Thursday, July 2, 2015
Next month, I will end my nearly four-year tenure as Editor-in-Chief as the Journal of Affordable Housing & Community Development Law. I am so happy to be passing the torch to my very experienced Associate Editor, Laurie Hauber, who directs the Community Economic Development Program for Legal Services of Eastern Missouri in St. Louis. Recent events there and in my former home, Baltimore, have prompted Laurie to put together a feature issue on racial justice and community development. Here's the call for submissions:
ABA Journal of Affordable Housing & Community Development Law
Call for papers
The Journal of Affordable Housing & Community Development Law invites submissions for its next issue (Volume 24:2). We are seeking articles on racial justice as it relates to affordable housing or community and economic development. We encourage a broad range of submissions on this topic, which could range from discussion of the implications of siting low income housing tax credit developments in areas of high (or low) concentrated poverty to articles that consider the relationship between local government boundaries and community development initiatives. Submissions on topics other than racial justice are encouraged and will be considered for publication in future issues.
Interested authors should send a one- to two-paragraph abstract describing their proposals to the Journal’s new Editor–in-Chief, Laurie Hauber, at the email address below.
The Journal welcomes articles (typically 7,000-10,000 words (30–50 pages) as well as essays (usually 4,500–7,500 words (20–40 pages) from practitioners, academics, and students. Submissions of final articles and essays for Volume 24:2 issue should be made by September 1, 2015.
Please do not hesitate to contact any of us with questions:
Laurie Hauber, Editor–in-Chief , LJHauber@lsem.org
Laura Schwarz, Co-Editor, Lschwarz@renocavanaugh.com
Brandon Weiss, Co-Editor, email@example.com
Wednesday, July 1, 2015
Here is the monthly round-up: all of the land use law articles posted to the SSRN Property, Land Use & Real Estate Law eJournal in June. It is another hefty month of scholarship. This month also offers a number of international land use law articles that look tempting. Note: the articles are listed here in the reverse order of posting (e.g., articles posted at the beginning of the month are at the bottom), and thus the order is not indicative of download rankings.
What Does Wukan Offer? Land-Taking, Law, and Dispute Resolution
Fu Hualing and John Gillespie (eds.) Resolving Land Disputes in East Asia: Exploring the Limit of Law (Cambridge University Press, 2014).
The University of Hong Kong - Faculty of Law
Airbnb and the Housing Segment of the Modern 'Sharing Economy': Are Short-Term Rental Restrictions an Unconstitutional Taking?
Hastings Constitutional Law Quarterly, Vol. 42, 2015
University of Missouri at Kansas City - School of Law
Kelo v. New London: A Decade Later
Title News, June 2015
University of Connecticut School of Law
Mortgage as a Financial Product
Commonwealth of Puerto Rico
Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country
Stanford Environmental Law Journal, Forthcoming, University of Washington School of Law Research Paper No. 2015-21
Robert T. Anderson
University of Washington School of Law
Insuring Mangrove Forests for Their Role in Mitigating Coastal Erosion and Storm-Surge: An Australian Case Study
Wetlands, 33 2: 279-289, 2013
Justine Bell and Catherine Lovelock
The University of Queensland - T.C. Beirne School of Law and Independent
Restorating Due Process as the Essential First Step in Every Takings Case
Loyola Journal of Public Interest Law, 13 1: 1-60
Duane L. Ostler
Land, Law Reform and the FAA-Samoa
Lawasia Journal, 13 27-52
Jennifer C. Corrin
The University of Queensland, Centre for Public, International and Comparative Law, TC Beirne School of Law
Bills of Attainder and the Formation of American Takings Law at the Founding of the Republic
Campbell Law Review, 32 2: 227-284
Duane L. Ostler
Poverty, Police and the Offence of Public Nuisance
Bond Law Review, 20 2: 198-215
University of Queensland
Use of Property Rights Registers for Sustainability – A Queensland Case Study
Australian Property Law Journal, 17 1: 86-103
Justine Bell and Sharon Christensen
The University of Queensland - T.C. Beirne School of Law and Queensland University of Technology
Indigenous Lands and Constitutional Reform in Australia: A Canadian Comparison
Australian Indigenous Law Review, 15 2: 87-106
Margaret A. Stephenson
The University of Queensland - T.C. Beirne School of Law
Muddying the Waters Further: Kennon v Spry - 'Ownership', 'Control' and the Discretionary Trust
Australian Bar Review, 32 173-179
The University of Hong Kong - Faculty of Law
Sustaining Neighborhoods of Choice: From Land Bank(ing) to Land Trust(ing)
Washburn Law Journal, Vol. 54, No. 3, 2015
James J. Kelly Jr.
Notre Dame Law School
From Confrontation to Congruence: The Potential Role of Payments in Lieu of Taxes in the Economic Development Conversation
Public Budgeting & Finance, Vol. 35, Issue 2, pp. 19-39, 2015
Fred Mayhew and Tammy Renea Waymire
James Madison University - Department of Political Science and Northern Illinois University - Department of Accountancy
To Lease or Not to Lease? The Leasing of Indigenous Statutory Lands in Australia: Lessons from Canada
Commonwealth Law Bulletin, 35 3: 545-570
Margaret A. Stephenson
The University of Queensland - T.C. Beirne School of Law
'Just Piles of Rocks to Developers But Places of Worship to Native Americans' - Exploring the Significance of Earth Jurisprudence for South African Cultural Communities
Potchefstroom Electronic Law Journal, Vol. 18, No. 1, 2015
Matome M Ratiba
University of South Africa - School of Law
Environmental Justice as Spatial and Scalar Justice: A Regional Waste Facility or a Local Rubbish Dump Out of Place?
McGill International Journal of Sustainable Development Law & Policy, Vol. 9, No. 2, 2014
Melbourne Law School
Natural Gas Development: Extracting Externalities – Towards Precaution-Based Decision-Making
McGill International Journal of Sustainable Development Law & Policy, Vol. 8, No. 2, 2013
Sara K. Phillips and Mark S. Goldberg
Centre for International Sustainable Development law and McGill University - Faculty of Medicine
The Coase Theorem, Land Use Entitlements, and Rational Government
Zoning Rules! The Economics of Land Use Regulation. Cambridge, Mass.: Lincoln Institute of Land Policy, 2015, Forthcoming
William A. Fischel
Dartmouth College - Department of Economics
Preserving Homeownership Through the Power of the Collective: Lessons for Barcelona
297 Revista de Derecho Urbanístico y Medio Ambiente 31 (2015),
Julie D. Lawton
DePaul University - College of Law
Funding Conservation in Idaho: A Survey of Federal, State & Local Resources Assisting Conservation on Private Lands
Stephen R. Miller
University of Idaho College of Law - Boise
Introduction to: Property, Land and Territory in the Making of Overseas Empires
Jose Vicente Serrao et al (eds), Property Rights, Land and Territory in the European Overseas Empires. Lisbon: CEHC-IUL, 2014 (online 2015), pp. 7-17. (Book DOI: 10.15847/cehc.prlteoe.945X000)
Jose Vicente Serrao
University Institute of Lisbon (ISCTE-IUL)
Pro Farmer, Pro Industry Land Acqusition Act
Vijaya Krushna Varma
Wanted: A Legal Regime to Clean Up Orphaned/Abandoned Mines in Canada
McGill International Journal of Sustainable Development Law & Policy, Vol. 6, No. 2, 2010
Joseph F. Catrilli
Canadian Environmental Law Association
Social Safeguards in REDD: A Review of Possible Mechanisms to Protect the Rights and Interests of Indigenous and Forest-Dependent Communities in a Future System for REDD
McGill International Journal of Sustainable Development Law & Policy, Vol. 6, No. 1, 2010
Foundation for International Environmental Law and Development (FIELD)
Historic Wreck Salvage: An International Perspective
Tulane Maritime Law Journal, Vol. 33, No. 2, p. 347, 2009
Craig J. S. Forrest
The University of Queensland - TC Beirne School of Law
Land Use Law Update: Will Reed v. Town of Gilbert Require Municipalities Throughout the Country to Rewrite Their Sign Codes?
29 Municipal Law Journal 16 (Winter 2015), Touro Law Center Legal Studies Research Paper
Touro College - Jacob D. Fuchsberg Law Center
Recent Developments in Social Impact Management in Extractive Resource Development in Peru
McGill International Journal of Sustainable Development Law & Policy, Vol. 5, No. 2, 2009
University of California Hastings College of the Law
Re-Zoning Alberta: Smart Regulation for Smart Growth
McGill International Journal of Sustainable Development Law & Policy, Vol. 5, No. 1, 2009
Borden Ladner Gervais LLP
The Politics of Takings Clauses
Northwestern University Law Review, Vol. 109, No. 3, 2015, Virginia Public Law and Legal Theory Research Paper No. 34
University of Virginia School of Law
Separate and Unequal: The American Dream Unfulfilled
16 Rutgers Race & L. Rev. 183 (2015)
Peter C. LaGreca
Supplementing Forest Sustainability Certificates with Fiscal Instruments
Rotterdam Institute of Law and Economics (RILE) Working Paper Series No. 2015/7
Dirk Heine , Michael G. Faure and Chih-Ching Lan
Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics , University of Maastricht - Faculty of Law, Metro and Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics
A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective
4 Michigan Journal of Environmental & Administrative Law 303 (2015)
Donald J. Kochan
Chapman University, The Dale E. Fowler School of Law
Reforming REIT Taxation (Or Not)
Houston Law Review, Vol. 53, 2015, Forthcoming, Brooklyn Law School, Legal Studies Paper No. 416
Bradley T. Borden
Brooklyn Law School
The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam
University of Illinois Law Review, Forthcoming, Cornell Legal Studies Research Paper No. 15-15
Gregory S. Alexander
Cornell Law School
Defending the Constitutionality of the Endangered Species Act: The Case of the Utah Prairie Dog
"On the Merits"--Washington Legal Foundation, June 6, 2015
Michael C. Blumm
Lewis & Clark Law School
Effects of Protected Areas on Forest Cover Change and Local Communities: Evidence from the Peruvian Amazon
Juan Jose Miranda , Leonardo Corral , Allen Blackman , Gregory Asner and Eirivelthon Lima
World Bank , Inter-American Development Bank (IDB) , Resources for the Future , Carnegie Institution for Science - Department of Global Ecology and Inter-American Development Bank (IDB)
We Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom
Boston University Law Review, Vol. 95, p. 929, 2015
Joseph William Singer
Harvard Law School
The Indian States of America: Parallel Universes & Overlapping Sovereignty
38 Am. Indian L. Rev. 1 (2014)
Joseph William Singer
Harvard Law School
Practical Precautions, Reasonable Responses: How South Australia's Planning Regime Adapts to the Coastal Impacts of Climate Change
Environmental and Planning Law Journal, Vol. 32, pp. 256-277, 2015
University of South Australia - School of Law
To Bargain or Not to Bargain? A Response to Bargaining for Development Post-Koontz
Florida Law Review Forum, Vol. 67, No. 5, 2015, Pepperdine University Legal Studies Research Paper No. 2015/8
Shelley Ross Saxer
Pepperdine University School of Law
Environment as a Human Right: Legal Implications
The IUP Law Review, Vol. IV, No. 3, July 2014, pp. 73-79
The ICFAI Foundation for Higher Education (IFHE)
The Supreme Court of India and Inter-State Water Dispute: An Analysis of the Judgements on Mullaperiyar Dam
Water Policy, 2015
M. P. Ram Mohan and Krittika Chavaly
The Public Trust Doctrine in the Shadow of State Environmental Rights Laws: A Case Study
45 Environmental Law 431 (2015), Minnesota Legal Studies Research Paper No. 15-15
Alexandra B. Klass
University of Minnesota Law School
Greening the Tube: Paddling Toward Comprehensive Surf Break Protection
37 Environs Environmental Law and Policy Journal 45 (2013)
University of Florida - Fredric G. Levin College of Law
The Potential Meanings of a Constitutional Public Trust
Environmental Law, Vol. 45, No. 463, 2015, Widener Law School Legal Studies Research Paper No. 15-12
John C. Dernbach
Widener University - School of Law
Развитие Государственно-Частного Партнерства Как Ключевое Условие Решения Вопросов Строительства Доступного Жилья, Создание Социальной и Инженерной Структуры (The Development of Public-Private Partnerships as a Key Condition for the Solution of Issues of Affordable Housing, the Creation of Social and Engineering Infrastructure)
Elena Vladimirovna Ivankina and N N Rogozhina
Russian Presidential Academy of National Economy and Public Administration (RANEPA) and Russian Presidential Academy of National Economy and Public Administration (RANEPA) - Institute of Sectoral Management
Planning for Climate Change and Sea Level Rise: Queensland's New Coastal Plan
Environmental and Planning Law Journal, 29 1: 61-74, 2012, University of Queensland TC Beirne School of Law Research Paper No. 15-50
The University of Queensland - T.C. Beirne School of Law
Propuestas Legislativas Sobre La Responsabilidad Del Hostelero (Legislative Proposals About the Hostel's Owner Liability)
InDret, Vol. 2, 2015
Paula Castaños Casto
University of Malaga - Facultad de Derecho
President Eisenhower's 1956 Prediction Becomes a Reality: The New Art of the REIT Spin
Energy in the Ecopolis
Environmental Law Reporter, Vol. 45, 2015
Sara C. Bronin
University of Connecticut - School of Law
Tuesday, June 30, 2015
While everyone was rightly focused on the flurry of historic decisions at the end of the Supreme Court term (including the raisins takings case, my personal favorite) the court also granted cert in an interesting sign regulation case that, until now, was not on my radar. Robert Thomas, head of the eminent domain committee of the ABA's State & Local Government Law Section, posted an interesting summary of the case on his blog:
Central Radio placed a banner on the side of its building protesting government’s attempt to take the building by eminent domain. The City of Norfolk quickly cited Central Radio for violating the City’s sign code, despite not having enforced the code against any other political sign in at least a quarter-century. Although the sign code prohibited Central Radio’s protest banner, it exempts various other categories of signs from regulation. For example, Central Radio’s banner would have been allowed if, rather than protesting city policy, it depicted the city crest or flag.
The day after this Court heard argument in Reed v. Town of Gilbert, No. 13-502, the Fourth Circuit, over a dissent from Judge Gregory, upheld Norfolk’s sign code. Following the approach adopted by the Ninth Circuit in Reed, the Fourth Circuit found the challenged provisions content-neutral. Applying intermediate scrutiny to the sign code, it held that Norfolk was justified in restricting Central Radio’s banner because some passersby had honked, waved, or shouted in support of it.
The questions presented are:
1. Does Norfolk’s mere assertion of a content-neutral justification or lack of discriminatory motive render its facially content-based sign code content neutral and justify the code’s differential treatment of Central Radio’s protest banner?
2. Can government restrict a protest sign on private property simply because some passersby honk, wave, or yell in support of its message?
Given the court's general hostility to sign regulation (see, e.g. Reed v. Gilbert as discussed above and covered in this WaPo story) is the outcome in this forthcoming case a forgone conclusion?
Jamie Baker Roskie
Monday, June 29, 2015
The International Association for the Study of the Commons and LABGOV have teamed up with Fordham's Urban Law Center to put together a conference entitled The City as a Commons: Reconceiving Urban Space, Common Goods and City Governance. The conference will take place in Bologna, Italy on Nov. 6-7, 2015. Abstracts are due before August 10, 2015 12 AM CET (so make sure you submit yours (email to firstname.lastname@example.org ) by 6pm EDT on August 9th to avoid any heartache over the ambiguity inherent in midnight deadlines). Further details, including the six themes of the conference, are available on the website (just keep scrolling down).
Thursday, June 25, 2015
Usually the crew here at land use profs is quick to jump on any big takings case that comes out, but we have all been hesitating a bit about the Horne case decided on Monday. This may have been because Horne is a case about personal property, not real property. As Matt Festa will tell you though, everything is really about land use (or at least has a land-use angle).
I could make some comment on agricultural regulation being about land use, something particularly on my mind after spending time visiting Fresno farmland last week (more on that in coming days), but really it isn't the facts of this case or even its major holding that make it a land use issue, but let's begin with those.
Wednesday, June 24, 2015
One of the most important decisions in American land use will come this fall with the decision of whether to list the sage grouse under the Endangered Species Act. There has been much written about the sage grouse; however, today, the don of environmental journalism in Idaho, Rocky Barker, had a nice piece on other values of preserving America's great sagebrush landscape, which spans out over 11 states and once covered over 300 million acres. Read the article here. A nice video is reposted below:
Tuesday, June 23, 2015
First off, thanks to Stephen Miller for shepherding the blog for the last year-plus. We co- and contributing editors have been off on various adventures, but Stephen has asked us to recommit to regular blogging and I know we're all excited to do so.
Back before I became a land use lawyer in private practice in Colorado, I was the Managing Attorney of the Land Use Clinic at the University of Georgia. We did a fair amount of work around big box development, including maintaining a guidebook for Georgia local governments. So, I continue to follow news about big box stores with some interest. Recently, the Institute for Local Self-Reliance published a piece, "For Cities, Big-Box Stores Are Becoming Even More of a Terrible Deal." The story outlines the efforts of chains like Lowes to avoid local property taxes by an ingenious method:
From the story:
Figuring out the value of a property can be a complicated business. In Michigan, town and county assessors typically use a property’s construction costs, minus depreciation, as a primary metric to determine its fair market value; taxable value is half that amount. Property owners sometimes prefer, instead, to use the sale prices of comparable properties. This was the approach that Lowe’s took—with a catch. Lowe’s looked at the definition of the word “comparable,” and decided to stretch it. It said that, because big-box stores are designed to be functionally obsolescent, that comparable stores are those that have been closed and are sitting empty—the “dark stores” behind this method’s name.
“Unlike many other commercial properties,” the assessor hired by Lowe’s argued in court, “free standing ‘big-box’ stores like the subject [property] are not constructed for the purpose of thereafter selling or leasing the property in the marketplace.”
It’s an established part of the big-box retail model that the boxes themselves be custom-built, cheaply constructed, and disposable. If retailers decide that they need a bigger space, it’s cheaper for them to leave the old one behind and build a new one. When Walmart, for instance, opened its wave of new, twice-the-size Supercenters across the country in 2007, it left hundreds of vacant stores behind it. This means that new, successful stores like the Marquette Lowe’s are rarely the locations that are up for sale, and that when big-box stores do come on the market, it’s because they’ve already failed or been abandoned by the retailer that built them. In other words, Lowe’s was saying, it had built a property that, despite generating roughly $30 million in annual sales for the company, had very little value, and because of that, it should get a break in its property taxes.
According to the report, this is part of a larger scheme by large chains to avoid property tax implications, which has significant ramifications for local governments:
As one example, take Walmart, the largest among them, which looks for tax loopholes wherever it can find them. “For every kind of tax that a retail company would normally pay or remit to support public services, Walmart has engineered an aggressive scheme to pay less and keep more,” found a 2011 report by the non-profit research organization Good Jobs First. These include using its fleet of lawyers to systematically challenge its property tax assessments, and gimmicks such as deducting rent payments made to itself through captive real estate investment trusts. Good Jobs First calculated that these tactics cost state and local governments more than $400 million a year in lost revenue, and concluded, “Walmart may be more of a fiscal burden than a benefit to many of the communities in which it operates.”
There’s also the other side of a local government’s ledger. Big-box retail is expensive to maintain. Because these stores are located outside of town centers and designed for car culture, they require local governments to extend and bolster public services and infrastructure like sewers, roads, and police forces. They also rely on these services heavily. When eight communities in central Ohio looked at the fiscal impacts of big-box retail, they found that the stores actually demanded more public services than they generated in revenue, and created a drain on municipal budgets to the tune of a net annual loss of $0.44 per square foot, or about $80,000 for a typical Walmart supercenter.
Here at LUPB we've blogged a great deal about big box stores (a search of the site generates over 200 hits) and really, rarely is it good news. But, we'll keep our eyes open for future developments.
Jamie Baker Roskie
Monday, June 22, 2015
The Environmental Law Collaborative's first book is now available from ELI. The ELC is a bi-annual gathering of law professors to discuss challenging issues. We gather with a minimal agenda to explore an important topic and consider the best way to move the conversation forward. Our first meeting in 2012 examined the concept of sustainability to inquire into whether it changes (or should change) when we add the lens of sustainability. That gathering led to a series of blog posts on our sister blog (Environmental Law Profs) and were published together in ELR. Most of the participants then expanded on the posts contributing chapters to a book: Rethinking Sustainability to Meet the Climate Change Challenge.
Cribbing from ELI's press release:
Has the concept of sustainability as we know it reached the end of its useful life? It is a term that means many things to many people, but it has been a positive driving force across all levels of society in a broad-based effort—either through laws and treaties or voluntary action—to keep our planet and our people healthy. But none of those efforts have managed to prevent climate change. It’s a reality that’s here to stay, and it’s bigger than we would have imagined even 20 years ago.
This volume presents a collection of papers from experts in the field articulating a wide range of thoughtful ways in which various conceptions of sustainability need to be re-examined, refined, or articulated in greater detail to address these challenges. The chapters reflect the kind of thoughtful and sophisticated thinking that is needed to accelerate the transition to sustainability in the face of a changing climate. As editors Jessica Owley and Keith Hirokawa note, one of the main challenges is the need for a better understanding of the issues and developing the proper means of communicating them.
The work is provocative and timely. Profs. Owley and Hirokawa have deftly edited a well annotated book that is essential in assessing whether sustainable development can address—or survive—the problems of climate disruption.”—Nicholas A. Robinson, Gilbert & Sarah Kerlin Professor of Environmental Law Emeritus, Pace University School of Law
I guess to get the rest of the chapters, you'll have to buy the book (or juts ask the authors nicely).
Zoning for Solar Energy Webinar
(There is no charge for this webinar)
Description: Pace Land Use Law Center on behalf of the NY-Sun PV Trainers Network will be hosting a Zoning for Solar Energy webinar on July 9th, from 1:00-2:30pm. This presentation will review strategies and best practices for developing a clear, comprehensive, and enforceable solar regulatory framework. The workshop will present sample provisions for permitted uses, dimensional standards, development standards and definitions. In addition, optional provisions, such as solar access and solar ready home requirements will be reviewed.
I'm delighted to announce that my Economic Development Clinic here at the U of Idaho College of Law has just released Funding Conservation in Idaho: A Survey of Federal, State & Local Resources Assisting Conservation on Private Lands.
Funding Conservation in Idaho, which was written in association with the Idaho Coalition of Land Trusts, is a guide to the most common funding resources available for conservation on private land in Idaho. While this guide focuses on funding sources of particular use in the Gem State, it would like prove a useful starting point for others seeking to understand some of the major private land conservation funding sources that apply across the country.
Conservation funding sources discussed include: North American Wetlands Conservation Act; Pacific Coastal Salmon Recovery F und; Partners for Fish and Wildlife Fund; Recovery Land Acquisition Grants; Land and Water Conservation Fund; National Fish Passage Program; Cooperative Endangered Species Conservation; Environmental Quality Incentives Program; Forest Legacy Program; the Agricultural Conservation Easement Program – Agricultural Land Easements; Agricultural Conservation Easement Program – Wetland Reserve Easements; Bonneville Power Administration – Wildlife Mitigation; Conservation Stewardship Program; Clean Water Act § 319 Funds; Boise City Foothills Levy; and Blaine County Land, Water and Wildlife Program.
It is anticipated that this document will be updated and improved over time. This was my first foray into the private lands conservation funding, and so I welcome comments on how to make it better from those with more experience.
For the housers out there...
On Tuesday, June 23, at 2 p.m. ET, please join the Urban Land Institute, the John D. and Catherine T. MacArthur Foundation, and Hart Research for an hour-long discussion of America's housing needs.
This interactive video broadcast will examine the results of three recent housing surveys, and panelists will answer your questions about Americans' attitudes toward housing.
Alternatively, click here at 2 p.m. ET, June 23, to watch the event live, and submit questions on Twitter using #TalkHousing.
Among other topics, the panelists will reveal:
Hosting this event are Ianna Kachoris, program officer at the MacArthur Foundation; Maya Brennan, vice president of housing at the ULI Terwilliger Center for Housing; and Corrie Hunt vice president at Hart Research.
Friday, June 19, 2015
All of us here at Land Use Profs owe a big debt of gratitude to Stephen Miller these days. He has been keeping the blog going and posting fascinating discussions and useful information. I am finally returning from my 6 month blogging hiatus and plan to use the next few days to tell you about what I had been up to during that time. Self-indulgent I know, but hey it is a blog after all. There have also been some interesting articles coming out in peer review journals that I want to highlight and some random thoughts about field research for land use issues. More to come!
From Becca Robbins Gisclair, an old friend, comes word of several positions at the Ocean Conservancy. Pass along to anyone who might be interested:
We’re hiring for a couple of Arctic team members, an Arctic Program Specialist and a Circumpolar Conservation Union Coordinator . Both are mid-level positions, 3-5 years of experience working on conservation or environmental policy. The Arctic Program Specialist position is based in Anchorage or Portland and the CCU position is based in Portland or DC.
We are also hiring someone to work with Janis Searles, our president as Special Assistant to the President . It’s a part admin/part legal position which would be great for someone coming out of law school and wanting to get into the conservation field.
Thursday, June 18, 2015
I was a guest on Bloomberg Radio's Bloomberg Law, along with Prof. Mark Graber, University of Maryland Francis King Carey School of Law, discussing the U.S. Supreme Court's landmark sign regulation case, Reed v. Town of Gilbert, which was issued today. The interview is available here.
Pope Francis released his much anticipated encyclical on the environment and climate change this morning, which is available here. The encyclical has some great passages on land use, in particular, a section entitled "The Ecology of Daily Life," which I am copying below. Things really get going around Paragraph 149, but I am copying the entirety of this section of the encyclical below.
III. The Ecology of Daily Life
147. Authentic development includes efforts to bring about an integral improvement in the quality of human life, and this entails considering the setting in which people live their lives. These settings influence the way we think, feel and act. In our rooms, our homes, our workplaces and neighbourhoods, we use our environment as a way of expressing our identity. We make every effort to adapt to our environment, but when it is disorderly, chaotic or saturated with noise and ugliness, such overstimulation makes it difficult to find ourselves integrated and happy.
148. An admirable creativity and generosity is shown by persons and groups who respond to environmental limitations by alleviating the adverse effects of their surroundings and learning to live their lives amid disorder and uncertainty. For example, in some places, where the façades of buildings are derelict, people show great care for the interior of their homes, or find contentment in the kindness and friendliness of others. A wholesome social life can light up a seemingly undesirable environment. At times a commendable human ecology is practised by the poor despite numerous hardships. The feeling of asphyxiation brought on by densely populated residential areas is countered if close and warm relationships develop, if communities are created, if the limitations of the environment are compensated for in the interior of each person who feels held within a network of solidarity and belonging. In this way, any place can turn from being a hell on earth into the setting for a dignified life.
149. The extreme poverty experienced in areas lacking harmony, open spaces or potential for integration, can lead to incidents of brutality and to exploitation by criminal organizations. In the unstable neighbourhoods of mega-cities, the daily experience of overcrowding and social anonymity can create a sense of uprootedness which spawns antisocial behaviour and violence. Nonetheless, I wish to insist that love always proves more powerful. Many people in these conditions are able to weave bonds of belonging and togetherness which convert overcrowding into an experience of community in which the walls of the ego are torn down and the barriers of selfishness overcome. This experience of a communitarian salvation often generates creative ideas for the improvement of a building or a neighbourhood.
150. Given the interrelationship between living space and human behaviour, those who design buildings, neighbourhoods, public spaces and cities, ought to draw on the various disciplines which help us to understand people’s thought processes, symbolic language and ways of acting. It is not enough to seek the beauty of design. More precious still is the service we offer to another kind of beauty: people’s quality of life, their adaptation to the environment, encounter and mutual assistance. Here too, we see how important it is that urban planning always take into consideration the views of those who will live in these areas.
151. There is also a need to protect those common areas, visual landmarks and urban landscapes which increase our sense of belonging, of rootedness, of “feeling at home” within a city which includes us and brings us together. Some authors have emphasized the values frequently found, for example, in the villas, chabolas or favelas of Latin America. It is important that the different parts of a city be well integrated and that those who live there have a sense of the whole, rather than being confined to one neighbourhood and failing to see the larger city as space which they share with others. Interventions which affect the urban or rural landscape should take into account how various elements combine to form a whole which is perceived by its inhabitants as a coherent and meaningful framework for their lives. Others will then no longer be seen as strangers, but as part of a “we” which all of us are working to create. For this same reason, in both urban and rural settings, it is helpful to set aside some places which can be preserved and protected from constant changes brought by human intervention.
152. Lack of housing is a grave problem in many parts of the world, both in rural areas and in large cities, since state budgets usually cover only a small portion of the demand. Not only the poor, but many other members of society as well, find it difficult to own a home. Having a home has much to do with a sense of personal dignity and the growth of families. This is a major issue for human ecology. In some places, where makeshift shanty towns have sprung up, this will mean developing those neighbourhoods rather than razing or displacing them. When the poor live in unsanitary slums or in dangerous tenements, “in cases where it is necessary to relocate them, in order not to heap suffering upon suffering, adequate information needs to be given beforehand, with choices of decent housing offered, and the people directly involved must be part of the process”. At the same time, creativity should be shown in integrating rundown neighbourhoods into a welcoming city: “How beautiful those cities which overcome paralyzing mistrust, integrate those who are different and make this very integration a new factor of development! How attractive are those cities which, even in their architectural design, are full of spaces which connect, relate and favour the recognition of others!”
153. The quality of life in cities has much to do with systems of transport, which are often a source of much suffering for those who use them. Many cars, used by one or more people, circulate in cities, causing traffic congestion, raising the level of pollution, and consuming enormous quantities of non-renewable energy. This makes it necessary to build more roads and parking areas which spoil the urban landscape. Many specialists agree on the need to give priority to public transportation. Yet some measures needed will not prove easily acceptable to society unless substantial improvements are made in the systems themselves, which in many cities force people to put up with undignified conditions due to crowding, inconvenience, infrequent service and lack of safety.
154. Respect for our dignity as human beings often jars with the chaotic realities that people have to endure in city life. Yet this should not make us overlook the abandonment and neglect also experienced by some rural populations which lack access to essential services and where some workers are reduced to conditions of servitude, without rights or even the hope of a more dignified life.
Wednesday, June 17, 2015
The 18th Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations
Friday, September 25, 2015
The University of Maryland Francis King Carey School of Law
ABOUT THE CONFERENCE
This conference explores the takings issue as it relates to land use, environmental rules and other forms of economic regulation. In addition to offering a basic education in modern takings law, the conference brings together a diverse group of leading scholars and experienced practitioners to discuss cutting-edge issues. Some of the topics to be discussed include the practical implications of the U.S. Supreme Court's recent takings decisions and pending takings issues before the Maryland Court of Appeals. The conference will also address the significance of the Supreme Court decision in Kelo v. City of New London on the 10th anniversary of that controversial case. Other issues to be discussed include potential takings issues arising from government efforts to deal with flooding and other disasters, local government access to insurance against takings claims, and novel takings claims based on the theory that property owners have an entitlement to regulatory protections.
CLE accreditation will be requested for 7.75 CLE credits (based on a 60-minute hour), and 9.3 CLE credits (based on a 50-minute hour).
KEY QUESTIONS TO BE ADDRESSED
- Where is the U.S. Supreme Court headed on takings?
- How should we celebrate the tenth birthday of the Kelo decision?
- Can government failure to regulate give rise to takings claims?
- Do personal and real property have the same level of protection under the Takings Clause?
- Can local governments obtain insurance against takings claims?
- How will the courts resolve the AIG and Fannie Mae bailout takings cases?
- Can the bankruptcy process be redesigned to better protect homeowners?
7:30 to 9:30
Registration and Continental Breakfast
8:00 to 9:00
Introductory Program on Takings and Related Constitutional Doctrines
Robert Meltz, Congressional Research Service
Daniel Siegel, California Attorney General's Office
9:00 to 9:15
Welcome and Introductions
9:15 to 10:15
The Nature of Property in Takings Cases
Lynda L. Butler, William & Mary Law School
Steven R. Johnson, Maryland Department of the Environment
Michael Pappas, University of Maryland Francis King Carey School of Law
10:15 to 10:30
10:30 to 11:45
Nestor M. Davidson, Fordham Law School
Kenneth M. Dintzer, U.S. Department of Justice
Jerry Stouck, Greenberg Traurig LLP
Jennifer Taub, Vermont Law School
11:45 to 12:30
Takings and Insurance
David Dana, Northwestern University School of Law
Christopher Serkin, Vanderbilt Law School
12:30 to 1:00
1:00 to 1:30
Robert Percival, University of Maryland Francis King Carey School of Law
Ways Not to Think About Regulatory Takings: Professor Tribe and Why Takings Issues Will Outlive Plastic Trees
1:30 to 2:30
Disasters and Takings
Mark Davis, Tulane University School of Law
James Gette, U.S. Department of Justice
Justin Pidot, University of Denver Sturm College of Law
2:30 to 3:30
Kelo Ten Years Out
Alexandra Klass, University of Minnesota Law School
Ilya Somin, George Mason University School of Law
Elva E. Tillman, Baltimore Solicitor's Office
3:30 to 3:45
3:45 to 5:15
Whither the Supreme Court on Takings
J. Peter Byrne, Georgetown University Law Center
John D. Echeverria, Vermont Law School
Edwin S. Kneedler, U.S. Department of Justice
Carol Rose, Yale and Arizona Law Schools
Daniel P. Selmi, Loyola Law School
5:15 to 6:30
Monday, June 15, 2015
In major decision, California Supreme Court upholds inclusionary housing ordinance as valid exercise of police power and not an exaction
Today, the California Supreme Court upheld an inclusionary housing ordinance adopted by the City of San Jose in California Building Industry Association v. City of San Jose. In upholding the inclusionary housing ordinance, the Supreme Court concluded that the adoption of the ordinance was a valid exercise of the City's police power and not an exaction subject to the constitutionally-based reasonable relationship standard. Lots of Nollan/Dolan / Koontz for you exactions-case lovers. See Slip Op. 25 et seq. After laying out the Nollan / Dolan / Koontz line of reasoning, the Court refused to apply it to the inclusionary housing ordinace, instead noting:
In the present case, contrary to CBIA‘s contention, the San Jose inclusionary housing ordinance does not violate the unconstitutional conditions doctrine [of Nollan / Dolan / Koontz] because there is no exaction — the ordinance does not require a developer to give up a property interest for which the government would have been required to pay just compensation under the takings clause outside of the permit process. As summarized above, the principal requirement that the challenged ordinance imposes upon a developer is that the developer sell 15 percent of its on-site for-sale units at an affordable housing price. This condition does not require the developer to dedicate any portion of its property to the public or to pay any money to the public. Instead, like many other land use regulations, this condition simply places a restriction on the way the developer may use its property by limiting the price for which the developer may offer some of its units for sale. (See, e.g., Yee v. Escondido (1992) 503 U.S. 519, 532 (Yee) [describing mobilehome park rent control ordinance as ―a regulation of [the mobilehome park owners‘] use of their property‖].) Contrary to CBIA‘s contention, such a requirement does not constitute an exaction for purposes of the Nollan/Dolan line of decisions and does not trigger application of the unconstitutional conditions doctrine.
Rather than being an exaction, the ordinance falls within what we have already described as municipalities‘ general broad discretion to regulate the use of real property to serve the legitimate interests of the general public and the community at large. For example, municipalities may designate certain areas of a city where only residential units may be built and other areas where only commercial projects are permitted. (See, e.g., Euclid, supra, 272 U.S. 365; Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 460.) If a municipality finds that it is in the public interest, it may specify where certain types of retail establishments may be operated and other areas where they may not. (See, e.g., Hernandez v. City of Hanford (2007) 41 Cal.4th 279, 296-298 & fn. 10.) If a municipality concludes that the city already has a sufficient number of a specific type of business in a particular neighborhood — for example, adult entertainment businesses — it may prohibit other property owners from using their property in that area for such businesses. (See, e.g., Young v. American Mini Theatres (1976) 427 U.S. 50; Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41.) Similarly, if a municipality determines that a particular neighborhood or the community in general is in special need of a specific type of residential development or business establishment — such as a multiunit residential project or a retail shopping center — it may adopt land use regulations to serve such a need. (See, e.g., Ensign Bickford Realty Corp. v. City Council (1977) 68 Cal.App.3d 467, 477-478.) In addition, of course, a municipality may impose land use limitations on the height of buildings, set-back requirements, density limits (lot size and number of units per lot), bedroom requirements and a variety of other use restrictions. (See, e.g., Griffin Development Co. v. City of Oxnard (1985) 39 Cal.3d 256, 265-266.)
Slip Op. at 31-32. The decision is a huge win for California cities.
Donald J. Kochan (Chapman) has just published A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective in the Michigan Journal of Environmental & Administrative Law. Here is the abstract:
Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial land use controls and initial assignments based on inherent rights and obligations arising as intrinsic to the system; (3) private land use controls that can achieve alterations in the initial assignments of rights and obligations through voluntary transfers; and (4) public land use controls, including legislative and regulatory means to force adjustments to initial assignments. The Article posits that players in the land use control game must assess their options in each category and appreciate the ability, and sometimes the necessity, to move between these four categories. Developing an understanding of the system through a conceptual framework this Article calls the “Dynamic Circle of Land Use Controls” better situates one to see all of the system’s parts and, more importantly, to strategically plan one’s route through the system to achieve a desired result. After explaining the options and the framework, this Article provides two concrete, illustrative examples for applying the framework: dueling neighbors over the right to paint a house pink and competitive resource extractors (owners of coal and coal bed methane) with complex deeds and nearly unresolvable conflicts in developing their assets.
Kochan has also provided the following helpful graphic from his article:
Friday, June 12, 2015
I became a co-editor of Land Use Prof Blog three years ago. At that time, we received about 50-150 page views a day; these days, we typically receive anywhere from 400-1,000 page views daily. In the last year, we have received over 125,000 page views. To help make the blog better, it would be really helpful to understand who our new readers are and what folks want to see from the blog. If you could answer the three questions below, we'd greatly appreciate it! We welcome general comments in the third, open-ended text box below.
We will keep this survey up for a month or so and will share results of the survey later this summer presuming we receive enough responses to prove meaningful.