2008 National Planning Conference: AICP Symposium
By Lora Lucero, AICP
Editor, Planning & Environmental Law
The four sessions comprising the Bettman Symposium this year had something for everyone — history, philosophy, politics, climate change, property rights, and beautiful nature. This annual symposium honors Alfred Bettman, the attorney who, in 1926, successfully argued the constitutionality of zoning in the United States Supreme Court on behalf of the planning profession in the famous case, Village of Euclid v. Ambler Realty Co.
"A Conversation with Richard Babcock" was a step back into history. Richard F. Babcock may be best known for his first book, The Zoning Game, published in 1966, in which he revealed the behind-the-scenes dealings and hidden motives of the players in the zoning game: the planners, lawyers, judges, and citizens. He made his Chicago law firm, Ross, Hardies, O'Keefe, Babcock & Parsons, a role model for other land use law firms around the country, employing both attorneys and planners.
Former colleagues from the firm — David Callies, Charles Siemon and Deborah Rosenthal — shared their memories of Babcock's friendship and how he influenced their careers. In 1985, Babcock and Siemons collaborated in The Zoning Game Revisited. About the same time, with the help of Frank Schnidman, Babcock videotaped a lecture on The Egregious Invalidity of the Single Family District, which was shown at the Bettman session. Lighting his pipe, with a twinkle in his eye, Babcock appeared prescient in his discussion of the ubiquitous single-family zoning district with its large setbacks from the street for front yards that no one uses. Was he a champion of new urbanism before anyone called it that?
When asked who in the audience had actually met or worked with Dick Babcock, about a dozen hands went up. Following the presentations and the videotape, many more can now say they have met "Troubadour Babcock" and have an appreciation for a man who was a leader in bridging the legal and planning professions.
"Climate Change and the Law" featured Ken Alex, the senior assistant California attorney general who heads that office's global warming unit. The standing-room only crowd was very attentive to the message Alex was sharing: In the absence of any serious federal action on addressing the impacts of climate change, state and local governments must rise to the task.
He discussed several of the initiatives that California has been pursuing in recent years, including the California Global Warming Solutions Act of 2006 and Pavley's law (A.B. 1493). California has used CEQA as leverage to prompt local governments to consider and address climate change in their general plans. San Bernardino is an example: The 30-year general plan indicated lots of traffic, growth, and heat, but no mention of greenhouse gas emissions or global warming.
The California attorney general sent a letter, followed by a lawsuit, which resulted in an agreement that San Bernardino would amend its general plan, identify greenhouse gas sources, work to reduce the current emission levels to 1990 levels by 2020, and identify feasible mitigation measures. Other local governments are following San Bernardino's example. Alex believes planners are the driving force behind this progress, but the attorney general's office can provide planners "cover" when recalcitrant officials drag their feet.
Alex discussed other examples of current litigation and predicted where future climate change litigation may take us. He ended with a quote from Chief Justice Earl Warren: "Everything I ever did that was worthwhile, I caught hell for."
"Private Property Rights, Today and Tomorrow" was a provocative discussion about the historical roots of property law in our Constitution and how we might reframe our thinking about property in the future.
Scott Christensen, private lands stewardship director for the Greater Yellowstone Coalition, began the session by putting property rights into a western context with beautiful photography of the greater Yellowstone ecosystem and how private rights are conflicting with the larger public commons.
Harvey M. Jacobs, professor of law at the University of Wisconsin at Madison, took the audience on an historical tour of the earliest days of property rights in this country. James Madison, John Adams, and Thomas Jefferson considered property in a much different light than Benjamin Franklin, who thought that "private property is a creature of society, and is subject to the calls of that society whenever its necessities require it, even to the last farthing." (1789) Jacobs contrasted the original view of the takings clause with the 20th century view and concluded by saying that there is "no reason to think we will not stop fighting [over property rights] anytime soon."
Professor Eric T. Freyfogle from the College of Law at the University of Illinois then took the discussion into a new direction, explaining three confusions that have arisen over the notion of private property rights. He drew chuckles with his suggestion of what's needed in our future debates about property rights: "Begin by ignoring the Supreme Court." A lively Q&A followed, with one member of the audience asking for a "more balanced" discussion about property rights next year.
"APA in the Courts" is our annual review of some of the important cases in which APA has filed an amicus brief. This year, we focused on three cases. John Baker from Greene Espel, PLLP, in Minneapolis presented the Naser Jewelers, Inc. v. City of Concord case in the First Circuit Court of Appeals. He drafted APA's amicus brief in this case which established an important precedent in regulating digital signs. The Court ruled that the "time, place and manner" standard applies to a complete ban on electronic displays. The Court showed deference to the city's concerns about aesthetics and safety issues.
William Wantz from Hagerstown, Maryland, represented petitioners in Trail v. Terrapin Run, a case in the highest court in Maryland. The case was focused on the role of the comprehensive plan and whether or not a special exception granted for a large development in rural Allegany County must be "in harmony with," or "conform to," or be "consistent with" the comprehensive plan. APA filed an amicus brief supporting the position that there must be a strong linkage between development permit decisions and the adopted comprehensive plan, regardless of what standard is used. Wantz captivated the audience with his lively discussion of the case in which the court ultimately ruled against his clients.
The final case drew gasps from the audience when they learned that the Nevada Supreme Court has recently ruled that property owners who own property in the approach zone of the Clark County airport have a vested state-derived property interest in airspace up to 500 feet requiring payment of just compensation for per se physical invasion by airplanes which may inadvertently cross over their land on descent. Sisolak v. Clark County was presented by Professor Jan Laitos from the University of Denver Sturm College of Law, who served as a consultant to Clark County in this case. APA filed an amicus brief supporting Clark County's position, drafted by Tim Dowling of the Community Rights Counsel.
All of APA's amicus briefs may be found at www.planning.org/amicus.
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