Thursday, June 25, 2009

Bright line or discretion in land use law?

   The heat of summer draws the mind to the coolness of the Pacific Northwest.  But there is a story in the Portland Oregonian that highlights interesting questions about the difficult choices between bright-line rules and discretion in land use law.
    Land use laws for farms are among the most interesting because they often reflect both a policy preference in favor of preserving the putatively valuable agricultural land use (perhaps ironically, especially often when the farms are close to urban areas, where the land might be more valuable as developed land) and the recognition that legal preferences may encourage landowners to abuse the preference.  Thus we have frequent stories of wealthy landowners placing a few head of cattle on land used for a mansion in order to take advantage of legal breaks for “farms.”  To prevent this kind of abuse, land use laws often restrict what a farmer can do on the land.
Sauvieisland     Northwest of Portland along the Columbia River is Sauvie Island, where a farmer rents his spread for weddings, picnics, and classical music concerts.  Is this an abuse of zoning for farms?  According to the story, Oregon law restricts non-agricultural income on farms such as this to 25 percent of the total.  For now, the farmer has stopped some of his non-farm events as he applies for a new land use permit.
   It’s easy to side with “discretion” here: Let the nice farmer hold his classical music concerts, right?  But allowing significant non-farm uses on areas zoned for agriculture might open the door for other clever skirts around the law by wealthy landowners.  Maybe a “bright-line” is the safest course.  But some Mozart and Oregon Riesling on a cool Northwest evening does sound very pleasant right now …

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June 25, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 24, 2009

“Exacting” a riverfront greenway in Philadelphia? …

Philadelphia       The city of Philadelphia, one of the nation’s oldest, used to have a reputation for being somewhat staid.  And this traditional conservatism has been reflected in its land use law.  Until recently, Philadelphia followed an unwritten and very old-world-style policy that no building would be taller than the statue of William Penn atop the enormous masonry 1901 City Hall tower.  In the 1980s, however, the practice was finally broken with a number of New-York-like office towers.  Philadelphia also has lagged behind other big cities in turning its waterfront into a public recreation area.  Once one of the nation’s busiest ports, the wide Delaware River would be turned into a “greenway,” in part through an ordinance adopted last week by the city council.
     According to the new law, a “continuous recreational experience along the riverfront … will enhance public space and economic vitality of the area.”  Toward this end, the law specifies what kinds of businesses are permitted (no adult book stores or guns shops) and requires that new construction to be largely glass at the ground floor.  Most significantly, the law requires a setback from the river of 100 feet (or 10 percent of the lot, if this is less than 100 feet).  No new construction in commercial areas here will be permitted unless the owner creates a recreational trail within the riverfront setback and creates an access path to the setback.  
     In this way, of course, the city intends to create a public greenway without having to buy land or use eminent domain.   Developers are already arguing that the setback and trail requirements are an unconstitutional “exaction” of land to the public without just compensation.  Stay tuned …

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June 24, 2009 | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 23, 2009

Pace Environmental Law Review is now peer-reviewed and seeking articles …

  Continuing with the environmental theme this week, the Pace Environmental Law Review has asked me to pass along the announcement below.  As we learn, for example. how suburban lawns affect water quality, how housing density affects air quality, and how sprawl affects wildlife habitat, enviornmental law depends more and more on land use law, and the two inform each other ...  

Pace Environmental Law Review Announces Shift to Peer-Review
Established in 1982, PELR was one of the first scholarly environmental law journals.  As of August 1, 2009, Pace Environmental Law Review (PELR) will use a new Peer Review process to select articles for publication.  Submissions will be reviewed internally and then forwarded to a select group of Peer Reviewers − academics, practitioners, and experts in the field, including members of Pace Law School’s world-renowned environmental law faculty.  The Peer Review process will offer new and distinctive opportunities to foster continued debate and reflection upon some of the most pressing topics within the field of environmental law. Articles selected for publication will benefit from:
•       Expedited editorial processing of 8 to 10 weeks from acceptance.
•       Single-article hard copy publication.
•       Inclusion in a bound volume distributed to PELR’s wide-ranging list of subscribers.
All articles submitted to PELR must be original scholarship and not previously published.  Exclusive submission not required.  Scholarship related to the intersection of land use law and environmental law very welcome.
We invite authors to submit articles either via ExpressO or directly in either MSWord or PDF format to the PELR Development & Acquisitions Editor at
For more information, please visit the website at

June 23, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, June 22, 2009

International perspective: land use law and property in the Amazon

   When I was kid in the 1970s, I thought that if I really wanted to get out of going to school, I could head for the Brazilian Amazon, which on my atlas seemed like an endless expanse of impenetrable rainforest.  Later, when I started to read about political theories, I was very curious about socialism, which seemed attractive to my teenaged mind (as it should to all at this age, said Clemenceau).  Today, neither the Amazon nor socialism is what it once was.  But both are back in the news.  
Amazon    Earlier this month, the Brazilian legislature passed a new law that would regularize some claims to private property in much of the Amazon region, as long as they were established before 2005.  The claims would be limited to 1500 hectares in size.  But it would not allow future claims – in large part to try to protect the region from further deforestation.  The remainder would be made in effect public land.  The law obviously is compromise between the claims of land-starved Brazilians for more land on which to farm and graze, and environmentalists, who wish to preserve as much of the carbon-sink Amazon as possible.  While environmentalists welcome stronger restraints on settling and logging, they criticize the law for not including proposed tough restraint on resales, among other things.
   All in all, the compromise seems to owe a little to private enterprise, a little to socialism, and a little to environmental protection.  This is the sort of compromise that seems to be universal these days … 
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June 22, 2009 | Permalink | Comments (1) | TrackBack (0)