Monday, August 15, 2011
Sean Nolon (Vermont) has posted Negotiating the Wind: A Framework to Engage Citizens in Siting Wind Turbines, Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011. The abstract:
Electricity generated from wind turbines must be a central part of any renewable energy regime. The build out of any wind energy infrastructure policy relies on facility siting decisions at the local and state level. Local opposition in some areas has created an implementation impasse that is best addressed from a systematic perspective, recognizing that citizens play a central role in making significant land use decisions. Through this article, the author explores the nature of citizen opposition to locally unwanted land uses like wind turbines and proposes a suite of collaborative mechanisms to address concerns through effective citizen engagement in policy development and during local siting decisions. The author proposes a federal structure that provides incentives to encourage collaborative governance at the state and local level. The framework leaves state siting structures in place and provides resources to improve decision-making processes and the outcomes. By involving citizens effectively at the policy and siting level, the hope is that wind turbine siting decisions will be more effective. Instead of encouraging divisions among the levels of government, this model builds on their strengths and supports their weaknesses.
August 15, 2011 in Clean Energy, Environmental Law, Federal Government, Local Government, Planning, Scholarship, State Government, Sustainability, Wind Energy | Permalink | Comments (1) | TrackBack (0)
Sunday, August 14, 2011
The Texas Supreme Court recently issued an opinion that makes some new law in the crucial and evolving area of individual property rights versus local governments' objectives of abating blighted properites. From The Examiner newspapers, The Hazard Next Door: Texas Ruling Restricts Cities from Eliminating Blighted Structures.
The case, City of Dallas v. Heather Stewart, involved a situation similar to the one involving Thurmond. A city of Dallas board recommended that a long-dilapidated home be demolished. The city did that, but the owner, Stewart, sued in district court, saying the city had unlawfully taken her property. At trial, the jury ruled in her favor, and Stewart was awarded her $75,707.67 for the destruction of her home.
Dallas appealed the case to the Texas Supreme Court, which ruled July 1. In the majority opinion, Chief Justice Wallace Jefferson acknowledged that cities “must be able to abate dilapidated structures” that “threaten neighborhoods.” But, Jefferson wrote, cities must set up a mechanism to address that threat that complies with Texas constitutional mandates that protect private property rights.
“Today we hold that a system that permits constitutional issues of this importance to be decided by an administrative board, whose decisions are essentially conclusive, does not correctly balance the need to abate nuisances against the rights accorded to property owners under our constitution,” Jefferson wrote, adding that independent review of a court is necessary.
Particularly in light of the foreclosure crisis, this type of decision could seriously handcuff local governments trying to make a difference in the current context; on the other hand, even though the facts of this case are unsympathetic, there still is an important constitutional right to just compensation. I wasn't tracking the case until after it came out and the reporter called, but it seems that it has already chilled similar local government actions here in Houston, and should be noted by public administrators across the US.
Friday, August 12, 2011
John Echeverria (Vermont) sends along the announcement for the 14th annual Conference on Litigating Regulatory Takings Claims:
August 12, 2011 in Climate, Coastal Regulation, Conferences, Constitutional Law, Eminent Domain, Environmental Law, Environmentalism, Judicial Review, Planning, Property Rights, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)
Thursday, August 11, 2011
Ilya Somin (George Mason) has posted Federalism and Property Rights, University of Chicago Legal Forum (2010 Symposium on Governance and Power), p. 1, 2011. The abstract:
Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property rights. Defenders of the federalism rationale for judicial deference on property rights issues make two key arguments. One holds that abuses of property rights by state or local governments will be curbed by interjurisdictional competition, rendering judicial intervention unnecessary. The second is the superior knowledge and expertise of state and local governments relative to federal judges.
This article criticizes both claims. Part I explains why competitive federalism is unlikely to provide effective protection for property rights in land because property is an immobile asset. People who “vote with their feet” by leaving a jurisdiction cannot take their land with them. For this crucial reason, interjurisdictional competition will often fail to effectively protect property rights in land, though it may be more useful in the case of rights to mobile property.
Part II takes up the issue of diversity and expertise. While state and local governments may indeed have greater expertise than federal courts in assessing local conditions, federal judicial protection of property rights ultimately empowers not judges but property owners. It is the latter who will actually get to decide the uses of the land in question in cases where federal courts prevent state or local governments from condemning their property or restricting its use. Owners generally have greater knowledge of their land than local government officials do. Moreover, the local expertise rationale for judicial deference on property rights would, if applied consistently, justify judicial deference to state and local governments with respect to numerous other constitutional rights, including those protected by the First and Fourth Amendments.
Questions about federalism with respect to property and land use have been getting a lot of attention recently. This article looks like it will really contribute to those discussions. While other land use scholars are focusing on questions of federal vs. state vs. local regulation of property and land (i.e., legislative and administrative acts), Somin's article focuses on asking which level of government is appropriate to exercise judicial review of those acts. It will be interesting to compare.
August 11, 2011 in Constitutional Law, Economic Development, Eminent Domain, Federal Government, Judicial Review, Local Government, Property Rights, Property Theory, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)
Tuesday, August 9, 2011
For those of you who missed the Practically Grounded conference this Spring, or for those of you who just want a refresher, the on-line companion is now available from the Pace Environmental Law Review. The following articles are available:
Teaching Intrapersonal Intelligence as a Lawyering Skill: Introducing Values Systems into the Environmental Law Syllabus
Now We're Cooking!: Adding Practical Application to the Recipe for Teaching Sustainability
Academic Research and Writing as Best Practices in a "Practically Grounded" Land Use Course
Matthew J. Festa
Teaching from the Dirt: Best Practices and Land Use Law Pedagogy
Keith H. Hirokawa
Distributed Graduate Seminars: An Interdisciplinary Approach to Studying Land Conservation
Jessica Owley and Adena R. Rissman
They Do Teach That in Law School: Incorporating Best Practices into Land Use Law
Patricia E. Salkin
Alternative Learning Formats in a Land Use Seminar
Learning in Context: Land Use and Community Lawyering
Values as Part of the Clinical Experience
Jamie Baker Roskie
For a full list of the conference sessions and presenters, the brochure is still available on-line here.
Jamie Baker Roskie
Monday, August 8, 2011
Last week I heard a great story on NPR about how the folks in Joplin are gearing up for the school year. My favorite aspect of the story is how they're making an old Shopko into the high school, and an abandoned industrial space into the middle school. Read or listen here.
Jamie Baker Roskie
Sunday, August 7, 2011
Or so says WalkScore, according to this article America's Ten Most Walkable Cities of 2011, by Jason Notte in The Street. A lot of the usual suspects are on the list, which you can see by clicking over to the story. Also interesting is the description of Walk Score:
The people behind Walk Score, a Seattle-based service that rates the convenience and transit access of 10,000 neighborhoods in 2,500 cities, have spent the past four years judging the distance between residents and amenities and ranking places based on the results. That "walkability" led to the first set of rankings in 2008 and the use of those rankings by more than 10,000 cities, civic organizations and real estate groups in the years that followed.
Once something becomes measurable, then you have numers that start to play a role in policy debates, budgets, and markets. I suspect we'll see even more use of metrics and quantitative analysis in areas like livability, sustainability, and so on in the years to come.
I'm not familiar with their methodology, but if you go to the Walk Score website you can check out the walkability score for your own address. Mine: 68 ("somewhat walkable").
Thanks to Mubaraka Saifee for the pointer.
Saturday, August 6, 2011
From an EPA press release:
WASHINGTON – Building on its commitment to ensuring strong protection from environmental and health hazards for all Americans, the Obama Administration today announced Federal agencies have agreed to develop environmental justice strategies to protect the health of people living in communities overburdened by pollution and provide the public with annual progress reports on their efforts. Environmental Protection Agency Administrator Lisa P. Jackson, White House Council on Environmental Quality Chair Nancy Sutley and U.S. Attorney General Eric Holder were joined by agency heads across the Administration in signing the "Memorandum of Understanding on Environmental Justice and Executive Order 12898" (EJ MOU).
"All too often, low-income, minority and Native Americans live in the shadows of our society's worst pollution, facing disproportionate health impacts and greater obstacles to economic growth in communities that can't attract businesses and new jobs. Expanding the conversation on environmentalism and working for environmental justice are some of my top priorities for the work of the EPA, and we're glad to have President Obama's leadership and the help of our federal partners in this important effort," said Jackson. "Every agency has a unique and important role to play in ensuring that all communities receive the health and environmental protections they deserve. Our broad collaboration will mean real progress for overburdened communities."
"All Americans deserve the opportunity to enjoy the health and economic benefits of a clean environment. Too many low-income and minority communities shoulder an unacceptable burden of pollution, affecting the health of American families and the economic potential of American communities, and the country as a whole," said Sutley. "The Memorandum of Understanding helps integrate environmental justice into the missions of Federal agencies, demonstrating our commitment to ensuring America truly is a country of equal opportunity for all."
"Today's memorandum will reinforce the federal government's commitment to the guiding principles of environmental justice - that the wealth, poverty, or race of any people should not determine the quality and health of the environment in which they live their lives," said Holder. "These are important steps to ensure that environmental justice is an integral part of our work."
"Today, we understand better than ever that our health is not just determined by what happens in the doctor's office. It is affected by where we live, work, go to school and play, by what we eat and drink, and by the air we breathe," said U.S. Department of Health and Human Services Secretary Katherine Sebelius. "HHS is committed to working with our partners across government to build healthy communities, especially in those areas burdened by environmental hazards."
"Every community deserves strong federal protection against pollution and other environmental hazards," said U.S. Department of the Interior Secretary Ken Salazar. "The Department of the Interior is committed to ensuring environmental justice for all populations in the United States – including American Indians, Alaska Natives and rural communities who may be among the most vulnerable to health risks."
"This agreement is an important step in furthering the Administration's commitment to ensuring healthy communities for all Americans – free from environmental and health hazards," said U.S. Department of Energy Secretary Steven Chu. "The Department of Energy is aggressively investing in clean energy in order to improve the environment, strengthen the economy, save families money, and create the clean technology jobs of the future here at home."
"No one should have to work in unhealthy or hazardous conditions," said U.S. Department of Labor Secretary Hilda L. Solis. "The Department of Labor is pleased to be part of this important initiative to ensure that vulnerable workers have access to information and can voice their concerns about
their working environment."
"Like so many things, environmental justice starts in the home, where families spend most of their time," said U.S. Department of Housing and Urban Development Secretary Shaun Donovan. "Whether it's removing potentially dangerous lead-based paint from homes or helping to redevelop polluted brownfields, HUD is a critical part of the President's plan to protect the health of people living in environmentally challenged parts of our country."
Environmental justice means that all communities overburdened by pollution – particularly minority, low income and tribal communities – deserve the same degree of protection from environmental and health hazards, equal access to the Federal decision-making process, and a healthy environment in which to live, learn, and work.
The signing of the EJ MOU is the latest in a series of steps the Obama Administration has taken to elevate the environmental justice conversation and address the inequities that may be present in some communities. Last September, Jackson and Sutley reconvened the Interagency Working Group on Environmental Justice (EJ IWG) for the first time in more than a decade.
In December, at the White House Environmental Justice Forum, Cabinet Secretaries and other senior Administration officials met with more than 100 environmental justice leaders from across the country to engage advocates on issues that are affecting their communities, including reducing air pollution, addressing health disparities, and capitalizing on emerging clean energy job opportunities. The EJ MOU reflects the dialogue, concerns and commitments made at the forum and other public events. Since her appointment, Jackson has also joined congressional leaders across the country to tour impacted communities and hear residents' concerns.
The MOU advances agency responsibilities outlined in the 1994 Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations." The Executive Order directs each of the named Federal agencies to make environmental justice part of its mission and to work with the other agencies on environmental justice issues as members of the EJ IWG. The EJ MOU broadens the reach of the EJ IWG to include participant agencies not originally named in Executive Order 12898 and adopts an EJ IWG charter, which provides the workgroup with more structure and direction.
It also formalizes the environmental justice commitments that agencies have made over the past year, providing a roadmap for agencies to better coordinate their efforts. Specific areas of focus include considering the environmental justice impacts of climate adaptation and commercial transportation, and strengthening environmental justice efforts under the National Environmental Policy Act and Title VI of the Civil Rights Act of 1964. The MOU also outlines processes and procedures to help overburdened communities more efficiently and effectively engage agencies as they make decisions.
The following agencies signed the EJ MOU: Environmental Protection Agency; White House Council on Environmental Quality; Department of Health and Human Services; Department of Justice; Department of Agriculture; Department of Commerce; Department of Defense; Department of Education; Department of Energy; Department of Homeland Security; Department of Housing and Urban Development; Department of Interior; Department of Labor; Department of Transportation; Department of Veterans Affairs; General Services Administration; and Small Business Administration.
Thanks to Wil Burns for the heads' up on this.
Jamie Baker Roskie
Friday, August 5, 2011
The University of Georgia, Odum School of Ecology EcoFocus Film Festival is currently accepting submissions for their March 2012 Festival:
EcoFocus is a small festival that emphasizes environmental outreach and the potential of your film to inspire awareness and action among festival participants. For that reason, we select fewer films than the larger film festivals, but we work to maximize the impact of your film. EcoFocus is open to any genre or any style of film, and we welcome a variety of environmental subjects - climate, water, energy, agriculture/food systems, environmental restoration, green development and urban planning, biodiversity, advocacy, human impacts, lifestyle change, policy, natural resource scarcity, natural history, etc. We seek films that promote awareness, discussion, and inspiration among our audience members.
Find submission details at their website.
Jamie Baker Roskie
Thursday, August 4, 2011
I was on the road for about a month with very little internet access (more on that to come). Fortunately, my land use students keep me up to date on things. Late last week I learned from my student Sonny Eckhart that the Texas Supreme Court issued its latest, and perhaps last, ruling in the Severance v. Patterson case that we've been following here on the blog, "abating" the case until the Fifth Circuit rules on the issue of mootness. I asked him to write it up for our readers, and here's what he has to say:
For those who have been following the Open Beach Act Litigation in Severance v. Patterson: warning, you might be a little disappointed. The Severance case is a challenge to the Texas Open Beaches Act, where Galveston Island homeowner Carol Severance brought suit against the Texas Attorney General and other state officials over the central issue of whether private beachfront properties on Galveston Island have redress when a public beach access easement is “rolled” onto private property when the vegetation line migrates landward. Needless to say, this has caused a stir in the courts and among legal scholars. During this process, the Land Use Prof Blog has provided several discussions and updates on the long-running dispute. See here, here, here, here, here, and here.
On November 5, 2010, the Texas Supreme Court issued their opinion concluding public easements do not always “roll” with the beachfront. Most notably, the court distinguished between a change or avulsion caused by a natural event, such as a hurricane, and a “gradual change.”It would appear that Carol Severance had won a substantial victory. To combat this, the State filed a motion for rehearing—a motion that held the support of several amicus groups. The court granted rehearing in Severance and heard arguments four months ago, in April.
The facts of the case took an unexpected turn a few weeks ago when Carol Severance sold her property in Galveston, and thus may have rendered the legal action moot. The State acted quickly and filed a motion to vacate the November 2010 opinion before sending this matter back to the Fifth Circuit. Both parties submitted briefs on the issue of mootness. See State’s brief on mootness; Severance’s brief on mootness. Last Friday, July 29, the court issued an order that abated the case until the Fifth Circuit first reviewed the issue of mootness. The order in this case abates the Texas Supreme Court appeal until the jurisdictional issues can be decided.
Is This The End?
Find out after the jump!
August 4, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Judicial Review, Property, Property Rights, Property Theory, State Government, Takings, Texas | Permalink | Comments (1) | TrackBack (0)
Jonathan D. Rosenbloom (Drake)--our excellent recent guest blogger--has posted New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations. The abstract:
State preemption laws strictly limit local governments from regulating beyond their borders. Local governments, however, face a broad spectrum of challenges which cannot be confined to municipal borders. These challenges freely flow in and out of many local jurisdictions at the same time. The juxtaposition of limited local government authority and multi-jurisdictional local challenges has the potential to create inefficiencies and to discourage local governments from seeking innovative solutions to the challenges they face. In an attempt to help local governments avoid these inefficiencies, this article investigates whether municipal collaborations can help encourage local governments to address broad-based environmental, social, or economic challenges notwithstanding state preemption laws. The article draws on 2009 Nobel Prize winner Elinor Ostrom’s work and applies it to previously unexplored questions of municipal collaboration. Guided by Ostrom’s research on place-based, individual private sector collaborations, this article envisions public sector municipal collaborations as forming around common challenges, regardless of geographical location. The article then proposes that non-place based municipal collaborations allow a reconceptualization of existing local government authority—rather than a drastic reallocation of authority from higher levels to the local level. The collaborations seek to capitalize on the power local governments already have without departing from existing legal paradigms. This reconceptualization has crucial implications for overcoming many of the multi-jurisdictional challenges faced by local governments.
The objective of the article is not to suggest one strategy over another or one level of government action over another, but rather to propose an additional forum for local governments to address pressing local problems. By changing the factors that motivate or discourage cities from working together, the article asserts that some multi-jurisdictional issues are best addressed through collaborations that are not confined by geography.
Robin Kundis Craig (Florida State) has posted Ocean Governance for the 21st Century: Making Marine Zoning Climate Change Adaptable, which relates to her forthcoming book, COMPARATIVE OCEAN GOVERNANCE: PLACED-BASED PROTECTIONS IN AN ERA OF CLIMATE CHANGE (forthcoming Edward Elgar Press 2012). The abstract:
The variety of anthropogenic stressors to the marine environment - including, increasingly, climate change - and their complex and synergistic impacts on ocean ecosystems testifies to the failure of existing governance regimes to protect these ecosystems and the services that they provide. Marine spatial planning has been widely hailed as a means of improving ocean governance through holistic ecosystem-based planning. However, that concept arose without reference to climate change, and hence it does not automatically account for the dynamic alterations in marine ecosystems that climate change is bringing.
This Article attempts to adapt marine spatial planning to climate change adaptation. In so doing, it explores three main topics. First, it examines how established marine protected areas can aid climate change adaptation. Second, the Article looks at how nations have incorporated climate change considerations into marine spatial planning to increase marine ecosystem resilience, focusing on the international leader in marine spatial planning: Australia. Finally, the Article explores how marine spatial planning could become flexible enough to adapt to the changes that climate change will bring to the world’s oceans, focusing on anticipatory zoning. Governments, of course, can establish marine zoning governance regimes in anticipation of climate change impacts, as has already occurred in the Arctic. However, drawing on work by Josh Eagle, Barton H. Thompson, and James Sanchirico, this Article argues that governments could also combine anticipatory zoning and closely regulated marine use rights bidding regimes to encourage potential future private users to make informed bets about the future productivity value of different parts of the ocean, potentially improving both our knowledge regarding climate change impacts on particular marine environments and ocean governance regimes for climate-sensitive areas.
Turns out we're in the middle of a national historic preservation controversy right here at University of Georgia. The University Architects' office has proposed to tear down Rutherford Hall, a women's dorm built in 1939. (Full disclosure - my husband used to work for the University Architect, and still does some space planning consulting for the University.) The University plans to build a bigger dorm, in a similar style, on the spot, citing the expense of rehabilitating the old building. Not surprising, historic preservaton advocates are not happy. Generaly, the University has a pretty good reputation of preserving older buildings on campus, and has won several awards for historic preservation, so I'm a bit surprised they're not being cut more slack on this. Now, the National Trust for Historic Preservation has weighed in, asking University President Michael Adams to save the building. It will be interesting to see how this turns out now that it's getting national attention.
Jamie Baker Roskie
Wednesday, August 3, 2011
An interesting article in Wired magazine on a new report from the Leadership Conference on Civil and Human Rights on transportation equity:
According to the report, the average cost of owning a car is just shy of $9,500. That may not sound like much until you realize the federal poverty level is $22,350 for a family of four. One-third of low-income African-American households do not have access to an automobile. That figure is 25 percent among low-income Latino families and 12.1 percent for whites. Racial minorities are four times more likely than whites to use public transit to get to work.
Yet the federal government allocates 80 percent of its transportation funding to highways.
“This is the civil rights dilemma: Our laws purport to level the playing field, but our transportation choices have effectively barred millions of people from accessing it,” the report states. “Traditional nondiscrimination protections cannot protect people for whom opportunities are literally out of reach.”
Read the full report here.
Jamie Baker Roskie
Tuesday, August 2, 2011
I recently read this article in the San Francisco Chronicle and found it interesting at several levels. It's not often you see a jurisdiction reviewing its long term planning, and even less often you see a newspaper covering that review. The report itself is also pretty fascinating - I lived in the SF Bay Area when the plan was drafted (although I was a freshman in college and not much interested in planning) so I've seen how things have changed. For example, here's an interesting point:
Planners in 1985 couldn't foresee the effect computer technology would have on everything from the printing industry to low-level office jobs now more likely to be found in Asia than on Howard Street. E-mail didn't exist. Reverse commuting to the Silicon Valley or the East Bay was an oddity, not a trend.
The full report is available on the SF Planning department's website.
Jamie Baker Roskie
Monday, August 1, 2011
Amy Lavine (Albany) has posted Zoning Out Payday Loan Stores and Other Alternative Financial Services Providers. The abstract:
Payday lenders and similar alternative financial services providers are primarily regulated at the state level, but local governments have increasingly begun to impose restrictions of their own on these fringe financial services providers. While some ordinances have focused on lending restrictions and other consumer protections, most municipal payday lender regulations are found in zoning and other land use laws.
Zoning has long been used to restrict the siting of undesirable land uses – ranging from junkyards and landfills to tattoo shops and adult businesses – making it an ideal method for local governments to regulate payday lenders. Experience with other unwanted land uses has led to the development of various zoning techniques appropriate for controlling these businesses, such as separation and dispersal requirements, nonconforming use limitations, special permit procedures, and partial or total exclusions.
This article provides an overview of these and other approaches that local governments have taken to regulate alternative financial services providers. After providing some background regarding the general functions and characteristics of these businesses in the first section, the second section discusses state-level financial regulations and preemption issues. The third section covers the different types of municipal controls that have been imposed on payday lenders and similar businesses, drawing on actual ordinances as well as on case law discussing their use and validity. Finally, the fourth section mentions several alternative, incentive-based non-zoning approaches that have been used to improve financial literacy and extend traditional banking services to a broader population. An appendix listing and briefly describing more than 60 payday lender ordinances is also included.
Just as summer semester was ending for me, there was a media frenzy in Southern California about a scheduled 53 hour closing of the I-405 freeway. The closure earned the nickname "Carmaggedon" and, like so many media-hyped doomsday-type events, it turned out to be much ado about not much.
For the record, traffic fell to 65 percent below its usual volume on LA’s freeways as many people wisely passed a summer weekend close to home or took advantage of the free transit available in many parts of the city, and the road itself opened 17 hours early. The only remarkable story was the one where a handful of cyclists and transit users raced the JetBlue passengers across the city. The riders of bikes and subway trains won handily, reaching the finish line before the Burbank-to-Long-Beach flight had even touched down and setting the intertubes all a-Twitter with their apocalypse-defying exploits.
There are lots of potential take-aways from this non-event, from the obvious benefits of relying less on our cars to the potential fun in pitting bikes against planes in all kinds of races. It seems as if, hype aside, good planning and an effective public education campaign helped avert a lot of traffic-related suffering. It's good to remember the benefits of cooperation, given the news coming out of Washington lately...Maybe we should let traffic engineers solve the budget crisis.
Jamie Baker Roskie
Well, it's awfully quiet here in Land Use Prof Blog land...I myself am just returning from a lovely 10 days in cool, sunny northern California, where I enjoyed such land use amenities as the Los Gatos Creek Trail and the Point Reyes National Seashore. I also, appropos of nothing land-usey, took my very first (and very fun) Aerial Yoga class and watched the San Francisco Giants beat the Milwaukee Brewers. I hope others are finding equally neat ways to beat the heat.
Jamie Baker Roskie