Saturday, July 24, 2010

Gordy on Canadian Sovereignty in Arctic Waterways

Again, if everything goes as planned, I will be away in Canadian waterways today, so I've arranged to post this somewhat topical article.  Kimberley Celeste Gordy (J.D. Candidate, U. of Houston) has posted Dire Straits: The Necessity for Canadian Sovereignty in the Arctic WaterwaysFordham Environmental Law Review, Vol. 20, pp. 551-596, 2010.  The abstract:

Experts predict that a desperate global desire for the Arctic’s natural resources will be the catalyst for the next cold war unless the question of sovereignty in Northwest Passage and surrounding Arctic waterways is finally settled. As climate change takes hold in the Arctic, scholars have continued to focus on both outdated and legalistic arguments to draft unworkable solutions to a current crisis. Arctic management solutions based upon international agreements offer insufficient protection for Canada, the nation most vulnerable to international exploitation and environmental devastation. 

This Article brings to light three considerations previously overlooked by scholars in past sovereignty analyses. First, it argues that effective management of the finely tuned Arctic ecosystem must be the responsibility of those developing the region. Second, it contends that a feasible Arctic solution must promote socio-economic stability for Arctic residents while also preserving the indigenous culture. Finally, it asserts that a nation must have an incentive to fund the expense of creating environmentally safe and sustainable development. Canada is the nation best suited to accomplish the three tasks the Article identifies. It also has the greatest motivation because Canadians, especially the indigenous people, will suffer direct harm if these considerations are ignored. 

For the first time, the Canadian government’s assertion of Arctic sovereignty can be realized at international law. This Article offers a modern and timely interpretation of sovereignty under Historic Consolidation of Title. The analysis presents the legal merits of Canada’s claim under this doctrine and demonstrates Canada’s ability to exercise effective control over the Arctic. Most importantly, this Article establishes that Canadian sovereignty is the only equitable solution for the modern Arctic.

Matt Festa

July 24, 2010 in Climate, Comparative Land Use, Environmental Law | Permalink | Comments (0) | TrackBack (0)

Friday, July 23, 2010

An Interesting Analysis Related to Land Use and Schools...

Architect and planner Steve Mouzon--a strong advocate of sustainable development on the lot, block, and community scale--recently posted a very informative comparison of three elementary school sites in Alabama and how land use regulations affected them:

Let’s look at the difference between the way we used to build schools, the normal way we build schools today, and a better way of building schools today. All three schools shown here are elementary schools, and are located in the state of Alabama so that it’s close to an “apples and apples” comparison. Satellite views of the schools are shown at the same scales for equal comparisons. I’ve darkened the land outside the property lines of the school to make the school property obvious.

As you can read in the article, the minimum acreage requirements for school sites can be ridiculously large in many states. The damage that oversized school sites cause to a pedestrian scale development can be huge (literally).

Steve's analysis does a succinct and reasoned job of explaining the different options.

--Chad Emerson, Faulkner U.

July 23, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 21, 2010

Fox on Smart Growth in Vancouver & Seattle

David Fox (J.D. Candidate, Boston College) has published Halting Urban Sprawl: Smart Growth in Vancouver and Seattle, 33 B.C. Int'l & Comp. L. Rev. 43 (2010).  The abstract:

Haphazard and unorganized land-use planning in United States cities has resulted in endless sprawl that is straining infrastructure, polluting the atmosphere, and negatively affecting quality of life. This Note compares efforts of two similarly situated North American cities—Seattle and Vancouver—in enacting Smart Growth policies to combat sprawl and argues that Seattle, and American cities in general, should look to Vancouver’s example to limit urban sprawl and comprehensively plan at local and regional levels for sustainable growth and more livable spaces over the coming decades.

I'll be in Vancouver when you read this post, so I'll be checking out the land use!

Matt Festa

July 21, 2010 in Comparative Land Use, Density, Environmentalism, Local Government, Planning, Scholarship, Smart Growth, Urbanism | Permalink | Comments (0) | TrackBack (0)


Noise and light ordinances have always been interesting to me, primarily because they often accentuate legitimate disconnects between certain types of development.

For instance, many cities want bright lights and interesting sounds in those areas of town where evening activity provides for nice sales tax receipts.  At the same time, many residential property owners enjoy the sound of crickets and night lights of the cosmos.

The conflict arises when the two intersect.  After all, you certainly wouldn't want to be able to see the stars and hear the crickets each evening in a central business district if the goal was a viable nighttime entertainment destination where people are looking for music and such.

Sound ordinances and light regulations are sometimes used to balance this issue.  Recently though Sullivan's Island in South Carolina seemed to get the balance at little, well, un-balanced.

From USA Today:

Visitors to the Charleston, S.C., suburb of Sullivan's Island are invited to have a good time eating, drinking and making merry in the seven restaurants that comprise its business district.

But if a proposed amendment passes Tuesday, they won't be welcome to sing or whistle on the street. The town council has given initial approval to an amendment to its noise ordinance that would make it unlawful "for any person to yell, shout, hoot, whistle or sing on the public streets."

The proposed amendment says these restrictions are to be enforced "particularly between the hours of 11 p.m. and 7 a.m.," but also "at any time or place so as to annoy or disturb the quiet, comfort or repose" of the townspeople.

The time-based restrictions seem fairly straightforward but the second part screams at a problem of ambiguity. Now, I'm all for not disturbing another person's repose unnecessarily but this is about as a subjective standard as I've seen codified in a long, long time. 

Let the Sullivan's Island Whisper Wars begin...

--Chad Emerson, Faulkner U.

July 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 20, 2010

Starting Land Use

My apologies for reminding everyone that the beginning of the fall semester is just around the corner, but since registrars everywhere will soon be calling for syllabi, it seems like an appropriate occasion to get some perspectives on starting off the land use course.  In the past, I have started with a discussion of the Euclid case, which seems logical enough since it is the foundation of all modern land use law and gestures at many of the grand themes of the subject (e.g., municipal land use authority, planning, NIMBYs, LULUs, the relationship between zoning and the common law, single-use zoning, solicitude for the single-family home, judicial deference to local land use decisionmaking, the Progressive concept of zoning as a form of social control, and more).   Nevertheless, I often emphasize to my students that while Euclid is an important case, that's not the same thing as saying that it's a well-reasoned case or, more crucially, a good learning tool.  I have increasingly discovered that it is neither.  Students find the case's cryptic logic confusing and its prose inscrutable.  Having read the case numerous times (and written about it), I can't say I disagree.  In my next post, I will throw out some thoughts about a different way to start the land use class.  But first I would like to solicit comments from about how you start the land use course.  Thanks in advance for sharing your thoughts.

Ken Stahl (

Chapman University School of law

July 20, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, July 19, 2010

Benson on Modern-Day Reclamation Statutes

Reed D. Benson (New Mexico) has posted New Adventures of the Old Bureau: Modern-Day Reclamation Statutes and Congress' Unfinished Environmental Business, forthcoming in Harvard Journal on Legislation.  The abstract:

Congress established the reclamation program in 1902, and the hundreds of federal water projects built in the 20th century helped shape the West. Today, the Bureau of Reclamation plays an enormously important role in managing these projects. But with no big new dams to build, the Bureau has been forced to revise its mission to address today’s water management challenges, such as stretching finite water supplies and restoring aquatic ecosystems. Through both site-specific enactments and programmatic statutes, Congress in recent years has given the Bureau new authority and direction to address these modern challenges. But Congress has left a significant gap in the Bureau’s statutory powers by failing to provide general authority for restoration of ecosystems impaired by reclamation projects. This article reviews Congress’ expressed priorities for the reclamation program since 2002, identifies programmatic statutes intended to help the Bureau address the water issues of today’s West, examines the absence of general environmental restoration authority, and concludes with options for Congress to provide such authority.

Matt Festa

July 19, 2010 in Environmental Law, Federal Government, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

House Bill Addresses Flooding and Land Use Issues...

Awhile back, I posted on the wisdom (or lack thereof) in building buildings in flood-prone areas and how the current federal flood insurance program essentially subsidizes such risky behavior.

Now, I'm not suggesting that House members read Land Use Prof Blog (then again, Prof. Festa is pretty well-connected in the highest reaches of government), but Congress does appear to be addressing the problem of subsidizing development in areas where we know that the area is very likely to flood again in the future. 

From the Washington Post:

The bill takes such steps as permitting an increase in premiums, deductibles and coverage, and phasing out subsidies for vacation homes and for people living in areas repeatedly hit by floods. It now goes to the Senate.
In the past, this topic has made for several very interesting policy and regulatory discussions in my land use courses. Most center on the often-unrealized extent at which the federal flood insurance program has supported (if not downright incentivized) land development in areas where nature would seem to suggest otherwise.

--Chad Emerson, Faulkner U.

July 19, 2010 in Beaches, Coastal Regulation | Permalink | Comments (0) | TrackBack (0)

Sunday, July 18, 2010

Leshy on a Property Clause for the Twenty-First Century

John D. Leshy (Hastings) has posted A Property Clause for the Twenty-First Century, published in University of Colorado Law Review Vol. 75 (2004).  The abstract:

This article tries to draw some lessons from the way the Supreme Court has addressed implementation of the Property Clause of the U.S. Constitution by the Congress and the Executive, the more political branches of the national government. The Court has long said that the Property Clause contains no judicially enforceable limits on those other branches, and that stance is likely to continue. This article argues, instead, that the Property Clause can be said to have framed an attitude the Supreme Court has brought to bear on legal issues involving federal lands. That attitude, which may fairly be viewed as an expression of constitutional common law, favors retention of federal land in national ownership (retention), national over state and local authority (nationalization), and environmental preservation (conservation). It concludes that the Court’s decisions embodying that attitude have left a decidedly positive imprint on American life and culture.

Matt Festa

July 18, 2010 in Caselaw, Constitutional Law, Environmental Law, Federal Government, Judicial Review, Property Rights, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)