Wednesday, September 2, 2015
One of my favorite parts of my research projects is when I get to actually go out and look at the land or get to talk to the people who are living and working with the issues I am writing about. Let's face it: I could do my job without ever leaving O'Brian Hall - the building that houses the New York's State Law School. Heck when it comes to research, I rarely even need to walk across the hall to enter the library. There is so much we can do these days from sitting behind our computer. Maybe we pick up the phone every now and then. Frankly, much of my research and writing occurs in just this manner. I can point you to several articles that I have written without doing more than consulting statutes, case law, and secondary sources: here and here for example.
But I often find it more rewarding to actually leave the building to see what people are doing and to see what the land actually looks like. I feel quite fortunate to be at SUNY Buffalo where we have a few different on campus funding sources that let me do just that.
For example, last week was my second trip to California for research I am doing into the conversion of agricultural land into renewable energy facilities (currently thinking about solar). I guess I didn't technically need to go out to look at solar panels or talk to farmers to write about this, but it was important to me to do so. I also find that when I interview people (several government employees at the state and county level as well as various lobbyists, developers, and conservation organization staff) in person, I have richer longer conversations when I talked to them on the phone. My average phone interview is 20 minutes while it is rare for an in person interview to be less than an hour. I really value people who take the time to talk to us researchers about what they do, what their concerns are, and how research projects might actually help them. I am sure I will end up writing more about my actual research project, but for now I would love to hear about people's experience doing research or working with researchers. Is field work (as we called it in grad school) a component of your work? One of the obstacles often seems to be funding. At my school we have some small grant opportunities that help cover costs of flights, rental cars, and audio recorders. I hope other schools recognize the value of such work and create similar opportunities.
One of the perils of one-off tax break deals is that a city might just wake up one day to realize the entire city is tax exempt. Impossible? A report last week by the Dayton Daily News tells that the city's CBD is now 80 percent tax exempt, something that seems to have slipped up on city officials:
Tuesday, September 1, 2015
I am happy to announce that the peer reviewed journal Land Use Policy just published my essay on cultural heritage conservation easements. In this piece, I examine the three categories of conservation easements that focus on protecting culture instead of protecting open space or environmental values: (1) historic preservation easements, (2) archaeological conservation easements, and (3) cultural conservation easements.
For those of you not familiar with these categories, let me give a little background. Historic preservation easements have been around a long time and are usually covered not only by state conservation easement acts, but sometimes by specific laws protecting and promoting historical buildings. Many of these are facade easements, protecting the exterior of buildings, but other include protection of the interior or extend into the area surrounding the buildings. These are closely tied to general efforts at historic preservation and accompanied by tax incentives. I am somewhat critical of these because at times their valuation seems questionably high, yielding significant tax benefits for wealthy landowners who may not have had any intention of modifying the historical architectural features of their home.
Archaeological Conservation Easements are few in number although often expressly permitted in state conservation easement statutes. They differ from other conservation easements because they generally contemplate the holder of the easement actually disturbing the land (or facilitating land disturbance by archaeologists). While the may protect important archaeological sites they do so specifically with the intention of exploration and exploitation, which makes them a pretty different creature.
Cultural conservation easements (as distinguished from cultural heritage conservation easements) protect cultural sites that do not necessarily have specific architectural or archaeologic features. These are most often associated with Native American Indian tribes and many are located in the West. Again, these conservation differ from the more traditional model because they often contemplate direct use of the site by the holders or others for religious or cultural purposes.
I am intrigued by these conservation easements for many reasons, but one I discuss in this essay is the idea of using a perpetual restriction in the context of cultural features. While protection of these spaces may serve as a vital tool in ensure that such places are not heedlessly demolished or converted to incompatible uses, the static nature of conservation easements seems odd in the context of culture -- something that grows and evolves. Are we creating museums on our landscape when we use perpetual tools that preserve today's uses and features.
December 11, 2015
Land Use and Sustainable Development Conference
Reflecting on the Past, Planning for the Future: Celebrating 100 years of Zoning
December 11, 2015
The Land Use Law Center is pleased to announce the theme of its 2015 Land Use and Sustainable Development Conference - Reflecting on the Past, Planning for the Future: Celebrating 100 years of Zoning. The Conference will discuss transformative land use, zoning, and sustainable development laws and policies that are shaping communities in the Tri-State Region, as they respond to current challenges. Conference panels will use zoning's centennial as a broad framework to discuss various land use topics and their promise for the future. The Conference will bring together national, regional, and local land use experts to highlight how communities are transitioning towards sustainability, disaster recovery, and revitalization.
We invite you to spend the day at this educational event, with more than 250 attorneys, business professionals, and local leaders in attendance to learn about national, regional, and local innovations, challenges, and best practices.
Governor Parris N. Glendening, President of Smart Growth America's Leadership Institute, will be our keynote speaker to update us on the many advances in smart growth strategies. Our morning plenary will include Don Elliot, FAICP, Dwight H. Merriam, Esq., Professor John R. Nolon, Dean Patricia E. Salkin, and Professor Michael A. Wolf who will reflect on zoning's past, its deficiencies given today's challenges, and its tendency to enbrace and respond to change.
Conference participants can earn CLE, APA-CM, and New York State planning and zoning training credits.
We hope you can join us for this day-long event scheduled for December 11, 2015.
This year's conference is dedicated to the legacy of Alfred B. DelBello, who was instrumental in creating many significant and lasting land use initiatives during his tenure as Mayor of Yonkers, Westchester's County Executive, New York's Lieutenant Governor, and as an innovative legal practitioner: a career of over four decades of innovation and accomplishment.
Land Use Prof Blog is pleased to welcome Sarah Adams-Schoen (Touro) as our guest blogger for September. More about Sarah below:
Professor Sarah Adams-Schoen joined the Touro Law Center faculty in 2012. She currently teaches Environmental Law, Environmental Criminal Law and Property and directs the Law Center’s Institute on Land Use & Sustainable Development Law. Professor Adams-Schoen was previously a Visiting Professor of Legal Analysis and Writing at Lewis & Clark Law School in Portland, Oregon, where she also taught Northwest Energy Law and Federal White Collar Criminal Law.
After receiving her Master’s in Public Policy, Professor Adams-Schoen worked as a senior policy analyst for Portland, Oregon’s Metro Regional Government, where she continued to work while earning her J.D. Before joining the Lewis & Clark faculty, she worked as a criminal defense attorney for Janet Hoffman & Associates, one of Oregon's top criminal defense firms, where she handled complex environmental and other state and federal white collar cases. Prior to that, she worked as a civil and regulatory litigator at Stoel Rives, a 400-attorney firm with 11 offices in 7 states in the Western U.S., gaining environmental, energy, regulatory, and administrative law experience. While at Stoel Rives, she managed the firm’s pro bono clinic. She is the past chair of OGALLA: The LGBT Bar Association of Oregon.
In her role as the inaugural director of the Institute on Land Use & Sustainable Development Law, Professor Adams-Schoen manages a number of projects related to land use or sustainability, including a model ordinance wind energy project and a project related to community disaster recovery. She is the manager and primary contributor to the Institute’s blog Touro Law Land Use. To learn more about the Institute click here.
Professor Adams-Schoen earned a Masters in Public Policy with distinction from the London School of Economics and a J.D. magna cum laude from Lewis & Clark Law School.
Professor Adams-Schoen is currently the co-editor-in-chief of Municipal Lawyer, a publication of the New York State Bar Association, and an associate editor of Legal Communication & Rhetoric: JALWD. She also participates in the Environmental Law Collaborative (ELC), a group of environmental law scholars who meet semi-annually to address pressing environmental concerns.
She is admitted to the Oregon State Bar, the Federal Bar for the U.S. District Court, District of Oregon, and is a member of the New York State Bar Association, the American Bar Association, and the American Planning Association. She is an active participant in the NYSBA Municipal Law and Environmental Law sections, and the ABA State and Local Government Law section and the Section of Energy, Environment & Resources. Professor Adams-Schoen is the liaison from the ABA State and Local Government Law section to the ABA’s Commission on Sexual Orientation and Gender Identity.
Thursday, August 27, 2015
It's that time of the semester when we invite folks to publicize land use-related events at their law schools (or other professional schools holding land use law-related events). Feel free to send your events to me, or to any of the other editors, and we'll get your good work out there.
Wednesday, August 26, 2015
Helen Kang has been a wonderful mentor to me, and so I like to celebrate her victories. Helen is the Director of the Golden Gate University Environmental Law & Justice Clinic and this week she shared this news:
The Stanford Environmental Clinic, as lead counsel, and the Golden Gate University School of Law’s Environmental Law and Justice Clinic, representing a diverse group of clients, won a challenge to California’s deficient regulation of water pollution from irrigated growing operations in one of the largest farming regions in the state – the Central Coast region. The state court’s 44-page decision affects 435,000 acres of farmland. This victory couldn’t have been achieved without the excellent work of our wonderful clients (including Pacific Coast Federation of Fishermen’s Ass’n; Environmental Justice Coalition for Water; Ms. Manzo who has not been able to use tap water because it is polluted; Monterey Coastkeeper; and Santa Barbara Channel Keeper); our co-counsel California Rural Legal Assistance; the staff attorneys at our two clinics, in particular Matt Sanders, Alicia Thesing, and Drew Graf; the many students who wrote briefs; and the two Stanford 3Ls and the Golden Gate graduate fellow (since the hearing was held in May after the Golden Gate students were gone from the clinic).
The case was covered in this article in the Monterey County Weekly. Congratulations to Helen and her colleagues and students.
Jamie Baker Roskie
Tuesday, August 25, 2015
This is my second post as a guest author for the blog. In my precious post I discussed the struggle for and conflict over land in the Negev desert, between the Government of Israel (“GOI”) and the country’s numerous indigenous Bedouin tribal people. (See map below for the Negev’s location. Today I attempt to explain parts of the Israel Land Law of 1969 and other attributes of land provenance and ownership.
I would like to apologize for incorrectly referring to the 1969 land law, as the 1949 land law at the bottom of the third paragraph of the previous post. I request that accept my apologies for missing the correct date. Of course, I hope that the readers were not confused by my error.
Once again, I note that we must take a step into the past, back to 1901 to be exact. However, historical facts do not necessarily provide us with substantive answer. In that year, the Jewish National Fund (“JNF”) was established by the Fifth Jewish Congress meeting in Basel, Switzerland. It was created as a national fund for the purchase and management of in Ottoman controlled Palestine land in what is today Israel, a national fund to purchase land. The JNF has been doing exactly that ever since. Moreover, to its credit the JNF has planted numerous forests across Israel. Nevertheless, although it is an independent entity, its leaders march to the government’s tune. Thus JNF’s decisions are sometimes at odds with what land stewards and environmentalists feel is moral, legal and right.
As a result of the purchase and transfer of properties - by the JNF to the Government of Israel (“GOI”) - and land that Israel received pursuant to the terms of the U.K.’s withdrawal from its Palestine Mandate the GOI - via state or by quasi-state agencies - owns most of the land, 93%, (excluding the occupied areas of the West Bank and Gaza), within the borders of the State. Indeed, Article 1 of Israel’s Basic Law of 1960, prohibits the transfer of land from government agencies via sale or by other means. Article 1 defines “lands” to include “land, houses, buildings and anything permanently fixed to land.”
Accordingly, in order to provide housing stock, the government gave families and businesses a 49-year lease that is renewable upon request for building homes or for buying condominiums, the predominant form of home ownership in the country.
Idaho Law welcomes Lee Fennell for first faculty colloquium in new Idaho Law & Justice Learning Center
The University of Idaho College of Law is excited to welcome Prof. Lee Fennell (Chicago) to Boise this Friday for our first faculty colloquium in the new Idaho Law & Justice Learning Center in Boise. Prof. Fennell will be discussing her draft paper, “The Distributive Deficit in Law and Economics.”
More on Prof. Fennell:
Lee Fennell joined the University of Chicago Law School faculty in 2007, having previously served as a Bigelow Fellow from 1999 to 2001. In the intervening years, she taught at the University of Texas School of Law from 2001 to 2004 and at the University of Illinois College of Law from 2004 to 2007. She has also held visiting positions at Yale Law School, NYU School of Law, and the University of Virginia School of Law. She received her JD magna cum laude from Georgetown University Law Center in 1990. Before teaching law, she practiced at Pettit & Martin, the State and Local Legal Center, and the Virginia School Boards Association.
Her teaching and research interests include property, torts, land use, housing, social welfare law, state and local government law, and public finance. She is the author of The Unbounded Home: Property Values Beyond Property Lines (Yale University Press 2009), as well as many articles and essays.
If you happen to be in Boise on Friday, stop by and join us!
Monday, August 24, 2015
From the Association of Collegiate Schools of Planning (ACSP): You might be interested in the abstract submission window for the upcoming World
Planning Schools Congress in 2016: submission deadline October 5th.
For detailed information about the conference and how to submit an abstract
visit http://www.wpsc2016.com.br/. The conference is in Rio de Janeiro, Brazil, July, 3rd to July 8th, 2016. A little land use law samba, anyone?
Sunday, August 23, 2015
This summer, Hawaii started what is only the second environmental court in the nation. It will be very interesting to watch and see its development. Seemingly, its jurisdiction also includes land use matters.
A video report here.
A release of the Hawaii judiciary:
HONOLULU — On July 1st, Hawaii will take the historic step of establishing the second statewide Environmental Court in the United States. Hawaii’s new Environmental Court will have broad jurisdiction over civil and criminal cases affecting the environment.
According to Supreme Court Chief Justice Mark E. Recktenwald, “The goal of the Environmental Court is to ensure the fair, consistent, and effective resolution of cases involving the environment. We are excited to be part of this new initiative.”
In recent years there has been a dramatic increase in the creation of environmental courts and tribunals around the world. To date, 350 environmental courts of some kind are operating in 41 countries. The Vermont State Legislature founded America’s first environmental court in 1990. No other statewide environmental courts were formed in the United States until former Governor Neil Abercrombie signed into law Act 218, Session Laws of Hawaii 2014.
Pursuant to Act 218, Chief Justice Recktenwald appointed Associate Justice Michael D. Wilson to serve as Chair of the Environmental Court Working Group, an assembly of court personnel from across the state, to manage the implementation of the new specialty court. The Working Group has been preparing for the July 1, 2015 launch, starting with a report to the 2015 Legislature describing plans to implement the Hawaii Environmental Court. Since then, environmental court judges for the district and circuit courts have been assigned, Circuit Court Rules were amended, case management systems were updated, and adjustments were made to some court schedules to accommodate environmental court calendars.
“With the Environmental Court, Hawaii will be better positioned to safeguard one of the most treasured environments in the world,” said Justice Wilson. “By organizing the technical and legal environmental issues under the Environmental Court, the State Legislature’s intention of promoting and protecting Hawaii’s natural environment will be realized through informed, efficient and consistent application of Hawaii’s environmental laws.”
Friday, August 21, 2015
I've been so busy this summer that I haven't had a chance to blog about some major developments on one of my favorite topics: neighborhoods. But now I have some time, so here goes.
I have several recommendations for those interested in neighborhoods. First, Malcolm Gladwell's article in this week's New Yorker, "Starting Over," discusses how social scientists have used the Hurricane Katrina-induced diaspora from New Orleans' poorest neighborhoods to explore the question of whether neighborhood matters. In short, it does. I highly recommend the article.
In addition, Gladwell does a short description of several very important social science articles that have come out this year. Those are both from teams led by Raj Chetty that have dug into HUD Moving to Opportunity data. As many of you know, MTO was a massive, multi-decade study that used different variables to explore whether removing people from the poorest neighborhoods to those with less poverty would affect their life choices and life outcomes. The initial results from the MTO study were surprisingly lackluster.
But Chetty and his team revisited the data and found what the initial investigation of the data had not: where poor kids grew up had a huge effect on how much money they earned as adults. In other words, while the results of MTO did not show a tremendous change in the lives of adults that were moved to new neighborhoods, the kids of those adults that moved to those new neighborhoods saw profound life changes.
In one of Chetty's studies, he investigated those families living in public housing in the MTO program that were randomly selected to be eligible for housing vouchers that required them to move to less-concentrated poverty neighborhoods. Children whose families received the special MTO vouchers grew up to earn significantly more than those whose families remained in public housing. Here is Chetty's abstract:
The Moving to Opportunity (MTO) experiment offered randomly selected families living in high poverty housing projects housing vouchers to move to lower-poverty neighborhoods. We present new evidence on the impacts of MTO on children’s long-term outcomes using administrative data from tax returns. We find that moving to a lower-poverty neighborhood significantly improves college attendance rates and earnings for children who were young (below age 13) when their families moved. These children also live in better neighborhoods themselves as adults and are less likely to become single parents. The treatment effects are substantial: children whose families take up an experimental voucher to move to a lower-poverty area when they are less than 13 years old have an annual income that is $3,477 (31%) higher on average relative to a mean of $11,270 in the control group in their mid-twenties. In contrast, the same moves have, if anything, negative long-term impacts on children who are more than 13 years old when their families move, perhaps because of disruption effects. The gains from moving fall with the age when children move, consistent with recent evidence that the duration of exposure to a better environment during childhood is a key determinant of an individual’s long-term outcomes. The findings imply that offering families with young children living in high-poverty housing projects vouchers to move to lower-poverty neighborhoods may reduce the intergenerational persistence of poverty and ultimately generate positive returns for taxpayers.
In a second study, Chetty and his colleagues looked at data for millions of families who moved from one county to another. Based on this data, they were able to estimate how much where poor kids grow up affects their income as adults. Here is Chetty's abstract:
We characterize the effects of neighborhoods on children’s earnings and other outcomes in adulthood by studying more than five million families who move across counties in the U.S. Our analysis consists of two parts. In the first part, we present quasi-experimental evidence that neighborhoods affect intergenerational mobility through childhood exposure effects. In particular, the outcomes of children whose families move to a better neighborhood – as measured by the outcomes of children already living there – improve linearly in proportion to the time they spend growing up in that area. We distinguish the causal effects of neighborhoods from confounding factors by comparing the outcomes of siblings within families, studying moves triggered by displacement shocks, and exploiting sharp variation in predicted place effects across birth cohorts, genders, and quantiles. We also document analogous childhood exposure effects for college attendance, teenage birth rates, and marriage rates. In the second part of the paper, we identify the causal effect of growing up in every county in the U.S. by estimating a fixed effects model identified from families who move across counties with children of different ages. We use these estimates to decompose observed intergenerational mobility into a causal and sorting component in each county. For children growing up in families at the 25th percentile of the income distribution, each year of childhood exposure to a one standard deviation (SD) better county increases income in adulthood by 0.5%. Hence, growing up in a one SD better county from birth increases a child’s income by approximately 10%. Low-income children are most likely to succeed in counties that have less concentrated poverty, less income inequality, better schools, a larger share of two-parent families, and lower crime rates. Boys’ outcomes vary more across areas than girls, and boys have especially poor outcomes in highly-segregated areas. In urban areas, better areas have higher house prices, but our analysis uncovers significant variation in neighborhood quality even conditional on prices.
Planet Money has a good laymen's explanation of Chetty's work here:
I continue to find this work exciting. I hope you do, too. I continue to believe that the neighborhood is worthy of further study on how law and policy can facilitate these new findings in the social sciences.
Thursday, August 20, 2015
From an email message that I received earlier this week:
The University of Oregon School of Law invites applications for the position of an assistant, associate, or full professor in environmental law, land use, local government, energy, and other related fields to begin in August 2016. Minimum qualifications include a record of academic excellence, demonstrated success or the potential for success in teaching and scholarship, and a JD from an accredited law school or its equivalent. Successful candidates must have strong interpersonal skills sufficient to inspire and work effectively with diverse groups of students, staff, faculty, alumni, and members of the bar. The University of Oregon is an equal opportunity, affirmative action institution committed to cultural diversity and compliance with the ADA. The University encourages all qualified individuals to apply, and does not discriminate on the basis of any protected status, including veteran and disability status.
Contact: For full consideration, application materials should be submitted by September 1, 2015, although submissions will be accepted until the position is filled. Applicants should submit a letter of interest, a current resume, a FAR form (if applicable) and references to the Stuart Chinn, Associate Professor, Chair, Faculty Appointments Committee, at LawHR@uoregon.edu, or to 1221 University of Oregon School of Law, Eugene OR 97403-1221.
For more information about University of Oregon School of Law, please visit our website at www.law.uoregon.edu.
From the folks at CLiME:
Call for Papers: Local Government Law Works-in-Progress
The Rutgers Law School Center on Law in Metropolitan Equity (CLiME) is proud to host the Third Annual Local Government Law Works-in-Progress Conference.
This scholarship conference will take place November 6-7, 2015 at the S.I. Newhouse Center on Law and Justice at the Rutgers School of Law in downtown Newark, NJ.
Although all topics are welcome, we are particularly interested in showcasing papers that interrogate the meaning and utility of an equity principle in local governance.
This year we hope to attract a few local government-oriented scholars from outside law to attend and comment.
Please register for the conference by October 2, 2015 here.
Participants will have the option of either presenting a full draft or an early work in progress/abstract. Draft papers will be due October 16, 2015.
Questions and submissions should be directed to email@example.com.
The use of land use planning, regulation, and law to discriminate against racial and ethnic minorities and low- and moderate-income people has a long history and many manifestations in the U.S. Among them are race-based zoning, exclusionary zoning, expulsive zoning, gentrification and displacement of residents through redevelopment, unequal provision of infrastructure, and inequities resulting from sprawl.
A significant body of literature on environmental justice is helpful to understanding the underlying issues of distributive, procedural, remedial, and social justice in land use. Environmental justice is about the fair treatment of all races, ethnic groups, and socioeconomic groups in environmental, natural resources, and land use policies and practices. Land use decisions in the United States have placed toxic chemicals, polluting facilities, and industrial land uses near and among low-income people and people of color. They have also produced inequitable patterns of – and access to – environmental goods and community infrastructure, such as parks, transit options, trees, well-functioning water and sewer systems, clean and vibrant riverfront areas and restored streams, affordable housing opportunities, recreational and civic facilities, and the like. At one time, low-income neighborhoods of color were the only places in some metropolitan areas that lacked paved roads and water and sewer services, a pattern that led some courts to find discriminatory intent by municipal officials just on the face of the disparate conditions (e.g., a Yick Wo type of analysis).
There are many environmental-justice books in other disciplines that are well worth reading. Some of my favorites are (alphabetical by author last name):
Spencer Banzhaf, The Political Economy of Environmental Justice (Stanford University Press 2012).
Ana Isabel Baptista, Just Policies? A Multiple Case Study of State Environmental Justice Policies (Proquest 2008).
Bunyan Bryant, ed. Environmental Justice: Issues, Policies, and Solutions (Island Press 1995).
Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (Westview Press 1990).
Robert D. Bullard, ed., Confronting Environmental Racism: Voices from the Grassroots (South End Press 1993).
Robert D. Bullard, ed., Unequal Protection: Environmental Justice and Communities of Color (Sierra Club Books 1994).
Robert D. Bullard, ed., The Quest for Environmental Justice: Human Rights and the Politics of Pollution (Sierra Club Books 2005).
Robert D. Bullard, ed., Growing Smarter: Achieving Livable Communities, Environmental Justice, and Regional Equity (MIT Press 2007).
Robert D. Bullard, Glenn S. Johnson, and Angel O. Torres, Sprawl City: Race, Politics, and Planning in Atlanta (Island Press 2000).
Susan L. Cutter, Hazards, Vulnerabilities and Environmental Justice (Routledge 2012).
Daniel Faber, ed., The Struggle for Ecological Democracy: Environmental Justice Movements in the United States (Guilford Press 1998).
Susan S. Fainstein, The Just City (Cornell University Press 2010).
Howard Gillette, Jr., Between Justice and Beauty: Race, Planning, and the Failure of Urban Policy in Washington, D.C. (Johns Hopkins University Press 1995).
Ryan Holifield, Michael Porter, and Gordon Walker, Spaces of Environmental Justice (John Wiley & Sons 2011).
Kathryn M. Mutz, Garcy C. Bryner, and Douglas S. Kenney, Justice and Natural Resources: Concepts, Strategies, and Applications (Island Press 2002).
Laura Pulido, Environmentalism and Economic Justice: Two Chicano Struggles in the Southwest (University of Arizona Press 1996).
Kristin Shrader-Frechette, Environmental Justice : Creating Equity, Reclaiming Democracy: Creating Equity, Reclaiming Democracy (Oxford University Press 2002).
Thomas Sikor, The Justices and Injustices of Ecosystem Services (Routledge/Earthscan 2013).
Gerald R. Visgilio and Diana M. Whitelaw, Our Backyard: A Quest for Environmental Justice (Rowman & Littlefield 2003).
Gordon Walker, Environmental Justice: Concepts, Evidence and Politics (Routledge 2012).
Laura Westra and Bill E. Lawson, eds., Faces of Environmental Racism: Confronting Issues of Global Justice (Rowman & Littlefield 2001).
In addition to the above listed books, there are two books by legal scholars that take broadly interdisciplinary perspectives on environmental justice and would be excellent resources to begin exploring the concept of environmental justice, particularly as it relates to land use. One is by the late Luke W. Cole and Sheila R. Foster, who is co-directs the Urban Law Center at Fordham Law School: From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement (NYU Press 2001). It is a classic in the field.
The other is a book that I wrote for the American Planning Association and its Planning Advisory Service Report series: Fair and Healthy Land Use: Environmental Justice and Planning (APA 2007 – it’s PAS Report No. 549/550). My Fair and Healthy Land Use book explores: what is environmental justice (ch. 1), environmental justice and land use (ch. 2), comprehensive planning and environmental justice, including key environmental justice planning principles (ch. 3), regulatory tools (ch. 4), community participation (ch. 5), the environmental impact assessment as a tool for implementing environmental justice (ch. 6), community infrastructure, housing, redevelopment, and brownfields (ch. 7), and constraints to incorporating environmental justice principles in land-use plans and controls (ch. 8). The book builds on my 1998 article “Planning Milagros: Environmental Justice and Land Use Regulation” in the Denver University Law Review, which included an extensive empirical study of zoning patterns, comparing low-income high-minority census tracts with high-income low-minority census tracts in 7 cities nationwide.
Coming Next: Ecosystem Services
Wednesday, August 19, 2015
Today, the conservative National Review has what I believe is supposed to be a hit piece on Donald Trump and the excessive tax breaks he has received from cities for his real estate projects. See here.
What's funny about this is that conservative groups routinely tout these tax incentives as essential for government to show it is aligned with business, as "public private partnerships" and so on. Now, the effort to dig up dirt on Trump has even conservative columnists acknowledging that the largesse granted to major corporations and billionaires in the name of economic development may be misguided. Would they dare to propose reform?! Here is a pull quote:
Jared Meyer, a fellow at the Manhattan Institute, noted Trump’s long history of courting public-sector largesse. “All Trump is doing is using his political influence and taking advantage of how naïve lawmakers are on economic-development projects to get special treatment that no one else gets,” Meyer says. “I don’t think it’s fair — definitely not. Even in the debate, he bragged about how he gives politicians of all stripes money so that when he comes calling, they’ll do ‘whatever the hell you want them to do.’ It’s a pretty messed-up system when people can use their money and political influence to get a special deal that no one else can.”
Tuesday, August 18, 2015
Individual and collective decisions about the use of land are fundamentally normative decisions, whether consciously made on the basis of a set of ethics and norms or reached through governance systems with implicit, imbedded normative underpinnings. What do ethicists have to say about land use that could be interesting to land use legal scholars? Quite a lot, it turns out.
If you have time to read only one book on the topic, I’d highly recommend Timothy Beatley, Ethical Land Use: Principles of Policy and Planning (Johns Hopkins University Press 1994). When I taught a land use seminar at Chapman University School of Law, I assigned this 300-page paperback book that covers land use from a diverse range of ethical perspectives. The outline of the book is as follows:
Part I: Ethical Framework
1. Land-Use Policy and Ethical Choices
2. The Nature of Ethical Discourse about Land Use
Part II: Sets of Land-Use Ethics and Obligations
3. Utilitarian and Market Perspectives on Land Use
4. Culpability and the Prevention of Land-Use Harms
5. Land-Use Rights
6. Distributive Obligations in Land Use
7. Ethical Duties to the Environment
8. Land-Use Obligations to Future Generations
Part III: Ethics and Individual Liberties
9. Paternalism and Voluntary Risk-taking
10. Expectations and Promises in Land-Use Policy
11. Private Property, Land-Use Profits, and the Takings Issue
Part IV: Ethics, Community, and Politics
12. Defining Life-Style and Community Character
13. Duties beyond Borders: Interjurisdictional Land-Use Ethics
14. The Ethics of Land-Use Politics
Part V: Conclusions
15. Principles of Ethical Land Use
Of course, many of you were probably expecting me to recommend Aldo Leopold’s writings on his land ethic, which are wonderful and well worth reading. Leopold urged a holistic view of the land community as encompassing both nature and humans, and a conservation ethic in how land is used and managed. The classic is Aldo Leopold, A Sand County Almanac And Sketches Here and There (Oxford University Press 1949), but other collections of his writings are also worth reading, including For the Health of the Land (edited by J. Baird Callicott and Eric T. Freyfogle; Island Press 1999), and The River of the Mother of God and Other Essays by Aldo Leopold (edited by Susan L. Flader and J. Baird Callicott; University of Wisconsin Press 1991). Julianne Lutz Newton wrote an exciting biography of Leopold: Aldo Leopold’s Odyssey: Rediscovering the Author of A Sand County Almanac (Island Press 2006). Writings by Wendell Berry and Wallace Stegner, discussed in a previous blog post, also articulate a land and environmental conservation ethic.
As many of you know, legal scholar Eric Freyfogle at the University of Illinois has written a number of highly important interdisciplinary books that integrate land ethics (including the writings of Leopold, Berry, historian Donald Worster, and others) with legal issues. My favorite remains Bounded People, Boundless Land: Envisioning a New Land Ethic (Island Press 1998), which is unusually articulate, inspiring, and engaging. Eric has commented on several occasions that he considers some of his later works his best writing, and all are certainly excellent and well worth reading. Among them are: The Land We Share: Private Property and the Common Good (Island Press 2003), Why Conservation Is Failing and How It Can Regain Ground (Yale University Press 2006), and On Private Property: Finding Common Ground on the Ownership of Land (Beacon Press 2007). Still, I stick by my special regard for his Bounded People, Boundless Land book.
J. Baird Callicott is a philosopher who has built on Leopold and yet gone beyond Leopold’s perspective with a strongly non-anthropocentric viewpoint. His books are well worth reading, including In Defense of the Land Ethic (State University of New York Press 1989) and Beyond the Land Ethic: More Essays in Environmental Philosophy (State University of New York Press 1999). Three other environmental ethics classics with relevance to land use are Holmes Rolston III, Environmental Ethics: Duties to and Values in the Natural World (Temple University Press 1988), Bryan G. Norton, Toward Unity among Environmentalists (Oxford University Press 1991), and Laura Westra, An Environmental Proposal for Ethics: The Principle of Integrity (Rowman & Littlefield 1994).
Despite the trenchant critique and normative guidance found in many writings on land ethics and conservation philosophies, the reality is that the land use system in the United States is characterized by pragmatism and ethical pluralisms at best. I discussed this point in my article The Structure of the Land Use Regulatory System in the United States, 22 Journal of Land Use and Environmental Law 441 (2007), available at SSRN: http://ssrn.com/abstract=1020305. Nonetheless, important ethical imperatives can be found in pragmatic perspectives on land use, as explored in an outstanding book by Ben A. Minteer: The Landscape of Reform: Civic Pragmatism and Environmental Thought in America (MIT Press 2006). Minteer examines the ideas of four major land-and-environment thinkers and reformers in the American 20th Century – Liberty Hyde Bailey, Lewis Mumford, Benton MacKaye, and Aldo Leopold – to illuminate an environmental pragmatism focused more on civic and policy reform than on picking sides in the anthropocentric/land-use versus ecocentric/environmental-preservation debates. I highly recommend this informative and well-written book.
By now (if you made it this far!), you’ve probably noticed that most of these writings involve environmental ethics and don’t really delve too much into social justice, distributive justice, procedural justice, and the like. I will tackle some of those issues, albeit mostly at the land use-environment intersection, in my next post on interdisciplinary readings in environmental justice and land use.
Coming Next: Environmental Justice and Land Use
Sunday, August 16, 2015
I know this matters almost exclusively as a matter of personal biography, but I have to share: It turns out that Fox is about to start a sitcom series, The Grinder, starring Fred Savage (The Wonder Years) and Rob Lowe (80's heart throb) about.......wait for it........lawyers.......in Boise........Idaho! What?!
When I moved to Boise after 15 years living in New York City and San Francisco, it seemed like I was moving to the end of the Earth. But Boise is a lovely place, I've come to learn, and it seems Hollywood has found out, too. Now, Hollywood has come calling and, perhaps, there is a cameo waiting for the law school--or yours truly?--in the coming months. A Hollywood cameo for a land use prof...now that would be something!
Surely, you would watch, no?
Saturday, August 15, 2015
Boulder-White Clouds shows there are still bi-partisan solutions available to land use and environmental issues
The preservation of Idaho's Boulder-White Clouds as wilderness this month ranks as one of the great un-reported land use and environmental stories of the year. Most of the major newspapers have covered the designation in passing. This is remarkable, in my mind, for a very important reason: the designation was a true bipartisan effort, over decades, in which today's very conservative Idaho congressional delegation aligned behind the proposed wilderness designation that a Democratic president could sign. Granted, there had been concern that Obama might declare the area a national monument, but that should not belie the fact that a bipartisan solution was reached in Washington on an environmental issue in today's climate. Such a result deserves to be celebrated. Below is an excerpt from PBS, which is the best coverage I found outside of Idaho, detailing the bi-partisan effort.
Friday, August 14, 2015
Initially, I’d like to thank Stephen Miller and Jessie Owley for the privilege of allowing me to be a guest blogger. I hope that my posts will be both informative and thought provoking.
Thanks, Itzchak Kornfeld
In this, my first post, I will address a real property issue that is pitting the Government of Israel against its Bedouin minority.
280,000 Bedouin live in Israel. Of these, 90,000 live in the Negev Desert in the country’s south. See Map Below. This community lives in the general area of Be’er Sheba, which we in Israel consider the capital of the Negev. The government is seeking to evict the Negev Bedouin from their ancestral lands. Its reason: the State of Israel considers them to be living in unauthorized villages or locations and accordingly sees them as squatters. I will address why the government has taken on this position in a subsequent post. Today I will introduce the history of the Bedouin and an initial discussion of the Land Law of 1949.
- Full disclosure, I work and have worked with the Bedouin and against the government.
TheZin Wilderness in the Middle Negev, Israel
Juniper Tree in the Negev adjacent to the Large Crater (of Makhtesh HaGadol in Hebrew)
One fact that is likely well known but may not be fully acknowledged is that Europeans, in almost every venue that they’ve settled, e.g., the U.S. and Canada, have taken by force lands that belonged to indigenous populations. Indeed, examples abound across the face of the planet, e.g., American Indians, the First Nations of Canada, the Bedouin of the Middle East, the Berbers of North Africa’s Maghreb, and the Walmatjarra of Australia, among others. Prior to being dispossessed and placed on reservations of one sort or another, these peoples flourished and were one with nature.
Of course, being one with nature is not one of the virtues of most European colonialists and their progeny. They conquer, reclaim and put land to “beneficial uses”. In this vein, private property rights theorists would argue that the bundle of rights, regardless of whether the land was appropriated by force, must be seen as a feature of an economic good. This economic paradigm requires use of the land; income generation from the land; the right to transfer the asset; and the right to enforce their property rights. But, how are aboriginal peoples supposed to gain the bundle of rights if they are dispossessed from their ancestral lands? This situation of course sets up a conflict between the two sides.
Indeed, the Bedouins in the Negev are in conflict with the European-based government of Israel. First, who are the Bedouin? They are an Arabic speaking seminomadic group that is descended from nomads who for at least thousand years inhabited the deserts of the Middle East, mainly from Syria in the north to North Africa in the south, and for our purposes, resided in Israel pre -1948, the date of the State’s founding.
The Bedouin also continue to reside within the boundaries of the State of Israel, and unlike the Palestinian or Arabs who also live in Israel proper the Bedouin serve in Israel’s military (the “IDF”). Service in the military is very important for Jewish Israelis however, the Bedouin do not receive the benefits that Jewish soldiers receive upon being released from their term of service.
Bedouin Man wearing IDF Jacket
Notably, the Bedouin have been fighting for the right to the lands that they and their ancestors occupied since the founding of the State of Israel. Moreover, they cannot undertake their semi-nomadic lifestyle since the borders of Egypt, Jordan, Lebanon and Syria are closed to them as a consequence of their Israeli citizenship. The Negev Bedouin have thus been forced to give up their thousand year legacy of being nomads.
Israel’s Land Policies
Since its founding in 1948, the Israeli government has held title to all but 7 percent of land within the country’s borders. The latter is held by deed, generally predating the formation of the Government of Israel. The government’s real property interests are transferred to it from the independent Jewish National Fund (“JNF”). The JNF was established in Basel, Switzerland, in 1901, solely to purchase land from Arabs, the Ottoman Turks, Jews, and other land holders, within the bounds of what today is Israel.
In enacting the Israel Land Law of 1969, as amended, the Knesset (Parliament) sought to eliminate the majority of the Ottoman Turkish law of 1274. That, in fact, did not occur. However, Knesset members thought long and hard about the adoption of the British common law property system, if for no other reason, because it was extant and had been working for some 30 years. Moreover, Hebraic or Jewish property law, as enunciated in the Bible and the Talmud, was also engrafted onto the 1969 law. Thus today, real property law in Israel is a combination of the three. That legal sausage is now the law of the land.
A Twist in the Law
A personal story may be of interest: In 1937, my father’s aunt purchased a parcel of property in Ramat HaSharon, an upper income city, north of Tel Aviv, where today most of the IDF’s generals reside. She was one of 18 parcel holders. When Aunt Sara passed away my father inherited the plot, and subsequent to his death, I inherited it. The other owners and I sought to develop all 18 parcels (4.5 acres), however, we cannot due to an artifact of Ottoman law. That legal relic states that if A is growing any fruits or vegetable on B’s land, as a lessee, the lease cannot be terminated by B until A decides not to grow crops. In our situation, my father’s aunt Sara purchased the property following A’s agricultural undertaking. He grew tomatoes, and his heirs continue to do so. Thus, three generations of my family are legally bound not to evict the farmers from our land. One bright spot is that we as owners we do not have to pay real estate taxes, s long as the property remains agricultural.