December 9, 2025 • 36 mins
Climate action isn’t only written in federal legislation or international agreements. It’s shaped block by block through local land use law—where homes are built, how streets connect, what landscapes we preserve, and which energy systems we permit. In this episode, we chatted with Professor John Nolan to unpack the “land use wedge,” a practical way cities can influence up to 75 percent of CO2 emissions through buildings, transportation, sequestration, distributed energy, and renewables. Along the way, we trace how zoning leapfrogged planning a century ago, why that history still shapes our neighborhoods, and how a course correction can deliver compact, walkable, climate resilient places.
Professor Nolan shares case studies, court-tested approaches, and leadership insights from training thousands of local officials. We talk specific tools—clustering and infill, adaptive reuse, green roofs and tree canopies, solar-ready codes, and transit-supportive density—that reduce emissions and protect public health. We close with a look at a student-led workshop and a model framework for climate resilient development designed to help planners, attorneys, and elected leaders move from plan to ordinance to impact.
Show Notes:
- Further Reading:
- Zoning the American Dream: Promises Still to Keep by Charles Haar and Jerold Kayden
- Land Use in American by Henry Diamond, Patrick Noonan, and Laurance Rockefeller
- The American City: What Works, What Doesn’t by Alexander Garden
- Death of Dillon’s Rule article: https://digitalcommons.pace.edu/lawfaculty/1208/
- Climate Resilient Development Workshop: https://www.pace.edu/law/centers-and-institutes/land-use-law-center/publications-and-resources/climate-resilient
- To help support the show, pick up a copy of the book through our Bookshop page at https://bookshop.org/shop/bookedonplanning or get a copy through your local bookstore!
- To view the show transcripts, click on the episode at https://bookedonplanning.buzzsprout.com/
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Stephanie Rouse (00:12):
You're listening to the Booked On
Planning Podcast, a project ofthe Nebraska chapter of the
American Planning Association.
In each episode, we dive intohow cities function by talking
with authors on housing,transportation, and everything
in between.
Join us as we get booked onplanning.
Welcome back, Bookworms, toanother episode of Booked on
(00:40):
Planning.
In this episode, we talk withauthor John Nolan on his book,
Choosing to Succeed (00:44):
Land Use Law and Climate Change.
John is a professor of law atPace Law School.
And Jennifer, you have kind ofan interesting connection on how
you know John.
Jennifer Hiatt (00:55):
Yeah, I do.
In my last year of law school,I really wasn't entirely sure
what direction I wanted to takemy career.
And then one of my lawprofessors connected me with
Professor Nolan, and we had anexcellent conversation about
planning and then land use andhow those two play really well
together.
And so I would say thatProfessor Nolan is somewhat
(01:19):
responsible for me ending up inlocal government and I guess
ultimately the host of thispodcast.
So it's a really greatconnection.
Lucky for us.
Stephanie Rouse (01:27):
Otherwise, we wouldn't have such a great
co-host and co-worker, too.
Jennifer Hiatt (01:32):
Yeah.
I don't think that ourlisteners do realize we are just
right down the hall from eachother sometimes.
Yeah.
Stephanie Rouse (01:38):
Makes it really easy to work together.
Jennifer Hiatt (01:40):
It does.
So I thought that this was areally interesting idea bringing
forth Professor Nolan's ideaabout a climate wedge for
economic success and a reallygood overview of how land use
and land use law can be used tocombat the climate change if
communities choose to, which isthe whole point of the title.
Stephanie Rouse (02:02):
Yeah, it's interesting.
I don't think planners reallyunderstand the power we really
wield at the local level to beable to implement a lot of
changes in how we do planningand land use in order to reduce
our impact on climate change andto help reverse some of the
negative impacts.
We tend to think it's alltop-down federal government, but
(02:23):
there's so much authoritythrough land use law that the
federal government has givencities via states that help us
really implement a lot of thesethings.
And it I think that'sespecially important in the
current climate where we feellike the federal government is
not leading on climate changeanymore.
And it's really up to cities todo something about that.
Jennifer Hiatt (02:43):
Yeah, I know that land use and law policy
probably were not most planners'favorite classes when they were
going through their planningprograms.
But I would recommend everyonepick up this book and dust off
their ideas about land use lawand control and how planners can
wield that.
Because it's a really strong,like you said, it's a really
strong tool that often getsoverlooked, I think.
(03:05):
It's not just zoning, guys.
Stephanie Rouse (03:07):
Can't say it was my favorite glass in
planning school.
But before we jump into ourconversation, we wanted to pitch
an idea that we've had to ourlisteners and get your feedback
on where we should go with thiscrazy idea.
So one of our listeners pitchedan idea to host a book summit.
And we love the idea and arelooking at ways to make this
(03:28):
happen.
We need to hear from you,though, to help shape this
event, which we're thinkingwould take place sometime late
next year.
Would you travel for a two-daybook summit with authors,
publishers, and others to heardirectly from them on housing
transportation issues, learnabout the writing process and
how to publish a book andeverything that goes into
publishing a book?
(03:48):
Or would you join us online forthis?
You wouldn't travel, but youmight do it online.
Send us an email atbookdumbplanning at gmail.com or
comment on any of our socialmedia channels.
We have LinkedIn, Facebook, andInstagram.
Jennifer Hiatt (04:02):
We are really excited about this idea and we
are very grateful to ourlistener who pitched it to us.
But you know, Stephanie and Icould build out a whole thing,
but it we want to make sure thatit is useful to all of our
listeners and people interestedin publishing books and books on
land use.
So let us know.
And then on that note, let'sget into our conversation with
(04:23):
author John Nolan on his book,Choosing to Succeed: Land Use
Law and Climate Change.
Stephanie Rouse (04:30):
John, thank you for joining us on Bookdone
Planning to talk about yourbook, Choosing to Succeed: Land
Use Law and Climate Change.
Can you start out by laying thefoundations of how we arrived
at the state that our currentland use tools are in, which
affect about 70% of carbonemissions?
John Nolan (04:47):
First, thank you for having me on.
I really appreciate workingwith you guys.
I'm a Diehard Husker fan.
And let me tell you where thisstarted for us.
We did in 2019, we did aproject that we called low
carbon land use.
And we were trying to see howwe could involve local
governments in adoptingstrategies to combat climate
(05:07):
change.
And we finally figured out thatthere are 40,000 local
governments in our country, andmost of them have been given
legal authority to regulate landuse and to determine the shape
of settlements, urbansettlements.
So following World War II, Ithink most of your listeners
know that the preferred designof land development was low
density, spread-out regions thatwere very car dependent.
(05:29):
Residential developmentemphasized energy inefficient
single-family homes that consumeopen space and its ecological
benefits, which include carbonsequestration.
So this pattern of developmentis responsible for significant
CO2 emissions that cause climatechange, but it's also within
the reach of local governmentsin many ways.
The CO2 constitutes about 80%of our country's greenhouse gas,
(05:53):
and local land use authoritycan be effective in mitigating
land use patterns that areresponsible for up to 75% of
those CO2 emissions.
The movement of personalvehicles through the build
environment contributes morethan 20% of CO2 nationally.
EPA estimates that heating andcooling residential and
commercial buildings isresponsible for 35% of domestic
(06:14):
CO2 emissions, and sprawlingdevelopment consumes vegetative
resources, which, if preserved,would sequest for about 20% of
annual CO2 emissions.
And the total of that CO2 mathis 75%.
Jennifer Hiatt (06:28):
How different do you think cities would look if
we had put forth and promotedthe Standard City Planning
Enabling Act before we put forththe Standard State Zoning
Enabling Act?
So if we had said, hey, let'splan before we said, hey, let's
zone?
John Nolan (06:43):
That's a really interesting question.
I had to think about it a lot.
And I have a I have an answer,but I'm sure based upon some of
the folks that are listening tothis podcast, having been to
planning school and heard fromtheir professors, they'll have
different points of view.
But they will probably knowthat the Standard Zoning
Enabling Act was promulgated bythe U.S.
Department of Commerce in 1922,and that it stated that land
(07:05):
use regulations, quote, shall bemade in accordance with a
comprehensive plan.
Your listeners probably arealso know that the Standard City
Planning Act was issued in 1928after several hundred cities
and towns had already adoptedtheir zoning ordinance.
So the original idea, I think,and this is where there's some
debate, I'm sure, among yourplanning professors, but the
original idea, I believe, wasthat the zoning ordinance itself
(07:28):
embodied a plan that wascomprehensive and contained
sufficient details to guidefuture zoning amendments.
We have to imagine that theplanning thought leaders of the
day changed course and decidedthe matter differently, so that
by 1928 they had coalescedaround the notion that the plan
should be a separate documentadopted by a municipal planning
(07:48):
commission, largely immune fromlocal political forces, and
sufficiently detailed to guidefuture zoning provisions adopted
by the elected city council ortown board.
I do think that cities wouldlook different, be different if
the Model Acts had been turnedaround, and if they had urged
state legislatures to enablelocal governments to adopt
comprehensive plans by aseparate local commission first.
(08:10):
This change would have engagedlocal citizen planners rather
than elected officials informulating the plan.
Stakeholders whose knowledgeand policies would have
influenced the location and useof buildings, the density of
development, and plans forwaterfronts and wetlands, for
example, this decision-makingprocess might have charted a
path that would have been moreresponsive to widespread local
(08:32):
needs and sensitivities.
Planning theorists refer topath dependency, postulating
that past decisions constrainand influence future choices,
making it difficult to changecourse even if the current path
is suboptimal.
If the plan were adopted by amunicipal commission composed of
lay leaders rather thanpolitically elected legislators,
(08:52):
the municipality's path forwardmight have been different and
more representative.
Stephanie Rouse (08:57):
And in your book, you talk a lot about the
role of federal, state, andlocal governments with a heavier
emphasis on local actions, asthey're the closest to the real
impacts of climate change andcan have the biggest impact.
What do you see as the roles ofeach of these levels of
government in fighting climatechange?
John Nolan (09:16):
There's another planning theory called
subsidiarity, which holds thatthe responsibility for dealing
with the problem should bedelegated to the most
decentralized institutioncapable of handling the problem.
In land use law, that isclearly cities and towns, where
the devastating effects ofclimate change are felt first
and most substantially.
It is at the local level thatflooding, storm surges, heat
(09:37):
island effects, wildfires,mudslides, and the other impacts
are experienced, where firstresponders operate and leaders
are most motivated to plan andto recover.
The book, Choosing to Succeed,is about land use law and how
that power is delegatedprimarily to local governments.
So municipal governments areclosest to the problem, first to
(09:57):
respond, fully aware of thedetails, and empowered to enact
efficient solutions.
They must be intricatelyinvolved, but they need help.
They need help from state andfederal agencies, including
money, technical assistance, andinformation about regional and
statewide interests, thedatabase, so to speak.
In the book, we call thiscollaborative subsidiarity,
(10:19):
which recognizes the imperativeto involve local governments in
strategic planning at thegrassroots level, aided by
responsive regional, state, andfederal funding, technical
assistance, data, and guidance.
This is of particularimportance regarding climate
change management.
Jennifer Hiatt (10:34):
Can you explain to our listeners what you mean
when you talk about the land usewedge in the context of
mitigating climate change?
John Nolan (10:42):
In 2004, a Princeton professor named Robert Sokolo
provided a framework formitigating climate change
through dozens of what he calledstabilization wedges.
Each one, there were many ofthem, and each one was capable
of preventing at least a billionmetric tons of carbon emissions
annually using existingtechnology.
Referring to my book's title,Socolo's message was that we can
(11:03):
choose to succeed if we usecreatively the technical
strategy that we already have.
When we looked at his manywedges, we borrowed from a few
of them and created the land usestabilization wedge, which
combines five Socolo strategiesinto a single wedge.
These local strategiesdemonstrate how human
settlements can be shaped inways that affect that 75% of CO2
(11:24):
emissions or the means ofrecapturing CO2 emissions.
The five components of the landuse wedge are buildings,
transportation, sequestration,distributed energy, and
renewable energy.
Local land use law in moststates empowers municipalities
to implement CO2 mitigationstrategies with respect to all
of these components.
And I'd like to provide alittle illustration.
(11:46):
Let's take a look at thebiological sequestration
component of the wedge.
We find that many localitiesare enhancing their vegetated
environment and adopting infilldevelopment and adaptive reuse
plans to center development onexisting developed neighborhoods
and move it away fromundeveloped open spaces.
In these open spaces,ecological services on which
(12:06):
life and prosperity arepreserved.
And one of these services issequestration of CO2.
Recall that up to 20% of CO2emissions are sequestered by the
natural environment.
So as sprawling developmentconsumed increasing amounts of
open space after World War II,local land use law responded,
and its toolbox is now full ofsequestration enhancing
(12:27):
implementation strategies,clustering development, planned
unit development, neighborhoodtree canopy enhancement.
Sustainable neighborhood designstandards include green roofs,
rain gardens, vegetated soils,staruscape lawns, biologically
rich site design, and connectedgreen landscapes.
All of these land use lawsprotect and enhance the
biological sequesteringenvironment and reduce the
(12:49):
climate-changing emissions fromall sources.
Again, to follow Silkalo'slead, the technology is there if
we choose, if we want tomitigate and adapt to climate
change.
Stephanie Rouse (12:58):
I think that's the hardest part as a planner
for me is that comment, thetechnology is there if we choose
to use it.
All of these tools are there.
It's often hard to convince theleadership at a city level.
Maybe if some communities werefortunate, our mayor is very on
board with climate action and wehave a climate action plan, but
other communities aren't sofortunate, and the decision
(13:20):
makers may not be as inclined toadopt some of these land use
policies that will really helpimpact climate adaptation.
John Nolan (13:28):
Yeah, I think there's a big difference of
views about that.
I haven't talked about this toomuch, but we train local
leaders.
The APA gave us an award in2009 for our leadership training
programs.
And we've trained leaders fromall over the country, but
particularly in the HudsonValley, we've trained over 2,500
leaders.
And we take our advice fromthem.
(13:50):
We use their experience toinform us.
And what we found is thatthey're not tied up with
ideology.
They're there doing work,they're there solving problems.
So the more that climate changerears its ugly head and kicks
its hooves, they're going to bemore interested in solving the
problem.
They may even not call itclimate change.
But they're going to want toknow from you guys what's
(14:12):
causing this problem, and thenthey're going to know to look
for solutions.
And we do our training, it'shard for me to say this as a law
professor.
But the legal part of this issimple.
We've got lots of answers interms of how you use land use
law to solve particularproblems.
But how you go home and getpeople to agree to engage with
(14:32):
those solutions is another skillaltogether.
And we've learned a lot aboutcommunity-based decision making,
and we try to train localleaders in how to go home and
get them to recognize wheretheir problems are coming from
and where the solutions lie.
And that doesn't always work.
But it's a good strategy.
Stephanie Rouse (14:49):
So Lucas vs.
South Carolina Coastal Councilis a key case that all planners
learn about.
I remember this being a keycase when I was in uh the
planning school in my land uselaw class, but not necessarily
the true impacts for communitiesthat are trying to regulate
against climate change impacts.
What are the ways communitiescan regulate to avoid a
(15:10):
Lucas-style case withoutcompromising their climate
goals?
John Nolan (15:14):
Well, let me lay out a little bit about what the
Lucas case did.
It was 1992.
It was the South CarolinaCoastal Council that imposed a
no-build zone basically on twolots at Lucas Own, and he
couldn't do anything with hislots.
The Isle of Palms was amunicipality that had given
Lucas and his neighborsauthority to develop those lots
(15:36):
as single-family housing.
And he had to get side planapproval from the village.
But what he didn't realize atthe time is that he had to get a
permit from the South CarolinaCoastal Council.
And they basically said, no,you can't develop there because
we're enforcing the Coastal ZoneManagement Act and we have to
protect that particular area.
So he had no economicallyviable use of his property.
(15:59):
And he claimed that under theFifth and Fourteenth Amendment
of the US Constitution that wasa per se regulatory taking.
The true impact of Lucas isplain.
It is unconstitutional toprotect life and property by
adopting a no-bill zone.
And that's beginning to be abigger and bigger hurdle for
planters throughout the country,particularly in coastal areas,
(16:19):
but even now in wildfire proneareas.
You can't just say you can'tbuild there, you have to do
something different.
And where a local land useregulation destroys all economic
use of the property, it is aper se taken with very modest
exceptions.
This holding is a huge barrierto full-on prevention of
development on vulnerablebeaches, floodplains, and
(16:42):
forested wetlands, and landsprone to wildfires.
Such strategies do not belongin the planner's toolbox unless
the city or town is willing topay just compensation.
The Supreme Court has held thatregulations that leave some
value, as little as 10%, are nottotal takings under LUCAS.
So be sure that yourregulations do that, that they
(17:04):
leave some value.
Planners who advise local landuse boards can use the
information contained in the sealevel rise component or
wildfire prevention component ofthe comprehensive plan to
revise the applicationrequirements that govern
development projects.
They can require, for example,that the developer submit site
drawings that identify anyportion of the parcel likely to
(17:26):
be inundated by sea level duringthe use of life of the
building.
They can further require thatthe developer place any
buildings and infrastructure ina location that best protects
the safety of occupants and thestability of the building.
Applicants can be provided withsea level rise masks issued
from a variety of sources,including state agencies,
legislative committees,governors' task forces,
(17:48):
university institutes or otherrespected sources.
In addition, the developer canbe required to document the
sources of financing secured forthe project, including equity
investors and construction andpermanent lenders.
Investors and lenders willlikely be on notice of them and
(18:13):
will only be willing to investif they believe the project is
feasible.
If investors conclude that theproject is not economically
feasible, then it will sinkunder its own weight and fail to
proceed any further in thelocal review and approval
process.
Any claim that the localprocess resulted in the taking
of value of the proposed projectcan be countered by showing
that the investors and lendersmade their decision based on
(18:36):
knowledge they gained about thelong-term viability of the
proposed investment through theexercise of due diligence.
Under the Lucas doctrine, it'snot the regulation that prevents
the development in thisinstance, but rather private
market risks.
Jennifer Hiatt (18:49):
So I don't think you can have a good
conversation about land use lawif you don't talk about Dillon's
rule versus home rule.
So, what impacts do those tworegulations have on a
community's ability to implementeffective and long-term land
use changes and policies toaddress climate change?
John Nolan (19:08):
It always amazes me that Dillon's rule is a
conversation that people want tohave because Dillon is dead.
And I had a bunch of studentswho worked with me over a
two-year period.
And we found the death ofDillon's rule in constitutions
and legislation and courtdecisions in 40 states.
And that's not because thereare 10 that still follow
Dillon's rule.
It's just that we couldn't findthose particular mechanisms in
(19:30):
those ten states and we're swe're still looking.
But let me explain why that's aproblem, because I certainly,
at my age, have lived through anumber of years where Dylan's
rule was a substantial barrierto progress.
But as climate change hasbecome more serious, the legal
system has changed profoundly bygiving governments at the local
level more and more power torespond.
(19:52):
For municipal governments topromote sustainable and green
development, create safedensities and open spaces,
protect lives and property inareas vulnerable to natural
disasters, and manage climatechange, they must be able to
influence the development andpreservation of privately owned
land.
To legalize emerging renewableenergy technologies, they must
(20:13):
have the authority to make thempermitted uses in their zoning
ordinances, and to innovate bycreating solar ready homes and
subdivisions and provide forsolar easements among many other
initiatives.
And to all of these, Dillon'srule, which was handed down in
1868, has been an obstacle, apersistent obstacle.
(20:33):
The rule holds thatmunicipalities are not sovereign
entities, but merelyinstrumentalities of states, and
that the legal powers delegatedto them by the state
legislatures, such as the SonyanEnabling Act, are to be very
narrowly construed.
Slowly over the past 150 yearsit has been repealed or eroded
(20:54):
in the vast majority of states,as I just mentioned, through
court decisions that broadlyinterpret delegated land use
authority, amendments to stateconstitutions or acts of state
legislatures.
So one of the purposes forzoning in the original Standard
Zoning Enabling Act was toprovide for the most appropriate
use of the land.
That was in the Standard ZoningEnabling Act and was shown up
(21:16):
in almost all of the enablingacts in the 50 states to
accomplish the most appropriateuse of land.
So if interpreted broadly andapplied to existing technologies
such as renewable energy oremerging exigencies such as
climate change or pandemics, thelocal government can be
effective, but if narrowlyconstrued, local governments can
(21:39):
only enact these laws if thestate legislatures try to
provide them with specificenabling legislation on each
aspect of zoning.
Now, home rule provisionsfurther empower local
governments to adopt laws thatpertain to their property
affairs and government.
I'm going to just use one ofthe 50 states to illustrate
that.
The importance of the adoptionof home rule provisions is
(22:01):
evident in Tennessee.
The Tennessee Constitution wasamended in 1953 to permit
municipal governments to operateunder Home Rule Authority.
A court said about that that anexception to Dillon's rule
necessarily arises when theissue concerns the authority of
home rule municipalities.
And as stated by the SupremeCourt of Tennessee, the whole
(22:23):
purpose of the whole ruleamendment was to best control of
local affairs in localgovernments.
Home rule in effect reversesDylan's rule, because a local
unit of government may exercisewide-ranging powers under home
rule despite a lack of specificstatutory authority.
Stephanie Rouse (22:40):
So I'm not the lawyer in this group.
That's Jennifer and yourself.
So when you discussed reflexivelaw in the book, that was a new
topic for me.
And if I'm understandingcorrectly, it encourages
self-critical reflection amongactors about their performance.
So how does reflexive lawtheory work at the local level?
John Nolan (23:00):
When we sorted our training of local leaders back
in 1993, we found two defects inthe structure of their local
land use procedures andoperations.
First, there was aproliferation of land use boards
in many municipalities that didnot know what the others did,
making it awkward for individualprojects to work their way
(23:20):
through the system.
Delays were inevitable andcostly.
Second, there was very littleinterconnectivity among
communities that shared commonproblems.
For example, in Nebraska you'dhave common problems with
watersheds and flooding forsure.
And the second problem that wewere dealing with was that there
were very few ways that thelocal normalist would get
together or could get togetherand work together on those
(23:43):
common problems.
These defects frustrateconnectivity, that is,
communication between localboards intramunicipally and
solving common problemsintermunicipally.
These are failures that hinderthe operation of what legal
scholars call reflexive law.
Reflexive law draws its namefrom the basic notion that a law
(24:04):
can encourage self-criticalreflection among actors about
their performance.
This theory promotes the designof legal procedures such as
creating a watershedintermunicipal council or an
agreement among local boardslocally to create linked
schedules for project review.
These and similar legalprocedures recognize the
importance of communicating,sharing data, and local
(24:26):
knowledge both vertically, thatwould be the watershed council,
and horizontally the coordinatedprocess for project review.
These legal procedures causestakeholders to share
information, interact, andreflect on what they propose to
do.
Jennifer Hiatt (24:41):
What is one aspect of the relationship
between land use law and climatechange that you now view
differently since you havewritten the book?
John Nolan (24:50):
Well, in researching choosing to succeed in our
low-carbon land use project, wefound over 250 case studies of
local governments furthering allthe components of
climate-resilient development.
The work we had done on theland use wedge and low-carbon
land use demonstrates how localland use law touches over 70% of
CO2 emissions, laser focus onclimate change mitigation.
(25:14):
As we look more closely to whatwe found, we realized that
local land use law was alsoadapting to climate change,
creating resilientneighborhoods, furthering
environmental justice, andaccomplishing sustainable
development.
We are now witnessing awholesale assault on climate
change, including the tremendousfinancial losses that it is
costing property owners in allparts of our country.
(25:37):
In numerous communities inevery state, property values are
declining because of repeatedflooding, damaging storm surges,
sustained high temperatures,constant fear of wildfires,
water scarcity, and potentialmudslides.
Cumulatively, these changes arecausing what we call a reverse
(25:57):
economic bubble associated withland use that mirrors the effect
of the infamous housing bubbleof 2008, but is potentially much
more harmful to the economy andenvironment.
To illustrate this point, oneof our case studies looks at the
drought that occurred inSpicewood Beach, Texas.
My students reached out acrossthe country to try to find
(26:17):
examples of climate changedamage in every region and every
type of developed area, andthey found in Spicewood Beach,
Texas, a very interesting case.
So I'm going to put this as alittle story.
Imagine that you are a realestate broker showing a home
that's listed for $225,000 inSpicewood Beach.
When you arrive at the housewith your prospective buyer,
(26:41):
there is a water truck at thecurve filling the system.
The client asks you, what'shappening?
Well, the house is in aneighborhood near Lake Travis,
in one of the city's largestlake-based real estate markets.
Investor interest in thelakefront real estate, tourism,
and local business tends to riseand fall with the lake's water
level.
Frequent droughts take a tollon the lake's ability to meet
(27:02):
residential needs for portablewater, and for over a year,
water was imported intoSpicewood Beach to satisfy the
community's water needs.
As a broker, you picked a badtime to show the house.
The climate change bubble hadpopped, and the price of the
house with the water truck infront tanked along with the lake
community's economy.
These climate-clauseconsequences are indiscriminate.
(27:24):
They pop up everywhere.
Natural disasters areincreasing in intensity and
become more frequent, causingmuch more economic stress.
Severe droughts in the Westhave caused some communities to
seek external sources of waterand to minimize their use.
Wildfires raging through thewestern states have compromised
property values and forcedresidents to move.
Extreme heat, even in northernstates, has challenged the
(27:47):
health of vulnerablepopulations, making life in some
cities difficult.
Mortgages and casualtyinsurance are becoming harder to
get, without which most Ross ATbuyers can't afford housing.
Real estate prices in manyparts of the country are falling
due to the real and perceivedeffects of climate change on
land use.
And believe it or not, intoday's New York Times, I'm
(28:20):
reading an article that says aclimate shock is eroding some
home values.
New data shows how much.
And there are a coupleparagraphs I'd like to read.
Even after she escaped risingfloodwaters by wading away from
her home in Chess Deep Waterduring Hurricane Rita in 2005,
Santa Rojas now 69 state foot.
(28:40):
But this year her annual homeinsurance premium increased to
$8,312, more than doubling overthe past four years.
She considered selling butfound herself in a dilemma as
insurance costs of Rosenariohome values have fallen,
dropping by 38% since 2020.
The roadsides around her houseare dotted with for sale signs.
(29:01):
They won't insure you, Mrs.
Raw said.
No one will buy from you.
You're kind of stuck where youare.
Since 2018, a financial shockin the home insurance market has
meant that homes in zip coatsmost exposed to hurricanes and
wildfires would sell for anaverage of forty-three thousand
nine hundred dollars than theywould otherwise.
(29:22):
That relates back to what wewere talking about earlier about
local leaders getting the pointthat climate change has to be
dealt with.
Stephanie Rouse (29:29):
Yeah, and unfortunately, so often that's
when they see the actual problemand it's gotten so bad that
then they must act, versus amore proactive approach would be
better for everyone.
Speaking of reacting tosomething pretty dramatic, your
book was published in 2021,which was the beginning stages
of the pandemic.
(29:49):
Your last chapter puts forthsome ideas about land use law in
the pandemic, with four yearsnow between when your book was
published and recovery efforts.
Have you?
Found any more concreteconclusions around the impacts
of the pandemic on land use law?
John Nolan (30:05):
Well, I can't for sure attribute it to the
pandemic, but I think it's aninfluence, a very important
influence on what I'm about totell you.
In February of 22, which is theyear after the book was
published, the IntergovernmentalPanel on Climate Change
released its sixth assessmentreport.
It stated that its principalstrategy for managing climate
change is climate resilientdevelopment.
(30:26):
And this is theintergovernmental international
organization that's in charge offighting and managing climate
change.
And they said this in Februaryof 22, they said that the
principal strategy for managingclimate change is climate
resilient development.
But I don't think anybodyreally knew, or not too many
people really knew what thatmeant.
(30:47):
So a careful reading of thisrecent global report notes that
local governments, within theirland use regulatory authority,
have a major role to play inmanaging climate change.
My students call this a localsolution for a global problem.
Whether it's due to thepandemic or not is hard to say,
but there is a clear focus onequity for vulnerable
(31:09):
populations and on minimizingthe negative impact of climate
change on high heat, flooding,storm surges, and other aspects
of public health.
We've been amazed at how manycase studies we found that have
been laser focused on protectingpublic health.
So our research demonstratesthat many municipalities have
relatively recently turned theirattention to facilitating
(31:30):
development that is mitigative,adaptive, and resilient.
We have found case studiesfeaturing biophilic design,
environmental housing highalbido rules, low carbon
construction, climate resilientretrofits, heat island
mitigation, carbon neutralbuilding assessments, climate
justice plans, livingshorelines, shoreline protection
and anti-displacement, just toname a few.
(31:52):
The six assessment report alsorefers to enhancing carbon
intake and storage in the urbanenvironment, for example,
through biobase, buildingmaterials permeable, surfaces,
green roofs, tree canopies,green spaces, rivers, ponds, and
lakes.
The list goes on to includeimproving, repurposing, or
retrofitting the building,stock, tucking development
(32:14):
clothes to infrastructure,supporting walking, biking, and
public transit, targetinginfilling and compact urban
form, what we call low-carbonland use.
Much of this progress occurredsince the book was published and
is related to some degree tothe sophistication of strategies
that the pandemic had on localland use decision makers.
Jennifer Hiatt (32:35):
Professor Nolan, you are a law professor at Pace
University, and you've alreadymentioned multiple times
throughout the episode yourstudents.
So you took the research fromthis book and turned it into a
practical workshop at Pace LawSchool.
Tell us about that workshop.
John Nolan (32:52):
Well, as a research professor, I work with about 50
students on my publications andresearch projects.
We are the number one rankedenvironmental law school in the
country, and that draws somevery, very passionate and
talented students.
They innovate, they think hardabout what we should do.
So after the book waspublished, the students wanted
to do something more to get theword out about the many land use
(33:14):
strategies contained in itschapters.
They came up with the idea ofhosting student-run student
panel discussions on individualtopics like vegetated urbanism
and inland flooding.
The students reckoned that theycould record and link the
individual virtual panels andmake them available on our
website.
And then using social media,let the relevant actors know
(33:37):
about mysterious power of landuse.
The idea was to link the panelrecordings and call the
collection the workshop.
They took this idea one stepfurther and decided to design a
framework law for implementingclimate resilient development,
which is the majorrecommendation of the IPCC, and
which is just going live thismonth.
They are still at work on thiseffort looking for partner
(33:59):
organizations that areinterested in getting the word
out to as many stakeholders aspossible.
Jennifer Hiatt (34:04):
And our listeners, if they are
interested in this, there willbe a link to the climate
resilient development workshopseries in our show notes.
So you can go check it outthere.
And finally, this is booked onplanning.
So what are books that youwould recommend our readers
check out?
John Nolan (34:21):
It's funny, I did a couple of cartwheels trying to
figure out how to answer thisquestion.
There's so many, so many reallygood books.
And I I think that you do anexcellent job of promoting
important contemporary books onplanning and land use law.
So I'm focusing on some of theolder publications that I
learned from about theflexibility of the power of land
use if put in proper hands.
(34:42):
They were all authored in thenineteen nineties.
We could talk for a while aboutwhat that means, but I think
that during the nineteenseventies we learned a lot about
managing the environment andmanaging economic development
and dealing with sprawl.
And by 1990, there were enoughpeople who had learned about
that that they could write abook about it.
So the three books that Ilearned the most from in the
(35:05):
1990s were Zoning and theAmerican Dream, Promises Still
to Keep, a 1990 book by GeraldCaden and Charles Carr from
Harvard, Land Use in America,dated 1996, co-authored by Henry
Diamond at an amazing advisorycommittee that he put together
on what are we going to do aboutstraw and how can we use land
(35:25):
use law to combat it.
And then finally, The AmericanCity, What Works, What Doesn't,
1996 by Alexander Garvin.
Stephanie Rouse (35:34):
All really great books.
And it's nice to have kind of aspread in some older books.
We tend to, as you mentioned,focus on some of the more recent
publications.
So it's good to have some ofthese older books that are still
great foundations for land uselaw.
But John, thank you so much forjoining us on Bookdown Planning
to talk about your book,Choosing to Succeed, Land Use
(35:55):
Law and Climate Change.
John Nolan (35:57):
Stephanie and Jennifer, I respect you guys
very much and thank you forhaving me on.
Jennifer Hiatt (36:03):
We hope you enjoyed this conversation with
author John Nolan on his book,Choosing to Succeed, Land Use
Law and Climate Change.
You can get your own copythrough the publisher at the
Environmental Law Institute bysupporting your local bookstore
or online at bookshop.org slashshop slash bookdown planning, as
we do now have an affiliatepage with bookshop.org.
(36:23):
Remember to subscribe to theshow wherever you listen to
podcasts and please rate,review, and share the show.
Thank you for listening, andwe'll talk to you next time on
Bookdown Planning.
You're listening to the Booked On
Planning Podcast, a project ofthe Nebraska chapter of the
American Planning Association.
In each episode, we dive intohow cities function by talking
with authors on housing,transportation, and everything
in between.
Join us as we get booked onplanning.
Welcome back, Bookworms, toanother episode of Booked on
(00:40):
Planning.
In this episode, we talk withauthor John Nolan on his book,
Choosing to Succeed (00:44):
Land Use Law and Climate Change.
John is a professor of law atPace Law School.
And Jennifer, you have kind ofan interesting connection on how
you know John.
Jennifer Hiatt (00:55):
Yeah, I do.
In my last year of law school,I really wasn't entirely sure
what direction I wanted to takemy career.
And then one of my lawprofessors connected me with
Professor Nolan, and we had anexcellent conversation about
planning and then land use andhow those two play really well
together.
And so I would say thatProfessor Nolan is somewhat
(01:19):
responsible for me ending up inlocal government and I guess
ultimately the host of thispodcast.
So it's a really greatconnection.
Lucky for us.
Stephanie Rouse (01:27):
Otherwise, we wouldn't have such a great
co-host and co-worker, too.
Jennifer Hiatt (01:32):
Yeah.
I don't think that ourlisteners do realize we are just
right down the hall from eachother sometimes.
Yeah.
Stephanie Rouse (01:38):
Makes it really easy to work together.
Jennifer Hiatt (01:40):
It does.
So I thought that this was areally interesting idea bringing
forth Professor Nolan's ideaabout a climate wedge for
economic success and a reallygood overview of how land use
and land use law can be used tocombat the climate change if
communities choose to, which isthe whole point of the title.
Stephanie Rouse (02:02):
Yeah, it's interesting.
I don't think planners reallyunderstand the power we really
wield at the local level to beable to implement a lot of
changes in how we do planningand land use in order to reduce
our impact on climate change andto help reverse some of the
negative impacts.
We tend to think it's alltop-down federal government, but
(02:23):
there's so much authoritythrough land use law that the
federal government has givencities via states that help us
really implement a lot of thesethings.
And it I think that'sespecially important in the
current climate where we feellike the federal government is
not leading on climate changeanymore.
And it's really up to cities todo something about that.
Jennifer Hiatt (02:43):
Yeah, I know that land use and law policy
probably were not most planners'favorite classes when they were
going through their planningprograms.
But I would recommend everyonepick up this book and dust off
their ideas about land use lawand control and how planners can
wield that.
Because it's a really strong,like you said, it's a really
strong tool that often getsoverlooked, I think.
(03:05):
It's not just zoning, guys.
Stephanie Rouse (03:07):
Can't say it was my favorite glass in
planning school.
But before we jump into ourconversation, we wanted to pitch
an idea that we've had to ourlisteners and get your feedback
on where we should go with thiscrazy idea.
So one of our listeners pitchedan idea to host a book summit.
And we love the idea and arelooking at ways to make this
(03:28):
happen.
We need to hear from you,though, to help shape this
event, which we're thinkingwould take place sometime late
next year.
Would you travel for a two-daybook summit with authors,
publishers, and others to heardirectly from them on housing
transportation issues, learnabout the writing process and
how to publish a book andeverything that goes into
publishing a book?
(03:48):
Or would you join us online forthis?
You wouldn't travel, but youmight do it online.
Send us an email atbookdumbplanning at gmail.com or
comment on any of our socialmedia channels.
We have LinkedIn, Facebook, andInstagram.
Jennifer Hiatt (04:02):
We are really excited about this idea and we
are very grateful to ourlistener who pitched it to us.
But you know, Stephanie and Icould build out a whole thing,
but it we want to make sure thatit is useful to all of our
listeners and people interestedin publishing books and books on
land use.
So let us know.
And then on that note, let'sget into our conversation with
(04:23):
author John Nolan on his book,Choosing to Succeed: Land Use
Law and Climate Change.
Stephanie Rouse (04:30):
John, thank you for joining us on Bookdone
Planning to talk about yourbook, Choosing to Succeed: Land
Use Law and Climate Change.
Can you start out by laying thefoundations of how we arrived
at the state that our currentland use tools are in, which
affect about 70% of carbonemissions?
John Nolan (04:47):
First, thank you for having me on.
I really appreciate workingwith you guys.
I'm a Diehard Husker fan.
And let me tell you where thisstarted for us.
We did in 2019, we did aproject that we called low
carbon land use.
And we were trying to see howwe could involve local
governments in adoptingstrategies to combat climate
(05:07):
change.
And we finally figured out thatthere are 40,000 local
governments in our country, andmost of them have been given
legal authority to regulate landuse and to determine the shape
of settlements, urbansettlements.
So following World War II, Ithink most of your listeners
know that the preferred designof land development was low
density, spread-out regions thatwere very car dependent.
(05:29):
Residential developmentemphasized energy inefficient
single-family homes that consumeopen space and its ecological
benefits, which include carbonsequestration.
So this pattern of developmentis responsible for significant
CO2 emissions that cause climatechange, but it's also within
the reach of local governmentsin many ways.
The CO2 constitutes about 80%of our country's greenhouse gas,
(05:53):
and local land use authoritycan be effective in mitigating
land use patterns that areresponsible for up to 75% of
those CO2 emissions.
The movement of personalvehicles through the build
environment contributes morethan 20% of CO2 nationally.
EPA estimates that heating andcooling residential and
commercial buildings isresponsible for 35% of domestic
(06:14):
CO2 emissions, and sprawlingdevelopment consumes vegetative
resources, which, if preserved,would sequest for about 20% of
annual CO2 emissions.
And the total of that CO2 mathis 75%.
Jennifer Hiatt (06:28):
How different do you think cities would look if
we had put forth and promotedthe Standard City Planning
Enabling Act before we put forththe Standard State Zoning
Enabling Act?
So if we had said, hey, let'splan before we said, hey, let's
zone?
John Nolan (06:43):
That's a really interesting question.
I had to think about it a lot.
And I have a I have an answer,but I'm sure based upon some of
the folks that are listening tothis podcast, having been to
planning school and heard fromtheir professors, they'll have
different points of view.
But they will probably knowthat the Standard Zoning
Enabling Act was promulgated bythe U.S.
Department of Commerce in 1922,and that it stated that land
(07:05):
use regulations, quote, shall bemade in accordance with a
comprehensive plan.
Your listeners probably arealso know that the Standard City
Planning Act was issued in 1928after several hundred cities
and towns had already adoptedtheir zoning ordinance.
So the original idea, I think,and this is where there's some
debate, I'm sure, among yourplanning professors, but the
original idea, I believe, wasthat the zoning ordinance itself
(07:28):
embodied a plan that wascomprehensive and contained
sufficient details to guidefuture zoning amendments.
We have to imagine that theplanning thought leaders of the
day changed course and decidedthe matter differently, so that
by 1928 they had coalescedaround the notion that the plan
should be a separate documentadopted by a municipal planning
(07:48):
commission, largely immune fromlocal political forces, and
sufficiently detailed to guidefuture zoning provisions adopted
by the elected city council ortown board.
I do think that cities wouldlook different, be different if
the Model Acts had been turnedaround, and if they had urged
state legislatures to enablelocal governments to adopt
comprehensive plans by aseparate local commission first.
(08:10):
This change would have engagedlocal citizen planners rather
than elected officials informulating the plan.
Stakeholders whose knowledgeand policies would have
influenced the location and useof buildings, the density of
development, and plans forwaterfronts and wetlands, for
example, this decision-makingprocess might have charted a
path that would have been moreresponsive to widespread local
(08:32):
needs and sensitivities.
Planning theorists refer topath dependency, postulating
that past decisions constrainand influence future choices,
making it difficult to changecourse even if the current path
is suboptimal.
If the plan were adopted by amunicipal commission composed of
lay leaders rather thanpolitically elected legislators,
(08:52):
the municipality's path forwardmight have been different and
more representative.
Stephanie Rouse (08:57):
And in your book, you talk a lot about the
role of federal, state, andlocal governments with a heavier
emphasis on local actions, asthey're the closest to the real
impacts of climate change andcan have the biggest impact.
What do you see as the roles ofeach of these levels of
government in fighting climatechange?
John Nolan (09:16):
There's another planning theory called
subsidiarity, which holds thatthe responsibility for dealing
with the problem should bedelegated to the most
decentralized institutioncapable of handling the problem.
In land use law, that isclearly cities and towns, where
the devastating effects ofclimate change are felt first
and most substantially.
It is at the local level thatflooding, storm surges, heat
(09:37):
island effects, wildfires,mudslides, and the other impacts
are experienced, where firstresponders operate and leaders
are most motivated to plan andto recover.
The book, Choosing to Succeed,is about land use law and how
that power is delegatedprimarily to local governments.
So municipal governments areclosest to the problem, first to
(09:57):
respond, fully aware of thedetails, and empowered to enact
efficient solutions.
They must be intricatelyinvolved, but they need help.
They need help from state andfederal agencies, including
money, technical assistance, andinformation about regional and
statewide interests, thedatabase, so to speak.
In the book, we call thiscollaborative subsidiarity,
(10:19):
which recognizes the imperativeto involve local governments in
strategic planning at thegrassroots level, aided by
responsive regional, state, andfederal funding, technical
assistance, data, and guidance.
This is of particularimportance regarding climate
change management.
Jennifer Hiatt (10:34):
Can you explain to our listeners what you mean
when you talk about the land usewedge in the context of
mitigating climate change?
John Nolan (10:42):
In 2004, a Princeton professor named Robert Sokolo
provided a framework formitigating climate change
through dozens of what he calledstabilization wedges.
Each one, there were many ofthem, and each one was capable
of preventing at least a billionmetric tons of carbon emissions
annually using existingtechnology.
Referring to my book's title,Socolo's message was that we can
(11:03):
choose to succeed if we usecreatively the technical
strategy that we already have.
When we looked at his manywedges, we borrowed from a few
of them and created the land usestabilization wedge, which
combines five Socolo strategiesinto a single wedge.
These local strategiesdemonstrate how human
settlements can be shaped inways that affect that 75% of CO2
(11:24):
emissions or the means ofrecapturing CO2 emissions.
The five components of the landuse wedge are buildings,
transportation, sequestration,distributed energy, and
renewable energy.
Local land use law in moststates empowers municipalities
to implement CO2 mitigationstrategies with respect to all
of these components.
And I'd like to provide alittle illustration.
(11:46):
Let's take a look at thebiological sequestration
component of the wedge.
We find that many localitiesare enhancing their vegetated
environment and adopting infilldevelopment and adaptive reuse
plans to center development onexisting developed neighborhoods
and move it away fromundeveloped open spaces.
In these open spaces,ecological services on which
(12:06):
life and prosperity arepreserved.
And one of these services issequestration of CO2.
Recall that up to 20% of CO2emissions are sequestered by the
natural environment.
So as sprawling developmentconsumed increasing amounts of
open space after World War II,local land use law responded,
and its toolbox is now full ofsequestration enhancing
(12:27):
implementation strategies,clustering development, planned
unit development, neighborhoodtree canopy enhancement.
Sustainable neighborhood designstandards include green roofs,
rain gardens, vegetated soils,staruscape lawns, biologically
rich site design, and connectedgreen landscapes.
All of these land use lawsprotect and enhance the
biological sequesteringenvironment and reduce the
(12:49):
climate-changing emissions fromall sources.
Again, to follow Silkalo'slead, the technology is there if
we choose, if we want tomitigate and adapt to climate
change.
Stephanie Rouse (12:58):
I think that's the hardest part as a planner
for me is that comment, thetechnology is there if we choose
to use it.
All of these tools are there.
It's often hard to convince theleadership at a city level.
Maybe if some communities werefortunate, our mayor is very on
board with climate action and wehave a climate action plan, but
other communities aren't sofortunate, and the decision
(13:20):
makers may not be as inclined toadopt some of these land use
policies that will really helpimpact climate adaptation.
John Nolan (13:28):
Yeah, I think there's a big difference of
views about that.
I haven't talked about this toomuch, but we train local
leaders.
The APA gave us an award in2009 for our leadership training
programs.
And we've trained leaders fromall over the country, but
particularly in the HudsonValley, we've trained over 2,500
leaders.
And we take our advice fromthem.
(13:50):
We use their experience toinform us.
And what we found is thatthey're not tied up with
ideology.
They're there doing work,they're there solving problems.
So the more that climate changerears its ugly head and kicks
its hooves, they're going to bemore interested in solving the
problem.
They may even not call itclimate change.
But they're going to want toknow from you guys what's
(14:12):
causing this problem, and thenthey're going to know to look
for solutions.
And we do our training, it'shard for me to say this as a law
professor.
But the legal part of this issimple.
We've got lots of answers interms of how you use land use
law to solve particularproblems.
But how you go home and getpeople to agree to engage with
(14:32):
those solutions is another skillaltogether.
And we've learned a lot aboutcommunity-based decision making,
and we try to train localleaders in how to go home and
get them to recognize wheretheir problems are coming from
and where the solutions lie.
And that doesn't always work.
But it's a good strategy.
Stephanie Rouse (14:49):
So Lucas vs.
South Carolina Coastal Councilis a key case that all planners
learn about.
I remember this being a keycase when I was in uh the
planning school in my land uselaw class, but not necessarily
the true impacts for communitiesthat are trying to regulate
against climate change impacts.
What are the ways communitiescan regulate to avoid a
(15:10):
Lucas-style case withoutcompromising their climate
goals?
John Nolan (15:14):
Well, let me lay out a little bit about what the
Lucas case did.
It was 1992.
It was the South CarolinaCoastal Council that imposed a
no-build zone basically on twolots at Lucas Own, and he
couldn't do anything with hislots.
The Isle of Palms was amunicipality that had given
Lucas and his neighborsauthority to develop those lots
(15:36):
as single-family housing.
And he had to get side planapproval from the village.
But what he didn't realize atthe time is that he had to get a
permit from the South CarolinaCoastal Council.
And they basically said, no,you can't develop there because
we're enforcing the Coastal ZoneManagement Act and we have to
protect that particular area.
So he had no economicallyviable use of his property.
(15:59):
And he claimed that under theFifth and Fourteenth Amendment
of the US Constitution that wasa per se regulatory taking.
The true impact of Lucas isplain.
It is unconstitutional toprotect life and property by
adopting a no-bill zone.
And that's beginning to be abigger and bigger hurdle for
planters throughout the country,particularly in coastal areas,
(16:19):
but even now in wildfire proneareas.
You can't just say you can'tbuild there, you have to do
something different.
And where a local land useregulation destroys all economic
use of the property, it is aper se taken with very modest
exceptions.
This holding is a huge barrierto full-on prevention of
development on vulnerablebeaches, floodplains, and
(16:42):
forested wetlands, and landsprone to wildfires.
Such strategies do not belongin the planner's toolbox unless
the city or town is willing topay just compensation.
The Supreme Court has held thatregulations that leave some
value, as little as 10%, are nottotal takings under LUCAS.
So be sure that yourregulations do that, that they
(17:04):
leave some value.
Planners who advise local landuse boards can use the
information contained in the sealevel rise component or
wildfire prevention component ofthe comprehensive plan to
revise the applicationrequirements that govern
development projects.
They can require, for example,that the developer submit site
drawings that identify anyportion of the parcel likely to
(17:26):
be inundated by sea level duringthe use of life of the
building.
They can further require thatthe developer place any
buildings and infrastructure ina location that best protects
the safety of occupants and thestability of the building.
Applicants can be provided withsea level rise masks issued
from a variety of sources,including state agencies,
legislative committees,governors' task forces,
(17:48):
university institutes or otherrespected sources.
In addition, the developer canbe required to document the
sources of financing secured forthe project, including equity
investors and construction andpermanent lenders.
Investors and lenders willlikely be on notice of them and
(18:13):
will only be willing to investif they believe the project is
feasible.
If investors conclude that theproject is not economically
feasible, then it will sinkunder its own weight and fail to
proceed any further in thelocal review and approval
process.
Any claim that the localprocess resulted in the taking
of value of the proposed projectcan be countered by showing
that the investors and lendersmade their decision based on
(18:36):
knowledge they gained about thelong-term viability of the
proposed investment through theexercise of due diligence.
Under the Lucas doctrine, it'snot the regulation that prevents
the development in thisinstance, but rather private
market risks.
Jennifer Hiatt (18:49):
So I don't think you can have a good
conversation about land use lawif you don't talk about Dillon's
rule versus home rule.
So, what impacts do those tworegulations have on a
community's ability to implementeffective and long-term land
use changes and policies toaddress climate change?
John Nolan (19:08):
It always amazes me that Dillon's rule is a
conversation that people want tohave because Dillon is dead.
And I had a bunch of studentswho worked with me over a
two-year period.
And we found the death ofDillon's rule in constitutions
and legislation and courtdecisions in 40 states.
And that's not because thereare 10 that still follow
Dillon's rule.
It's just that we couldn't findthose particular mechanisms in
(19:30):
those ten states and we're swe're still looking.
But let me explain why that's aproblem, because I certainly,
at my age, have lived through anumber of years where Dylan's
rule was a substantial barrierto progress.
But as climate change hasbecome more serious, the legal
system has changed profoundly bygiving governments at the local
level more and more power torespond.
(19:52):
For municipal governments topromote sustainable and green
development, create safedensities and open spaces,
protect lives and property inareas vulnerable to natural
disasters, and manage climatechange, they must be able to
influence the development andpreservation of privately owned
land.
To legalize emerging renewableenergy technologies, they must
(20:13):
have the authority to make thempermitted uses in their zoning
ordinances, and to innovate bycreating solar ready homes and
subdivisions and provide forsolar easements among many other
initiatives.
And to all of these, Dillon'srule, which was handed down in
1868, has been an obstacle, apersistent obstacle.
(20:33):
The rule holds thatmunicipalities are not sovereign
entities, but merelyinstrumentalities of states, and
that the legal powers delegatedto them by the state
legislatures, such as the SonyanEnabling Act, are to be very
narrowly construed.
Slowly over the past 150 yearsit has been repealed or eroded
(20:54):
in the vast majority of states,as I just mentioned, through
court decisions that broadlyinterpret delegated land use
authority, amendments to stateconstitutions or acts of state
legislatures.
So one of the purposes forzoning in the original Standard
Zoning Enabling Act was toprovide for the most appropriate
use of the land.
That was in the Standard ZoningEnabling Act and was shown up
(21:16):
in almost all of the enablingacts in the 50 states to
accomplish the most appropriateuse of land.
So if interpreted broadly andapplied to existing technologies
such as renewable energy oremerging exigencies such as
climate change or pandemics, thelocal government can be
effective, but if narrowlyconstrued, local governments can
(21:39):
only enact these laws if thestate legislatures try to
provide them with specificenabling legislation on each
aspect of zoning.
Now, home rule provisionsfurther empower local
governments to adopt laws thatpertain to their property
affairs and government.
I'm going to just use one ofthe 50 states to illustrate
that.
The importance of the adoptionof home rule provisions is
(22:01):
evident in Tennessee.
The Tennessee Constitution wasamended in 1953 to permit
municipal governments to operateunder Home Rule Authority.
A court said about that that anexception to Dillon's rule
necessarily arises when theissue concerns the authority of
home rule municipalities.
And as stated by the SupremeCourt of Tennessee, the whole
(22:23):
purpose of the whole ruleamendment was to best control of
local affairs in localgovernments.
Home rule in effect reversesDylan's rule, because a local
unit of government may exercisewide-ranging powers under home
rule despite a lack of specificstatutory authority.
Stephanie Rouse (22:40):
So I'm not the lawyer in this group.
That's Jennifer and yourself.
So when you discussed reflexivelaw in the book, that was a new
topic for me.
And if I'm understandingcorrectly, it encourages
self-critical reflection amongactors about their performance.
So how does reflexive lawtheory work at the local level?
John Nolan (23:00):
When we sorted our training of local leaders back
in 1993, we found two defects inthe structure of their local
land use procedures andoperations.
First, there was aproliferation of land use boards
in many municipalities that didnot know what the others did,
making it awkward for individualprojects to work their way
(23:20):
through the system.
Delays were inevitable andcostly.
Second, there was very littleinterconnectivity among
communities that shared commonproblems.
For example, in Nebraska you'dhave common problems with
watersheds and flooding forsure.
And the second problem that wewere dealing with was that there
were very few ways that thelocal normalist would get
together or could get togetherand work together on those
(23:43):
common problems.
These defects frustrateconnectivity, that is,
communication between localboards intramunicipally and
solving common problemsintermunicipally.
These are failures that hinderthe operation of what legal
scholars call reflexive law.
Reflexive law draws its namefrom the basic notion that a law
(24:04):
can encourage self-criticalreflection among actors about
their performance.
This theory promotes the designof legal procedures such as
creating a watershedintermunicipal council or an
agreement among local boardslocally to create linked
schedules for project review.
These and similar legalprocedures recognize the
importance of communicating,sharing data, and local
(24:26):
knowledge both vertically, thatwould be the watershed council,
and horizontally the coordinatedprocess for project review.
These legal procedures causestakeholders to share
information, interact, andreflect on what they propose to
do.
Jennifer Hiatt (24:41):
What is one aspect of the relationship
between land use law and climatechange that you now view
differently since you havewritten the book?
John Nolan (24:50):
Well, in researching choosing to succeed in our
low-carbon land use project, wefound over 250 case studies of
local governments furthering allthe components of
climate-resilient development.
The work we had done on theland use wedge and low-carbon
land use demonstrates how localland use law touches over 70% of
CO2 emissions, laser focus onclimate change mitigation.
(25:14):
As we look more closely to whatwe found, we realized that
local land use law was alsoadapting to climate change,
creating resilientneighborhoods, furthering
environmental justice, andaccomplishing sustainable
development.
We are now witnessing awholesale assault on climate
change, including the tremendousfinancial losses that it is
costing property owners in allparts of our country.
(25:37):
In numerous communities inevery state, property values are
declining because of repeatedflooding, damaging storm surges,
sustained high temperatures,constant fear of wildfires,
water scarcity, and potentialmudslides.
Cumulatively, these changes arecausing what we call a reverse
(25:57):
economic bubble associated withland use that mirrors the effect
of the infamous housing bubbleof 2008, but is potentially much
more harmful to the economy andenvironment.
To illustrate this point, oneof our case studies looks at the
drought that occurred inSpicewood Beach, Texas.
My students reached out acrossthe country to try to find
(26:17):
examples of climate changedamage in every region and every
type of developed area, andthey found in Spicewood Beach,
Texas, a very interesting case.
So I'm going to put this as alittle story.
Imagine that you are a realestate broker showing a home
that's listed for $225,000 inSpicewood Beach.
When you arrive at the housewith your prospective buyer,
(26:41):
there is a water truck at thecurve filling the system.
The client asks you, what'shappening?
Well, the house is in aneighborhood near Lake Travis,
in one of the city's largestlake-based real estate markets.
Investor interest in thelakefront real estate, tourism,
and local business tends to riseand fall with the lake's water
level.
Frequent droughts take a tollon the lake's ability to meet
(27:02):
residential needs for portablewater, and for over a year,
water was imported intoSpicewood Beach to satisfy the
community's water needs.
As a broker, you picked a badtime to show the house.
The climate change bubble hadpopped, and the price of the
house with the water truck infront tanked along with the lake
community's economy.
These climate-clauseconsequences are indiscriminate.
(27:24):
They pop up everywhere.
Natural disasters areincreasing in intensity and
become more frequent, causingmuch more economic stress.
Severe droughts in the Westhave caused some communities to
seek external sources of waterand to minimize their use.
Wildfires raging through thewestern states have compromised
property values and forcedresidents to move.
Extreme heat, even in northernstates, has challenged the
(27:47):
health of vulnerablepopulations, making life in some
cities difficult.
Mortgages and casualtyinsurance are becoming harder to
get, without which most Ross ATbuyers can't afford housing.
Real estate prices in manyparts of the country are falling
due to the real and perceivedeffects of climate change on
land use.
And believe it or not, intoday's New York Times, I'm
(28:20):
reading an article that says aclimate shock is eroding some
home values.
New data shows how much.
And there are a coupleparagraphs I'd like to read.
Even after she escaped risingfloodwaters by wading away from
her home in Chess Deep Waterduring Hurricane Rita in 2005,
Santa Rojas now 69 state foot.
(28:40):
But this year her annual homeinsurance premium increased to
$8,312, more than doubling overthe past four years.
She considered selling butfound herself in a dilemma as
insurance costs of Rosenariohome values have fallen,
dropping by 38% since 2020.
The roadsides around her houseare dotted with for sale signs.
(29:01):
They won't insure you, Mrs.
Raw said.
No one will buy from you.
You're kind of stuck where youare.
Since 2018, a financial shockin the home insurance market has
meant that homes in zip coatsmost exposed to hurricanes and
wildfires would sell for anaverage of forty-three thousand
nine hundred dollars than theywould otherwise.
(29:22):
That relates back to what wewere talking about earlier about
local leaders getting the pointthat climate change has to be
dealt with.
Stephanie Rouse (29:29):
Yeah, and unfortunately, so often that's
when they see the actual problemand it's gotten so bad that
then they must act, versus amore proactive approach would be
better for everyone.
Speaking of reacting tosomething pretty dramatic, your
book was published in 2021,which was the beginning stages
of the pandemic.
(29:49):
Your last chapter puts forthsome ideas about land use law in
the pandemic, with four yearsnow between when your book was
published and recovery efforts.
Have you?
Found any more concreteconclusions around the impacts
of the pandemic on land use law?
John Nolan (30:05):
Well, I can't for sure attribute it to the
pandemic, but I think it's aninfluence, a very important
influence on what I'm about totell you.
In February of 22, which is theyear after the book was
published, the IntergovernmentalPanel on Climate Change
released its sixth assessmentreport.
It stated that its principalstrategy for managing climate
change is climate resilientdevelopment.
(30:26):
And this is theintergovernmental international
organization that's in charge offighting and managing climate
change.
And they said this in Februaryof 22, they said that the
principal strategy for managingclimate change is climate
resilient development.
But I don't think anybodyreally knew, or not too many
people really knew what thatmeant.
(30:47):
So a careful reading of thisrecent global report notes that
local governments, within theirland use regulatory authority,
have a major role to play inmanaging climate change.
My students call this a localsolution for a global problem.
Whether it's due to thepandemic or not is hard to say,
but there is a clear focus onequity for vulnerable
(31:09):
populations and on minimizingthe negative impact of climate
change on high heat, flooding,storm surges, and other aspects
of public health.
We've been amazed at how manycase studies we found that have
been laser focused on protectingpublic health.
So our research demonstratesthat many municipalities have
relatively recently turned theirattention to facilitating
(31:30):
development that is mitigative,adaptive, and resilient.
We have found case studiesfeaturing biophilic design,
environmental housing highalbido rules, low carbon
construction, climate resilientretrofits, heat island
mitigation, carbon neutralbuilding assessments, climate
justice plans, livingshorelines, shoreline protection
and anti-displacement, just toname a few.
(31:52):
The six assessment report alsorefers to enhancing carbon
intake and storage in the urbanenvironment, for example,
through biobase, buildingmaterials permeable, surfaces,
green roofs, tree canopies,green spaces, rivers, ponds, and
lakes.
The list goes on to includeimproving, repurposing, or
retrofitting the building,stock, tucking development
(32:14):
clothes to infrastructure,supporting walking, biking, and
public transit, targetinginfilling and compact urban
form, what we call low-carbonland use.
Much of this progress occurredsince the book was published and
is related to some degree tothe sophistication of strategies
that the pandemic had on localland use decision makers.
Jennifer Hiatt (32:35):
Professor Nolan, you are a law professor at Pace
University, and you've alreadymentioned multiple times
throughout the episode yourstudents.
So you took the research fromthis book and turned it into a
practical workshop at Pace LawSchool.
Tell us about that workshop.
John Nolan (32:52):
Well, as a research professor, I work with about 50
students on my publications andresearch projects.
We are the number one rankedenvironmental law school in the
country, and that draws somevery, very passionate and
talented students.
They innovate, they think hardabout what we should do.
So after the book waspublished, the students wanted
to do something more to get theword out about the many land use
(33:14):
strategies contained in itschapters.
They came up with the idea ofhosting student-run student
panel discussions on individualtopics like vegetated urbanism
and inland flooding.
The students reckoned that theycould record and link the
individual virtual panels andmake them available on our
website.
And then using social media,let the relevant actors know
(33:37):
about mysterious power of landuse.
The idea was to link the panelrecordings and call the
collection the workshop.
They took this idea one stepfurther and decided to design a
framework law for implementingclimate resilient development,
which is the majorrecommendation of the IPCC, and
which is just going live thismonth.
They are still at work on thiseffort looking for partner
(33:59):
organizations that areinterested in getting the word
out to as many stakeholders aspossible.
Jennifer Hiatt (34:04):
And our listeners, if they are
interested in this, there willbe a link to the climate
resilient development workshopseries in our show notes.
So you can go check it outthere.
And finally, this is booked onplanning.
So what are books that youwould recommend our readers
check out?
John Nolan (34:21):
It's funny, I did a couple of cartwheels trying to
figure out how to answer thisquestion.
There's so many, so many reallygood books.
And I I think that you do anexcellent job of promoting
important contemporary books onplanning and land use law.
So I'm focusing on some of theolder publications that I
learned from about theflexibility of the power of land
use if put in proper hands.
(34:42):
They were all authored in thenineteen nineties.
We could talk for a while aboutwhat that means, but I think
that during the nineteenseventies we learned a lot about
managing the environment andmanaging economic development
and dealing with sprawl.
And by 1990, there were enoughpeople who had learned about
that that they could write abook about it.
So the three books that Ilearned the most from in the
(35:05):
1990s were Zoning and theAmerican Dream, Promises Still
to Keep, a 1990 book by GeraldCaden and Charles Carr from
Harvard, Land Use in America,dated 1996, co-authored by Henry
Diamond at an amazing advisorycommittee that he put together
on what are we going to do aboutstraw and how can we use land
(35:25):
use law to combat it.
And then finally, The AmericanCity, What Works, What Doesn't,
1996 by Alexander Garvin.
Stephanie Rouse (35:34):
All really great books.
And it's nice to have kind of aspread in some older books.
We tend to, as you mentioned,focus on some of the more recent
publications.
So it's good to have some ofthese older books that are still
great foundations for land uselaw.
But John, thank you so much forjoining us on Bookdown Planning
to talk about your book,Choosing to Succeed, Land Use
(35:55):
Law and Climate Change.
John Nolan (35:57):
Stephanie and Jennifer, I respect you guys
very much and thank you forhaving me on.
Jennifer Hiatt (36:03):
We hope you enjoyed this conversation with
author John Nolan on his book,Choosing to Succeed, Land Use
Law and Climate Change.
You can get your own copythrough the publisher at the
Environmental Law Institute bysupporting your local bookstore
or online at bookshop.org slashshop slash bookdown planning, as
we do now have an affiliatepage with bookshop.org.
(36:23):
Remember to subscribe to theshow wherever you listen to
podcasts and please rate,review, and share the show.
Thank you for listening, andwe'll talk to you next time on
Bookdown Planning.
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