Saturday, July 23, 2011

Feinstein & Allen on CBAs with Transit Agencies and Gentrification

Brian D. Feinstein and Ashley Allen have posted Community Benefits Agreements with Transit Agencies: Neighborhood Change Along Boston’s Rail Lines and a Legal Strategy for Addressing Gentrification, forthcoming in the Transporation Law Journal.  The abstract:

Residents of Greater Boston located along the proposed Green Line rail extension have expressed concerns about potential gentrification and the resulting displacement of low-income residents. To assess these concerns, we examine the effects of the earlier Red Line extension on neighborhood demographics and housing costs. Based on our conclusion that gentrification occurred following the extension of the Red Line, we propose a Community Benefits Agreement (CBA) as a tool for mitigating these effects following expansion of the Green Line. We provide a short summary of CBAs in general and then outline the bargaining structure and major provision for our proposed CBA.

Matt Festa

July 23, 2011 in Development, Local Government, Scholarship, Transportation | Permalink | Comments (0) | TrackBack (0)

Friday, July 22, 2011

National Building Museum: Public Memory of 9/11

The National Building Museum is hosting what looks like a particularly interesting program called The Public Memory of 9/11.  It will explore two of my favorite subjects: public land use; and collective memory of the past. 

The upcoming tenth anniversary of the 9/11 attacks offers an opportunity to consider how the sites in New York, Pennsylvania and Washington are memorializing and interpreting this event. Leading representatives—Alice Greenwald, Director, National September 11 Memorial & Museum; Jeff Reinbold, Site Manager, Flight 93 National Memorial and; Jim Laychak, President, Pentagon Memorial Fund— present the designs of the memorials and discuss the challenges in commemorating recent history. Brent Glass, director of the National Museum of American History, moderates the program.  1.5 LU HSW (AIA)

FREE. Pre-Registration required. Walk in registration based on availability.

Date: Tuesday, July 26, 2011
Time: 6:30 PM - 8:00 PM.  If you'd like to attend this event you can RSVP online.

Matt Festa

July 22, 2011 in Aesthetic Regulation, Architecture, Conferences, Federal Government, History | Permalink | Comments (0) | TrackBack (0)

Thursday, July 21, 2011

Environmental Law Junior Scholar Listserv

Jessica Owley--one of our outstanding guest bloggers this year and, yes, she is a land use prof--sends word about a new listserv designed especially for junior scholars in environmental law, land use, and natural resources:

NEW LISTSERV FORMED

Environmental Law Junior Scholar Listserv

There is a new listserv available for pre-tenured faculty in environmental law, natural resources, and land use. This listserv will not duplicate the benefits of other valuable listservs available as it is intended to serve as a safe forum for open and candid dialogue junior scholars.

Beyond a traditional listserv, we will use this list to facilitate paper exchanges among our ranks. Those who choose to participate in the paper exchanges will gain the benefit of two colleagues reading and commenting on their work. Signing onto the listserv does not commit you to the paper exchange program. [If senior scholars are interested in volunteering to comment on a paper or two over the course of the year, please let us know by e-mailing jol at buffalo dot edu.]

To join the listserv, please send the following information to jol at buffalo dot edu
(1) Name
(2) Current Institution
(3) Years Teaching

Looks like a great resource for junior scholars--go ahead and sign up!

Matt Festa

July 21, 2011 in Environmental Law, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

ALPS 2012 Call for Papers

From Robin Paul Malloy comes the CFP for next year's annual meeting of the Association for Law, Property, and Society (ALPS).  The first two ALPS conferences were absolutely terrific, both for the scholarship and for the ability to meet so many other scholars in the field. For my money (or at least for my travel budget), ALPS is the single best conference to go to for property, land use, and real estate legal scholarship.  Here's the CFP:

ALPS 3rd Annual Meeting
March  2-3, 2012, to be held at Georgetown Law School in Washington, D.C. Co-sponsored by Syracuse University College of Law and Georgetown Law Center

WWW.ALPS.SYR.EDU
Registration Opens September 1, 2011 and Closes January 20, 2012.  Early Bird Registration fee is $145 for registration prior to November 15.  After November 15 registration is $175.  Registration will be available on our web pages by September 1, 2011

JOIN OUR MAILING LIST at: www.alps.syr.edu/join

CALL FOR PAPERS: ASSOCIATION FOR LAW, PROPERTY, AND SOCIETY (ALPS)

ALPS, third Annual Meeting (supported by Syracuse University, College of Law and Georgetown University Law Center) to be held at Georgetown Law School, March 2-3, 2012.   Our first two meetings included 150 participants each; of which approximately 1/3 were from outside of North America.  The discussions on all areas of property were exciting and benefited from the diverse mix of viewpoints presented.  We are looking forward to an equally good meeting this coming March.

This year registration will include an option to register to attend without presenting a paper.  For those wishing to present a paper any topic on property law and policy is of interest and may be on any of a number of topic areas including: Real, Personal, and Intangible Property; Cultural Property; Intellectual Property; Real Estate Transactions and Finance; Land Use and Zoning; Urban Planning and Development; Environmental Law; Climate Change; Housing; Home; Green Development; Mortgages and Foreclosure; Land Titles; Indigenous Populations and Sovereignty; Human Rights and Property; Entrepreneurship and Property; Takings and Eminent Domain; Property Theory; Property History; The Economics of Property

Pencil it in now, and plan to be there in DC next March!

Matt Festa

July 21, 2011 in Conferences, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Brigham-Kanner 2011 Property Rights Conference

William & Mary sends news and this latest press release about the upcoming annual Brigham-Kanner Property Rights Conference, with links:

Beijing Conference Explores the Importance of Property Rights on a Global Scale

As China continues to emerge as an economic superpower, one of the challenges it faces is deciding how to further enhance its market economy through its private property laws. It is against this backdrop that, on October 14-15, William & Mary Law School's Property Rights Project will host the law school's first international conference at Tsinghua University in Beijing, China. The eighth annual Brigham-Kanner Property Rights Conference will bring together esteemed scholars, jurists, and practitioners from the United States and China to discuss the evolution of property rights on a global scale.

Justice Sandra Day O'Connor will receive the 2011 Brigham-Kanner Property Rights Prize at the conference and will be a featured speaker. O'Connor served as an associate justice of the Supreme Court from 1981 to 2006. She made history in 1981 as the first woman nominated to serve on the high court. Her widely cited dissenting opinion in Kelo v. City of New London (2005) has been hailed as a pivotal opinion in property law jurisprudence. She became Chancellor of the College of William & Mary following her retirement from the judiciary. A formal reception will be held on October 13 at the United States Embassy in Beijing to honor Justice O’Connor and the conference’s Chinese host, Tsinghua University School of Law.

The conference is being held at and in cooperation with Tsinghua University School of Law, one of China’s top universities and law schools. The conference will be a featured event during Tsinghua University's celebration of the 100th anniversary of its founding.

Holding the conference in China "will foster a comparative framework for the discussion of property rights that is long overdue given the strong ties between the United States and China and China's dynamic role in the world economy," explained Chancellor Professor of Law Lynda Butler, the Project's director.

William & Mary Law School Dean Davison M. Douglas said the slate of participants comprised many scholars "whose work forms the foundation of contemporary American property law jurisprudence." He added that while plans are still preliminary, he looked forward to having a number of China's pre-eminent scholars also participate.

The annual Brigham-Kanner Property Rights Conference is named in recognition of Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights. Now in its eighth year, the conference is designed to bring together members of the bench, bar and academia to explore recent developments in takings law and other areas of the law affecting property rights. During the conference, the Project presents the Brigham-Kanner Prize to an outstanding figure in the field.

All previous prize recipients will participate in the conference. They include: Richard A. Epstein, formerly of the University of Chicago Law School and now at New York University School of Law, Robert C. Ellickson of Yale Law School, James W. Ely, Jr., professor emeritus of Vanderbilt Law School, Frank I. Michelman of Harvard Law School, Richard E. Pipes, professor emeritus of Harvard University, Margaret Jane Radin of the University of Michigan Law School, and Carol M. Rose of the University of Arizona James E. Rogers College of Law and professor emerita of Yale Law School.

The Conference program will explore the following panel topics:

** Legal Protection of Property Rights: A Comparative Look
** Reflections on Important Property Rights Decisions
** Property as an Instrument of Social Policy
** How Practitioners Shape the Law
** Culture and Property
** Property as an Economic Institution
** Property Rights and the Environment
** The Future of Property Rights

An optional post-conference tour of China and Hong Kong has been arranged.  The tour will run from October 16 through 23.  Prior to the conference, on October 13, day trips will be available to the Forbidden City and Great Wall.

For information about the conference, CLE credit, and the optional trips and tour, please visit the Brigham-Kanner Property Rights Conference website at www.bkconference.com or contact Kathy Pond at ktpond@wm.edu.

Dean Douglas’s video message: http://www.youtube.com/watch?v=f64MYI3bs9A&feature=player_embedded

Conference Poster: http://law.wm.edu/academics/intellectuallife/conferencesandlectures/propertyrights/beijing-poster.pdf

 The Brigham-Kanner Conference always has a great lineup of participants, and this year it goes global!

Matt Festa

July 21, 2011 in Comparative Land Use, Conferences, Globalism, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Salkin on the Impact of Technology and Innovation on Urban Development

Patricia Salkin (Albany) has posted From Bricks and Mortar to Mega-Bytes and Mega-Pixels: The Changing Landscape of the Impact of Technology and Innovation on Urban Development, published in The Urban Lawyer, Vol. 11, pp. 42-4/43-1, Fall 2010/Winter 2011.  The abstract:

This article reflects upon the impact that technology and innovation has had on urban development. From NASA's Landstat program, to Google maps and GPS, technlogy has had a significant impact on urban planning and land use law. The article begins with a discussion of the impact of the elevator and steel technologies on urban architecture and density, and then moves to changes in transportation such as the automobile and the development of public transportation systems. Green buildings, GIS, satellite data, online mapping, personal computers, the Internet and cell phones are all examined.

Matt Festa

 

July 21, 2011 in Architecture, Green Building, Planning, Scholarship, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 20, 2011

Cities With Not-So-Bad Housing Markets

According to CNBC/MSN, of the top ten cities with housing prices that have stayed flat or gone up during the recession, seven are in the south.  Okay, LU Prof Blog readers, you've been pretty quiet this summer - give us your two cents on why this is so.  Extra points to commenters from the Carolinas or Arkansas, where things seem to be quite rosy!

Jamie Baker Roskie

July 20, 2011 in Financial Crisis, Mortgage Crisis, Real Estate Transactions | Permalink | Comments (1) | TrackBack (0)

Owley & Rissman on Distributed Graduate Seminars

Jessica Owley (University at Buffalo School of Law) and Adena Rissman (Wisconsin-Madison, Dept. of Forest & Wildlife Ecology) have posted Distributed Graduate Seminars: An Interdisciplinary Approach to Studying Land Conservation, forthcoming in the Pace Environmental Law Review (PELR).  The abstract:

Adapting to the many changes associated with climate change is an increasingly important issue and nowhere more so than in efforts to conserve private land. Interdisciplinary distributed graduate seminars conducted in Spring 2011 at six universities investigated whether current land conservation laws and institutions appear up to the task of protecting land in the context of change and avenues for improving the adaptive capacity of such institutions.

Distributed graduate seminars are courses coordinated among multiple universities. They begin with a core of interested faculty who organize graduate students at their universities to collect or analyze dispersed data. This article gives a brief introduction to distributed graduate seminars and then details the experience and insights gained conducting such a seminar for land conservation and climate change. The distributed graduate seminar offers advantages by allowing for the synthesis of diverse data, the integration of multiple disciplinary perspectives, and the person-power enabled by student research. For students, the distributed seminar provides opportunities to engage with a broader academic community, benefit from new perspectives, and contribute in a meaningful way to a large endeavor.

Their seminar is a great idea, and an ambitious way to take advantage of the inherent interdisciplinarity in the land use field.  The paper is part of the forthcoming PELR special issue from the Practically Grounded conference on teaching land use and environmental law.  More to come. 

Matt Festa

July 20, 2011 in Conferences, Conservation Easements, Environmental Law, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 19, 2011

Herman Cain vs. the Murfreesboro Mosque

Having apparently never heard of RLUIPA, Republican presidential candidate Herman Cain is arguing on freedom of religion grounds that a mosque should not be built in Murfreesboro, Tennesee. The US Justice Department apparently disagrees, as does the head of the Southern Baptists...

Jamie Baker Roskie

July 19, 2011 in NIMBY, RLUIPA | Permalink | Comments (0) | TrackBack (0)

Monday, July 18, 2011

Belajac on the Pennsylvania Land Bank Act

Student author Darren M. Belajac has published a comment, THE PENNSYLVANIA LEGISLATURE TAKES A SIGNIFICANT, THOUGH INSUFFICIENT, STEP TOWARD ADDRESSING BLIGHT AND TAX DELINQUENCY: HOUSE BILL 712, THE LAND BANK ACT in the Duquesne Law Review. From the introduction:

The Pennsylvania House of Representatives recently passed a bill authorizing the creation of land banks for the purpose of addressing vacant and tax-delinquent properties in Pennsylvania municipalities.  The bill, known as the Land Bank Act, is currently in the state Senate for consideration and will likely be voted upon soon. The Land Bank Act is an important, though insufficient, step toward addressing the problem of blight and abandonment of properties throughout Pennsylvania. The problem of blight is especially acute in the Commonwealth's two largest cities, Pittsburgh and Philadelphia. This comment will compare and contrast the contents of the bill against a competing version that stalled in the Pennsylvania Senate in early 2010. This juxtaposition will take place in the context of a more general discussion of how land banks operate to address blight and tax delinquency. In particular, the comment will analyze how the Land Bank Act should affect the City of Pittsburgh's efforts to address its blight. Lastly, this comment will seek to show how even once the bill passes the Senate (assuming it does), the legislature will still need to revamp the Commonwealth's tax foreclosure laws.

I'm surprised that Pennsylvania - which I usually consider to be ahead of Georgia on all things related to land use planning - is just now authorizing land banks.  I'll add this to my considerable (and growing) pile of professional reading!

Jamie Baker Roskie

July 18, 2011 in Politics, Redevelopment, Scholarship | Permalink | Comments (2) | TrackBack (0)

Friday, July 15, 2011

Meanwhile, back at The White House

From The White House blog:

President Obama knows that the hard work of strengthening American communities and revitalizing the American economy happens at the local level – in neighborhood schools and community colleges, at town meetings and neighborhood associations, through new start-ups and small businesses. That’s why the White House is excited today to announce the launch of the Strong Cities, Strong Communities Initiative.

Strong Cities, Strong Communities is a new interagency pilot initiative that aims to strengthen neighborhoods, towns, cities and regions around the country by strengthening the capacity of local governments to develop and execute their economic vision and strategies. Strong Cities, Strong Communities bolsters local governments by providing necessary technical assistance and access to federal agency expertise, and creating new public and private sector partnerships. By leveraging existing assets, providing new resources, and fostering new connections at the local and national level, Strong Cities, Strong Communities will support towns and cities as they develop comprehensive plans for their communities and invest in economic growth and job creation.

If you visit the blogsite, you can watch the "launch video" and read more about the community intiatives.

Jamie Baker Roskie

 

July 15, 2011 in Community Economic Development, Federal Government | Permalink | Comments (0) | TrackBack (0)

Thursday, July 14, 2011

Healing Cities

I recently learned about the Healing Cities movement. From their website:

Healing Cities is an integrated approach to planning and design for the natural and built environment that values holistic health and wellness of people and ecosystems. It explores how to address planning processes and design of our living environments to keep us healthier and more whole.

The healing process in the human body is the ability to rebuild, repair and regenerate cells; regeneration in this case draws upon the body’s innate intelligence to heal itself. What would it then mean for a city to be “healed,” and what methods and processes would support cities to facilitate healing? Is it possible to have cities that then, in turn, can heal and take care of us?

They're also holding a conference in October in Vancouver, BC. While they're calling for "planners, developers, architects, transportation professionals, massage therapists, physicians, counsellors, energy healers, [and] spiritual leaders" to attend, presumably they wouldn't turn away land use profs!

Jamie Baker Roskie

 

July 14, 2011 in Community Design, Conferences, Smart Growth, Sustainability | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 13, 2011

House Appropriations Votes to Eliminate Office of Smart Growth

According to the folks at Smart Growth America, the House Appropriations Committee has passed legislation that would eliminate the EPA's Office of Smart Growth.  You can visit the Committee's website to learn more about the bill.  SGA has a website that allows you to e-mail your congressional representative, if you're so inclined. Presumably this is part of the campaign to defund the administration's Sustainable Communities Initiative.

I've blogged several announcements from the OSG, which co-hosts the annual New Partners for Smart Growth conference, and gives smart growth implementation assistance and grants and awards to local and state governments each year.

Jamie Baker Roskie

July 13, 2011 in Budgeting, Federal Government, Smart Growth | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 12, 2011

City Videos

For those of you who like to use video as a teaching tool, check out "The Coolest and Best City Videos" on The Urbanophile blogsite.

Jamie Baker Roskie

July 12, 2011 in Teaching, Urbanism | Permalink | Comments (0) | TrackBack (0)

Pennsylvania, Fracking, and Academic Politics on "This American Life"

Check out the main story on public radio's "This American Life."  Entitled "The Game Changer," the piece is about the controversial practice of extracting natural gas by "fracking," but it goes beyond the usual coverage of the economics and the environmental cost to discuss the involvement of academics in the controversy:

A professor in Pennsylvania makes a calculation, to discover that his state is sitting atop a massive reserve of natural gas—enough to revolutionize how America gets its energy. But another professor in Pennsylvania does a different calculation and reaches a troubling conclusion: that getting natural gas out of the ground poses a risk to public health. Two men, two calculations, and two very different consequences.

The professor with the "revolutionary" calculation is getting rich and famous. The one with the "troubing conclusion" recently lost his job.  Fascinating, if not completely surprising, stuff.

Jamie Baker Roskie

July 12, 2011 in Clean Energy, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 11, 2011

NIMBY Beverly Hills

In a kind of ultimate "not in my backyard" move, the City of Beverly Hills is setting aside $350,000 to fight the LA Metropolitan Transit Agency's attempt to run the subway under Beverly Hills High...

Jamie Baker Roskie

July 11, 2011 in California, Local Government, NIMBY, Transportation | Permalink | Comments (0) | TrackBack (0)

Sunday, July 10, 2011

Closed Pools a Sign of Deeper Local Problems

From The New York Times, an article about the struggles local governments face in keeping their public pools open:

There are few things in life more doleful than a child looking at a closed pool on a steamy summer day, and yet that sad scene has become as common as sunburns and mosquito bites as struggling local governments make the painful choice to shut their pools to save the budget. The list of locales where public pools have been in jeopardy in recent years includes some of the sweatiest spots in the nation, including Central Florida (90s and humid on the Fourth), Atlanta (90), and Houston (97)...

The question of where pools are closed often raises issues of class and race. In the case of Houston, one of the pools closed in June was in Independence Heights, a historically black neighborhood where the median household income in 2009 was about $27,000, according to city statistics.

The city councilman for the area, Ed Gonzalez, said the loss of a pool there would sting worse than in more well-to-do neighborhoods. “There are no other true community assets out there,” he said. “Your neighborhood park and your pools are the only real amenities that some of these communities have.”

Mr. Gonzalez, a former police officer, said it was not just a matter of letting people beat the heat. The lack of a local pool, he said, could have an impact on public safety. “If kids do not have a productive thing to do, like swimming or community centers to go to,” he said, “it’s more idle time they have on their hands.”

Here in Athens the Leisure Services department seems to be doing a good job keeping the pools open, but we went without a public fireworks show this year due to lack of sponsorship.  While these types of amenities are hard for local governments to support in tough economic times, they are also key to a community's quality of life.  It will be interesting to see how deep communities will dig to maintain the rituals of summer in these difficult days.

Jamie Baker Roskie

July 10, 2011 in Budgeting, Financial Crisis, Georgia, Houston, Local Government, New York, Race | Permalink | Comments (0) | TrackBack (0)

Saturday, July 9, 2011

Georgia Theater to Reopen

I've blogged previously here and here about efforts to rebuild Athens' historic Georgia Theater after a devastating fire in 2009.  It's been a long, tough road for the building's owner, and I'm sure he felt there were times when the reopening just wasn't meant to be.  So, in grand Athens fashion, there will be a big, weeks long party to celebrate, starting August 1.  They have a fantastic lineup of local and national favorites such as The Glands, Kenosha Kid, and Bela Fleck and the Flecktones.

The UGA student paper The Red & Black has a nice article about the rebuilding and refitting of the interior.  The Theater is beloved by music and architecture fans alike.  It's wonderful to see it taking on a new life.

Jamie Baker Roskie

July 9, 2011 in Architecture, Georgia, Historic Preservation | Permalink | Comments (0) | TrackBack (0)

Friday, July 8, 2011

A Major Development in the Southeastern Water Wars

I've only blogged a very little bit about the on-going water conflict between Alabama, Georgia and Florida, but it's a very big deal around here.  A recent 11th Circuit decision is worth noting.  From an Atlanta Journal Constitution story:

The court threw out a 2009 ruling by Senior U.S. District Judge Paul Magnuson, who had found it was illegal for the Corps of Engineers to draw water from Lake Lanier to meet the needs of 3 million metro residents. In its decision Tuesday, the 11th U.S. Circuit Court of Appeals found that one of the purposes of the man-made reservoir about 45 miles upstream of Atlanta was to supply water to the metro region.

Alabama will appeal the ruling to the full Circuit Court.

Magnuson had also set a doomsday clock ticking for Georgia, Alabama and Florida to arrive at a water-sharing agreement. If the states could not reach a settlement by July 2012, Magnuson said, metro Atlanta would only be allowed to take the same amount of water it received in the mid-1970s -- when the population was less than one-third its current size.

That deadline is no longer in effect.

Instead, the 11th U.S. Circuit Court of Appeals set a new deadline. It gave the corps one year to make a final determination over water allocation from Lake Lanier. And the court reminded the corps that the water litigation has already been going on for more than two decades...

Tad Leithead, chairman of the Atlanta Regional Commission, said Magnuson's order posed a serious threat to metro Atlanta's water supply and noted the judge himself said his ruling could lead to a "draconian" result if the July 2012 deadline were not met.

"Had his ruling gone into effect in July 2012, the water supplies that millions of people depend on would have been cut off," Leithead said. "As a result of today’s action by the 11th Circuit, now that won’t happen."

Demming Bass, chief operating officer of the Cobb Chamber of Commerce, said the ruling takes uncertainty off the table in terms of recruiting businesses to locate to metro Atlanta.

"The good news is that because of Judge Magnuson's decision, it forced Georgia and Atlanta to come together and look at worst-case scenarios," Bass said. "It made us pass some great legislation that's going to help us conserve water and get plans in place to look at additional reservoirs, which is something we're going to need anyway."

If you're interested in reading the judge's 95 page ruling, it's available here.

Jamie Baker Roskie

July 8, 2011 in Environmental Law, Georgia, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 6, 2011

Mulvaney guest-blog on Severance's latest development: Mootness?

[This guest post is from Prof. Timothy Mulvaney (Texas Wesleyan), whom we've featured here before for his scholarship and commentary on judicial takings and on Severance v. Patterson--on which he hosted an excellent program in March.  Here are his thoughts on the latest development in the case.  Thanks!--Matt Festa]

The Land Use Prof Blog previously has included several entries on the long-running dispute regarding the Texas Open Beaches Act in the case of Severance v. Patterson (see here, here, here, here, and here).  The case took yet another surprising turn last week when the plaintiff sold the last remaining property at issue in the suit. 

At the filing of the complaint in 2006, the lawsuit involved three residential gulf-front properties owned by plaintiff Carol Severance.  Following 2005’s Hurricane Rita, these properties ended up seaward of the vegetation line; after Rita, that is, Ms. Severance’s properties were composed almost entirely of dry sand beach.  Ms. Severance challenged the State’s policy of removing homes that, due to erosion or coastal storms, now rest within the public’s “rolling” beach access easement. 

In a 6-2 decision in November of 2010 on three certified questions from the Fifth Circuit, the Texas Supreme Court largely sided with Ms. Severance.  The Court distinguished between (1) an easement destroyed by an avulsive event—which the majority held does not “roll” upland, such that the state must prove that a public easement across the “new” strip of beach adjacent to the post-Rita mean high water line has been established by custom, dedication, or prescription in each individual case, including Ms. Severance’s—and (2) an easement destroyed by imperceptible erosion—which the majority held does “roll” upland. 

Yet in March of this year, the Court, at the request of the State and nearly two dozen amici, took the rather extraordinary step of deciding to re-hear the case.  The Court ultimately conducted a second round of oral argument in April.  Yet just last week, with the re-hearing decision pending, Ms. Severance sold the third and final property subject to the litigation (she had sold the other two properties several years earlier).

Upon receiving notice that Ms. Severance sold this last remaining property (notably, through a FEMA-funded buy-back program administered by the City of Galveston on the final day that she could avail herself of that option), the State immediately sent a letter to the Court suggesting that (1) the case is moot, and (2) the Court “should follow the established practice of vacating the latest opinion [the November 2010 opinion] before returning this matter to the Fifth Circuit.”  Otherwise, said the State, the Court would be authorizing “a prevailing party to obtain through unilateral action what it was unable to accomplish in opposing a rehearing motion or a petition for review. … [the Court should not] permit an opinion to stand, by default, that was under active reconsideration.”

Counsel for Ms. Severance, David Breemer of the Pacific Legal Foundation, responded with a letter stating that the case is not moot because: (1) mootness cannot permit the state “to avoid a controversy over its property restrictions” by using those same controversial restrictions to force Ms. Severance to sell; (2) Ms. Severance owns another property in Galveston that was not included in her 2006 complaint but that is now subject to the State’s rolling easement policy; and (3) “there are ongoing personal and legal consequences to Severance” for which the Court can fashion a remedy. 

In his letter, Mr. Breemer requested that the Court issue an expedited briefing schedule on the mootness issue.  The Court obliged.  The State filed its brief today, and Ms. Severance’s response is due next Tuesday.  Stay tuned to the Land Use Prof Blog for updated information on Severance v. Patterson.

Timothy Mulvaney

July 6, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmentalism, Politics, Property Rights, State Government, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)