Saturday, June 19, 2010

Healthy Communities Presentations...

I recently gave a couple of presentations at the Alabama Department of Public Health "Healthy Communities" seminar on how land development and the codes that govern it affect health issues.

You can access both of the presentations here.  Feel free to use them however might be helpful if you'd like.

--Chad Emerson, Faulkner U.

June 19, 2010 | Permalink | Comments (1) | TrackBack (0)

Friday, June 18, 2010

Christie on Beaches, Boundaries, and SOBs

Donna R. Christie (Florida State) has posted Of Beaches, Boundaries, and SOBs, published in the Journal of Land Use & Envrionmental Law, Vol. 25, p. 19 (2010).  Hot off the press, this article addresses issues raised in Stop the Beach.  The abstract:

As sandy beach property has become more scarce and more expensive, the controversies between upland owners and public users of the beach have increased. The public has an absolute right under the public trust doctrine to use the beach below the mean high water line (MHWL) boundary that defines the limits of state lands and littoral ownership, but “knowing” where that ambulating line is at any given time is virtually impossible. This uncertainty exacerbates the tensions that in Florida are leading to clashes between private land owners and the public. Setting a fixed boundary would lead to more certainty and consequently less controversy, but both legal and policy issue arise concerning this approach. In once instance, however – setting a fixed boundary between upland owners and submerged, public trust lands for purposes of government restoration of critically eroding beaches – a fixed boundary with appropriate protections for littoral owners seems to address problems of certainty, as well as legal and policy concerns. The Florida Beach and Shore Preservation Act’s (BSPA) use of this approach has been challenged in the Florida Supreme Court and subsequently in the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Protection. This article explores public and private interests in beaches and shores, and how the complexities of coastal boundaries contribute to controversies about the use of beaches. The article then looks at how the BSPA attempts to protect both the private and public interests in the coast through, among other provisions, establishing a fixed boundary for restored beaches. Finally, the challenges confronting Florida’s beach management that have arisen as a result of suits in the Florida Supreme Court and now in the U.S. Supreme Court are analyzed.

Matt Festa

June 18, 2010 in Beaches, Caselaw, Coastal Regulation, Local Government, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, June 17, 2010

Stop The Beach I--The Lead Opinion

As mentioned below, the Supreme Court decided today what was billed to be the most significant property rights case of the Term, and probably since Kelo in 2005: Stop the Beach Renourishment v. Florida Dept. Environmental Protection.  The decision doesn’t seem to be particularly earth-shattering in its result, but the opinions do give us quite a bit to analyze for its implications for property and land use law. 

In this post I will give my first-day analysis of the lead opinion; in subsequent posts I’ll review the concurrences, round up what other commentators are saying, and highlight some issues for the future.  I think that Stop the Beach will provide a good background for lots of discussion about land use law over the coming weeks and months. 

I.  The Breakdown of the Decision

The Court ruled 8-0 to affirm the judgment of the Florida Supreme Court that the petitioners did not suffer an uncompensated taking of property rights under the Fifth and Fourteenth Amendments.  Justice Stevens did not participate.  Justice Scalia wrote the lead opinion, which is the Opinion of the Court for Parts I, IV, and V.  Justice Scalia’s opinion in Parts II & III (joined by C.J. Roberts, J. Thomas, & J. Alito) argued that the Constitution recognizes the concept of a “judicial taking,” even though the claim in this case did not warrant such a ruling.  Justice Kennedy (joined by J. Sotomayor) concurred, but wrote separately to argue that the case did not require the Court to decide the judicial takings issue.  Justice Breyer (joined by J. Ginsburg) also concurred by arguing that it was unnecessary to resolve the constitutional question.

II.  Justice Scalia's Opinion of the Court

Justice Scalia wrote the lead opinion, which is the Opinion of the Court for Parts I, IV, and V.  In the first Part, Justice Scalia (writing for the eight Justices who agreed in the disposition) first reviewed the common law rights associated with “littoral,” or coastal property, including the right of access, right to use the water, right to an unobstructed view, and the right to receive accretions and relictions to the littoral property.  Now, whether a particular state subscribes to the public trust doctrine, or some other legal baseline for property rights in beachfront property, the typical regime starts with the basic recognition that the state owns the “wet sand”—the land from the sea up to the mean high-tide line—and private landowners own the “dry sand” above that line, but usually subject to public access easements or other restrictions. 

The Opinion of the Court makes short work of the distinction between “accretion,” which is the gradual, imperceptible growing or shrinking of the coastline—where common law awards the land to the individual owner—and “avulsion,” which is a more “sudden and perceptible” addition or loss (caused by, e.g., a hurricane)—where the State, holding the property in public trust, remains the owner of the formerly submerged land.  Justice Scalia’s Opinion notes that the Florida statutory scheme clearly delineates a program whereby the State may implement projects that “renourish” beaches by adding lots of sand, which allows the State to establish an “erosion control line” that effectively re-sets the property line.  Because these State actions are more properly characterized as “avulsions” (even though they are caused by the government, and not natural forces such as a hurricane), they fit within the legitimate statutory scheme, and the property owners’ common law beachfront rights do not trump the State’s prerogative to do beach renourishment as a matter of constitutional takings law.

III.  Justice Scalia's Plurality Opinion

While he wrote for a unanimous Court in the disposition of the case, the jurisprudential controversy will be over his Parts II & III.  The meat of the Justice Scalia opinion, and what is certainly going to be the source of discussion, is his assertion that there can in fact be such a thing as a “judicial taking” within the scope of the Fifth and Fourteenth Amendments.  In Part II.A., Justice Scalia sets forth his opinion that even though it is not the result here, there can in fact be such a thing as a (compensable) taking of property by a judicial decision.  Noting that the “classic” case of a taking is a government acting through its legislative or executive branches to condemn title to private property through eminent domain or a regulatory taking, Justice Scalia insists that there is nothing in the Constitution that specifies which branch of government can be responsible for a taking: the Takings Clause, he writes, is “concerned simply with the act, and not with the governmental actor” (8).  He makes much of the observation that first, state governments are not held to the same standards for separation of powers under the federal constitution, and that as a result, it shouldn’t matter which branch of a state government is responsible for an alleged deprivation of property rights.  Justice Scalia articulates a test for “judicial takings” that is sure to be the baseline for arguments over the issue in years to come:

If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation. 

Justice Scalia’s Part II spends sections B and C tearing down the concurrences of Justices Kennedy and Breyer, so I’ll discuss those in a later post.  For now, reading only the lead opinion of Justice Scalia, I think it’s safe to say that (1) it will be hard to argue that a court opinion effects a federal constitutional taking in the face of well-grounded state law; but that (2) the “judicial takings” issue is wide open for the future in property and land use law.

Matt Festa

June 17, 2010 in Caselaw, Coastal Regulation, Environmental Law, Property Rights, Property Theory, State Government, Sun Belt, Supreme Court, Takings | Permalink | Comments (3) | TrackBack (0)

Supreme Court Decides Stop the Beach Renourishment

The big property rights case of the Term has been decided.  In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, the Court rejected the judicial takings claim unanimously.  The opinion is here: http://www.supremecourt.gov/opinions/09pdf/08-1151.pdf.  Justice Scalia wrote the majority opinion, but it is not the opinion of the court on all parts.  Justices Kennedy and Breyer wrote separately.  We've posted about the case previously here, here, here, and here.  For a great analysis of what was at stake in the case, re-read Ben Barros' excellent post from last year. 

Also, tons of links (briefs, case history, oral argument, news articles) at the SCOTUS Wiki page for the case.

A quick look seems to indicate that the Justices split (4-4, with J. Stevens taking no part) over the issue of whether there can be such a thing as a judicial taking under the right circumstances.  Now, to go read the opinions . . . .

Matt Festa

June 17, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Judicial Review, Property Rights, Property Theory, State Government, Supreme Court, Takings | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 16, 2010

Blumm on the 1910 Big Burn and the U.S. Forest Service

Michael C. Blumm (Lewis & Clark) has posted Present at the Creation: The 1910 Big Burn and the Formative Days of the U.S. Forest Service, a review of Timothy Egan's The Big Burn: Teddy Roosevelt and the Fire that Saved America.  Blumm's abstract:

This review of Timothy's Egan's 2009 book, "The Big Burn: Teddy Roosevelt & the Fire That Saved America," lauds Egan's storytelling while questioning the title of his book. Egan tells a gripping tale about the largest wildfire in North America, a 1910 blaze in the Bitterroot Mountains along the largely unroaded Idaho-Montana border that cost a hundred people their lives and burned an area fifty percent larger than Yellowstone National Park. Egan claims that the big wildfire secured the young U.S. Forest Service's role as a public land manager and established conservation as a politically viable policy that encouraged Theodore Roosevelt to attempt to recapture the presidency in 1912. However, at the center of Egan's story is not Roosevelt, but Gifford Pinchot, whom Roosevelt appointed the first chief of the Forest Service in 1905. Pinchot convinced Roosevelt to preserve more public land (outside of Alaska) than any president before or since, and he made the Forest Service into one of the most respected government agencies in twentieth century America. But the Big Burn's legacy also led Pinchot's successors to give priority to fighting public land wildlifes, which damaged the ecology and, ironically, led to larger wildfires. The review suggests that the Pinchot-Roosevelt conservation era produced more public support for environmental protection than ever in American history, and that the political lessons of that era may be useful in a twenty-first century challenged by catastrophic oil spills and global climate change.

Matt Festa

June 16, 2010 in Books, Environmentalism, Federal Government, Scholarship | Permalink | Comments (0) | TrackBack (0)

Rose on Liberty, Property, Environmentalism

Carol Rose (Arizona) has posted Liberty, Property, Environmentalism, published in Social Philosophy & Policy, Vol. 26, No. 1, 2009.  The abstract:

The environment has often been thought to consist of resources that are unowned, and hence subject to the well-known tragedy of the commons. But in recent years, property ideas have been increasingly recruited for environmental protection, in a manner that appears to vindicate the view that property rights evolve along with the needs for resource management. Nevertheless, property regimes have some pitfalls for environmental resources: the relevant parties may not be able to come to agreement; property regimes may be weak or ineffective; they may be aimed at purposes inconsistent with environmental protection; property rights definitions may not work well for environmental resources; modern property regimes may promote monoculture rather than diverse environments. This essay describes these problems and asks to what degree they apply to a new effort to use property rights approaches, namely cap-and-trade programs to control greenhouse gases. It concludes that property rights, while imperfect and something of a retreat from a regime of complete liberty, may offer gains for environmental protection. But success will depend on close attention to the accountability and effectiveness of the governmental institutions necessary to support environmental property regimes.

Matt Festa

June 16, 2010 in Environmental Law, Environmentalism, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 15, 2010

Marsh on Commercial Real Estate Remedies

Tanya D. Marsh (Indiana; Wake Forest) has posted Sometimes Blackacre is a Widget: Rethinking Commercial Real Estate Contract Remedies.  The abstract:

This Article argues that the presumption that all land is unique, a principle so embedded in the common law that it is “settled beyond the need for citation,” is wrong. The “uniqueness doctrine” is used to justify granting non-breaching purchasers of real property nearly automatic access to the remedy of specific performance without requiring a wronged party to prove that it has no adequate remedy at law. This powerful common law protection for non-breaching purchasers evolved for a variety of social and economic reasons. This Article makes the case that these historical reasons do not support the applicability of the uniqueness doctrine to modern commercial real estate transactions. Despite the illegitimacy of the uniqueness doctrine, this Article argues that allowing the parties to commercial real estate contracts to bargain for equitable relief is not only desirable, but consistent with legitimate doctrine, practical concerns, and the property rule/liability rule paradigm described by Professors Calabresi and Melamed. The instability of the uniqueness doctrine poses an immediate practical problem – any sudden change would cause significant problems and increased costs for the already-troubled $6.5 trillion American commercial real estate sector. This Article proposes that acknowledging the illegitimacy of the uniqueness doctrine is essential to preserving and enhancing the remedies regime relied upon by the industry.

Matt Festa

June 15, 2010 in Remedies, Scholarship | Permalink | Comments (1) | TrackBack (0)

Mall Farming...

So, how many revisions to the typical municipal zoning code would likely be required to allow this to happen:

Shopping malls may be on the brink of major reinvention and adaptive reuse…as farms. The Galleria Mall in Cleveland, Ohio is leading the way by growing organic food for mall patrons and local restaurants. The mall has transformed the lost retail space within its glass-top confines into a gigantic, organic-food greenhouse.

The idea sprouted when the mall’s marketing and events coordinator Vicky Poole teamed up with Jack Hamilton, a business owner in the Galleria. Together they began operating Gardens Under Glass, a hydroponic garden in the Galleria at Erieview in downtown Cleveland. The project is funded by a $30,000 start-up grant from the Civic Innovation Lab. Gardens Under Glass at the Galleria will start with lettuce, spinach, peas, tomatoes, and herbs, and, if successful, add fruits, more vegetables and edible flowers.

Food will be raised hydroponically, aquaponically and in organic soils through a combination of raised beds, vines and vertical structural supports. The plan also includes composting and using nutrient-rich waste from aquariums to nourish the plants. The duo hopes that the project will be a model for sustainable farming, while bringing additional visitors or curious onlookers to the mall’s stores. If successful and implemented at the mall on a larger scale, Gardens Under Glass could help extend Ohio’s short growing season and increase the amount of food dollars spent locally.

We have one of these dead malls here in Montgomery that nobody can really develop a plan for adaptively reusing. Maybe instead of complex renovation schemes, we should be looking at indoor farming.  An interesting idea.

One, though, that would likely run counter to the wide variety of agriculture limitations and restrictions sprinkled and sprouted throughout most zoning codes.

--Chad Emerson, Faulkner U.

June 15, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, June 14, 2010

Zoning for Zucchini

"Zoning for Zucchini" was the headline in today's print edition of the Baltimore Sun.  It's been nearly 40 years since Baltimore revised its zoning code.  The new zoning code anticipates a greener, more sustainable Baltimore by promoting open space.  The new code will further develop the recent enactment of an open space zoning district, allowing public and private parks and gardens to be dedicated to passive and active recreational uses.   Student attorneys from the University of Baltimore Community Development Clinic researched and advocated for the creation of the original open space zoning district.  Prior to the change, Baltimore's public parks were zoned for residential use.  The new zone offers community garden advocates an interesting conservation alternative to a perpetual conservation easement, a device that may not be appropriate for an urban neighborhood setting.  For more information about "right-sizing" America's older cities, check out this report from the Cleveland Urban Design Collaborative.


Jim Kelly


June 14, 2010 | Permalink | Comments (0) | TrackBack (0)