Wednesday, September 19, 2018

APA launches a new timeline of planning

The American Planning Association has a nifty new timeline of planning, which is worth a look and might be a good background tool to mention for students.  It is available here.

September 19, 2018 | Permalink | Comments (0)

Thursday, September 13, 2018

Vacant Property Research Network issues new policy brief on strategic code enforcement

From Kermit Lind...

The Vacant Property Research Network has issued new policy brief on strategic code enforcement.  You can view it here.  

September 13, 2018 | Permalink | Comments (0)

Sunday, September 9, 2018

CFP: ABA Journal of Affordable Housing & Community Dev Law: Sustainability in Affordable Housing, Fair Housing & Community Development

From Tim Iglesias:

ABA Journal of Affordable Housing & Community Development Law

 

Call for Papers

 

Sustainability in Affordable Housing, Fair Housing

 & Community Development

 

Abstracts due October 15, 2018

 

Drafts due January 1, 2019

TheJournal of Affordable Housing & Community Development Law(the Journal)invites articles and essays on the theme of sustainability in affordable housing, fair housing and community development. Contributions couldexplore sustainability from environmental, economic, social or political perspectives and address topics ranging from green building and disaster preparedness/response to affordable housing preservation to funding for local fair housing organizations. Articles and essays could analyze new issues, tell success stories and draw lessons, or explore problems and propose legal and policy recommendations. The Journalwelcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words). 

In addition, the Journal welcomes articles and essays on any of the Journal’straditional subjects: affordable housing, fair housing and community/economic development. Topics could include important developments in the field; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies.

The Journalis the nation’s only law journal dedicated to affordable housing and community development law.  The Journaleducates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at iglesias@usfca.eduby October 15, 2018. Submissions of final articles and essays are due by January 1, 2019.The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

September 9, 2018 | Permalink | Comments (0)

Friday, September 7, 2018

Free Online Sept. 14: ABA State & Local Gov Land Use Committee presentation: "Mt. Laurel: An Update"

From Sarah Adams-Schoen:
 
Next Friday's online meeting of the ABA State & Local Government Law Land Use Committee will feature a presentation on "Mt. Laurel: An Update," by Judge (retired) Peter A. Buchsbaum & Kevin D. Walsh, Exec. Dir. of the Fair Share Housing Center. The event is Fri., Sept. 14, 1-2 CT. 
 
The meeting is open to anyone, so please feel free to join if you're interested, and please forward this invitation to students or others you know who may be interested.  
 
To attend, simply join the online meeting on September 14 at 1 pm CT, by clicking (or copying and pasting into your browser): 
 
 
(You can also join the meeting from a mobile device by downloading the Zoom app and then clicking https://zoom.us/j/8013549496, or from your phone by calling either +1 669 900 6833 (US Toll) or +1 929 436 2866 (US Toll) and entering the Meeting ID: 801-354-9496. International numbers are available at https://zoom.us/u/dkiEeM2u.)

September 7, 2018 | Permalink | Comments (0)

Wednesday, September 5, 2018

Oct 19: Law, Planning and Wildfire in the Wildland-Urban Interface: The Future of Government and Governance of Disaster in the West

I am pleased to announce that on October 19, 2018, the University of Idaho College of Law, along with UI's Bioregional Planning Department, Boise State University's School of Public Service, and the Idaho Department of Lands, will host a day-long event on legal and planning tools for wildfire management in the wildland-urban interface.  

In addition, the events will be broadcast live on the Internet and archived.  I hope some of you will be able to join us in person or online.  The schedule and registration just went public and are reproduced below.  The official page is here.

 

 

Law, Planning and Wildfire in the Wildland-Urban Interface: The Future of Government and Governance of Disaster in the West

State Capitol Building, Lincoln Auditorium
Boise, Idaho
Oct. 19, 2018
8:30 a.m. – 5:00 p.m. 

Schedule

8:00 - 8:45 Registration and Light Breakfast (Capitol Cafeteria)
8:45 - 9:00 Introductory Remarks
Stephen R. Miller, Associate Dean & Professor of Law, University of Idaho College of Law
9:00 - 10:00 How is Wildfire in the WUI Different? How Do We Plan for It?

Trends, Impacts, and the Economics of Wildfires at the Community Scale
Kimiko Barrett, Research & Policy Analyst, Headwaters Economics

Using Pre-Disaster Community Capacity to Address Land Use Post-Wildfire: Three California Case Studies
Edith Hannigan, Land Use Planning Policy Manager, California Board of Forestry and Fire Protection
10:00 - 11:15 Finding Success in WUI Regulations: A Case Study from Washington State
Molly Mowery, President, Wildfire Planning International
Craig Gildroy, Planning Director, City of Chelan, Washington
Mike Kaputa, Director, Chelan County Natural Resources, Chelan County, Washington
Steve King, Economic Development Director, City of Wenatchee, Washington
BREAK  
11:30 - 12:00 Fires of Change
Shawn Skabelund, Installation Artist / Curator
12:00 - 1:00 Lunch (Capitol Cafeteria)
1:00 - 2:00 What are the Limits of Planning for Wildfire in the WUI?

Limits to Adaptation: Post-Wildfire Views of WUI Regulations and Planning
Miranda Mockrin, Research Scientist, U.S. Forest Service, Northern Research Station
Hillary Fishler, School of Sociology, Social Work, and Anthropology, Utah State University
Susan Stewart, Research Scientist, U.S. Forest Service (Ret.)

Addressing the Impact of Absentee Landowners on Community Wildfire Safety
Meghan Housewright, Director, Fire and Life Safety Policy Institute, National Fire Protection Association
Michele Steinberg, Manager, Wildfire Division, National Fire Protection Association
2:00 - 3:15 Envisioning a Cohesive Wildfire Strategy for the Northern Rockies: A Case Study from Montana
Michelle Bryan, Professor of Law, University of Montana School of Law
Samuel Panarella, Associate Professor & Director, Max S. Baucus Institute, University of Montana School of Law
Sandi Zellmer, Professor of Law, Director of Natural Resources Clinics, University of Montana School of Law
BREAK  
3:30 - 4:30 The Role of Informal Governance in Wildfire Planning: Observations from Idaho
Stephen R. Miller, Professor of Law & Associate Dean for Faculty Development, University of Idaho College of Law
Jaap Vos, Professor & Program Head, Bioregional Planning & Community Design, University of Idaho College of Art and Architecture
Eric Lindquist, Associate Professor, School of Public Service, Boise State University
4:30 Reception (Idaho Law & Justice Learning Center)

September 5, 2018 | Permalink | Comments (0)

Sunday, September 2, 2018

Gregory M. Stein: Will the Sharing Economy Increase Inequality?

Gregory M. Stein (Tennessee) has posted, "Will the Sharing Economy Increase Inequality?" on SSRN.  Here is the abstract:

The rise of the sharing economy benefits consumers and providers alike. Consumers can access a wider range of goods and services on an as-needed basis and no longer need to own a smaller number of costly assets that sit unused most of the time. Providers can engage in profitable short-term ventures, working on their own schedule and enjoying many new opportunities to supplement their income. Sharing economy platforms often employ dynamic pricing, which means that the price of a good or service varies in real time as supply and demand change. Under dynamic pricing, the price of a good or service is highest when demand is high or supply is low. Just when a customer most needs a good or service – think bottled water after a hurricane – dynamic pricing may price that customer out of the market. This Article examines the extent to which the rise of the sharing economy may exacerbate existing inequality. It describes the sharing economy and its frequent use of dynamic pricing as a means of allocating scarce resources. It then focuses on three types of commodities – necessities, inelastic goods and services, and public goods and services – and discusses why the dynamic pricing of these three types of commodities raises the greatest inequality concerns. The Article concludes by asking whether some type of intervention is warranted and examining the advantages and drawbacks of government action, action by the private sector, or no action at all.

Well worth a read.

September 2, 2018 | Permalink | Comments (0)

Friday, August 24, 2018

Call for Papers: Rocky Mountain Land Use Institute Conference / Scholarly Workshop

The Rocky Mountain Land Use Institute at the University of Denver Sturm College of Law is soliciting panel topics, speaker proposals, and academic papers for its 28thAnnual Western Places/Western Spaces conference, which will take place March 7-8, 2019 on the University of Denver campus.  

The Institute has, for more than 25 years, served as a forum for bringing together leading land use and environmental scholars and practitioners to think about solutions and approaches to address vexing land use, development, natural resource and local environmental problems.   This year our theme is Designing for the Future: Building Enduring Value, and we will be looking at the ways in which the quality of design informs and shapes our communities.    The deadline for submitting panel proposals is September 7, 2018.

In addition, on March 8th, the annual spring conference will include a Land Use and Environmental Scholarly Workshop, to bring together a diverse group of up to 10 scholars who are working on legal and policy issues at the intersection of land use, environmental law, and sustainability in a format designed to feature the work of emerging scholars and to foster rich discussion, academic growth, and collaboration.  Some limited funding is available to help defray travel costs, and Workshop participants may attend the entire conference at no expense.

To learn more about the conference and to submit a panel or speaker proposal, visit the RMLUI conference website.     To learn more about the Land Use and Environmental Scholarly Workshop, please contact Susan Daggett at sdaggett@law.du.edu.

August 24, 2018 | Permalink | Comments (0)

Friday, August 3, 2018

CFP: Preparing for Climate Change in the Planned and Unplanned City - Texas A&M - Feb 18-23

From Tim Mulvaney at Texas A&M Law:

PLPR'19-CallForPapers-email

August 3, 2018 | Permalink | Comments (0)

Graphic: How America Uses Its Land

Bloomberg recently posted a scrollable info-graphic about how America uses its land.  Well worth a look here.  Below is a screenshot, though since it's a scrollable graphic, it's best to visit the page for the whole effect.

 

Screen Shot 2018-08-03 at 2.47.38 PM

August 3, 2018 | Permalink | Comments (0)

Tuesday, July 31, 2018

Seeking collaborators on Sustainable Development Code: Jon Rosenbloom

From Jon Rosenbloom:

Dear colleagues,

The Sustainable Development Code is a model local code providing the best sustainability practices to local governments. The Code focuses on local development practices that implicate a wide array of sustainability issues, including climate change, wildlife habitats, water quality, and affordable housing.

I am co-managing the Code with the University of Colorado at Denver, School of Architecture and Planning. We are working with practitioners, academics, and students from around the country.

Would you be interested in incorporating drafting Code provisions into your environmental, land use, energy law, water law, or state and local government course, as was done at several law schools last semester. Overwhelmingly, the response from those that have incorporated the Code into their courses has been that it provides excellent educational opportunities to understand local environmental issues, local regulations, and, more generally, federalism and decentralization. In addition, it is a good chance for students to hone their researching and writing skills.

The Code is divided into 32 chapters, covering topics such as “water supply quality and quantity,” “coastal hazards,” and “wind energy” (a list of chapters can be found in the prezi presentation linked below). Each chapter consists of 30-40 concrete policy actions local governments can take to become more sustainable in that particular area. Each action has a corresponding brief describing:

  • The specific recommendation;
  • The effects the recommendation is projected to have;
  • At least two local governments’ code provisions that have implemented the recommendation; and
  • 4-6 additional local code citations and parentheticals with similar recommendations.

Drafting the briefs has been primarily incorporated into coursework. The idea is that the briefs will provide local governments with quick and easily accessible information that can be used to enact local legislation. The briefs were designed by a multidisciplinary group of experts and practitioners (a list of the Advisory Committee can be found in the prezi presentation). I’m glad to forward sample briefs.

If you would like additional information on the Code, in 5-7 minutes I could walk through the prezi presentation found at:

https://prezi.com/view/cdEnRwvramAieQGsIbWl/

I will make myself fully available to anyone interested in this project. We expect to launch the Code in summer/fall 2019.

I hope this project interests you and, if so, please contact me.

Jon Rosenbloom

jonathan.rosenbloom@drake.edu

 

July 31, 2018 | Permalink | Comments (0)

Saturday, July 28, 2018

POSITION ANNOUNCEMENT – ASSISTANT/ASSOCIATE/PROFESSOR OF LAW AND DIRECTOR OF THE DRAKE AGRICULTURAL LAW CENTER

DRAKE UNIVERSITY LAW SCHOOL invites applications for a tenured/tenure-track position as Assistant/Associate/Professor of Law in the field of Agricultural Law and Director of the Drake Agricultural Law Centerbeginning in the fall of 2019. Applicants must hold a J.D. degree (or the equivalent) and should have outstanding records of accomplishment in scholarship, teaching, and service as well as substantial practice experience. 

The successful candidate will teach agricultural law courses and serve as the Director of the Drake Agricultural Law Center. Drake was the first American law school to offer a specialization in agricultural law, offering courses not only on agricultural and food law but also on agriculture’s effect on social, economic, and political systems. Drake is the only accredited law school in the nation with a student-published legal journal, the Drake Journal of Agricultural Law, focusing solely on these issues.

Founded in 1983, the Agricultural Law Center provides opportunities for students to explore how the legal system impacts the global food system and the agricultural sector's ability to produce, market, and use agricultural products. The Center promotes and supports research and scholarship andhas hosted distinguished agricultural law scholars from all over the country and the world to teach students and share their unique cultural perspective on food and agricultural law. Students can earn a Food and Agricultural Law Certificate by completing 21 credits of coursework, a major legal research and writing project, and an internship.

The Agricultural Law Center also provides information and resources for American farmers, landowners, and agricultural entrepreneurs to help these key agriculture stakeholders make profitable and sustainable decisions regarding our nation’s land and agricultural production.

Applicants with backgrounds in all areas of Agricultural Law are welcome. Over 85% of Iowa’s land is used for agriculture. Drake’s location in central Iowa places it at the heart of a state that leads in production of soybeans, corn, eggs, and pork.

Drake University is an equal opportunity employer and actively seeks applicants who reflect the nation’s diversity.  No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status.Diversity is one of Drake’s core values and applicantsneed to demonstrate an ability to work with individuals and groups of diverse socioeconomic, cultural, sexual orientation, disability, and/or ethnic backgrounds.

Confidential review of applications will begin in August 2018. Applications (including a letter of interest, a complete CV, teaching evaluations (if available) and the names and addresses of at least three references) should be sent to Professor Ellen Yee, Chair, Faculty Appointments Committee, Drake University Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: ellen.yee@drake.edu

July 28, 2018 | Permalink | Comments (0)

Monday, July 23, 2018

John Nolon on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 8:  Hot Topics in Takings

by John Nolon

While Stephen and Jonathan explore upcoming cases and concepts, my focus here is on the fundamental aspects of takings cases. I find that the basics are tough and need a patient hand to be turned so that students truly understand constitutionally protected property rights and remedies for their violation.  I spend a lot of time on Lingle, which, along with Palazzolo, handle the basics well.

In Lingle, the majority dispenses with the two-part, disjunctive Agins test, including the incomprehensible notion that a regulation can be a taking if fails to substantially advance legitimate state interests.  “Correcting course,” Mrs. Justice O’Connor, writing for the majority, properly characterizes that test as a due process standard. Understanding due process claims is as critical for students as understanding takings jurisprudence. Many, many of the cases in our book are disposed of on due process grounds, beginning with Euclid. These waters should not be cloudy and Lingle does an excellent job of separating due process from takings cases and explaining the prevailing rules of interpretation in each category.

The district court decision in Lingle held that a taking occurred because it found Chevron’s economist more credible than the state’s expert who argued that no state interest was advanced by the state’s control of rents charged to lessee-dealers by oil companies. It reasoned that the substantially advance test of Agins was violated because the law was ineffective and that a taking had occurred, even though no damages were proved. 

This is a can of worms. If there are no damages, what is the remedy if the Constitution provides that just compensation must be paid for the taking by the offending regulating entity?  What does the Constitution mean when it says no person shall be deprived of property without due process of law?  How is that different from the provision that protects private property from being taken for a public use, without just compensation? What is a court doing choosing the plaintiff’s expert over the one relied on by the state legislature, to which it owes deference?.   In addition to dispensing with the substantially advance rule for takings, O’Connor also reminds us that courts do not heavily scrutinize substantive due process challenges to government regulation?

Having clarified takings waters this much, the Justice further explains that there are four categories of takings including per se cases like Loretto and Lucas (“two relatively narrow categories”) and Penn Central, which articulates specific factors for resolving regulatory takings claims that do not fall within the other categories.  The fourth type of takings case she mentions is “the special context of land-use exactions” that arise mostly in context of conditions imposed by adjudicatory bodies, like planning boards, as part of the project review and approval process. Although Koontz rendered this fourth category fundamentally cloudy, the categories themselves are clear enough to guide law students’ understanding of this field of law. 

In explaining the Penn Central factors, Justice O’Connor refers us to the Court’s 2001 Palazzolo case, in which a developer was approved to build one residence on two dryland acres in a 20 acre tidal wetland site that he owned.  He had asked the relevant agency for permission to build 74 homes on individual lots and claimed damages of over $3 million, which he claimed constituted a total taking under Lucas. The Court disagreed finding that “the petitioner failed to establish a deprivation of all economic value [one of the Penn Central factors] for it is undisputed that the parcel retains significant worth for the construction of a residence.” In other words, the Court considered the Lingle takings categories and placed this in the Penn Central rather than Lucas bucket.  On remand, the Rhode Island Superior Court affirmed that there was no taking -- under Lucas there was no total taking and under Penn Central the petitioner’s investment backed expectations were not frustrated.  

Although takings law is anything but free of nuance and ad hoc applications, there is a degree of clarity in these categories and the Lingle decision. .  Most takings cases fall into the Penn Central category, rather than the relatively narrow per se categories, unless they involve an exaction.  Within Penn Central, the Court imposes the burden of proving the taking on the challenger, defers to legislative discretion, and presumes the validity and constitutionality of its actions.  If the other categories are narrow or specific and most takings cases are decided under Penn Central,  one would expect that takings claims are hard to win.  This is affirmed in a recent William and Mary Law Review article by Professors James Krier and Stewart Sterk who conduct “An Empirical Study of Implicit Takings.” They find that “takings claims based on government regulation almost invariable fail.” 

If students can be taught this much, they will know more than land use attorneys who advise their clients that regulations that prevent the highest and best use of their properties are takings or that simple diminution of property values caused by regulations should be actionable under the takings clause.  Unfortunately there are too many such cases, suggesting that lawyers don’t understand the basics or are misrepresenting the law to their frustrated clients.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2018-19 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin

Question 8:  Hot Topics in Takings [Miller | Rosenbloom | Nolon | Salkin]

July 23, 2018 | Permalink | Comments (0)

Monday, July 16, 2018

Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 8:  Hot Topics in Takings

by Jonathan Rosenbloom

Continuing Stephen’s line of inquiry, another hot topic in takings jurisprudence is whether a takings claim may be recognized against a local government for failing to adapt to climate change. Once the students review most of Chapter 5, I might ask them whether attorneys representing local governments should counsel those governments on potential takings claims based on the failure to adapt to climate change. While yet decided, these claims may have the capacity to result in massive damage awards and to encourage local action.

In Incentivizing Municipalities to Adapt to Climate Change: Takings Liability and FEMA Reform as Possible Solutions, 43 B.C. Envtl. Aff. L. Rev. 281 (2016), Professor David Dana (Northwestern) identified the following four potential takings claims against local governments based on the failure to adapt to climate change:

  • Inaction Claims: Takings claims against governments for failing to take action to adapt to climate change.
  • Ineffective Action: Takings claims against governments for taking adaptive actions that were insufficient to prevent property loss.
  • Counterproductive Action: Takings claims against governments for taking action that not only was ineffective in preventing property loss, but also caused greater losses than otherwise would have occurred.
  • Improper Diversion: Takings claims against governments for diverting the effects of climate change, such as flooding or fire, from one area/community to another, such that the latter area/community incurred greater property losses than it otherwise would have incurred, although the former area/community incurred less loss then it otherwise would have.

Id. at 285-86 (relying heavily on another excellent article, Christopher Serkin, Passive Takings: The State's Affirmative Duty to Protect Property, 113 Mich. L. Rev. 345 (2014) (Serkin argued that “passive takings” liability should be recognized whether a government acts or fails to act when it asserts regulatory control such that it is responsible for harm in the face of ecological change)).

Dana’s four potential takings claims set up a nice intellectual exercise for the students to explore the contours of the takings clause and whether it could fit a claim based on adaptation (Dana is skeptical of whether local action will change in the face of such a takings finding, see Dana, supra, at Section II). Compared to recent successes under federal substantive due process and public trust, see Juliana v. U.S., 217 F.Supp.3d 1224 (2016) (denying defendants’ and intervenors’ motions to dismiss), denying mandamus,In re U.S. v. U.S. Dist. Ct. for the Dist. Of Oregon, 884 F.3d 830 (2018), plaintiffs still, I think, have a way to go before not only finding success under the takings clause, but also encouraging or compelling local action on climate adaptation. Nonetheless, it is a developing area of takings jurisprudence and offers a good opportunity for students to explore the application of takings to new circumstances.

As a callous and inept federal administration fails to protect communities from a rapidly changing environment, local communities continue to suffer (see one of many federal administrative actions abandoning communities battling climate change, see, e.g. Christopher Flavelle, U.S. Disbands Group That Prepared Cities for Climate Shocks, Bloomberg (Dec. 4, 2017)). If local governments fail to address more-and-more foreseeable uncertain disasters, citizens will look for a remedy. And local governments just may be in the crosshairs.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin

Question 8:  Hot Topics in Takings [Miller | Rosenbloom | Nolon | Salkin]

July 16, 2018 | Permalink | Comments (0)

Tuesday, July 10, 2018

Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 8:  Hot Topics in Takings

by Stephen R. Miller

 

We are back from a summer break and continuing our series on contemporary issues in teaching land use, which follows the general arc of our new casebook.  In this set of questions, we dive into takings, which is also the basis of Chapter 5 of the book.  

In many ways, takings is probably the one thing students know will be covered in a land use law class.  Professors can choose how much they want to emphasize the subject, however.  A bread-and-butter approach would focus on the general categories of takings that you could find in any land use law book.

Our casebook also offers several opportunities to go further in depth in ways that also relate to several hot topics in takings.  I'll mention two.  First, we include Williamson County, which is still the primary case about ripeness of a takings claim.  However, this Fall, 2018 term, the U.S. Supreme Court will hear Knick v. Township of Scott, Pennsylvania, which presents the following question:

(1) Whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims; and (2) whether Williamson County’s ripeness doctrine bars review of takings claims that assert that a law causes an unconstitutional taking on its face, as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits hold, or whether facial claims are exempt from Williamson County, as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits hold.

While land use profs might have glossed over Williamson County in the past, they might choose to assign it this year in light of Knick.

In addition, an underlying issue in takings jurisprudence, which will likely rear its head again in coming years, is whether an agency action under review was legislative or administrative (adjudicative) in function.  To bring this hot topic to the fore, we include in our casebook a portion of Justice Thomas' statement in the Court's decision deny cert in the case of California Bldg. Indus. Ass’n v. City of San Jose, Calif., 136 S. Ct. 928, 928–29, 194 L. Ed. 2d 239 (2016) where he wrote as follows:

. . . Our precedents in Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), would have governed San Jose’s actions had it imposed those conditions through administrative action. . . .

For at least two decades, however, lower courts have divided over whether the Nollan/Dolan test applies in cases where the alleged taking arises from a legislatively imposed condition rather than an administrative one. See Parking Assn. of Georgia, Inc. v. Atlanta, 515 U.S. 1116, 1117, 115 S.Ct. 2268, 132 L.Ed.2d 273 (1995) (THOMAS, J., dissenting from denial of certiorari). That division shows no signs of abating. The decision below, for example, reiterated the California Supreme Court’s position that a legislative land-use measure is not a taking and survives a constitutional challenge so long as the measure bears “a reasonable relationship to the public welfare.” 61 Cal.4th, at 456–459, and n. 11, 189 Cal.Rptr.3d 475, 351 P.3d, at 987–990, n. 11; compare ibid. with, e.g., Home Builders Assn. of Dayton and Miami Valley v. Beavercreek, 89 Ohio St.3d 121, 128, 729 N.E.2d 349, 356 (2000) (applying the Nollan/Dolan test to legislative exaction).

I continue to doubt that “the existence of a taking should turn on the type of governmental entity responsible for the taking.” Parking Assn. of Georgia, supra, at 1117–1118, 115 S.Ct. 2268.

Given that the Court may well have a more conservative future, it will be interesting to see if this question about the character of governmental action should matter in takings analysis comes back in the coming years.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin

July 10, 2018 | Permalink | Comments (0)

Monday, June 18, 2018

CFP: Chapman Law Review 2019 issue on "The Commerce Clause and the Global Economy"

 

Invitation to Submit Articles for

Chapman Law Review's 2019 Issue provisionally entitled

“The Commerce Clause and the Global Economy

Chapman Law Review is pleased to invite article submissions on the theme: “The Commerce Clause and theGlobal Economy.” Publications will appear in a symposium edition, and authors will receive an honorarium.

With the growth of online retailers and the rise of the global marketplace, federal and state governments have beencharged with the task of navigating the waters of the global economy and its inevitable collision with the CommerceClause. In June, the United States Supreme Court is expected to render a decision in South Dakota v. Wayfair, Inc., inwhich South Dakota has asked the Court to reconsider its ruling in Quill Corp. v. North Dakota and allow states to requireout-of-state retailers that do not have a physical presence in the state to collect local sales taxes from their customers.Regardless of the outcome, this case has opened up a series of questions about the scope of the Commerce Clause in anincreasingly global economy—specifically the ability of state and local governments to regulate global economic actorsin order to protect communities against the adverse effects of globalization.

Article submissions may cover topics about aspects of the Commerce Clause and the Global Market, including (but notlimited to):

  • South Dakota v. Wayfair, and its overarching implications,
  • Quill Corp. v. North Dakota, and its survival or demise,
  • State and local government’s ability to regulate global economic actors, for example:
    • Should cities be able to ban big-box stores to protect local retailers?
    • Should cities be able to give hiring preferences to local residents?
    • Should states be able to ban the importation of products that will compete with locally produced goods?

Chapman Law Review has dedicated its written symposium issue to these timely questions. We are open to submissionswith other perspectives as well, related to this general topic. Chapman Law Review would be honored to publish yourwork.

Submission Information:

We are looking for papers at a minimum of 20 pages (with a suggested length of 25 pages). If you would like to apply toparticipate in the Symposium, please submit an abstract of no more than 500 words by June 30, 2018, to Carlos Bacio.A flexible deadline for the completed paper will be on August 27, 2018. The Chapman Law Review will be offering anhonorarium to authors who choose to write for the 2018 journal.

Although there is not a live symposium attached to this themed Issue, papers can resemble what one might submit for asymposium, and the Issue will be identified as a themed issue so that you may also designate it as such, if you wouldlike. Papers selected for this issue will be published in a special issue of the Chapman Law Review in approximatelyMarch 2019.

Thank you and we look forward to receiving your submission.

If you have questions, please contact Carlos Bacio, Senior Articles Editor, at bacio101@mail.chapman.edu.

June 18, 2018 | Permalink | Comments (0)

Thursday, June 14, 2018

Annual housing report shows divergence in wages and housing rents across the country

The National Low Income Housing Coalition's annual report, Out of Reach, presents some staggering data about how housing rental prices are diverging radically from wages, not just in big coastal cities, but all across the country.  Here is a part of the intro:

The 2018 national Housing Wage is $22.10 for a modest two-bedroom rental home and $17.90 for a modest one-bedroom rental home. Among the 50 states and the District of Columbia, the two-bedroom Housing Wage ranges from $13.84 in Arkansas to $36.13 in Hawaii. The five metropolitan areas with the highest two-bedroom Housing Wages are Stamford-Norwalk, CT ($38.19), Honolulu, HI ($39.06), Oakland-Fremont, CA ($44.79), San Jose-Sunnyvale-Santa Clara, CA ($48.50), and San Francisco, CA ($60.02).

A full-time worker earning the federal minimum wage of $7.25 needs to work approximately 122 hours per week for all 52 weeks of the year, or approximately three full-time jobs, to afford a two-bedroom rental home at the national average fair market rent. The same worker needs to work 99 hours per week for all 52 weeks of the year, or approximately two and a half full-time jobs, to afford a one- bedroom home at the national average fair market rent.

In no state, metropolitan area, or county can a worker earning the federal minimum wage or prevailing state minimum wage afford a two-bedroom rental home at fair market rent by working a standard 40-hour week. In only 22 counties out of more than 3,000 counties nationwide can a full-time minimum- wage worker afford a one-bedroom rental home at fair market rent. These 22 counties are all located in states with a minimum wage higher than $7.25. Higher minimum wages are important, but they are not the silver-bullet solution for housing affordability. Thirty-eight local jurisdictions have their own minimum wages higher than the state or federal minimum-wage, but all fall short of the local one-bedroom Housing Wage

June 14, 2018 | Permalink | Comments (0)

Tuesday, June 5, 2018

CFP: ABA Journal of Affordable Housing & Community Development Law seeking articles

From Tim Iglesias...

ABA Journal of Affordable Housing & Community Development Law 

Call for Papers

Abstracts due August 1, 2018

Drafts due October 1, 2018

The Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays exploring any of the Journal’s traditional themes: affordable housing, fair housing and community/economic development. Topics could include important developments in the field; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies. Articles and essays could analyze new issues, tell success stories and draw lessons, or explore problems and propose legal and policy recommendations. The Journal welcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words). 

The Journal is the nation’s only law journal dedicated to affordable housing and community development law.  The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at iglesias@usfca.edu by August 1, 2018. Submissions of final articles and essays are due by October 1, 2018.The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

June 5, 2018 | Permalink | Comments (0)

Monday, May 14, 2018

Save the date! Feb 18-23, 2019: Texas A&M: Preparing for Climate Change in the Planned and Unplanned City

This save the date from Tim Mulvaney at Texas A&M Law:

 

PLPR Conference @ TAMU-1 proof

May 14, 2018 | Permalink | Comments (0)

CFP: Georgia State Urban Studies Institute: Comparative Urbanism: Global Perspectives conference | March 7-8, 2019

CALL FOR CONFERENCE PAPERS

 

Urban Studies Institute | Georgia State University

Comparative Urbanism: Global Perspectives

 

Date and Location

March 7-8, 2019

Georgia State University, Atlanta, GA, USA

Theme

The purpose of the conference on Comparative Urbanism: Global Perspectives is to advance empirical and conceptual thinking on comparative urban research across the Global North, South, and East. Reflecting near a decade of tentative theorization and intense debate, the field of urban studies is awash with calls for more explicit comparative research that adopts a global perspective. Post-colonial critiques of North American and Euro-centric urban conceptualizations have done much to problematize the purportedly ‘universal’ experiences of the Global North and bring ‘ordinary cities’ and subaltern urbanisms in the Global South to light. However, disputes around the portability of theory between different urban worlds and attempts to theorize the ‘complete urbanization of society’ appear to have reached a stand-off, often with ideological overtones.

The Global East as Third Dimension

The conference aims to shake up this stalemate by introducing a third dimension: urbanisms of the Global East (especially the experiences of China, Japan, and South Korea), which are not easily reconciled with the histories or political economies of either North or South. Approaching urban studies through a comparative lens honed to cities in the Global North, South, and East is an increasingly important orientation because it shifts urban comparative gestures beyond comparisons within these (albeit complex heterogeneous) contexts towards rigorous analysis of urbanization between them. Reloading 'global urban studies' across these three worlds offers new empirical grounds for theory generation and presents a provocative intervention that can disrupt the ideologically polarized camps that characterize field at the present juncture.

Theory, Empirics, Methods, Policy

The conference will incorporate perspectives on urban development from the global urban North, South, and East in deliberations across a variety of sessions. These may take the form of theoretically-informed empirical comparison, conceptual reflections on the North-South-East construct itself, methodological challenges, or other critical approaches to a truly global comparative urbanism. The critical practice of comparison as a method for theory-building will form a substantive component of the conference, in addition to the insights realized through comparative research findings and policy analysis. This highly interdisciplinary event will encourage critical, open, and reflexive debate and lead to concrete outputs that will help define the future agenda for global comparative urbanism.

The Event

The 2-day conference will feature a variety of sessions from traditional research presentations and keynote addresses to moderated panel discussions and interactive workshops. Sessions will be structured to enable extensive time for discussion and debate, with special attention paid to facilitating on-going and near-future collaborative research, focused around target concrete outputs, including articles, special issues, and research symposia in international urban journals, as well as external grant funding proposals.

Keynote Speakers
We are delighted to announce our 3 keynote speakers:

  • Professor George Lin, Hong Kong University
  • Professor Ananya Roy, UCLA
  • Professor Kevin Ward, University of Manchester

 

Call for Proposals

To promote interdisciplinary discussion and debate, the conference will focus on three core prisms: Urban Development and Resiliency; Equity and Social Inclusion; and Sustainable Urban Environments. We welcome paper proposals on the challenges of global comparative urbanism from a variety of disciplinary backgrounds, especially those incorporating perspectives from the Global North, South, and East. Topics include, but may not be limited to:

  • Theoretical and methodological approaches to comparative urban research
  • The (global) urban commons
  • Urbanization and development
  • Inclusive housing policy
  • Urban social movements
  • Urban environments and public health disparities
  • Gentrification and neighborhood transformation
  • Global suburbanization
  • Comparative urban policy and law
  • Networked urbanism (e.g., global urban security, terrorism, health, food, etc.)
  • Policy mobilities
  • Climate change, sustainability, and urban resilience
  • Globalization, migration, and labor markets
  • Infrastructure governance, policy, and planning

Interested authors are requested to submit 500-600-word abstracts to urban@gsu.edu by August 1, 2018. Papers will be selected based on their fit with the conference theme and sessions. Participants will be asked to submit a first draft of their papers by February 15, 2019.

Accommodation Information:

The Urban Studies Institute has arranged for a block of rooms at the discount rate of $139/night from March 6- March 9 at Home2Suites. Home2Suites is located at 87 Walton St, in downtown Atlanta, close to public transit and Georgia State University, and a 10-minute walk to the conference venue. More information can be found at: http://home2suites3.hilton.com/en/index.html

++++++++++++++++++++

The Urban Studies Institute at Georgia State University conducts top-level urban research from a variety of disciplinary and interdisciplinary perspectives; offers an innovative and specialized interdisciplinary curriculum; and engages with stakeholders in metropolitan Atlanta and in other cities around the world. The Institute’s research agenda ranges from local to global, from urban theory to policy research, and is particularly geared to comparative urban approaches. Research themes emphasize urban economic resilience, inclusive development, and urban sustainability. The Institute is housed in the Andrew Young School of Policy Studies. For more information, visit  http://urbaninstitute.gsu.edu/

May 14, 2018 | Permalink | Comments (0)

Monday, April 2, 2018

Patricia Salkin on Contemporary Issues in Teaching Land Use: Question 7: How Do You Teach the Contract Transformation in Land Use Regulation?

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 7:  How Do You Teach the Contract Transformation in Land Use Regulation?

by Patricia Salkin

Rounding out new ideas in approaching the material in Chapter 4 as previously posted by my co-authors Stephen, John and Jonathan, one way to look at the chapter is from the perspective that everything is negotiable.  Yes, municipal land use regulations may include subdivision regulations that must be followed, but at the end of the day, developers and applicants are looking to get to yes on their projects.  Everything in this chapter ties back to the discussion in Chapter 2 and my August 2017 post about the economics of land use regulation. The bottom line is that applicants want their projects to be approved and the community wants certain protections from quality of life (tax burden, jobs, public infrastructure, affordable housing, etc) to the environment. 

Taken in this context, we can ask our students about conditions the government places on subdivision approvals.  Some are grounded in statutory authority and some are evolved from the common law.  For example, from statute we see the room for design flexibility and negotiation in conservation and/or cluster subdivisions.  In some states, like New Jersey, the applicant may choose to propose the cluster to help accomplish a community goal, and in other states like New York, the locality may require the submission of a cluster plat as part of the process. Discussing the economic and conservation benefits of subdivision design helps students to better grasp the benefits of more compact development as opposed to sprawl since it comes at a financial savings in infrastructure costs (e.g., less asphalt for one thing) and community amenities in terms of land left undisturbed (e.g., not physically built) for the aesthetic and environmental benefits.

The chapter then moves to a discussion of development agreements and community benefits agreements (CBAs).  This creative combination of statutory authority (minority of states have development agreement statutes) and common law (CBAs are based in private contract law) offers an opportunity for much policy discussion and small group skill development around negotiation and drafting of agreements. In prior years I tended to focus on the promise of development agreements as there seemed to be a trend towards statutory authorization.  However, it is still not the majority view.  More recently, I have emphasized the value of the CBAs.  One key difference between the two is that the government is a party to a development agreement, but the government is not typically a party to a CBA, which is a private contract between the project sponsor and the community stakeholders.  The government need not recognize or give credence to a CBA.  For students who might not yet have taken classes in negotiation and/or mediation, the CBA introduces students to the concepts of finding out what each party wants or needs in order to get to yes.  It also provides a good opportunity to review 1L contracts issues (e.g., what is the bargained for consideration since the final project approval rests with the government who is not a party to the CBA; who has authority to enter into a binding contract for the neighborhood; who can enforce the contract; and what remedies are available for breach). 

There is a wealth of information about CBAs developed in the last decade on the Community Benefits Blog, and although it has not been updated in a while, the information is still valuable.  I understand plans are underway to provide more current content. A more recent index was prepared by The Public Law Center at Tulane and it can be accessed here

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin] 

April 2, 2018 | Permalink | Comments (0)