the Creation of a Federal Statutory Right and its Impact on Local Government","authors":"P. Salkin, A. Lavine","doi":"10.2139/SSRN.1081492","DOIUrl":"https://doi.org/10.2139/SSRN.1081492","url":null,"abstract":"In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate Solomon-like balance can be developed under the Act to clearly recognize compelling governmental interests in protecting the public health, safety and welfare through land use planning and various land use and local environmental controls remains elusive at this point in time and may depend upon the wisdom of the individual federal courts. Section II of this article explores the uncomfortable relationship of government with religion, and the manner in which this relationship has affected the genesis of the constitutional interpretations of the Free Exercise Clause of the First Amendment. What constitutes the establishment of religion and whether RLUIPA aids government in the establishment of religion is beyond the scope of this article and will not be discussed in detail. Section II also examines the precursor to RLUIPA, the Religious Freedom Restoration Act (FRFA), enacted by Congress in 1993 and ruled unconstitutional in 1997. Understanding Congressional motivation for the enactment of RFRA, as well as its constitutional deficiencies, sets the backdrop for the last part of the section, which discusses the Congressional development and enactment of RLUIPA, including why Congress chose land use as a primary focus of religious freedom. Section III briefly reviews the arguments surrounding the constitutionality of RLUIPA, and while not attempting to fully analyze this issue, the discussion is provided since some believe that the statute's constitutionality as it relates to the land use provisions may be vulnerable to further constitutional attack. Section IV discusses the operative provisions of RLUIPA, including both the substantial burden rule and the Act's nondiscrimination provisions. It explores how the courts have interpreted RLUIPA and its ambiguous terms, and discusses how various cases have been decided. Attorney's fees are also touched on.Section V argues why RLUIPA, as drafted, may not necessarily bode well for local governments and their historical use of the police powers to guide community planning and community development. The article concludes with some final comments concerning the propriety of and need for RLUIPA.","PeriodicalId":91179,"journal":{"name":"The urban lawyer","volume":"41 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2008-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77384361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In an effort to control suburban sprawl, many local land use planners have targeted large, big box retailers - Wal-Mart, for example - alleged to be catalysts for sprawl. Size-capping ordinances limiting the amount of square feet that stores may occupy have become a popular alternative to complex, expensive smart-growth regimes. However, we argue that many of these size-cap ordinances are vulnerable to dormant Commerce Clause doctrine (DCCD) challenges because, though facially-neutral, they are passed with either an avowed protectionist purpose (protecting local retailers from competition) or discriminate against out-of-state retailers in their effects. The following essay furnishes evidence for this assertion, as well as providing tentative answers to two vexing doctrinal questions that the Supreme Court has never explicitly answered in its DCCD jurisprudence. First, how are courts to tease out a protectionist purpose? Second, which effects count as discriminatory under the DCCD?
{"title":"Retail Store Size-Cap Ordinances and the Dormant Commerce Clause Doctrine","authors":"Brannon P. Denning, Rachel M. Lary","doi":"10.2139/SSRN.676548","DOIUrl":"https://doi.org/10.2139/SSRN.676548","url":null,"abstract":"In an effort to control suburban sprawl, many local land use planners have targeted large, big box retailers - Wal-Mart, for example - alleged to be catalysts for sprawl. Size-capping ordinances limiting the amount of square feet that stores may occupy have become a popular alternative to complex, expensive smart-growth regimes. However, we argue that many of these size-cap ordinances are vulnerable to dormant Commerce Clause doctrine (DCCD) challenges because, though facially-neutral, they are passed with either an avowed protectionist purpose (protecting local retailers from competition) or discriminate against out-of-state retailers in their effects. The following essay furnishes evidence for this assertion, as well as providing tentative answers to two vexing doctrinal questions that the Supreme Court has never explicitly answered in its DCCD jurisprudence. First, how are courts to tease out a protectionist purpose? Second, which effects count as discriminatory under the DCCD?","PeriodicalId":91179,"journal":{"name":"The urban lawyer","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83457998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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