April 2, 2011
Property and Renewable Energy
This semester, I have taught a Wind Energy course in the form of a writing seminar. I should call this more of an experiment than a course, really--there's no textbook, of course, and in place of regular law review style papers, I have assigned my students to write pieces of a model wind energy code. My surprise in teaching the course has been the content that I have found to be most important. I expected the course to be mostly about permitting, ratemaking, and other classic electricity-based issues, but each day, as I introduce my students to a new phase of the wind energy development process, I find myself teaching a Land Use and Property class.
First, there is the challenge of finding a suitable site for a large wind development. (I have focused on utility-scale developments in the course, although in the future I am determined to fit in distributed renewable issues, too.) The location challenge is a big one: for renewables, a developer needs two parallel estates. First, she needs a strong wind resource, which I call a "fugitive estate" (or a "renewable estate" if one wants to more clearly differentiate wind from water, minerals, and wildlife). Second, she needs a static land resource that's sufficiently free of competing uses to ensure that she can site large towers and turbines on the property. Combining these estates into one neat package or "renewable parcel" is no easy task because strong winds do not cooperatively follow jurisdictional lines. A developer of one wind project often has to build a farm that straddles county or town lines and of course mutiple private property lines; she may even have to cross state lines, as the "Stateline" wind farm on the Washington-Oregon border has done. Even where her development does not cross county lines, she also often must deal with several school districts, which impose different taxes.
In oil and gas development, law addresses the challenge of the combined fugitive-land estate through a combination of common law and state legislation. Typically, an oil or gas developer leases just the mineral estate. The developer then uses the surface to the extent necessary to economically produce the mineral estate; she does not have an express lease or even easement on the surface, but state legislation and the common law provide that she has the right to reasonable use of the surface. Wind could potentially be moving in this direction--where a developer would acquire the rights to the wind flowing over properties and then use the surface as necessary to develop the resource. But in many states, it does not appear to be, which may make sense. Wind technology, after all, is more permanent and land intensive than an oil or gas well, and perhaps it makes sense that some states require the wind developer to lease the surface. But what happens when a wind developer with surface rights and/or wind rights wants to place a tower on the very spot planned for an oil or gas well? Whose rights are superior? Ernest Smith and Becky Diffen have a rich article that addresses these issues, suggesting that wind and oil and gas developers are typically contracting around this problem (at least in Texas) and that wind developers are indeed obtaining wind rights in hopes that courts will recognize these new rights if they are challenged in court--which they likely will be when a disgruntled surface owner buys a property only to discover that the wind rights have been sold away and towers will begin to be installed next month. In addition to Smith and Diffen's article, Lincoln Davies on the Environmental Law Prof Blog has recently alerted us to some new articles exploring the common law of renewables.
Once the developer finds a suitable site, she must of course obtain permission to build not just from the private property owners but also from the relevant land use authorities. This process varies substantially by state, with states like Minnesota fully centralizing the process for wind developments of a certain size and states like Washington and Oregon allowing municipalities to regulate but collecting these municipal regulations within a centralized process (for projects beyond a certain size threshold) and ensuring compliance through this process, and states like Kansas leaving almost all siting authority to municipalities.
Finally, beyond the renewable parcel itself, there is the challenge of transmission, which merits a post of its own. For now, I hope that I have persuaded you that Land Use and Property issues are central in the renewable realm and present interesting case studies in siting challenges.
April 1, 2011
Penalver & Strahilevitz on Judicial Takings or Due Process?
Eduardo Penalver (Cornell) and Lior Strahilevitz (Chicago) have posted Judicial Takings or Due Process? The abstract:
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court concluded that the Takings Clause of the United States Constitution prohibits the judiciary from declaring that “what was once an established right of private property no longer exists” unless the property owner in question receives just compensation. In this paper, we delineate the boundaries between a judicial taking and a violation of the Constitution’s due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach.
Our argument proceeds in two parts. The first is a conceptual section that explains what factors are relevant to determining whether a judicial action diminishing a private property interest is a judicial taking or something else. In our view, where a judicial decision intentionally seizes private property in order to achieve a legitimate public end, the Takings Clause is an appropriate framework for evaluating the constitutionality of the state’s action. Due Process is the more appropriate doctrinal pathway where the judiciary does not intend to abrogate a private owner’s property rights, or where the diminution of private property rights results from a judicial action that serves no legitimate public purpose. By clarifying the boundaries of judicial takings, we also hope to shed light on the constitutional foundation for numerous state-court doctrines concerning the retroactivity of new property rules. The second section articulates a novel functional argument, which suggests that creating liability for judicial takings may cause litigants to underinvest in high quality legal representation, which will in turn increase the likelihood of judicial mistakes and contribute to the destabilization of existing entitlements. This phenomenon prompts us to argue that cases in which the underinvestment incentives are most pronounced should be litigated under the Due Process Clause, but cases where repeat-play or the government’s involvement as a litigant mitigates the underinvestment problem represent more appropriate vehicles for judicial takings treatment. What rides on the distinction between judicial takings and due process violations? Under our approach, judicial takings cases should be (a) easier to win than due process cases, (b) more likely to result in damages remedies than injunctive remedies, and (c) may lend themselves to attractive “comparative fault” inspired solutions.
Looks like a very important paper!
Introducing Hannah Wiseman
It's hard to believe (and terrifying for my 1Ls), but today is April 1. So it's time--no fooling!--to introduce a new guest blogger. We're thrilled to have Hannah Wiseman join us for the month.
Professor Wiseman recently joined the faculty at the University of Tulsa College of Law, where she teaches and researches in the areas of property, land use, energy, environmental, state & local government, and administrative law. She studied at Dartmouth and Yale Law, and clerked for Judge Higginbotham on the Fifth Circuit before serving as a visiting assistant professor at the University of Texas School of Law.
Professor Wiseman has published a number of excellent articles, primarily in the areas of energy and environmental law and regulation and local government. She has several on the very hot topic of hydraulic fracturing, as well as my particular favorite: Public Communities, Private Rules, published last year in the Georgetown Law Journal. Check out all of her work at her SSRN page. We're very honored to have her join us here at the Land Use Prof Blog!
UPDATE: I didn't even realize it until Jessica pointed it out in the comments, but Hannah has also joined a group that just recently relaunched the Environmental Law Prof Blog on our Law Professor Blog Network. We know something about that task too, so congrats to Hannah, Lincoln Davies, Brigham Daniels, Blake Hudson, and Lesley McAllister for doing it and for your future contributions to the broader discussion of land use, property, and environmental law!
More on Chinese "Ghost Towns"...
I've blogged in the past about the somewhat stunning cities where no lives in parts of China.
This video expands on that and provides an astonishing perspective of land use that isn't being used:
March 31, 2011
Boston's Parks Dep't Releases Sustainable Design Guidelines
Boston's Parks and Recreation Department has released a new set of "sustainable" design guidelines. Unfortunately, the entire report is not on-line, but you can view the Conclusions and Recommendations. I thought it was interesting that the Dep't used "sustainable," instead of "green." Although it's unclear from the documents how they are going beyond environmental protection, the release states:
"The difference between a “green” project and a “sustainable” project is that a “green” project focuses solely on environmental stewardship such as reducing waste, minimizing carbon and water footprints, preventing pollution and conserving natural resources while a “sustainable” project moves beyond these and not only includes green components, but also integrates economic growth and social responsibility."
Iglesias on Fair Housing Remedies and the Two-Person-Per-Bedroom Standard
Tim Iglesias (San Francisco) has posted Moving Beyond the Two-Person-Per-Bedroom: Revitalizing Application of the Federal Fair Housing Act to Private Residential Occupancy Standards. Here's the abstract:
New empirical evidence demonstrates that the common residential occupancy standard of two-persons-per-bedroom substantially limits the housing choices of many thousands of families, especially Latinos, Asians and extended families. The federal Fair Housing Act makes overly restrictive policies illegal, but the enforcement practices of the U.S. Department of Housing and Urban Development (HUD) have enabled the two-persons-per-bedroom standard to become de facto law. This article urges HUD to use its regulatory authority to remedy the situation and offers several solutions. And, if HUD fails to act, it encourages private plaintiffs to challenge the two-persons-per-bedroom standard and provides guidance to courts in deciding these cases.
March 30, 2011
NYT Dialogue on Shrinking Cities
The latest census figures from Detroit (Chad's hometown blogged about here and here) have inspired the New York Times to solicit opinions from several urban planning experts about the way forward for post-industrial cities confronted with large-scale property abandonment. Jennifer Bradley (Brookings-MPP) and Terry Schwarz (Kent State's Cleveland Urban Design Collaborative) each offer shrinking city visions that challenge the idea that all planning must be for demographic expansion and economic growth. Their greening strategies, including attention to urban agriculture and ecosystems, contemplate a 'new normal' for cities that may, in some ways, be better than historical peak periods.
Richard Florida (Toronto-Business) and Sam Staley urge beleaguered areas to pursue a focused (and apparently unsubsidized) effort to retain and attract residents in a mobile society. Still others, such as Toni Griffin (Harvard-Planning), see Detroit and similar cities as merely the most egregiously wounded casualties of unsustainable sprawl-promoting policies that must be changed throughout the U.S. These brief articles and even the comment board are all worth checking out. (Hat Tip to Nicole Garnett (Notre Dame) and her student, Sean Ashburn)
I would also encourage those interested in working with the land use challenges faced by undercrowded, post-industrial cities to check out The Center for Community Progress (f/k/a National Vacant Properties Campaign). Over the years, I have had the chance to participate in conferences and technical assistance efforts that have brought urban development practitioners together with experts such as Jennifer Bradley, Terry Schwarz, Kermit Lind (Cleveland State), Joe Schilling (Va. Tech-Metropolitan Inst.) and CCP's co-founder, Frank Alexander (Emory).
March 30, 2011 in Community Design, Community Economic Development, Comprehensive Plans, Crime, Density, Detroit, Development, Economic Development, Planning, Redevelopment, Smart Growth, Sustainability | Permalink | Comments (0) | TrackBack
Well, its been another busy several weeks. This fall, I'll be taking a leave of absence from the law school to serve as the City of Montgomery's inauguaral Director of Development. If you're interested, you can read details here.
Then, for the Spring 2012 semester, I'm fortunate to have the opportunity to serve as a Visiting Professor at the Stetson University School of Law where I'll teach first year Property and one other course.
That said, even with the leave and visitorship, I still plan to serve as the Land Use Prof blog's unofficial new urban commentator and advocate of nearly all things smart and sustainable growth.
Along those lines, consider this interesting article on my always favorite topic of Detroit and land use issues:
For three years, Jayesh Patel, an attorney, and his wife, Neethi, a pediatrician, were what he called “reverse commuters.” They worked in the suburbs and lived in the city of Detroit. Last July, the Patels moved out.
They joined 237,493 who left Detroit over the last decade, a 25 percent decline that left the city with 713,777, down from a peak of 1.85 million in 1950. The Patels abandoned their neighborhood of Victorian homes in the Corktown district, founded by Irish immigrants at the turn of the 20th Century, and moved to the affluent suburb of Birmingham in search of better schools for their two children.
“I was just shocked,” Kurt Metzger, director of Data Driven Detroit, which collects demographic information, said about the 2010 Census figures for the city. “Even in my wildest dreams, my most depressed nightmares, I wasn’t expecting this big of a decline.”
Detroit’s population fell from 951,270 in the previous decennial tally -- a loss of 65 residents per day since 2000 -- making it the lowest official count since 465,766 in 1910, according to U.S. Census data released yesterday. It joins St. Louis, Cleveland, Cincinnati and other Midwestern cities unable to reverse a six-decade population loss.
While this decline is literally historic in nature, at least one commentator is suggesting that, rather than contract, Detroit should...er...expand:
Super-sizing Detroit could also translate to better policy. When Indianapolis enacted a similar "Unigov" city-suburbs merger in the late Sixties (under Republican mayor Dick Lugar), the region experienced economic growth (and the benefits of economy of scale), AAA municipal bond-ratings and a broader, more stable tax base. The same could happen in metropolitan Detroit, which sorely needs to attract young people and entrepreneurs in order to fill the void left by the region's dwindling manufacturing base. Elastic cities are less segregated and have fewer of the problems associated with concentrated areas of poverty. And though sprawl wouldn't necessarily be reigned in, the region could finally adopt a sensible transportation policy to unite its businesses and residential areas. At the moment, suburban Detroit maintains its own bus system, separate from the city's, and a planned $150 million light rail project, slated to run from downtown Detroit up the main thoroughfare of Woodward Avenue, would nonsensically stop at 8 Mile Road, the suburban border. That's a formula to limit, not maximize, growth.
As you can see from reading the entire article, as much as I love my hometown, the problems are so endemic that one wonders whether Detroit may simply grind toward becoming the first nearly abandoned major American city.
At some point, land use law becomes almost irrelevant if the demand for land essentially disappears.
March 29, 2011
Yoga and Water
Those of you who follow this blog closely might have noticed that, in addition to land use law, I have an interest in contemplative practices such as yoga and meditation. Very occasionally, those two interests overlap.
This month, Yoga Journal focuses on water issues. In addition to the "Fluid Nature" sequence of yoga postures and the "Drink it In" water meditation, which are available on-line, there are also some articles on water quality, water consumption, overfishing, and other human impacts on the acquatic environment. Unfortunately, the latter information isn't available on the Yoga Journal website, only in the print edition.
It makes sense that folks who are interested in better self care are also interested in caring for their environment. More deeply than that, yoga and meditation teachings focus on the fact that we are not separate from each other, or from the natural world, and so what we do to our environment we do to ourselves. How that relates to land use law is a bit more tangential - yogis and mindfulness practitioners tend to focus an individual ethical code involving on "right effort" and individual action more than on law and regulation. Still, sometimes it's interesting to examine the intersection of the two world views.
Jamie Baker Roskie
March 28, 2011
Martinez on Judicial Takings for Private Necessity
John Martinez (Utah) has posted No More Free Easements: Judicial Takings for Private Necessity. The abstract:
This article bridges the fields of constitutional judicial takings and the common law of easements that arise because of private necessity. The article suggests that the law of takings requires payment when a court declares that an easement should be established because of private necessity.
Erbsen on Constitutional Spaces
Allan Erbsen (Minnesota) has posted Constitutional Spaces, Minnesota Law Review, vol. 95 (2011). The abstract:
This Article is the first to systematically consider the Constitution’s identification, definition, and integration of the physical spaces in which it applies. Knowing how the Constitution addresses a particular problem often requires knowing where the problem arises. Yet despite the importance and pervasiveness of spatial references in the Constitution, commentators have not analyzed these references collectively. This Article fills that gap in the literature by examining each of the fourteen spaces that the Constitution identifies, as well as several that it overlooks, to reveal patterns in the text’s treatment of space and location. Among the spaces that the Article considers are "the Land" referenced in the Supremacy Clause, the "United States," "States," "Territory," "Property," the District of Columbia, federal enclaves, vicinage "districts," the "high Seas," "admiralty and maritime Jurisdiction," Indian lands, national airspace, and underground resource deposits. The Article shows that many discrete problems on which scholars have focused - such as the rights of U.S. military detainees abroad, the role of federal law on Indian reservations, and the extraterritorial reach of state law - are manifestations of a broader phenomenon that exists because of indeterminacy in how the Constitution allocates power over different kinds of spaces. Considering the many distinct kinds of constitutionally defined and constitutionally overlooked spaces together highlights this indeterminacy, provides new perspectives on commonly discussed problems, and exposes additional puzzles that have escaped scrutiny.
The Article makes four basic points on which future scholarship can build. First, although the Constitution creates a typology of spaces that relies on formal categories, the categories often have little utility in resolving specific questions. The text’s description of the physical contours of spaces and the legal significance of their borders is too imprecise to permit a jurisprudence of labels that converts lines on a map into "bright line" rules of decision. Determining where in physical space a problem arises is therefore a necessary but insufficient prerequisite to determining which government entities can address the problem and how they may respond. Second, constitutionally defined places routinely overlap, such that a point in physical space can map onto several points in constitutional space. Drawing conclusions about how the Constitution regulates particular spaces in particular contexts therefore requires developing rules for allocating concurrent authority and resolving competing claims. Third, even when spaces do not physically overlap, events in one space routinely have consequences in others, residents of a space routinely act in others, and agents of an entity that controls a particular space often operate in other spaces. These spillovers raise questions about when entities (such as states, the United States, and tribes) can regulate beyond borders that would normally cabin their jurisdiction. The parameters of a constitutionally defined place are thus not necessarily coextensive with the reach of an entity governing that place. Finally, the same questions tend to recur in multiple spatial contexts. For example, who decides the boundary of a space and by what standards, when can federal courts create common law governing a space, and when does the text’s explicit enumeration of a space’s attributes imply by negative implication the absence of other attributes? Exposing how these questions arise in multiple contexts reveals subtle dimensions of problems that can go unnoticed when viewed in isolation. The pervasive and overlooked "where" question in constitutional law therefore merits systemic scrutiny.
I've been saying that much of constitutional law involves land use issues--precisely because, as Erbsen illustrates, those rights and limitations have to happen in some physical space!
Top 10 Land Use/Planning Websites
Planetizen.com has named its top 10 planning, design, and development websites of 2011. The list, which can be found here, includes www.dirt.asla.org (The Dirt) and www.codesproject.asu.edu (The Codes Project). If you like zoning codes, The Codes Project is for you. It attempts "to gather the variety of codes throughout history that have regulated land use into one useful directory. From the Code of Hammurabi to Seaside, Florida's Urban Code, you can . . . compare these landmarks of regulation."
Caribbean Spring Break
I was incredibly fortunate to spend my Spring Break in Turks & Caicos (TCI), a small chain of Carribean islands near Hispanola (the island shared by the Dominican Republic and Haiti). Vacations like these are always interesting from a land use perspective. We spent our time on the island of Providencials (aka "Provo"), which is the most visited island in the chain. In fact, tourism plays a large role in TCI's economy. As there are no fresh water sources (all water comes from desalinization) and no land-based natural resources to speak of, the economy is largely dependent on tourism, fishing, and "offshore financial services."
The development on Provo shows signs of the boom and bust cycle in the world economy. In fact, we went on a paddle boarding excursion that left from a brand new (but closed) marina with no boats. There were also many, many luxury houses standing empty and for sale all over the island. However, it's my guess that the market will rebound more quickly than other parts of Latin America and the Carribean, as TCI has a stable government (it is still a British protectorate), the currency is the dollar, the language is English, and if you can get used to driving on the left, it's a pretty spectacular place to be.
Jamie Baker Roskie
March 27, 2011
Lind on Public Nuisance Law and Bank Foreclosures
This blog has had the good fortune to feature the amazing work of Cleveland-Marshall's Urban Development Law Clinic (here and here, too) as well as dispatches from the front lines of the foreclosure fallout in Cleveland's neighborhoods from the Clinic's outgoing director, Kermit Lind (Cleveland State). Kermit has now posted Can Public Nuisance Law Protect Your Neighborhood from Big Banks?, 44 Suffolk L. Rev. 89 (2011). Here's the abstract:
One manifestation of the mortgage crisis of the past decade is the destabilization of housing markets and neighborhoods where mortgage defaults were concentrated. As banks and their mortgage servicers employ business practices that result in banks or their agents controlling or owning vacant dwellings, the noncompliance with housing and other municipal codes by these institutional absentee owners presents neighborhoods and cities with a huge and costly public nuisance problem.
This article explores both the theory of public nuisance law and the experience of applying nuisance law in practice to mitigate the harmful consequences of bank debt collection and REO management. It looks at how and to what extent public nuisance law provides protection for those non-defaulting homeowners whose health, safety and welfare are threatened by the business practices of big banks. It compares litigation that applies public nuisance law in different ways to distinguish viable uses from unsuccessful uses of public nuisance law doctrine. The recent efforts to use public nuisance law against manufacturers and marketers of harmful products like guns and tobacco are distinguished from the application of public nuisance law against owners of real estate maintenance deficiencies are in violation of laws protecting the public health, safety and welfare.