October 23, 2010
Klass on Climate Change, Natural Resource Development, and Renewable Energy
Alexandra B. Klass (Minnesota) has posted Property Rights on the New Frontier: Climate Change, Natural Resource Development, and Renewable Energy, forthcoming in the Ecology Law Quarterly. The abstract:
This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create wind easements, solar easements, and other property rights in the use of or access to renewable resources. Development of these resources is critical to current efforts to address climate change, which has a foot in both natural resources law and pollution control law. This creates challenges for developing theoretical and policy frameworks in this area, particularly surrounding the role of property rights. Property rights have played an important role in both natural resources law and pollution control law, but the role in each field is quite different. Early natural resources law was based significantly on conveying property rights in natural resources to private parties to encourage westward expansion and economic development. By contrast, pollution control law as it developed in the 1970s and 1980s was based on placing limits on such rights and creating government permit systems to meet environmental protection goals. This Article proposes that as scholars and policymakers consider approaches to developing wind and solar energy, it will be important to not rely too heavily on a property rights-based, natural resource development approach. Instead, this Article argues that an approach that integrates resource access into state and local permitting and land use planning frameworks may better meet development and environmental protection goals without creating new entrenched and potentially problematic property rights in natural resources. Moreover, because wind development and solar development present different concerns with regard to size, scale, and environmental impact, this Article suggests that solar development should be structured based on private solar easement transactions within a hospitable local zoning framework while wind development should be based on a state-wide siting and permitting structure with much more limited local government involvement.
October 22, 2010
"So You Want to Go to Law School"
WARNING: This post is blatantly non-land use related.
This morning in class my students mentioned this YouTube video. Using a animated film-making software called "Xtra Normal" (Slogan - "if you can type, you can make a movie). "So You Want to Go to Law School" is a funny, very jaded conversation between a wanna-be law student and a cynical, exhausted corporate lawyer. Sample dialogue:
WBLS: "I love your Blackberry."
CECL: "I do not like my Blackberry. I want to torture it until it begs me to kill it."
Kudos to blogger dwkazzie for this hilarious film. Now I just need to help my students avoid slipping into a depression after watching it...
Jamie Baker Roskie
2010 National Preservation Conference--Austin
Next week the National Trust for Historic Preservation holds its annual National Preservation Conference in the weird city, Austin, Texas, from Oct. 27-30. Looks like a great event, with the program available online. Featured speakers include New Yorker architecture critic Paul Goldberger and Interior Secretary Ken Salazar. Here's the conference blurb:
Prepare yourself for a completely new National Preservation Conference experience! To complement our future-focused Austin theme, we’ve planned dynamic new programs that encourage conversation and interaction, and spotlight 21st-century preservation imperatives.
Join hundreds of grassroots volunteers, skilled professionals, and preservation experts exploring preservation today -- in urban and rural settings across the United States. We’ll focus on the conventional and the controversial issues that arise every day, and share the most effective tools and practices for fostering preservation in any community.
Can't make it out to Austin next week? Don't worry, you can attend the conference virtually, with lots of web content and social media planned to be available. Great idea.
Sheff on the Residential Landlord's Duty to Mitigate
Jeremy N. Sheff (St. John's) has posted A Tale of Two Cities: The Residential Landlord's Duty to Mitigate in New York, forthcoming in the Journal of Civil Rights and Economic Development, Vol. 25 (2011). The abstract:
The 2008 decision of the New York Supreme Court's Appellate Division for the Second Department in Rios v. Carrillo brought stability to a previously uncertain area of landlord-tenant law: the duty of residential landlords to attempt to mitigate damages in the event of tenant abandonment. This article argues that in the instability that largely reigned prior to Rios, courts used the debate over what legal rule to apply in tenant abandonment cases as a tool to decide such cases based on flexible equitable standards that took into account the relative economic position of the parties and their degree of good faith. Because the New York court system accords weight to appellate precedent in part based on amount in controversy, and because Rios involved what can only be described as a luxury property, the Second Department's ruling has the perverse effect of subjecting economically insecure parties to solutions developed for far wealthier litigants. This article demonstrates the extent of this effect by reference to census data on households and housing markets, and argues that Rios was wrongly decided not only as a matter of legal analysis, but as a matter of policy.
October 21, 2010
Vermont Law's New Land Use Clinic
From a VLS media release:
Vermont Law School has opened a new Land Use Clinic to train the next generation of land use lawyers and policy-makers who will work on a growing array of social, economic and environmental challenges across the global landscape.
"The level of planetary crisis due to human impact demands preparation of land use lawyers and policy-makers versed in progressive strategy and methods," said Associate Professor Teresa Clemmer, the clinic's acting director. "The clinic will teach students how to address these issues locally but with the global ramifications in mind. The clinic has the potential to engage innovative NGO, academic and governmental partners here in Vermont, across the country and internationally."
The clinic started with one student clinician during the summer and has grown to five students this fall. The clinic defines "land use law and policy" in the broadest sense, embracing not only traditional planning and regulation but all human activity that affects land use. Thus, affordable and energy-efficient housing, sustainable agriculture, pollution prevention and healthy land-use lifestyles may fall within the clinic's mission. Land use decisions should be aimed at creating and maintaining healthy communities using the three E's: sustainable environment, economic development and social equity, Clemmer said.
Associate Professor Sean Nolon, director of VLS's Dispute Resolution Program, said the land use clinic is a great resource for students to get a front-row view of local government and how decisions are made behind the scenes. "The skills they acquire through this program will help them negotiate favorable results for clients," he said.
Peg Elmer, the clinic's associate director, said Vermont is a leader in the land use world, devising innovative strategies to encourage vibrant downtowns, a creative economy, compassionate social programs, stewardship of working landscapes and natural resource systems. "Students learn to apply these skills here and bring those skills back to the communities where they make their home," she said.
The clinic gives priority to projects that meet one of the following goals: to encourage compact settlement in rural villages; to maintain the vitality of historic downtowns; to maintain a viable working landscape such as supporting sustainable agriculture and forestry operations; to mitigate negative human impacts; to plan for healthy natural resource systems; to improve the quality of the land use plans, regulations and decision-making at state and local levels; and to improve the capacity of volunteer rural land use decision-makers.
It gets a little lonely out here in Land Use Clinic land sometimes - there are only a few LUCs around the country. The folks at VLS have consulted with me a bit over the years about starting this clinic, and I'm so excited to see it being realized. I have great admiration for the faculty involved in the clinic, and I know they'll do fantastic work that will bring up the bar for us all.
Jamie Baker Roskie
October 20, 2010
Climate Change Conference at USC
From Cinnamon Carlarne:
The University of South Carolina School of Law invites you to attend the forthcoming conference entitled, “Three Degrees of Separation: Exploring Linkages between International, National, and Regional Climate Policy.” The conference will bring together leading thinkers to examine the implications of the 2009 Copenhagen Climate Change Conference for climate change law and policymaking at the international, national and local levels with particular regard to the relationship among, and the distinct problems posed by law and policymaking at each level. The objectives of the Conference are three-fold. First, it will analyze how the outcome of the Copenhagen Climate Change Conference - and subsequent international negotiations - affects the long-term survival and efficacy of the international climate change regime. Second, it will explore how the Copenhagen Conference was both influenced by, and influential on US domestic climate change law and policymaking efforts. Third, it will seek to improve understanding of the relationship between international, national and regional climate change governance and, in so doing, to consider some of the unique challenges the Southeast faces in developing state and regional climate strategies. In exploring these dimensions of climate policy, we hope to initiate a more nuanced debate on the current state of climate change law and policy at multiple levels of governance and the implications of this for existing and proposed efforts to address climate change.
To learn more about the Conference and to register, please visit the Conference website, http://www.law.sc.edu/separation/index.shtml and select the link for the registration brochure, http://www.law.sc.edu/separation/registration_brochure.pdf. Alternatively, please feel free to contact Professor Cinnamon Carlarne at email@example.com with any questions or comments.
Jamie Baker Roskie
October 19, 2010
Too Dangerous to Walk Across?
The above diagnosis would be a real problem for a "crosswalk" since their primary purpose for existing is to faciliate the safe pedestrian crossing of busy roads.
What happens though when the crosswalk and the street are not considered in a big picture way?
It’s obviously hard to pin down a percentage since when the traffic is heavy and speeds are high, it’s difficult to say which motorists would be required to stop under Florida’s ambiguous law. Next time we should put markers at the reasonable stopping distance for the 45 MPH speed limit which could help. But even then it might be difficult to determine whether a driver really should have been required to stop or not. When a platoon of cars comes by the leaders are usually so close together that if one stopped there would almost inevitably be a chain reaction set of rear end collisions. The person looking to cross is so intent on watching that drivers don’t run into him/her that it’s hard to be able at the same time to judge who should have stopped or not. (More good reasons for a look at the basic structure of our traffic laws.)
All that being said, I have to say that when presented with reasonable conditions to stop, about half of the drivers did. However, if you include cars streaming by at 45 MPH bumper to bumper, the percentage drops dramatically to around 15%. Many drivers switched lanes to avoid having to stop. One driver tried to switch lanes when the car in front of him slowed down to stop, only to find the driver in the other lane was stopping also. He had to slam on the brakes to avoid a collision. (I jumped back big time!)
The 45 MPH speed is a big, big issue. If traffic were slower, many more motorists would be willing to yield since they wouldn’t be as afraid of being rear-ended. I understand FDOT’s concern about placing crosswalks on higher speed roads. The solution, however, is very simple; lower the design speed and speed limits in pedestrian areas. The right to build high-speed arterials through pedestrian-active urban areas needs to be revoked.
Granted, this is anecdotal but it nevertheless provides an example of the challenges faced when two normally complementary and compatible land use tools (in this case, roads and crosswalks) are mixed together in an incompatible manner.
--Chad Emerson, Faulkner U.
Salkin on Sustainable Development, Climate Change, and Land Use for Local Governments
Patricia Salkin (Albany) has posted Sustainable Development, Climate Change and Land Use for Local Governments, New York Zoning Law and Practice Report, Vol. 11, No. 2, September/October 2010. The abstract:
Over the last two years a number of state level initiatives in New York have been announced and enacted to address sustainable development and climate change. For example, Governor Paterson issued a series of executive orders: requiring a new State Energy Plan (which was adopted in December 2008); setting a goal of reducing greenhouse gas emissions by 80% by the year 2050 and calling for the creation of a climate action plan (the draft plan is scheduled for release for public comment in November 2010; and creating an interagency committee on sustainability and green procurement. In addition, he signed into law a number of new programs including: the Green Residential Building Grant Program, the Green Jobs – Green New York Program, the Municipal Sustainable Energy Loan Act, and improvements to net metering. While these and other State-level programs are vital to achieving emissions reductions goals and promoting sustainable communities, New York’s cities, towns, and villages have also been at work trying to develop and implement strategies to curb emissions. Municipalities are choosing to adopt clear statements and action items in their comprehensive land use plans, and they are creating climate change or sustainability task forces and developing strategies. Local governments are also enacting regulations to promote green building and alternative energy development. This article introduces the ways in which local governments have taken the lead in mitigating and preparing for climate change, focusing on the manner in which local governments have incorporated climate change concerns into the local land development regime.
Owley Lippman & Levy on Preservation as Mitigation under CEQA
Jessica Owley Lippman (Buffalo) and David C. Levy (Morrison & Foerster) have posted Preservation as Mitigation Under CEQA: Ho Hum or Uh-Oh?, published in Environmental Law News, Vol. 14, No. 1, p. 18, 2005. The abstract:
Many local, state, and federal environmental laws contain provisions requiring mitigation of environmental harms caused by development projects. One such law is the California Environmental Quality Act (CEQA). CEQA requires environmental review of projects that have a significant impact on the environment and require discretionary approvals from public agencies. CEQA prohibits agencies from approving projects as proposed if there are feasible alternatives or mitigation measures available that would substantially lessen the environmental impacts of the projects.
This article reviews California cases regarding use of preservation of agricultural land as mitigation and concludes that the California courts have not yet developed a coherent position. In a few published cases, the California appellate courts appear to accept the notion that preservation can meet mitigation requirements without discussion. In some unpublished decisions where courts addressed the issue head on, they reached the opposite decisions.
There are only two acceptable techniques for mitigating environmental impacts that involve the loss, destruction, or significant alteration of unique resources such as land or habitat: creation and enhancement. However, most laws (including CEQA) define mitigation more broadly to include notions of avoidance, minimization, and preservation. Such techniques should not qualify as mitigation because these strategies should be elements of project design. When beginning a project that may have significant environmental impacts, one should seek to avoid and minimize those effects from the onset. After those steps, one would mitigate the remaining impacts through creation or enhancement. Preservation as mitigation is inappropriate because it admits that destruction of the amenity will occur. It results in an overall net loss of the amenity. It may prevent future impacts, but it does not address present problems.
Ole Miss Announces EJ Writing Competition
From David Case:
The American Bar Association Section of Environment, Energy and Resources (ABA-SEER) and the University of Mississippi School of Law are planning a national Environmental Justice Symposium at the Ole Miss Law School in Oxford, Mississippi on April 1, 2011. In conjunction with this Symposium, ABA-SEER will hold an Environmental Justice Student Writing Competition and will be inviting law students to submit papers exploring current issues in environmental justice. Please note that the Writing Competition is in the process of being reviewed by the ABA Board of Governors in October 2010, and thus the official announcement of the Competition will follow that review. If you have any questions about the writing competition, please contact me, or Alexandra Dunn at firstname.lastname@example.org.
Jamie Baker Roskie
October 18, 2010
Salkin on Ethics for Land Use Attorneys
Patricia Salkin (Albany) has posted Relationships, the Rules of Professional Conduct and Land Use: Ethical Quagmires for Land Use Attorneys, published in the Real Estate Law Journal (2010). The abstract:
Much has been written about ethics in the land use game in terms of reported court decisions and opinions of state attorneys general and statewide ethics bodies, but the literature is devoid of a focused examination on how bar association committees on ethics and professionalism (lawyers providing ethical guidance to other lawyers) apply the Rules of Professional Conduct to provide advice to the thousands of full-time and part-time attorneys who have a role in the planning and zoning process. This article begins to fill the void by introducing the application of the various Rules of Professional Conduct, as adopted by the specific opining jurisdiction, through a review of the relevant reported opinions of the various committees and sometimes courts, in the land use context. Part I discusses the challenges that arise for lawyers vis-à-vis their clients in the land use context. This is followed by a discussion in Part II of the ethics and professionalism issues that confront lawyers who serve on local boards.
Walmart Goes Urban (Kind Of)...
Long derided as the antithesis of sustainable design, Walmart stores are typically surrounded in a sea of asphalt parking with, at most, some decorated facades designed to give off the feeling that its anything more than a suburban megastore.
Well, with the suburban markets drying up, Walmart has apparently decided it needs to target urban centers. In order to do this, its stepping away from its huge prototype stores toward something slightly more compact:
Wal-Mart Stores Inc. is planning to open dozens of small stores in the nation's cities, in an effort to push back against the dollar chains and other competitors nibbling at its customers. The prospect of Wal-Mart stores dotting America's biggest cities would change the urban landscape and the profile of the world's largest retailer, known for its blocky suburban edifices stocked with low-cost goods.
The new stores, roughly a quarter to a third the size of a supercenter, largely will sell groceries. Bill Simon, head of Wal-Mart's U.S. stores business, said Wal-Mart envisions opening in the next few years 30,000- to 60,000-square-foot Neighborhood Market groceries and new, smaller outlets modeled on the bodegas it operates in Latin America. Its supercenters average 185,000 square feet.
Mr. Simon said he believes there is room for "hundreds" of small Wal-Mart stores in the U.S., offering food and consumer staples. The retailer first will test their urban appeal with 30 to 40 stores over the next few years before a full-scale launch.
Though its hard to consider a 60k square foot building as exactly neighborhood-scale, it will be interesting to see how Walmart handles the diminished parking availability in dense urban centers.
After all, without a car trunk, it might be difficult for these downtown Walmarts to induce guests to buy bags worth of stuff at a time.
--Chad Emerson, Faulkner U.
October 17, 2010
Power e-book on Constitutional Limitations on Land Use Controls, Environmental Regulations, and Governmental Transactions
Garrett Power (Maryland) has posted Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions (2010 Edition). This is a freely-available electronic casebook, searchable in PDF format. The abstract:
This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix it in whole or part. No rights are reserved.
The readings provide an historical context, and an up-to-date focus on many of the constitutional issues facing today’s Supreme Court: imperium versus dominium; the public trust, inverse condemnation, the navigation servitude, the “regulatory taking” issue; the “navigability” boundary on federal power; the “public use” limitation on eminent domain; the balance between property rights and First Amendment liberties; the “essential nexus” between government prohibition and purpose, and; the fine line between taxation and expropriation.
The 149 cases have been grouped into 35 "sessions." Most sessions consist of four or five tightly-edited cases, and provide readings appropriate for one class hour of discussion. The compilation is 956 pages in length.
What a wonderful source Professor Power has provided. Whether you assign and teach out of this book, or use it for consultation, it is a terrific resource provided to the academic community at much effort and for no cost. We should be very appreciative.
Lund on Salazar v. Buono and the Future of the Establishment Clause
This short Colloquy essay reflects on the Supreme Court's recent decision in Salazar v. Buono, 130 S. Ct. 1803 (2010). The case involved a constitutional challenge, brought under the Establishment Clause, to a cross put up by private parties on government land in the Mojave National Preserve. This piece reviews the issues presented by the case (only some of which were addressed by the Supreme Court), and considers the future of the Establishment Clause in that light.
The Salazar case has been known publicity as a Religion Clause case, but the dispute centers around the constitutionality of a federal government land swap that allowed the monument to go into private hands. The Supreme Court decision didn't quite reach the land question, but as with most religious monument/First Amendment cases, it is at bottom a controversy over land use.