Thursday, June 30, 2011

Robertson on Public Access to Private Land for Walking

Heidi Gorovitz Robertson (Case Western) has posted Public Access to Private Land for Walking: Environmental and Individual Responsibility as Rationale for Limiting the Right to Exclude, forthcoming in Georgetown International Environmental Law Review, Vol. 23, pp. 211-262, 2011.  The abstract:

Whether people have an independent right of access to walk on land they do not own is a question answered differently throughout the world, largely due to cultural, historical, and political variations amongst regions. In this decade, English citizens gained a legislated right to roam on privately owned land designated by the government for public access. The British government now designates land as access land by evaluating the nature of the land itself, not its ownership status. In Sweden, the right to roam on land owned by another has long been a deeply rooted cultural tradition, though not codified in law. Other countries have adopted variations of a right of access, while some, like the United States, continue largely to resist it, choosing instead to hold property owners’ right to exclude above a public right of access. This paper looks at some of the historical and cultural reasons countries have adopted, cherished, or rejected a public right of access to privately owned land. In particular, it focuses on the degree to which each culture values environmental and individual responsibility.

To do so, it considers the Scandinavian countries, with an emphasis on Sweden, where a public right of access is longstanding and cherished, and there is a corresponding deep respect for the environment and individual responsibility. It then considers England, which has moved decisively toward granting broader rights of access to certain types of land through legislation, grounding that expansion on the satisfaction of certain rules pertaining to environmental and individual responsibility. It also looks briefly at several countries in Europe,where environmental and individual responsibility, as well as other cultural factors, have supported expanded rights of access. Finally, it raises the question why the United States does not have, and will not likely achieve, a similar legislated or cultural right of access to private land for walking.

Matt Festa

June 30, 2011 in Comparative Land Use, Pedestrian, Scholarship | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 29, 2011

Test for Content-Neutrality

Content Based: Earlier this year, the Town of Cary was enjoined from enforcing its sign ordinance Screwed-by-the-town-of-cary-simpsons-paradox1
 
against the sign pictured here. The District court held that the Town’s code was content based because certain categories of signs (holiday decorations, public art, signs for town events) are exempt from regulation because of their content. The plaintiff’s received $44,000+ in attorney’s fees and the town is now appealing.

Content Neutral: In contrast, the district court in Neighborhood Enterprises v. St. Louis found the zoning code for the City of St. Louis  to be content neutral even though exceptions to the definition of “sign” include “works of art”. Here, the Missouri Eminent Domain Abuse Coalition displayed a 363 square foot sing which said,” End Eminent Domain Abuse” inside a red circle and slash.

I heard summaries of these cases as part of today’s APA 2011 Planning Law Review. During this webinar Dwight Merriam (VLS) summarized another first amendment case at the Supreme Court, Nevada Commission on Ethics v. Carrigan. This is an interesting recusal case, but not as exciting as the proposed construction of a Wal-Mart in the Town of St. Albans, Vermont.  An issue currently at the Vermont Supreme Court is whether the Environmental Court erred in affirming the site plan of this Wal-Mart despite obvious conflicts of interest on the part of several development review board members.  The alleged behavior of the board members is particularly surprising given other incidents by board members in this town with regard to the same proposal. In 2004, a board member wore a hat with the inscription “St. Albans Needs Wal-Mart.”

Here is some testimony we have used during ethics discussions at the beginning of the semester…

“In the deposition, he stated that he wore the hat  because “[i]n America I thought it was a free country so I wore the hat” and that “I thought in America you could wear anything you wanted on your head at any time because it’s still a free country.” In answer to a request that he further explain his interrogatory answer that he chose to wear the hat for its historical significance, he stated: “Historical, historically because there’s a gentleman named Sam Walton had nothing in his pocket and he built himself an empire. I say the American dream came true to him. That’s the only reason I wore the hat. No other reason."”

Kat Garvey

 

June 29, 2011 in First Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 28, 2011

Plagiarism & Other People's Papers

I stay in touch with a recent grad doing land use work. (He has a great climate adaptation blog). He asked how I deal with plagiarism and sent this piece from the New Inquiry on cheating. It's "a dialogue between Teach, an adjunct philosophy instructor at a public university in New York, and Cheat, who has authored over 100 papers for pay." I learned some new red flags to watch out for; such as the correct use of a semicolon.

Teach: In my philosophy class of 36 students I had six instances of plagiarism. I ended up turning them all in to the Committee on Academic Standing.

Cheat: Do you remember how they plagiarized?

T: One is a case of self-plagiarism, in which the third paper was turned in a second time for the fourth paper.

C: In its entirety?

T: In its near entirety. He changed the introduction and the conclusion, but left the body paragraphs the same.

C: So he tricked a search engine, but not a human.

T: In the four other cases, I discovered specific lines that were taken off Internet sites including the Stanford Encyclopedia of Philosophy—at the best, Wikipedia, Yahoo Answers, and some Cambridge professor’s blog.

C: How did you find that? Through a Google search?

T: Well, first I detect it. There are a number of red flags. 

 Read more...

Kat Garvey

 

June 28, 2011 in Teaching | Permalink | Comments (0) | TrackBack (0)

Conservation Easement Outlines

For those interested in conservation easements, if you haven't seen Jessica Jay's  work its worth checking out. She is a practitioner who teaches Land Conservation Law at VLS during the summers and gave a great lunch lecture today on "When Perpetual is Not Forever: The Challenge of Changing Conditions, Amendment & Termination of Perpetual Conservation Easements."  There is a lot of ink on this subject and she does a great job keeping up-to-date on how states and the IRS manage and might manage amendments to conservation easements. Here are a couple of her helpful outlines:

Conservation Easements and Tax Benefits Outline

Conservation Easement Drafting Guidance Outline

Kat Garvey

June 28, 2011 in Conservation Easements, Lectures | Permalink | Comments (1) | TrackBack (0)

The suburbs are a Ponzi scheme

I enjoyed this post by Charles Marohn from Strong Towns on grist.org. At our clinic (VLS) we discuss smart growth/smart decline principles and have focused on environmental and social impacts. I'd never heard the Ponzi scheme analogy and think it's a great way to bring cost into the discussion.


"Since the end of World War II, our cities and towns have experienced growth using three primary mechanisms:

  1. Transfer payments between governments: where the federal or state government makes a direct investment in growth at the local level, such as funding a water or sewer system expansion.
  2. Transportation spending: where transportation infrastructure is used to improve access to a site that can then be developed.
  3. Public and private-sector debt: where cities, developers, companies, and individuals take on debt as part of the development process, whether during construction or through the assumption of a mortgage.

In each of these mechanisms, the local unit of government benefits from the enhanced revenues associated with new growth. But it also typically assumes the long-term liability for maintaining the new infrastructure. This exchange -- a near-term cash advantage for a long-term financial obligation -- is one element of a Ponzi scheme.

The other is the realization that the revenue collected does not come near to covering the costs of maintaining the infrastructure. In America, we have a ticking time bomb of unfunded liability for infrastructure maintenance. The American Society of Civil Engineers (ASCE) estimates the cost at $5 trillion -- but that's just for just major infrastructure, not the minor streets, curbs, walks, and pipes that serve our homes.

The reason we have this gap is because the public yield from the suburban development pattern -- the amount of tax revenue obtained per increment of liability assumed -- is ridiculously low. Over a life cycle, a city frequently receives just a dime or two of revenue for each dollar of liability. The engineering profession will argue, as ASCE does, that we're simply not making the investments necessary to maintain this infrastructure. This is nonsense. We've simply built in a way that is not financially productive.

We've done this because, as with any Ponzi scheme, new growth provides the illusion of prosperity. In the near term, revenue grows, while the corresponding maintenance obligations -- which are not counted on the public balance sheet -- are a generation away."

Read more…

Kat Garvey

June 28, 2011 in Budgeting, Finance, Smart Growth, Sprawl, Suburbs | Permalink | Comments (0) | TrackBack (0)

A Reversal of the Great Migration

If you haven't already used up your June allotment of free articles on The New York Times website, you might find this article interesting.  It's entitled "For New Life, Blacks in City Head South."  An excerpt:

Life has gone full circle,” said Ms. Wilkins, whose grandmother was born amid the cotton fields of North Carolina and moved to Queens in the 1950s.

“My grandmother’s generation left the South and came to the North to escape segregation and racism,” she said. “Now, I am going back because New York has become like the old South in its racial attitudes.”

Many black New Yorkers who are already in the South say they have little desire to return to the city, even though they get wistful at the mention of the subways or Harlem nights.

Danitta Ross, 39, a real estate broker who used to live in Queens, said she moved to Atlanta four years ago after her company, responding to the surge in black New Yorkers moving south, began offering relocation seminars. She helped organize them, and became intrigued.

Ms. Ross said she had grown up hearing stories at the dinner table about segregation. She said the Atlanta she discovered was a cosmopolitan place of classical music concerts, interracial marriage and opulent houses owned by black people.

A single mother, she said that for $150,000, she was buying a seven-room house, with a three-car garage, on a nice plot of land.

Ms. Ross said she had experienced some culture shock in the South, and had been surprised to find that blacks tended to self-segregate, even in affluent neighborhoods.

She said that the South — not New York — was now home.

“People in Georgia have a different mind-set and life is more relaxed and comfortable here,” she said. “There is just a lot more opportunity.”

I'm a bit suprised by this trend, given that unemployment in Georgia, particuarly among blacks, remains very high.  But, cost of living and pace of life do account for a great deal.  Still, it's a interesting reversal of a very long trend of northern migration.

Jamie Baker Roskie

June 28, 2011 in Georgia, New York, Race | Permalink | Comments (0) | TrackBack (0)

Monday, June 27, 2011

Stahl on Neighborhood Zoning

Kenneth Stahl (Chapman)--former Land Use Prof guest blogger--has posted All Power to the Neighborhoods?: The Delegation Doctrine and Neighborhood Control of Zoning.  The abstract:

Whether cities should delegate some of their zoning power to neighborhood groups is one of the most hotly contested issues in municipal politics, yet it is also essentially a moot point. Since a bizarre series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners in a certain proximity to a proposed land use change.

This article argues that the judicial prohibition on delegating zoning power to proximate landowners – a scheme I designate a “neighborhood zoning district” – is doctrinally illogical and indefensible as a matter of public policy. As a doctrinal matter, the cases barring the neighborhood zoning district are at odds with another line of cases in which courts have upheld municipal schemes that empower landowners within a territorial area to authorize the financing of services or improvements through a mandatory assessment, known as a “special assessment district,” or in its modern incarnation as a “business improvement district.” As I argue, neighborhood zoning districts are conceptually identical to special assessment districts. Both restrict the franchise to individuals deemed to have a particularly substantial interest based on land ownership in proximity to a proposed change in the character of the neighborhood. As such, both devices offer landowners the ability to efficiently manage local externalities and enable large, diverse cities to effectively compete with small, homogenous suburbs by mimicking the most attractive features of suburban government. The article attempts to reconcile the two doctrinal lines on several policy grounds, but finds that, in many cases, neighborhood zoning districts actually represent sounder public policy than special assessment districts. The article concludes that courts should broadly defer to municipal delegations of power to sublocal groups, so that cities can work out their own desired relationship between neighborhoods and city hall, and their own strategy for surviving in an era of intense inter-local competition.

This is a fascinating paper that really goes to the heart of some of the major questions about which level of government is best positioned to regulate land use.  I saw Ken present some of these ideas at ALPS (before we played hooky at the National Building Museum) and the article's well worth reading.

Matt Festa

June 27, 2011 in California, Local Government, Politics, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Europe: Annoying Drivers on Purpose

I haven't been able to blog as much as usual lately, and one of the reasons is that we just moved.  It was a local move, but I'm sure you all know what a hassle moving is.  But today, the move actually helped my blogging.  It seems that the previous tenant failed to cancel his multiple newspaper subscriptions.  I rarely read news on dead tree anymore, so I might not otherwise have seen this morning's front page New York Times Story by Elisabeth Rosenthal called: Across Europe, Irking Drivers is Urban Policy.

ZURICH — While American cities are synchronizing green lights to improve traffic flow and offering apps to help drivers find parking, many European cities are doing the opposite: creating environments openly hostile to cars. The methods vary, but the mission is clear — to make car use expensive and just plain miserable enough to tilt drivers toward more environmentally friendly modes of transportation.

Some cities have closed entire streets; some introduced stiff fees for driving into the city; many have reduced on-street parking drastically; bike lanes have replaced car lanes without offset for traffic; others have purposely added red lights to mess with drivers; Zurich's tram operators seem to have the ability to change the lights to their favor as they approach.  (I'm trying to imagine how much a magic traffic-light-changing remote control clicker would fetch on e-bay.)

According to the story, and probably not inconsistent with what some of you may have observed, many of these European cities have dramatically improved in walkability, transit options, and quality of public space.  How much the policies are related causally to the result isn't clear, but we can assume they've had an impact.

I'm not entirely sure what I think of all this.  I'm a strong proponent of improving urban life by incentivizing higher density, mixed-use development and increasing pedestrian-oriented neighborhood viability and transit-oriented development.  Love it.  Still, I am hesitant to pursue these goals through policies that actually make things worse for some people on purpose.  What do these policies do to affordable housing?  How about people from lower socioeconomic strata that need to make their living from driving goods and services around the city?  How do public shared bikes help women who don't cycle (and families with kids)?  By all means, make mass transit better, faster, more economical.  But purposely creating red-light patterns just to deliberately piss people off just concerns me a bit.  It also would seem to thwart a number of smart-growth-friendly options that nonetheless rely on roads, such as bus rapid transit.

Admittedly I'm looking at this from the urban planning side more than the environmental side, but it seems the environmental benefits of these policies will be much more difficult to observe than the effect on quality of life; it's easy to see the quality of life in the very nice and improved transit-accessible mixed-use public spaces, but these types of policies would seem to generate a lot of external costs--on purpose.  Maybe that's a tradeoff people are willing to make.  But to acheive the same progressive land use goals, I still have a preference for a positive approach (e.g., incentivizing (or even just allowing) smart growth and new urbanism) rather than purposely making some aspects of urban life worse by degrading capabilites to make some people's lives "miserable." 

Matt Festa

June 27, 2011 in Affordable Housing, Comparative Land Use, Density, Downtown, Environmentalism, New Urbanism, Parking, Pedestrian, Planning, Politics, Smart Growth, Sprawl, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)

Dernbach on Sustainable Economic Development

John C. Dernbach (Widener) has published "Creating the Law of Environmentally Sustainable Economic Development" in the Pace Environmental Law Review.  From the introduction:

We need to unpack the term “development,” finding a way to make the term meaningful for the United States, if we are to have any real chance to achieve a sustainable America. More particularly, we need to address the law that supports economic development and understand how to make that law a powerful force on behalf of sustainability. In fact, much of the limited legal progress made by the United States toward sustainable development has involved the law of economic development. The growing use of such terms as “green economy” and “green jobs” is indicative of the direction that both policy and law are evolving. Municipalities across the United States, in particular, are consciously using renewable energy technology, green infrastructure, recycling, brownfield redevelopment, and other forms of more sustainable economic development not only to create jobs and improve their economies, but also make themselves more attractive places to live and work. [citations omitted.]

Jamie Baker Roskie

June 27, 2011 in Community Economic Development, Development, Local Government, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Friday, June 24, 2011

Giant Kenyan Superhighway

My husband grew up in East Africa and follows the regional news fairly closely.  A couple of days ago he sent me a link to this NPR story about a gigantic superhighway being built in Kenya, 16 lanes wide in some places, that engineers hope will alleviate Nairobi's epic traffic problems.  Apparently, some folks still haven't gotten the decades-old news that  you can't build your way out of traffic congestion...

Jamie Baker Roskie

June 24, 2011 in Comparative Land Use, Globalism, Transportation | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 22, 2011

In Memorium: Anne Dupre

I am very sad to report that UGA law professor Anne Proffitt Dupre passed away this morning, due to complications from cancer.  I had Professor Dupre for my first year Contracts class. She was an exacting and dynamic professor who was also a wonderful mentor and friend to many, many law students over the years.  This is a tremedous loss to both the academic and the Athens community. My sympathy goes out to her husband, Bill, and her many friends and colleagues.  The law school has posted a memorial page.

Jamie Baker Roskie

June 22, 2011 | Permalink | Comments (1) | TrackBack (0)

Why Women Don't Cycle

Thanks to my friend Tracie Sanchez of BikeAthens and leader of our local women's cycling group "Westside ladies who ride...in skirts if they wanna" for alerting me to this blog post on Grist.org. An excerpt:

A widely cited 2009 study found that women are more likely to choose to ride on quiet residential streets, while men are more likely to choose direct routes even if they have heavier traffic. Women are an "indicator species" for cycling, this study concludes, and that cities can cajole greater women ridership by building safer-feeling bike infrastructure.

Much is also made of another concern women often express in surveys -- that cycling to work will impede our ability to conform to professional norms in clothing, makeup, and hairstyles. The response can be seen in the proliferation of the "Cycle Chic" brand, tweed rides, and the commingling of bicycling and high fashion in advertising.

There's plenty of truth in both the fear and fashion theories. But before we commit to blaming women's transportation practices on our timidity and vanity, I think it's worth looking at some other potential factors.

Like the economy.

Women are more likely than men to be poor. We still don't earn equal pay -- as recently as 2009, women made 77 cents for each dollar earned by men doing equivalent work. Other factors range from the kind of work available to women to hiring bias against pregnant women and mothers.

Despite the economy of bicycle transportation, households with lower incomes are less likely to have access to bikes. Barriers to bicycling include the cost of bicycle purchase when all one's transportation dollars are tied up in a car, cultural barriers such as perception and police profiling, and lack of access to safe infrastructure in neighborhoods with low housing costs.

On the days I don't cycle, it's more likely that I don't like the safety of the route I would need to take, or that I have to wear "lawyer clothes" on a 100 degree day, but I do believe that overall economic issues lead to a dearth of women riders. But bicycling is potentially economical, healthy transportation for folks in every economic bracket, so it's important to address all factors that keep folks who might want to cycle from doing so.

Jamie Baker Roskie

June 22, 2011 in Transportation | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 21, 2011

Craig on Energy System Impacts

Robin Kundis Craig (Florida State) has posted Energy System Impacts, forthcoming in THE LAW OF ADAPTATION TO CLIMATE CHANGE: U.S. AND INTERNATIONAL ASPECTS, American Bar Association, 2012.  The abstract:

The exact impacts of climate change in the U.S. are still uncertain, so the effects on the energy sector are also highly uncertain, although the uncertainty is greater regarding effects on energy supply and production than regarding energy demand. Overall, climate change is likely to increase energy demand, increase peak demands, and shift energy needs from heating oil and natural gas to electricity, all of which effects will be driven primarily by increased needs for residential, industrial, commercial, and agricultural space cooling as summers grow hotter and heat waves become more frequent. As for production and supply, the greatest overall effects of climate change in the U.S. are likely to be on operators’ abilities to cool power plants and the consequent loss of efficiency and capacity as a result of increased air and water temperatures and reduced water supplies; on hydroelectric generation as a result of reduced and more variable flows; and on energy-related infrastructure of all types as a result of increasingly severe weather events and sea-level rise. Importantly, however, these national or overall projections mask important regional variations in climate change impacts, and hence adaptation strategies should be cognizant of and responsive to those regional differences. Moreover, climate change impacts on the energy sector strongly indicate that adaptation efforts will need to coordinate energy policy and water policy to reflect the likelihood that climate change will have significant impact on the energy-water nexus.

Matt Festa

June 21, 2011 in Climate, Environmental Law, Environmentalism, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Mulvaney's take on SCOTUS cert grant for PPL Montana v. State of Montana

I'm excited to post this guest blog from Professor Timothy Mulvaney, a land use prof from Texas Wesleyan School of Law in Fort Worth.  He's written extensively about judicial takings and exactions, and proivdes this timely and interesting post about yesterday's U.S. Supreme Court cert grant.  This case has been somewhat under the radar, but could end up being very important.  Thanks to Tim for the early and interesting analysis-- Matt Festa

Thank you very much for the opportunity to guest blog during this important week at the U.S. Supreme Court.

It is understandable that today’s headlines regarding the Supreme Court are devoted to several landmark decisions released yesterday, including rulings rejecting class certification in Wal-Mart v. Dukes and holding that the Clean Air Act displaces federal common law nuisance claims when it comes to greenhouse gas emissions in AEP v. Connecticut.  But in addition to these major holdings, the Supreme Court also took the noteworthy step of granting certiorari in PPL Montana, LLC v. State of Montana.  This case could have important implications for property, land use, natural resources, and environmental law.

In 2010, the Montana Supreme Court held that the State of Montana owns the beds of the Missouri, Madison, and Clarke Fork Rivers as an incident of state sovereignty. This ruling confirmed that PPL Montana is required to pay over $40 million in back-rent, as well as yet-to-be-determined future rent, for use of the rivers to generate hydroelectric power.  PPL Montana claims that the riverbeds are private property, such that no rent to (or approval from) the State is necessary to conduct their operations.  To determine whether these rivers are held in trust by the State or rather in private ownership turns on whether the rivers are considered “navigable.”  The U.S. Supreme Court has defined waterways as “navigable” in the context of such a title dispute if the rivers were “used, or [were] susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel [were] or may be conducted” when the relevant State was admitted to the Union.

In finding that all three rivers at issue met this “navigability for title” test when Montana entered statehood in 1889, the Montana Supreme Court cited to a litany of historical evidence, including the centuries-old journals of Lewis and Clark.  As today’s brief AP story notes, PPL Montana disagreed, pointing “to accounts of the [Lewis and Clark] expedition’s arduous portages of canoes and supplies around waterfalls to argue that the contested stretches of water were not navigable.”  The Montana Supreme Court’s opinion also drew PPL Montana’s ire by considering what the company alleges are flawed contemporary studies, as well as recent recreational uses of certain stretches of the rivers, to support the finding that the rivers are held in total by the state in trust for present and future generations.

One of the foremost experts in natural resources and water law, Professor Rick Frank, notes on Legal Planet that the U.S. Supreme Court has not addressed navigability in the context of state public trust claims for several decades.  How the Supreme Court interprets its time-honored test and identifies what evidence is relevant in its application could have major ramifications for thousands of miles of inland lakes and waterways nationwide. 

Yet there may be another issue lurking under the surface.  In seeking the Supreme Court’s review, PPL Montana and several of its amici sought to frame the Montana Supreme Court’s decision as a “judicial taking.” You will recall that in the 2010 case of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the U.S. Supreme Court left the existence and scope of a judicial takings doctrine in a state of flux.  To cull from a law review article I authored on Stop the Beach this past winter:

A four-Justice plurality endorsed a novel theory that would make the Takings Clause applicable to a wide collection of state court interpretations of state property law. Writing for the plurality, Justice Scalia declared that a state court’s opinion finding that an “established” property right “no longer exists” may amount to an unconstitutional taking.  … Justice Kennedy, joined by Justice Sotomayor, wrote separately to suggest that only when the Constitution’s Due Process Clause proves “somehow inadequate” to protect landowners from the judicial elimination of their existing property rights should the questions surrounding the need for and scope of a judicial takings doctrine be addressed.  … Though generally expressing grave doubts about the plurality’s judicial takings standard, Justice Breyer, joined by Justice Ginsburg, concurred in the judgment but found the issue of judicial takings “better left for another day.” [Justice Stevens recused himself.]

In its petition for certiorari, PPL Montana cited to Stop the Beach in asserting that, “[b]ecause [the Montana Supreme Court was] the operative force behind this land transfer [from private ownership to state ownership], it remains to be seen whether property owners in general have a Takings Claim or due process objection to [such a] land grab.”  In support of PPL Montana’s petition, the Cato Institute joined the Montana Farm Bureau Federation in contending that the Montana Supreme Court adopted a retroactive rule that destroyed title already accrued in violation of the Takings Clause, calling the Court’s ruling a “thinly-disguised judicial taking.”  For its part, the State of Montana maintained that nothing in the Montana Supreme Court’s decision contravened established property law, for PPL Montana’s “deeds and pleadings show it has no riverbed property to take” and the State “has claimed and received compensation for uses of navigable riverbeds for decades.” 

It remains to be seen whether the U.S. Supreme Court will address the judicial takings question when it takes up PPL Montana, LLC v. State of Montana in the coming year.  The certiorari stage documents are available here.  It is anticipated that the parties and their amici will brief the case this summer, with oral argument likely to occur in the winter.  Stay tuned to the Land Use Prof Blog for updated information.

Timothy Mulvaney

June 21, 2011 in Caselaw, Constitutional Law, Federal Government, Judicial Review, Property Rights, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Supreme Court News

It's been a big week at the U.S. Supreme Court; as we get closer to the end of the Term, decisions are rolling out.  Some big cases came out yesterday, plus news of what might be a significant land use case in the next Term. 

Among yesterday's decisions was American Electric Power Co. v. Connecticut, which held: "The Clean Air Act and the EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants."

Also, Wal-Mart Stores, Inc. v. Dukes et al.  This case is not land use per se--it's a class action employment issue--but anyone involved in land use knows that Wal-Mart's fortunes are an important fact in the field.  The Wal-Mart Wars involve a distillation of many of the major land use issues in current events.  I was also pleased that the opinions extensively cited the expertise of the late Prof. Richard Nagareda, who inspired me as a scholar and teacher.  Thanks to Troy Covington for the pointer.

In addition to these and other important opinions from the 2010 Term, the Court also granted cert yesterday to what might turn out to be a very important land use case.  We are fortunate to have a timely guest-post on that, which I'll post next (scroll up!). 

Matt Festa

June 21, 2011 in Caselaw, Constitutional Law, Environmental Law, Federal Government, Nuisance, Oil & Gas, State Government, Supreme Court | Permalink | Comments (1) | TrackBack (0)

Call for Proposals New Partners for Smart Growth Conference

From Roberta White at EPA:

The deadline for submitting session proposal ideas for the 11th Annual
New Partners for Smart Growth Conference is quickly approaching --
please submit your session ideas before the June 30th deadline.  The
conference will be held February 2-4, 2012 in San Diego, CA.

The Call for Session Proposals (CFSP) Submittal Instructions and online
Submittal Form are available on the conference web site.  All proposals
must be submitted using the online form under the link below.  This
process should be used to submit any proposals for breakouts, workshops,
lightening rounds, trainings, tours, or networking activities.  The CFSP
process is open until June 30, 2011.

To access the form and instructions, visit  this website.

Jamie Baker Roskie

June 21, 2011 in Conferences, Smart Growth | Permalink | Comments (0) | TrackBack (0)

Monday, June 20, 2011

Ziegler and Laitos on Property Rights, Housing, and the American Constitution

Edward H. Ziegler (Denver) and Jan G. Laitos (Denver) have posted Property Rights, Housing, and the American Constitution: The Social Benefits of Property Rights Protection, Government Interventions, and the European Court on Human Rights’ Hutten-Czapska Decision, Indiana International & Comparative Law Review, Vol. 21, No. 25, 2011.  The abstract:

Nations around the world utilize government interventions to promote the availability and affordability of housing. This article focuses on various types of government regulatory interventions, such as rent controls, building dedications and exactions, and density and growth controls on housing. These interventions are common in the United States and in other countries and may contribute to inefficient resource allocation and poor housing outcomes. This article examines whether these types of government interventions may require, in particular cases in the United States, judicially required compensatory damages for affected property owners. The social costs of these forms of government intervention are examined from the perspective of the benefits accruing from a regime of property rights protection. This article further explains that there is some existing precedent under international human rights norms, as illustrated by the Hutten-Czapska v. Poland decision, for the standards used in the United States for protecting the property rights of owners and developers of housing from excessive and unwise government regulation.

Matt Festa

June 20, 2011 in Affordable Housing, Constitutional Law, Housing, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Bronin on Solar Rights for Texas Property Owners

Sara C. Bronin (Connecticut) has posted Solar Rights for Texas Property Owners, Texas Law Review See Also, Vol. 89, p. 79, 2011.  The abstract:

In response to Jamie France's note, "A Proposed Solar Access Law for the State of Texas," Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids.

Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. Additionally, Ms. France's suggestion that zoning ordinances protect homeowners' solar access would benefit from a discussion of challenges that might be raised by home rule cities in Texas. Furthermore, to provide a full perspective, a discussion of possible alternative rules for Houston, which lacks a zoning ordinance, might add to Ms. France's proposal, according to Bronin.

Bronin also emphasizes that proposals for solar rights regimes, such as that of Ms. France, often affect various interest groups, and commentators should address the political issues that this creates. Specifically, in discussing Ms. France's proposal for the State of Texas, Bronin identifies the lack of political support for small-scale renewable energy installations as opposed to large-scale projects, Texas's current budget shortfall, and powerful interests groups that are affected by the proposal.

Finally, Bronin encourages other commentators to consider advocating for renewable energy microgrids. Bronin has described these as "small-scale, low-voltage distributed generation between neighbors for energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells, which have minimal negative impact on the environment." Bronin believes that renewable energy microgrids "should be a key part of solar access regimes in any state."

Matt Festa

June 20, 2011 in Clean Energy, Environmentalism, Houston, Local Government, Property Rights, Scholarship, State Government, Takings, Texas, Zoning | Permalink | Comments (1) | TrackBack (0)

Thursday, June 16, 2011

Service Learning Projects in Land Use Classes: Louisville's Urban Forestry Example

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I teach an interdisciplinary Land Use and Planning Law course, which is composed of both law students and graduate students in urban planning.  The course has a heavy skills development focus with students participating in interdisicplinary teams on a simulated board of zoning adjustment hearing on a CUP application for a biofuel plant in a low-income minority neighborhood (based on a real case study) and preparing substantial service-learning reports on complex land-use issues for government agencies and nonprofit organizations.  The students learn a lot by working on real-world problems and having to work in teams.  The projects also pull the students much more deeply into cutting-edge issues than merely reading and discussing cases in the classroom can do (although we do some of that, as well, to prepare them for their projects).

I just blogged on my law school blog about a very cool outcome of one of this past semester's service-learning projects, which I've pasted below:

Law & urban planning students in my Spring 2011 Land Use & Planning Law course prepared an Urban Tree Canopy Plan as a service learning project for the Partnership for a Green City, the Louisville Metro Parks Department, and Community of Trees, an association of government agencies, organizations, and individuals.  This plan and its recommendations will be a base from which Community of Trees develops an "Action Plan for Louisville's Urban Forest."  A meeting to consider my students' recommendations and to select recommendations for near-future action will be held Wednesday, June 22, 2011, at 10:00 a.m. at 415 W. Muhammad Ali Boulevard, Louisville, KY.  The students' Urban Tree Canopy plan can be downloaded at:

http://www.jefferson.k12.ky.us/Departments/EnvironmentalEd/GreenCity/UrbanTreeCanopyPlan.pdf 

This was one of 3 service learning projects prepared in the Spring 2011 offering of the innovative and interdisciplinary Land Use & Planning Law course at the University of Louisville.

June 16, 2011 in Environmentalism, Local Government, Planning, Smart Growth, Sustainability, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 15, 2011

Land Use Professors & Law School Administration

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I have been away from the Land Use Prof blog way too long, because I have been doing a year-long stint as associate dean for academic affairs & faculty development.  My one-year commitment ends in 15 days, and as I wrap things up, I have been thinking about the usefuleness of a background in land use law and planning to those who aspire to go into law school administration.  For example, I know that our land-use colleague at Pepperdine, Shelley Saxer, had at least a couple of very successful runs as associate dean at Pepperdine, and many others in our field have enjoyed success as law school administrators.

I enjoyed the job a whole lot more than I thought I would, because it involved quite a bit of planning and problem-solving, which are skills used quite a lot in the land use field.  If you have that planning and problem-solving itch and your regular fare of teaching and research aren't satisfying that itch, you might find law school administration to be a good fit.

Another aspect of the position was working with and building consensus among a wide range of people with different and often competing interests, goals, and even sometimes values.  It reminded me of the challenges of resolving multi-participant land use conflicts where competing interests and differing visions of a community's future require good interpersonal, negotiation, and even mediation skills.

What I didn't enjoy were the long hours (70 hours of work per week every week) and the necessity of having to make sacrifices in teaching and research in order to have a more balanced and sustainable life.  Land use and related courses are distinctive parts of the law school curriculum, and I felt that the students would be getting short-changed if I were to pull back from the courses I teach, the time I devote to students, and continued innovation in our curriculum.  Likewise, there are just so many important issues arising in land use, I just couldn't imagine putting my research agenda on hold, or even slowing it down, for a few years while I worked with schedules, adjuncts, grievances, workshops, and the like.  The associate dean's job is important to the functioning of the law school and I felt very much valued and appreciated by the law school community for what I did this year.  But in the end, I felt like I could contribute more by returning to teaching, research, and public service in land use, water, property, and the environment.

But I feel certain that there are a number of future associate deans, deans, and maybe even provosts and presidents out there among our land use professor colleagues.  I would be glad to talk with you about administration if you want to know more about what it's like and what it takes.  But most of all, I'm glad to be getting fully back into land use -- and to sharing some posts on the Land Use Prof blog. 

June 15, 2011 in Teaching | Permalink | Comments (1) | TrackBack (0)