Saturday, August 1, 2015

Land use law articles posted to SSRN in July

Here is the round-up of land use law-related articles posted to SSRN's Property, Land Use & Real Estate Law eJournal in July.  I took several new approaches this month in my ever-evolving effort to "get it right."  

First, I have separated out U.S. scholars from international scholars.  I did this because it seemed to me that it made for easier scanning of articles; however, I am open to whether others find this an unnecessary division.  On the other hand, perhaps as more international law schools join SSRN, there is room for more division, perhaps by world regions?  

Second, there are an increasing number of articles being posted to SSRN that were written several years--sometimes several decades--in the past.  It doesn't seem to me that those articles are in the spirit of this post, which is to detail what is new in scholarship, so I have edited out those articles from long ago that are just now making their way to SSRN.

Third, I edited out those articles from the eJournal that did not seem to be land use-law related.   

Finally, if I have missed your article and you want to share it with the readership here, do not be shy about letting me know, and I will be happy to post an abstract.

Land use law articles posted to SSRN in July by U.S. scholars

 Reserved Water Rights as a Rule of Law
Idaho Law Review, 2015
Michael C. Blumm 
Lewis & Clark Law School 

 Reconceiving Military Base Redevelopment: Land Use on Mothballed U.S. Bases
Urban Affairs Review, pp. 1-30, 2015, 
Amanda Johnson Ashley and Michael Touchton 
Boise State University and Boise State University 

 The Impact of the Home Valuation Code of Conduct on Appraisal and Mortgage Outcomes
FRB of Philadelphia Working Paper No. 15-28
Lei Ding and Leonard I. Nakamura 
Federal Reserve Bank of Philadelphia and Federal Reserve Bank of Philadelphia 

 Written Testimony for 'The Future of Hydraulic Fracturing on Federally Managed Lands'
To be published in the Congressional Record; testimony before the Subcommittee on Energy and Mineral Resources -- subcommittee of the U.S. House of Representatives Committee on Natural Resources, 2015 Forthcoming
Hannah Jacobs Wiseman 
Florida State University - College of Law 

 What Can Corporations Teach Governments About Democratic Equality?
31 Social Philosophy & Policy 230 (2015), Chapman University, Fowler Law Research Paper No. 15-08
Tom W. Bell 
Chapman University, The Dale E. Fowler School of Law 

 Place, Meaning, and the Visual Argument of the Roadside Cross
Savannah Law Review, Forthcoming
Amanda Reid 
Florida Coastal School of Law 

 Setting the Stage for Ferguson: Housing Discrimination and Segregation in St. Louis
Missouri Law Review, Forthcoming, University of Missouri School of Law Legal Studies Research Paper No. 2015-13
Rigel Christine Oliveri 
University of Missouri School of Law 

 Dealing with Ocean Acidification: The Problem, the Clean Water Act, and State and Regional Approaches
Washington Law Review, 2016 Forthcoming
Robin Kundis Craig 
University of Utah S.J. Quinney College of Law 

 Art and the History of Environmental Law
Critical Analysis of Law (2015, Forthcoming)
David Schorr 
Tel Aviv University - Buchmann Faculty of Law 

 Of Property and Information
Columbia Law Review, Forthcoming, U of Penn, Inst for Law & Econ Research Paper No. 15-29
Abraham Bell and Gideon Parchomovsky 
Bar Ilan University - Faculty of Law and University of Pennsylvania Law School 

 Using Historic Preservation Laws to Halt the Destruction of 'Porch Culture' in the Lower Ninth Ward of New Orleans
Jamila Jefferson-Jones 
University of Missouri at Kansas City - School of Law 

 Legal Adaptive Capacity: How Program Goals and Processes Shape Federal Land Adaptation to Climate Change
University of Colorado Law Review, Vol. 87, 2016, Forthcoming, UC Irvine School of Law Research Paper No. 2015-68, GWU Law School Public Law Research Paper No. 2015-25, GWU Legal Studies Research Paper No. 2015-25
Alejandro E. Camacho and Robert L. Glicksman 
University of California Irvine School of Law and George Washington University - Law School 

 Montanans Must Seek Independence from CSKT Water Compact in Spirit of 1776
Canada Free Press, July 2, 2015, Clark Fork Valley Press/Mineral Independent, July 10, 2015
Lawrence A. Kogan 
Institute for Trade, Standards and Sustainable Development (ITSSD) 

 Precipice Regulations and Perverse Incentives: Comparing Historic Preservation Designation and Endangered Species Listing
Georgetown International Environmental Law Review (GIELR), Vol. 27, pp. 343-392, 2015
J. Peter Byrne 
Georgetown University - Law Center 

 Tax Structuring of Foreign Investment in U.S. Real Estate with a N.Y. Twist
53 Tax Management Memorandum 43 (2012)
Alan I. Appel and Jack Mandel 
New York Law School and Bryan Cave LLP 

 Structuring Investments by Foreign Persons in U.S. Real Estate
Journal of Taxation and Regulation of Financial Institutions, Vol. 25, No. 55, 2012
Alan I. Appel 
New York Law School 

 Carbon Credits As EU Like It: Property, Immunity, TragiCO2medy?
Journal of Environmental Law, pp.1-29, 2015 ( doi: 10.1093/jel/eqv020, 2015.), Singapore Management University School of Law Research Paper No. 52/2015, University of Hong Kong Faculty of Law Research Paper No. 2015/022
Kelvin Low and Jolene Lin 
Singapore Management University - School of Law and University of Hong Kong - Faculty of Law 

 The Political Economy of Local Vetoes
Texas Law Review, Vol. 93, 2014, KBH Energy Center Research Paper No. 2015-08
David B. Spence 
University of Texas at Austin - Department of Business, Government and Society 

 Cultural Heritage Conservation Easements: The Problem of Using Property Law Tools for Heritage Protection
Land Use Policy (2015 Forthcoming)
Jessica Owley 
State University of New York (SUNY) at Buffalo - Law School 

 Liberty at the Borders of Private Law
Akron Law Review, Forthcoming
Donald J. Smythe 
California Western School of Law 

 Banks, Break-Ins, and Bad Actors in Mortgage Foreclosure
University of Cincinnati Law Review, Vol. 83, No. 4, 2015
Christopher K. Odinet 
Southern University Law Center 

 Hola Preemption and the Original Intent of Congress: Are Federal Thrifts Necessary to Stabilize the Housing Market?
18 Fordham J. Corp. & Fin. L. 565
carliss Chatman 
Stetson University College of Law 

 The Use of Tenant Screening Reports and Tenant Blacklisting
LEGALEase Pamphlet, New York State Bar Association (2015)
Gerald Lebovits and Jen M. Addonizio 
Columbia University - Law School and Independent 

 Valuing Control
113 Michigan Law Review 663 (2015), Northwestern Law & Econ Research Paper No. 15-11
Peter C. DiCola 
Northwestern University School of Law 

 NEPA, FLPMA, and Impact Reduction: An Empirical Assessment of BLM Resource Management Planning in the Mountain West
University of Utah College of Law Research Paper No. 126
John Ruple and Mark Capone 
University of Utah, S.J. Quinney College of Law and University of Utah - S.J. Quinney College of Law 

 Eminent Domain and the International Market: An Examination of Whether Midstream Companies Can Justifiably Show Public Use
Mark G. Wendaur IV 
Widener University - School of Law 

Land use law articles posted to SSRN in July by international scholars 

 Conflict Resolution between Owners of Land and Holders of Rights to Minerals: A Lopsided Triangle?

Journal of South African Law, No. 2, pp. 326-341, 2011
PJ Badenhorst 
Deakin University - Deakin Law School 

The Delimitation between Airspace and Outer Space and the Emergence of Aerospace Objects
Journal of Air Law and Commerce, Vol. 78, 2013
Jinyuan Su 
Xi'an Jiaotong University School of Law 

 Legal and Administrative Remedies in Environmental Law in Nigeria: Reform Proposition
Afe Babalola University Ado-Ekiti Law Journal, 1(1), 320-352, 2013
Temitope Tunbi Onifade 
Memorial University 

 About Legal Notions: Cession, Novation, Subrogation and Assignation
Dimitar P. Gelev 
Ss. Cyril and Methodius University 

 The SCOPIC Clause as a Major Development in Salvage Law
Ilian Djadjev 
University of Groningen, Students 

 Romanian Experience with FIDIC Forms in Road and Bridge Construction
The International Construction Law Review, Pt. 4, 2013
Lukas Klee and Claudia Adalgiza Teodorescu 
Balázs & Holló Law Firm and Independent 

 Schutz wertvoller Stadtlandschaften durch das Zivilrecht? Bemerkungen zum Schutz individueller und kollektiver Rechtsgüter (Protecting Valuable Landscapes Through Private Law? Remarks on the Legal Status of Private and Collective Goods)
48 Kobe University Law Review 45 (2014)
Alexander Peukert 
Goethe University Frankfurt - Faculty of Law 

 Common Law Property Theory and Jurisprudence in Canada
Queen's Law Journal, Vol. 40, No. 2, p. 679, 2015, Osgoode Legal Studies Research Paper No. 28/2015
Sarah E. Hamill 
York University - Osgoode Hall Law School 

 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). , University of Hong Kong Faculty of Law Research Paper No. 2015/020
Fu Hualing 
The University of Hong Kong - Faculty of Law 

August 1, 2015 | Permalink | Comments (0)

Friday, July 31, 2015

Northeastern Law School Conference on Tackling the Urban Core Puzzle.

Northeastern Law School just announced a conference on the Urban Core as part of their Legal Scholarship 4.0 series. There is also a junior works-in-progress event associated with this conference (occurring on Halloween - spooky) but you better move quick because abstracts are due in two weeks with draft papers due by 9/9/15. See the website for details on the CFP and more.

From the Announcement:

Tackling the Urban Core Puzzle: October 29-31 in Boston

Even as American metropolises have begun to pull themselves out of the Great Recession, the neighborhoods at their centers often remain underdeveloped and impoverished. Entrenched sites of market failure and economic distress, such urban cores contribute significantly to the nation's worsening inequality gap. In our second annual Legal Scholarship 4.0 conference, Northeastern University School of Law invites you to join us in exploring and generating fresh research approaches with the potential to transform our cities.

 By examining a range of contemporary models aimed at improving worker participation, financial services, property access, economic competition and business and personal asset growth, we will explore new connections between law and development in the urban core.


July 31, 2015 | Permalink | Comments (0)

Wednesday, July 29, 2015

The Latest on Fair Housing

In the last couple of days I've run across some interesting mainstream journalism on fair housing issues - not something that normally gets a lot of play.  But I thought this blog's readers would be interested.

The first is Brentin Mock's essay on CityLab "How Los Angeles County Furthered Racist 'Fair-Housing' Practices," about how two southern California jurisdictions colluded with the LA County Sherriff's office to push black families out of their communities through "intrusive and intimidating compliance checks," according to the Justice Deparment's findings. Mock is very critical of both the local governments' and the sherriff's conduct.  He also refers to HUD's newly promulgated fair housing rules. . .

An issue also covered in a short Salon interview with Rutgers University's Paul Jargowsky, who calls the rules "long overdue" and yet also "only a start."  Most interesting to me in Jargowsky's criticism of the lack of diversity in housing types in the suburbs:

I certainly think that to the extent that we’re spending public money on these units, they should be done in a way that advances access to opportunity and makes the most effective use of the public dollar. But the biggest story here, in the end, is really the private market and exclusionary zoning,  and discrimination also in the private housing market. That’s the big one, and this won’t really  change that. I’m certainly in favor of what HUD is doing now with this rule, and I think it will make  some difference at the margin, but it’s not a big enough program overall to move the needle very much. . .

There has to be some overall constraint on pace of suburban growth, and the second thing would be that every suburban jurisdiction, every town and place that’s growing, has to include in its housing stock as it develops a full range of housing types that would accommodate roughly the distribution of income that exists within the metropolitan area. If you did that, within decades, new housing would accommodate a greater degree of racial and economic integration than it does now.

Yet another set of reminders, if we needed them, that providing safe, affordable housing remains a vexing issue in today's complicated world.

Jamie Baker Roskie



July 29, 2015 in Affordable Housing, Density, Local Government, Subdivision Regulations, Suburbs | Permalink | Comments (1)

Tuesday, July 28, 2015

Elinor Ostrom lives in California's Central Valley

Farmers in northern California's Central Valley are trying to implement some of Ostrom's ideas about managing commons; in this case, water.  Planet Money does a good job with the story.  (The part referencing Ostrom and commons is about half-way through).



July 28, 2015 | Permalink | Comments (0)

Call it Chi-raq if you want, but we'll take back your tax credits...maybe

Spike Lee and the City of Chicago are in a battle over the purported title of his new movie about violence in the city.  Lee reportedly is using the popular slang moniker of "Chi-raq" to refer to the city's most violent neighborhoods as his title.  Several aldermen proposed stripping Lee of $3 million in film tax credits, but apparently the aldermen have had second thoughts.  The Chicago Tribune has the story here (note:  not linked to the Tribune's website because it is behind a paywall.)  Also at 2015 WLNR 22244242.

July 28, 2015 | Permalink | Comments (0)

Can't Substitute an MOU for an Exacted Conservation Easement

A typical rather lengthy land use dispute in New Jersey highlights some of the issues that arise with exacted conservation easements.

Asbury Farms, a landowner in Washington Township, New Jersey, sought to develop a chunk (chunk being the technical term for 317 acres) of its land to develop some retail areas, a golf course, and other buildings. Not provided for in the Township's general plan, the township established a Planned Village District (PVD) comprised of Asbury's land to allow the project to proceed. The PVD rules and other laws required a variety of permitting approvals. Over the course of the development of this project, Asbury applied for both permits and permit extensions as did some of the individual businesses included in the project.

The interesting approval (well interesting to someone obsessed with fascinate by conservation easements) was a 10-year extension of a storm water management waiver. The Land Use Board approved  the extension of the development permit/waiver in 2008 but conditioned on the Board and Asbury reaching an agreement within 6 months on a conservation easement protecting open space. The Board was worried about the loss of open space as the project was developing.

Continue reading

July 28, 2015 | Permalink | Comments (0)

Monday, July 27, 2015

Sept 22 - Carver Colloquium at Denver Law: State Control of Federal Lands: Legal or Not?







July 27, 2015 | Permalink | Comments (0)

Can you enforce a conservation easement against the holder?

Here is an interesting case from Missouri:

In Rodgers v. Vilsack, (E.D. Missouri July 23, 2015), a participant in the federal Wetlands Reserve Program challenged the United States' decision to fine him for conservation easement violations.

The Wetlands Reserve Program, a Department of Agriculture program administered by the Natural Resources Conservation Services (NRCS) in conjunction with state and local agencies, pays landowners to encumber their land with conservation easements with the goal of protecting and enhancing wetlands. Rodgers owns land that was formerly strip mined 3500 of the 6200 acres). In 1998, he received $1,119,00 for a conservation easement held by the United States. Although not a WRP expert, it is my understanding that sometimes the NRCS tells the landowners what restoration projects to undertake and sometimes the NRCS (or related state/local agency) actually does the restoration itself.

I don't have a copy of the conservation easement itself, but we can glean some facts from the opinion. Rodgers claims that the NRCS restoration projects were faulty. He asserts that there were significant design flaws and in attempt to improve the habitat and wetlands on his land, he both created some dams and cut down some trees. NRCS fined him for both of these activities as being prohibited by the conservation easement. Rodgers, appearing pro se, also stated that NRCS gave him permission to undertake these activities.

The United States brought a motion to dismiss for lack of jurisdiction because the United States has not waived its sovereign immunity for actions of this type. So many interesting things to think about here.

Continue reading

July 27, 2015 | Permalink | Comments (0)

Saturday, July 25, 2015

Junior Land Use and Environmental Law Professor Listserv

Just sending out my annual reminder to let your new colleagues know about the junior environmental law and land use prof listserv. It's for folks who are pre-tenure or even pre-teaching. It's a great forum for informal discussions of teaching, research, how to get a teaching job, etc. Just send me an email if you want to be included.

July 25, 2015 | Permalink | Comments (0)

Friday, July 24, 2015

Is San Francisco's housing crisis the result of its progressivism?

Gabe Metcalf, well respected in San Francisco land use circles and the head of SPUR (San Francisco Planning and Urban Research), has a nice piece in CityLab today about San Francisco's housing woes and their relation to progressive policies in that city.  That said, I found the most compelling part of Metcalf's analysis one that was unexplored, and mentioned only in this passing passage:

Let me say very clearly here that making it possible to add large amounts of housing supply in San Francisco would never have been enough by itself. A comprehensive agenda for affordability requires additional investments in subsidies for affordable housing. Given the realities of economic inequality, there are large numbers of people who would never be able to afford market rate housing, even in a better-functioning market. [See SPUR’s complete set of ideas to make San Francisco more affordable.] In addition, while my focus here has been on San Francisco’s own housing politics, many smaller Bay Area cities and towns have been even worse actors. A regional solution, in which all cities do their part to accommodate regional population growth, would be far more effective than trying to solve our affordability problems inside the boundaries of a handful of cities. But San Francisco has been part of the problem too, when it could have been a very big part of the solution. Our suburban communities never claimed to be progressive, never wanted to be a refuge for people from all over the world seeking cultural tolerance or an opportunity for a better life.

In my opinion, this is the heart of the matter.  San Francisco is a very small city jurisdictionally.  An affordable housing policy that effectively addresses the Bay Area's housing woes must involve the surrounding suburbs.  I made my analysis of the problems some months ago in a blog post I entitled, "Are San Francisco's land use rules the culprit for skyrocketing rents?  [Hint:  No.]."

July 24, 2015 | Permalink | Comments (3)

Conference List

I have recently updated the conference list for land use and environmental law conferences. Always a good source to see what types of academic meetings are underway. Feel free to send updates my way. I try to update it once a month (but it probably happens every other month if I am honest).

July 24, 2015 | Permalink | Comments (0)

Thursday, July 23, 2015

San Francisco's fall ballot initiative sends short-term rental regs to voters

San Francisco voters will decide the fate of short-term rentals (e.g., Airbnb, etc.) in the city with a coming ballot initiative this fall, which proposes to amend the city's existing regulations.  

Here is the initiative and all of the relevant info from Share Better SF, which sponsored the petition.

Here is a summary from a San Francisco law firm:

Short-Term Residential Rentals. This measure, sponsored by the housing activist group Share Better SF, seeks to restrict short-term rentals in San Francisco.  The regulation of short-term rentals has been a contentious topic over the past few months.  On July 14, 2015, rather than supporting Supervisor Campos’s ordinance to effectively restrict short-term rentals to 60 days per year, the Board of Supervisors voted to uphold existing law and restrict “unhosted” short-term rentals to 90 days per year and allow for unlimited “hosted” short-term rentals.  “Hosted” rentals are where hosts stay in the units while guests are visiting.  “Unhosted” rentals are where hosts are not present in the units while guests are visiting.

If approved, this measure will cap all short-term rentals at 75 nights per year, regardless of whether the rental unit is hosted or unhosted.  Conditional use approval from the Planning Commission would be required to rent a unit on a short-term basis for more than 75 days per year.  If granted, the unit would have to operate as a bed and breakfast establishment.  Hosting platforms like AirBnB will be required to stop listing a unit for short-term rental if the unit has been rented on a short-term basis for 75 days per year.  Hosting platforms will be subject to severe penalties of up to $1,000 per day for violating these rules.  Further, homeowners will be prohibited from renting their in-law units on a short-term basis.  

This initiative also expands the definition of “interested parties” who can sue to enforce the City’s law.  Currently, only persons who live in the same building as a short-term rental unit are deemed “interested parties” with legal standing to sue violators of the law.  If passed, this measure will expand the definition of “interested party” to any person who lives within 100 feet of a unit used for short-term rental, or any housing-related non-profit organization.  


If passed, this measure would become operative on January 1, 2016.

July 23, 2015 | Permalink | Comments (0)

FREE! Updates on case law and regulatory developments related to land use and 1st Am, climate change, affordable housing, and NEPA

It turns out that the Land Use Institute, which was to be held later this month in concurrence with the ABA meeting in Chicago, has been postponed.  [Note:  the sharing economy panels will still be going on, so I will still be in Chicago for the ABA conference if anyone wants to meet up or, you know, hear me give my two cents on the sharing economy.]  

But with the other panels of the Land Use Institute postponed, that leaves me with about 50 pages of detailed memoranda I'd created as CLE handouts for my presentations at the event that will be too dated to use at a later time.   What to do?  I hate to see the information go to waste, so I thought I'd post the documents here--free!--for anyone who might find them of interest.   

The first document provides case briefs on the "top 10" cases since July 1, 2014 in (1) land use law and the First Amendment; (2) land use law and climate change; and (3) affordable housing and inclusionary housing law.  Here is the file:

Download Land Use Institute 2015 - Affordable Housing - Climate Change - First Amendment

The second document provides (1) an overview of federal law and policy related to climate change since July 1, 2014 and also (2) updates National Environmental Policy regulation and case law developments since July 1, 2014.

Download Land Use Institute 2015 - Climate Change and NEPA

I hope these documents prove of use to some of you out there and, as always, I welcome comments, especially on what I might have missed!  And don't be shy...I'd love a dialogue about any of this material either on the blog or by e-mail.

And come join us at the next Land Use Institute, which is now tentatively slated for ABA's next meeting in San Diego.



July 23, 2015 | Permalink | Comments (0)

Oct 2: GSU Law: Assessing Katrina's Legacy

Friday, Oct. 2

Georgia State University College of Law
Conference Center
85 Park Place
Atlanta, GA 30303

This summer marks the 10th anniversary of Hurricane Katrina, a catastrophic storm that reshaped the way cities across the United States and internationally talk about urban vulnerability and plan for resilience. Katrina’s Legacy conference will examine critical issues in the areas of community and economic development and educational reform.

  • 8-8:45 a.m. Registration and light breakfast
  • 8:45-9:15 a.m. Opening Remarks
  • 9:15-10:45 a.m. Fostering Metropolitan Rebirth Through Catalytic Community and Economic Development
    • Moderator: Dan Reuter, manager of Community Development, Atlanta Regional Commission
    • Shawn Escoffery, director of Strong Local Economies Program, Surdna Foundation
    • James Alexander, Housing and Economic Development manager, Atlanta Beltline Inc.
    • Frank Fernandez, vice president of Community Development, the Arthur M. Blank Family Foundation
  • 10:45-11 a.m. Break
  • 11 a.m.-12:15 p.m. Building the Resilient City: Schools as Cornerstone
    • Moderator: Courtney Anderson, assistant professor of law, Georgia State University College of Law
    • Liza Cowan, vice president, JP Morgan Chase Foundation
    • Delano Ford, executive director, Teach for America — Metro Atlanta
  • 12:15-12:35 p.m. Lunch
  • 12:35-1:05 p.m. Keynote Speaker
    • Ambassador James A. Joseph, emeritus professor of the practice of public policy at the Sanford School of Public Policy at Duke University, former U.S. ambassador to South Africa, and chair of the Louisiana Disaster Recovery Foundation following Hurricane Katrina.
  • 1:05-1:30 p.m. Question and Answer Session
Registration Coming
  • 3 hours of Georgia CLE credit have been applied for and would cost an additional $15.

July 23, 2015 | Permalink | Comments (0)

Monday, July 20, 2015

Tough TIF Talk in Chicago

The Chicago Tribune's (sub. reqd.) op-ed today is on TIF in the Windy City:

When Mayor Rahm Emanuel announced two years ago he would use tax increment financing money to buy land for a basketball arena, he poked the beast.
The TIF program had been widely criticized as a slush fund for Mayor Richard M. Daley. In a 2010 editorial, we called it an "off the books bonanza." So Emanuel's decision to spend TIF money on land that would benefit privately funded DePaul University provoked TIF critics who viewed the program as a clout kitty, expanded far beyond its original intent to revive blighted neighborhoods.
Last week, Emanuel placated the beast. He announced the city will phase out seven downtown TIF districts. His action is an acknowledgment that the TIF program, especially downtown, has run its course.
No new TIF projects will be built in the seven districts, outside of projects already approved by City Hall. The TIFs that will eventually go away: Chicago/Kingsbury, River West, LaSalle Central, Canal Street/Congress Expressway, Jefferson/Roosevelt, Roosevelt/Canal and River South.
Emanuel also wants to end the "off the books bonanza" by mandating that at least 25 percent of surplus funds in healthy TIFs get redistributed to taxing bodies. He'll establish a policy on when and how to shut down TIFs. While his administration has been more transparent on TIF spending than Daley's, TIF districts, their surpluses and how the money gets transferred and spent has made the program a constant target of suspicion.

Read the full op-ed at Westlaw:   2015 WLNR 21452729

July 20, 2015 | Permalink | Comments (0)

California city creates first-ever Medical Marijuana Innovation Zone

Next City has the story...

In May, the Arcata City Council approved, on a 5-0 vote, the creation of a “Medical Marijuana Innovation Zone.” City officials believe it may be the country’s first-ever land use designation specifically meant to promote and regulate the production of marijuana and cannabis-related products.

The city has identified several parcels in an industrial area on the edge of town, where an abandoned lumber processing facility may soon provide a city-sanctioned home for marijuana producers. The logic behind the zone hearkens back to the very origin of U.S. zoning when noxious industries were first segregated from residential areas.

In Arcata’s case, the nuisance isn’t from toxic smoke or noise but rather the sickly pungent aroma of some of the world’s most potent bud.

July 20, 2015 | Permalink | Comments (0)

Thursday, July 16, 2015

July 30: 31st Annual Land Use Institute: Planning, Regulation, Litigation, Eminent Domain, and Compensation

The 31st Annual Land Use Institute will be held concurrently with the ABA's national convention in Chicago on July 30.  I'll be there and speaking on a couple topics.  I've attached a pdf of the brochure.  Hope to see some of you there!

Download 31st Annual Land Use Institute

July 16, 2015 | Permalink | Comments (0)

APA webinar: A Sign Regulation Apocalypse? Understanding the U.S. Supreme Court’s Decision in Reed v. Town of Gilbert

From the APA website...

Tuesday, July 21 2015
1:00PM - 2:30PM EST

CM | 1.50
L 1.50

The webinar will be held from 1:00-2:30 pm Eastern; 12:00-1:30 pm Central; 11:00-12:30 pm Mountain; 10:00 am-11:30 pm Pacific. Refunds will not be provided for any cancellation.


On June 15, 2015, the U.S. Supreme Court struck down the Town of Gilbert, Arizona’s sign code. In a rare unanimous decision, all of the justices of the Court agreed that the town’s code violated the core First Amendment requirement of content neutrality, and the majority opinion provided new insight on what it means for a regulation to be “content neutral.” The Court’s decision is expected to put thousands of sign codes at increased risk of legal challenges, which could mean increased legal costs for local governments as well as potential negative impacts on communities’ aesthetic concerns. This program will include presentations by some of the nation’s leading scholars and practitioners on First Amendment and land use issues. Panelists will discuss the facts of the Reed case, the Court’s rationale for its decision, some of the important questions and unanswered issues stemming from the case, and will provide some helpful practice pointers on sign code drafting and enforcement.

On August 4th, 1:00-2:30 pm EDT, PLD will also be hosting a webinar on the recent U.S. Supreme Court decisions in Horne v. U.S. Dep’t of Agriculture and Texas Dep’t of Housing and Community Affairs v. The Inclusive Communities Project, Inc. Registering now for our “Double Webinar Package” will give you both the July 21st (Reed v Gilbert) and the August 4th (Horne and ICP) webinars for a discounted price! 

Registration and Pricing
Reed v. Gilbert Webinar Only
Planning and Law Division members $20
Non-members $40

Supreme Court Update Double Webinar Package
Planning and Law Division members $30
Non-members $60

Brian Connolly, Esq. - Attorney | Otten Johnson Robinson Neff + Ragonetti PC
Daniel Mandelker, Esq. - Stamper Professor of Law | Washington University Law School
John Baker, Esq. - Partner | Greene Espel, PLLP
Susan Trevarthen, FAICP - Chair, Member | Weiss Serota Helfman

July 16, 2015 | Permalink | Comments (0)

Tuesday, July 14, 2015

Next PLPR Conference Announced: Bern in February 2016 (Land as a Scarce Resource)

The 10th International Conference of the International Academic Association on Planning, Law, and Property Rights (PLPR) will take place in Bern, Switzerland, on February 17-19, 2016.

PLPR is a free-standing academic association with over 400 individual members from all over the world. PLPR believes that Planning, Law and Property are interdependent. PLPR therefore conveys the message "Planning matters, Law matters, Property matters". These three simple statements inspire the growing PLPR community to examine the difficult relationship between public and private interests in the use of land.

CONFERENCE THEME: "Land as a scarce resource"

Spatial planning is often accused of not being up to the tasks it is supposed to deal with: more parsimonious use of natural resources; conservation of regional identities in the face of global standardization processes; promotion of integrated transport infrastructures; reduction of socioeconomic disparities among territories, etc.

During the last century, all Western countries have developed a complex administrative organization to shape their spatial development. Most countries have passed planning acts accompanied by the development of training programs for planners through national planning schools, and planning departments were created at all levels of government. In most national settings, spatial planning instruments were crafted in a context of land profusion. But are these systems able to meet the challenges of scarcity today?

Fighting against sprawl and uncontrolled growth in the name of sustainability calls for the end of green field development. Yet, suitable land for urban development is becoming more and more scarce. One of the central challenges of the new scarcity situation is that spatial planning needs to deal with the complex property-rights situations that characterize the already-built environment. Redevelopment, densification, mixed use development and urban land reconversion implies that public actors, developers, real estate specialists, neighborhood or tenant associations will have to deal with competing interests that are rooted in complex property right situations or regimes. For effective steering of spatial development, a deeper understanding of the tight interactions between spatial planning and property rights is required.

Even where economic growth is still given, the actors of spatial planning struggle with this new focus on the redevelopment of pre-used plots. Beside technical challenges such as contamination, neighbor conflicts, noisiness, etc., scarcity also questions our development patterns oriented toward growth, increased resource consumption per capita, and growing inequalities.


Abstract submission opens:   September 1, 2015

Abstracts due:      October 16, 2015 (DEADLINE WILL NOT BE EXTENDED)

Early registration begins:   December 14, 2015

Conference:   February 17-19, 2016

Please visit the PLPR Conference website for details:


July 14, 2015 | Permalink | Comments (0)

Thursday, July 9, 2015

Cal. Council on Science & Tech releases major new report on fracking

The California Council on Science and Technology has just released a major report on the science of fracking, An Independent Scientific Assessment of Well Stimulation in California:  Summary Report:  An Examination of Hydraulic Fracturing and Acid Stimulations in the Oil and Gas Industry.  Here is the abstract (well worth the read):

Senate Bill 4 (SB 4) requires an independent study to assess current and potential future well stimulation practices in California, including the likelihood that these technologies could enable extensive new petroleum production in the state; impacts of well stimulation technologies (including hydraulic fracturing, acid fracturing and matrix acidizing); gaps in data that preclude evaluation; potential risks associated with current practices; and alternative practices that might limit these risks.

Publicly available information indicates the vast majority of well stimulations in California are hydraulic fracturing in four oil fields in the San Joaquin Valley. The California experience with hydraulic fracturing differs from that in other states because California wells tend to be shallow and the reservoirs more permeable. California operators generally do not conduct high-volume hydraulic fracturing from long-reach horizontal wells, and for this reason use far less water. Operators use hydraulic fracturing in a small number of offshore wells in state waters, but data on wells in federal waters is sparse. In the next few years, use of hydraulic fracturing in California will likely look much like today, both in terms of the stimulation practices and the expected number of operations. No reliable estimates exist of potential oil production using hydraulic fracturing or acid stimulation in the deep Monterey Formation source rock and the state should request a credible scientific assessment.

Direct impacts of hydraulic fracturing stem from unrestricted chemical use. These appear small but have not been investigated. Significant gaps and inconsistencies exist in available voluntary and mandatory data sources, both in terms of duration and completeness of reporting that limit assessment of the impacts of hydraulic fracturing. However, good management and mitigation measures can address the vast majority of potential direct impacts of well stimulation. The state should limit the use of the most hazardous chemicals and disallow the use of any chemical with unknown environmental characteristics in order to prevent possible environmental and health impacts. Operators currently dispose of wastewater from hydraulically fractured wells in percolation pits and also likely have occasionally injected wastewater contaminated with stimulation chemicals into protected groundwater. These practices should stop. We found no documented instances of hydraulic fracturing or acid stimulations directly causing groundwater contamination in California, but few studies examined this possibility. However, we did find that fracturing in California tends to be in shallow wells, and hydraulic fractures could possibly intersect protected groundwater in a few locations. Also, California reservoirs have many existing boreholes that warrant more attention to ensure they are not leakage pathways. We found the data insufficient to determine if there is a relationship between oil and gas-related fluid injection and any of California’s numerous earthquakes, and this should be studied.

Most impacts associated with hydraulic fracturing are indirect and are caused by oil and gas production enabled by hydraulic fracturing. For example, oil and gas development in general causes habitat loss and fragmentation that should be mitigated and any production facility can incur air emissions. As hydraulic fracturing enables only 20-25% of production in California, only about 20-25% of any given indirect impact is likely attributable to hydraulically fractured reservoirs.

Oil production from hydraulically fractured reservoirs emits less greenhouse gas per barrel than other forms of oil production in California. Air pollutants and toxic air emissions from hydraulic fracturing are mostly a small part of total emissions in oil producing regions except for a few toxic air substances such as hydrogen sulfide and formaldehyde in the San Joaquin Valley. However, pollutants can be concentrated near production wells and present health hazards to nearby communities. California public health studies could determine the magnitude of this issue and the need for any mitigating policies. Studies done outside of California found workers in hydraulic fracturing operations were exposed to respirable silica and volatile organic compounds (VOCs), especially benzene, above recommended occupational levels, but confirmation of this issue awaits specific evaluation in California.

This study highlights many recommendations to change practice, collect data, and investigate risk factors for Californians. However, questions remain at the end of this initial assessment of the impacts of well stimulation in California that can only be answered by new research and data collection. Volumes II and III of this report series provide many detailed recommendations for filling data gaps and additional research.


July 9, 2015 | Permalink | Comments (0)