April 30, 2011
Salkin on the Regulation of Controversial Land Uses
While the definition of what may constitute a controversial land use differs from community to community, the bottom line is that land use controls have been attempting to regulate these uses since the advent of zoning (and through nuisance law before that). When regulating many types of controversial land uses, constitutional issues may come into play and federal and state preemption issues may arise. However, local govenrments typically have wide discretion in designing standards and regulations for many types of controversial uses. This article explores four typically controversial uses - off-campus fraternity and sorority housing, tattoo parlors, medical marijuana and pawn shops - to demonstrate the types of regulations that may and may not be appropriate when it comes to planning and zoning laws.
Rather than prattle on along the where-she-does-find-the-time? theme, I will just note that this is the fourth piece she has posted in recent months. That count doesn't include the J. of Legal Ed. article that she and John Nolon published this Spring (see Jamie's post on the conference of the same name). In her down time, she also puts up a fine land use law blog of her own.
April 29, 2011
Mallach on CDCs and Shrinking Cities
Alan Mallach (Brookings) has published Where Do We Fit In? CDCs and the Emerging Shrinking City Movement in the Spring 2011 issue of Shelterforce. In this short piece, Alan looks at the efforts of community development corporations (CDCs) to contend with the problems faced by cities such as Cleveland, Youngstown and Detroit. He goes on to discuss the fundamental problem of how to craft a local development mission in a market that is clearly shrinking. Unlike Baltimore, a post-industrial city in a growing region, the cities Mallach highlights are located in parts of the country that continue to lose population. We here at Land Use Prof have blogged about the release of Detroit's 2010 census numbers and a recent NY Times discussion of the shrinking-cities quandary. With this Shelterforce article, Alan Mallach brings his formidable analysis and decades of community development experience to bear on this critical issue for American cities in the 21st century.
A Levittown Remake?
Levittown--that most famous of all post War tract housing projects--is, for many, the epitome of bad American land development.
Maybe that's why this Dutch firm is conceiving how the reputed Birthplace of Suburban Sprawl might be remade into a vibrant town center.
Check out the details here. A very interesting idea, indeed.
April 28, 2011
The Beach Rolls to Fort Worth: Severance Panel at Texas Wesleyan
It's Severance-palooza today on the Land Use Prof Blog, with Hannah Wiseman's great summary of the oral arguments at the recent rehearing of the Open Beaches Act case in the Texas Supreme Court, and the contribution in my previous post from Timothy Mulvaney. Scroll down to the next two posts for that background and analysis.
But wait, there's more! Prof. Mulvaney, who has done a lot of research on takings, including a piece on last year's Stop the Beach Renourishment, has been following Severance v. Patterson for a long time. Last month he hosted a lively panel discussion on the case at Texas Wesleyan School of Law (ably sponsored by their Federalist Society and Environmental Law Society). The participants were David Breemer, the attorney for plaintiff Carol Severance; Ellis Pickett, former chair of the Texas Upper Coast Chapter of the Surfrider Foundation; and yours truly.
Prof. Mulvaney spoke first and gave a helpful introduction to the case and the background of the legal issues. Mr. Breemer, a principal with the Pacific Legal Foundation, gave his client's view of the case and argued vigorously that the state's interpretation of beach-access easement law is an unconstitutional interference with his client's property rights.
I spoke a little bit about the Texas Supreme Court's initial opinion from November 2010, and also about the issue I focused on in my amicus curiae brief, which was (my view) that an easement must be proven up for each property through common law doctrines of dedication, prescription, or custom before we can even get to the question of whether it rolls.
Mr. Pickett, whose Surfrider Foundation also filed an amicus brief (with which a former student of mine assisted in drafting), spoke passionately about the environmental costs of restricting the public interest in the beach. He had lots of compelling pictures and even passed around the room a giant piece of twisted metal to make his point. This was followed by a great Q&A session with the well-informed crowd.
What made it even more interesting is that when Prof. Mulvaney organized the panel, it was conceived as an after-action discussion of the November opinion. It wasn't until just a couple of weeks beforehand that we all learned that the court had taken the unusual step of granting the rehearing. By the way, you can read all of the briefs, including the amici, at the link from this post.
It was a great event, and the other three participants have offered to give me a surfing lesson. The participants have all agreed to contribute to an upcoming issue of the Texas Wesleyan Law Review.
Here's the video! [requires Real Player]. This video, plus Part 2, are also available at the Texas Weslayan web article on the event.
Mulvaney on the Severance Rehearing and Location vs. Purpose
Thanks to Hannah Wiseman for the great post summarizing the recent rehearing in Severance v. Patterson. I meant to get to it last week, but I wouldn't have done half as good a job. But I also encourage you to do as she suggests and listen to the oral argument yourself.
But she's not the only junior land use prof with Texas ties who has some great thoughts about the rehearing. Professor Timothy Mulvaney at Texas Wesleyan also watched the oral argument, and composed some observations on the case, particularly the interesting question of the physical location vs. the purpose of these easements.
[T]he Texas Supreme Court conducted a re-hearing in the “rolling” beach access easement case of Severance v. Patterson. In its original 6-2 decision, the Court distinguished between (1) an easement destroyed by an avulsive event—which the majority originally held in November does not “roll” upland—and (2) an easement destroyed by imperceptible erosion—which the majority originally held does “roll” upland. But the Court today seemed focused not on the avulsion/erosion divide but rather on this question:
Is the geographic location of an easement physically static, such that the easement holder must re-establish that easement each time a natural event (storm, sinkhole, etc.) makes the geographic location of the original easement impassable? Or, is it the purpose of that easement that is static, whereby no re-establishment would be necessary?
The answer may depend on a multitude of factors (e.g., the method of creation, the use of the easement, the character of the property at stake, etc.). There do seem to be several instances where only the easement’s purpose, not its physical location, should remain static. At oral argument, the State pointed to the natural alteration of a river’s course, which does not require a re-establishment of the navigable servitude. Another analogy might be that of oil and gas leases, which convey an easement by implication that is not limited to a fixed location but rather allows use of the surface as reasonably necessary to fulfill the lease’s purpose. I would be interested to hear other analogies or perspectives off-blog (email@example.com), or even on-blog if you are so inclined. Thank you for your time.
Feel free to share your thoughts with Prof. Mulvaney or even better, leave a comment here!
On Beaches and Expectations
In 2010, Professor Matt Festa posted on the Severance v. Patterson case, which addresses Texas's Open Beaches Act and the question of "rolling easements" under the Act. In Severance, the Texas Supreme Court held that when the public has established an easement over private beachfront property and the ocean later covers the property, a new public easement must be proven; the easement does not "roll." Specifically, the court determined that "when drastic changes expose new dry beach and the former dry beach that may have been encumbered by a public easement is now part of the wet beach or completely submerged under water, the State must prove a new easement on the area" and held that "Texas does not recognize a 'rolling' easement on Galveston’s West Beach."
In a rare action, the Texas Supreme Court later granted a rehearing of this decision, as described in another helpful post from Professor Festa, and on April 19, the court held oral argument. J. David Breemer represented Carol Severance, the landowner, and began by arguing that "easements created by public use along the shore do not pick themselves up and roll inland onto new areas of private land not subject to public use simply because the vegetation line has moved," and that the "key" to the decision was not avulsion or erosion law but "settled easement law." Justices Medina and Lehrmann--who dissented from the initial decision--actively questioned Mr. Breemer, asking, for example, whether Severance had an expectation of exclusive use when she bought her property following the enactment of Texas's Open Beaches Act and whether she might have expected that the vegetation line would frequently move. Mr. Breemer responded that a landowner should not expect from any common law provision that because a vegetation line suddenly disappears, the public has obtained an easement. Justice Lehrmann suggested that vegetation lines frequently move along the beach--that unlike with rivers, events "that cause the vegetation line [along the ocean beach] to move are recurring," therefore perhaps implying that landowners along ocean beaches should expect such changes. Justice Lehrmann voiced additional concerns that if easements do not roll, the public may never be able to obtain easements to the beach.
Justice Medina then returned to the question of expectations, asking how, if Severance "purchased the property subject to all the disclaimers," she could have standing to pursue her claim. Justice Medina, in an inquiry similar to Justice Lehrmann's earlier question, also voiced concerns as to how the public would have adequate access to the beach following this decision. Mr. Breemer responded, "It's supposed to be difficult to acquire easements on private property." Justice Guzman also raised questions about the public's rights to the beach and how Severance could show that the right had been limited, asking, "Do you agree that the public has a right to use the beaches that predates any division or subdivision of those [beach home] lots?" Mr. Breemer appeared to concede that the public's right to use the beach predated the purchase but argued that the public's right was very "limited" following the hurricane and the movement of the vegetation line. Justice Guzman followed up, asking, "Does the public retain anything after the movements that caused the changes?" Mr. Breemer responded that the public easement proven along Galveston is under water now, but because the public use has migrated uninterrupted over the years as the water line has gradually moved in, public use has continued, although it is limited. It was not wholly clear from Mr. Breemer's response how the public has any continued use right, as its right is now underwater. Mr. Breemer also reemphasized his argument that the public right extends only to the land "actually used" by the public. Justice Guzman once again responded, "But if we assume the public had the right to access the beach from time immemorial, then that is the public's use. They had used it."
The argument then turned to the state. Daniel L. Geyser, the attorney representing the state parties, began by arguing, "Plaintiff today continues to press for a property right that she never had, and in doing so she invites the court to eviscerate a fundamental public right reflecting an unbroken tradition of dry beach access extending to the days of the Republic." He emphasized that easements under the common law are not static. Justice Green quickly began the questioning, asking Mr. Geyser why anyone would want to build a house on the beach if the court followed Texas's argument. Mr. Geyser responded that the rule "always has been" that an easement might roll onto the property and that no compensation would be provided to the burdened landowner. Indeed, he argued, we must not forget the expectations of those who purchase houses in third, fourth, and fifth row areas; these homeowners, he claimed, expect that they will have access to the beach. He also focused on the expectations of the surrounding community--expectations that are largely grounded in tourism and rely on public access. Justice Wainwright expanded Justice Green's initial line of questioning, asking Mr. Geyser whether homeowners along the beach had an expectation that the state would take their property. Mr. Geyser responded that the homeowners bought with the expectation that they were to have "land that is in a dangerous area"; this is why, he argued, the Texas Legislature has clarified the common law rule, and people "invest against the backdrop of that common law rule." Justice Wainwright countered that Mr. Geyser had provided "no authority for the proposition" that private owners did not have a property interest in the beach area that the state claimed was subject to a public easement, and Mr. Geyser vehemently disagreed, arguing that he had provided authority showing beach access since the days of Republic--including a commitment to access in the Texas Constitution. Justice Hecht asked about the relevance of previous cases in an attempt to determine when the common law of access was established. Mr. Geyser seemed to emphasize that we cannot rely on the date of case holdings to determine exactly when the common law arose because the common law relies on factors such as "fixed and settled expectations" and tradition--factors that exist long before case decisions emerge that recognize the common law. In response to further questions from Justices Willett and Wainwright, Mr. Geyser argued that easements, like nuisance, are "background principles of common law."
It is of course not clear whether the court will change its mind from its initial decision in favor of Mrs. Severance, the landowner, but don't rely on my rough summary above to reach your own opinion on the matter. As indicated above, you can listen to the oral argument here.
Glaeser, Ponzetto and Tobio on Skills and Metropolitan Growth
Edward Glaeser (Harvard-Economics), Giacomo Ponzetto (Pompeu Fabra) and Kristina Tobio (Harvard-Kennedy) have posted Cities, Skills, and Regional Change. Here's the abstract:
One approach to urban areas emphasizes the existence of certain immutable relationships, such as Zipf's or Gibrat's Law. An alternative view is that urban change reflects individual responses to changing tastes or technologies. This paper examines almost 200 years of regional change in the U.S. and finds that few, if any, growth relationships remain constant, including Gibrat's Law. Education does a reasonable job of explaining urban resilience in recent decades, but does not seem to predict county growth a century ago. After reviewing this evidence, we present and estimate a simple model of regional change, where education increases the level of entrepreneurship. Human capital spillovers occur at the city level because skilled workers produce more product varieties and thereby increase labor demand. We find that skills are associated with growth in productivity or entrepreneurship, not with growth in quality of life, at least outside of the West. We also find that skills seem to have depressed housing supply growth in the West, but not in other regions, which supports the view that educated residents in that region have fought for tougher land-use controls. We also present evidence that skills have had a disproportionately large impact on unemployment during the current recession.
April 26, 2011
Hirokawa on Property, the Environment, and Ecosystem Services
Keith Hirokawa (Albany) has yet another timely and interesting-looking article. Three Stories About Nature: Property, the Environment, and Ecosystem Services, forthcoming in the Mercer Law Review. The abstract:
The relationship between our understanding of nature and how we allocate rights to property is a necessary but indeterminate one. This article explores three different approaches to this understanding – Property, Environment, and Ecosystem Services – to illustrate different resolutions to an otherwise basic controversy over competing claims to property in natural things. Ultimately, this analysis reveals the conceptual commitments and legal consequences involved in ‘ecosystem services,’ and how the ecosystem services story attempts to converge economics and ecology in property. Ecosystem services casts the character of nature as ecosystem functionality, the value of nature as economic value in goods and services, and the use of nature’s goods and services as a benefit to human well-being.
By looking at the ways the ecosystem services approach diverges from other descriptions of nature, this article also explores how property may react and adapt to the values embodied in ecosystem services. The ecosystem services approach provides an articulation of property value’s dependence on ecosystem influences, and as a result, deflates the importance of property boundaries; challenges to ecosystem services will invariably arise where property value is contingent on ecosystems processes occurring on another’s property. This article argues that the ecosystem services approach results in property without boundaries, in which boundaries become less relevant not just for the process of identifying nature, but also for identifying property interests.
Another really helpful addition to the literature. Keith has provided a number of very interesting articles this year!
New oil pipeline proposed
According to the Wall Street Journal, two companies joined forces today and proposed to build a pipeline that would move oil from Cushing, Oklahoma to Houston, Texas. The pipeline would be a small alternative to the more controversial TransCanada Keystone XL pipeline, which would carry oil from Canada through Cushing to the Gulf Coast. The Wall Street Journal reports that oil imports from the Canadian tar sands are building up in Cushing and that the new proposed pipeline will provide an outlet for this extra oil.
The proposed TransCanada Keystone XL pipeline, which is a much larger project, will require 1,711 miles of new pipeline according to the U.S. Department of State, and it will need a Presidential Permit from the Department of State because it will cross the United States-Canada border. If is is approved, it will cross six U.S. states and has--as is typical of large eminent domain projects--encountered strong opposition from landowners and environmental groups.
"Passengers" Radio Documentary
Somewhat ironically I I was driving home, alone, from Atlanta on Sunday night when I heard an episode of Passengers. This is a short series of public radio documentaries about public transportation. Apparently I heard part three; among other topics, it touts Google Transit. This is a handy service that allows one to plan public transit trips - only not in Athens, as neither "The Bus," nor UGA Campus Transit are participating agencies. This is somewhat surprising, as the UGA bus system has one of the largest riderships in Georgia, second only to Atlanta's MARTA. (MARTA does participate in Google Transit - it seems to be the only agency in Georgia that does so.)
At any rate, Passengers seems to be a great series on the basic concepts and current debate about public transit and transportation planning in the US. You might find it to be a helpful teaching tool.
Jamie Baker Roskie
April 25, 2011
Adler on Climate, Water, Agriculture, and Drought
Robert W. Adler (Utah) has posted Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought and Agricultural Law, forthcoming in the Florida Law Review. The abstract:
This article compares risk spreading and risk reduction approaches to climate adaptation. Because of the buildup of greenhouse gases in the atmosphere from past practices, the world is "committed" to a significant amount of global average warming. This is likely to lead to significant increases in the frequency, severity and geographic extent of drought. Adaptation to these and other problems caused by climate disruption will be essential even if steps are taken now to mitigate that disruption. Water and drought policy provide an example of the significant policy tension between compassion and risk reduction in climate adaptation, and how those tensions affect broader national economic policies. Because water is essential to lives and livelihoods, the compassionate response to drought is to provide financial and other forms of relief. Guaranteed, unconditional drought relief, however, can encourage unsustainable water uses and practices that increase vulnerability to drought in the long-term. Moreover, the agricultural sector is the largest consumptive user of water in drought-prone regions, but longstanding U.S. agricultural policy encourages excess production and water use. Effective adaptation to climate disruption will have to strike a balance between providing essential short-term relief from hardship and promoting longer-term measures to reduce vulnerability through more sustainable water use and other practices. It will also require fundamental reconsideration of laws and policies that drive key economic sectors that will be affected by climate disruption. Although water, drought and agricultural law provide one good example of this tension, the same lessons are likely to apply to other sectors of the economy vulnerable to climate disruption, such as real estate development and energy production.
A significant paper on drought and the increasingly alarming state of U.S. water resource law.
Doremus (and many more) on Adaptive Management
Over the last two decades, natural resource scientists, managers, and policymakers have increasingly endorsed “adaptive management” of land and natural resources. Indeed, this approach, based on adaptive implementation of resource management and pollution control laws, is now mandated in a variety of contexts at the federal and state level. Yet confusion remains over the meaning of adaptive management, and disagreement persists over its usefulness or feasibility in specific contexts.
This white paper is intended to help legislators, agency personnel, and the public better understand and use adaptive management. Adaptive management is not a panacea for the problems that plague natural resource management woes. It is appropriate in some contexts, but not in others. Drawing on key literature as well as case studies, we offer an explanation of adaptive management, including a discussion of its benefits and challenges; a roadmap for deciding whether or not to use it in a particular context; and best practices for obtaining its benefits while avoiding its potential pitfalls. Following these recommendations should simultaneously improve the ability of resource managers to achieve management goals determined by society and the ability of citizens to hold managers accountable to those goals.
The nine other scholars listed as co-authors (Andreen, Camacho, Farber, Glicksman, Goble, Karkkainen, Rohlf, Tarlock and Zellmer) make this white paper an all-star production. As an environmental 'greenhorn', I found the explanation of the concept of adaptive management straightforward and compelling. The case studies illustrate not only best practices but cautionary tales belying elevation of adaptive management as a panacea for the protection of all complex ecosystems.
April 24, 2011
Kornfeld on Natural Resources Damages and BP Deepwater Horizon
Itzchak E. Kornfeld (Hebrew University of Jerusalem) has posted Of Dead Pelicans, Turtles, and Marshes: Natural Resources Damages in the Wake of the BP Deepwater Horizon Spill, Environmental Affairs, Vol. 38, No. 2. The abstract:
This Article posits that in its role as the lead agency among the United States’ natural resources trustees, the National Oceanic & Atmospheric Administration’s piecemeal assessment of natural resources damages, i.e., valuing one dead bird at a time or the death of just a tract of marsh, fails to consider the inherent worth or the value of the entire ecosystem. Valuing the destruction of the entire ecosystem as a result of the BP Deepwater Horizon well blowout is the best way to assess the damage in the Gulf Coast, particularly in south Louisiana. That crude oil spill re-sulted in an estimated 53,000 barrels per day, and a total volume of 4.9 million barrels that despoiled the waters of the Gulf of Mexico and the surrounding shorelines. As a consequence of the spill, thousands of birds, turtles, fish, and marshlands were left to die.