Land Use Prof Blog

Somin on Stop the Beach and Judicial Takings

Ilya Somin (George Mason) has posted another timely article, Stop the Beach Renourishment and the Problem of Judicial Takings, forthcoming in Vol. 6 of the Duke Journal of Constitutional Law & Public Policy (2011).  The abstract:

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection was the Supreme Court’s first effort to address the problem of judicial takings: whether or not a judicial decision can ever qualify as a taking that requires compensation under the Takings Clause of the Fifth Amendment. Unfortunately, a divided Court failed to resolve the issue, which is now left for future cases.

This article argues that judicial takings do exist. I also explain why this conclusion would not require federal courts to take on any unusual administrative burdens. Part II briefly discusses the background of Stop the Beach. In Part III, I defend Justice Antonin Scalia’s conclusion that “the Takings Clause bars the State from taking private property without paying for it, no matter which branch [of government] is the instrument of the taking.” This principle follows logically from both the text and the original meaning of the Fifth Amendment. Various rationales for distinguishing judicial takings from other takings do not overturn this simple but sound conclusion.

Part IV addresses claims that enforcing a takings doctrine would lead federal courts into severe practical difficulties. A judicial takings doctrine would not require legal principles significantly different from or more complicated than other takings claims. Justice Stephen Breyer and others are wrong to suggest that such a doctrine would “invite a host of federal takings claims” that federal judges would be unable to handle.

Matt Festa

CNU 19 Liveblog

As many of you know, and hopefully some were able to attend, the Congress for the New Urbanism held CNU 19 over the past four days in Madison.  I've seen a lot of interesting reports from the conference on Facebook (CNU is my "friend"!). 

If you couldn't go--or even if you did--there is a great resource in the CNU 19 Liveblog.  It recaps a lot of the interesting events and has some good links.  Some of the highlights include:

• Former Mayor (and current CNU Prez/CEO) John Norquist's view of Milwaukee
• Incremental Urbanism
• Ed Glaeser's plenary on his new book, Triumph of the City
• Pedestrians and Cyclists
• Reports on the various tours
• Urban Stormwater discussion
• Conservatives and the CNU
• Tactical Urbanism
• Link to the livestream video of the closing plenary with Andres Duany and Charles Waldheim

Good stuff there, and more at the CNU main website.

Matt Festa

Bus Rapid Transit boom?

A lot of attention gets paid to light rail, high speed rail, and highway expansion as possible (and highly contested) approaches toward solving urban, regional, and national transportation problems.  Comparatively, much less attention is given to the emerging concept of Bus Rapid Transit (BRT).  However, several citites are implementing BRT and there seems to be some positive feedback.  From the May/June issue of the APA's Planning magazine, Now Boarding, the 5:15 Express; Bus rapid transit could be the economical answer to light rail.

It's the evening rush hour in downtown Cleveland, and the HealthLine bus pulls up to a sleek, modern station on bustling Euclid Avenue. The stop is brief — subway stop brief. In less than 30 seconds, passengers have gotten on and off and the bus has pulled away. Unlike a typical city bus, there is no line for the fare box. Passengers pay their fare and board from a slightly elevated loading platform something like the platforms  made famous by the express buses in Curitiba, Brazil. In seconds, the 100-passenger bus revs up and heads east on Euclid. It occupies a lane that is reserved for express buses.

To many observers, this is the future of public transit.

Dubbed bus rapid transit, or BRT, this urban transportation mode is designed to look and feel much like a light-rail system, but without the heavy start-up costs.

In addition to all of the politics now surrounding light rail and high speed rail, I think many Americans continue to associate bus travel with lower socioeconomic status; but BRT could help change that.  While it's not as widely known as an option, it could have a lot of upside:

While BRT is a relatively new idea in the U.S., the service is a good fit for many American cities, says Robert Cervero, a professor of city and regional planning at the University of California, Berkeley, who has studied BRT in Brazil and elsewhere. Because American cities have grown with automobile travel in mind, BRT service can be more easily incorporated than light-rail lines, he says. "I think it is the right technology. It's not the flavor of the day," he adds, referring to the buzz surrounding other new transit trends. "It's a meaningful response to emerging transit needs."

BRT doesn't necessarily have to throw light rail under the bus (sorry), but it's definitely worth more attention.

Matt Festa

Comparative Law Conference on Sustainability June 11th in Montréal

Weekend in Montréal anyone? The McGill Faculty of Law and Vermont Law School present a joint cross-border conference on Sustainability: Achieving Environmental Sustainability in the Face of Climate Change. 

Kat Garvey

For the full agenda...

 

 

SUSTAINABILITY:ACHIEVING ENVIRONMENTAL SUSTAINABILITY IN THE FACE OF CLIMATE CHANGE

June 11, 2011

9:00 A.M. until 5:30 P.M.

Room 312, New Chancellor Day Hall, Faculty of Law, McGill University

Montréal, Québec, Canada

 

AGENDA

 

Session 1.  9:00-10:30. Ecology and Policy

 

• Jason J. Czarnezki, Professor of Law, Vermont Law School:  The Information Approach to Creating a Sustainable Food System: Implementation of Environmental Life-Cycle Labeling for Food.
• Raphael Fischler, Associate Professor and Director, McGill School of Urban Planning:  Social Regulation and Land Use Planning Policy.
• Richard Janda, Associate Professor of Law, McGill Faculty of Law: The Justice Foundations of Ecological Economics.
• Patrick Parenteau, Professor of Law, Vermont Law School: Ecosystem Effects of Climate Change.

 

BREAK

 

Session 2.  10:45-12:15.  Domestic Law

 

• Martha L. Judy, Professor of Law, Vermont Law School:  Potentially Socially Responsible CERCLA?
• Hoi Kong, Assistant Professor of Law, McGill Faculty of Law: Sustainable Development and Land Use Regulation in Canada.
• Mark Latham, Professor of Law, Vermont Law School: Climate Change—Just Say No!
• Gregory Mikkleson, Associate Professor, McGill School of the Environment: Ecology and Democracy.

 

LUNCH

 

Session 3.  1:15-2:45. Comparative Coastal Zone Management

 

• Richard O. Brooks, Professor of Law Emeritus, Vermont Law School:

Making the “Mediterranean of the Western Hemisphere” a Sustainable Community: Connecticut’s Coastal Management Program and Long Island Sound.

• Aldo Chircop, Professor of Law, Schulich School of Law, Dalhousie University: Legal Frameworks for Integrated Coastal and Ocean Management in Canada and the EU—Some Insights from Comparative Analysis.
• Briana Collier, J.D. 2011, Vermont Law School, Orchestrating our Oceans:  Effectively Implementing Coastal Marine Spatial Planning in the U.S.
• L. Kinvin Wroth, Professor of Law, Vermont Law School:  Six Flags over Champlain Revisited—A Case for Coastal Zone Management or Coastal Marine Spatial Planning?

 

BREAK

 

Session 4.  3:00-4:15. Binational Management and Comparative Law

 

• Robert P. Godin, Adjunct Professor of Law, McGill Faculty of Law, and Martin Mimeault, Québec Ministry of Sustainable Development, Environment, and Parks: Transnational Sustainability Regulation: Landfill Expansion in Franklin County, on the New York and Québec Borders.
• Sara Phillips, LL.M. Candidate, McGill Faculty of Law and School of Environment:  Fracturing of Nations: Regulatory Reform and Comparative Analysis of Hydraulic Fracturing in Canada and the United States.
• Jack Tuholske, Visiting Professor of Law, Vermont Law School:  The Management of Transboundary Resources—the North Fork of the Flathead.

 

Session 5.  4:15-5:30. International Law

 

• Betsy Baker, Associate Professor of Law, and Samantha Fow, J.D. 2012, Vermont Law School: Sustainability as a Principle of Resource Exploitation in the Arctic.
• Meredith Cairns, LL.B/B.C.L. Candidate, McGill Faculty of Law:  Challenges to the Sustainability of Container Shipping in the Arctic.
• Konstantia Koutouki, Assistant Professor, University of Montréal Faculty of Law:  How International Law Has Evolved to Address Sustainable Development over the Last Two Decades, from the 1992 Rio Earth Summit towards the Coming 2012 Rio+20 Summit.

 For more information contact Professors Hoi Kong (hoi.kong@mcgill.ca) or Kinvin Wroth (kwroth@vermontlaw.edu)

Recently, the Vermont Law School Land Use Clinic launched openspacevt.wordpress.com.

This blog has the dual purpose of training our clinicians to write in plain English and providing accessible summaries of key Vermont land use decisions for volunteers and land use professionals.

In Vermont, most land use decisions are made by volunteers, frequently without staff support. In 2010, we conducted a survey of zoning administrators, development review board  members, planning commissioners, applicants and concerned citizens. We wondered if a blog written by law students could be helpful to these folks? The survey results indicated an interest and need for plain English summaries of key municipal land use and state permitting decisions.

We hope to update the blog weekly to summarize important developments in Vermont land use law.

Let us know if you have any suggestions!

Kat Garvey

 

Introducing Katherine Garvey

To continue our parade of fantastic guest bloggers, we are very pleased to announce that Katherine Garvey will be joining us for the month of June.  Prof. Garvey is Staff Attorney and Assistant Professor at Vermont Law School's excellent Land Use Clinic.  Here's her bio:

Katherine Garvey is a Staff Attorney and Assistant Professor of Law with the Land Use Clinic. From 2003 to 2006, she worked for EPA, Region VII in the National Agricultural Compliance Assistance Center and with the Office of Pollution Prevention and Toxics. Professor Garvey is also an ISO 14001 Environmental Management Systems Certified Lead Auditor. She developed and audited environmental management systems for military and large agricultural operations. From 2006 to 2008, Professor Garvey worked for the City of Lee's Summit, Missouri as the Environmental Coordinator. She helped the City comply with permitting requirements for their airport and landfill. In addition, she helped the City develop a solid waste management plan, stormwater plan, stream buffer ordinance, and a natural resource inventory map. In 2008, Garvey was chosen as Vermont Law's Land Use Fellow for the Land Use Institute. At the Institute, she supervised student work related to land use legislation, developed training materials for local officials, and performed statutory research for the Institute's land use partners.

Vermont has one of the three land use law clinics in the nation, along with Jamie Roskie's at Georgia (Montana is the third).  We're excited to have Prof. Garvey join us!

Matt Festa

Rebuilding in Joplin

As May draws to a close, I’d like to thank the Land Use Prof Blog editors for what has been an enjoyable month of guest-blogging.  This month has been a devastating one for Missouri.  My first blog post of the month discussed legal issues surrounding the flooding of hundreds of square miles in Southeast Missouri, and this post examines land use questions facing Joplin, Missouri, in the wake of a tornado that ravaged much of that town on May 22.

Last Saturday, I went to Joplin to assist in a massive clean-up operation that is now underway.  Despite watching plenty of television footage earlier in the week, I was startled at the degree of destruction.  In the city’s most severely damaged neighborhoods, entire city blocks had been reduced to mere piles of debris.  Without fences or buildings to segregate their respective rights, effected landowners were ignoring property boundary lines and working together in a desperate effort to recreate some semblance of order.  

As we gathered rubble and piled it along roadsides and alleyways, it occurred to me that the tornado had temporarily suspended most property and land use laws in the area.    Laws of trespass, nuisance, and encroachment had been set aside.    Land that deeds, easements, covenants, and zoning restrictions had once sculpted into orderly middle-class neighborhoods had briefly reverted to a sort of regulated commons. 

Of course, property rights enforcement will soon re-emerge in Joplin’s tornado-stricken areas for the same sorts of reasons as those famously described by Harold Demsetz in his article, Toward a Theory of Property Rights.  As order gradually returns to Joplin, the city will need a strategy for rebuilding.  Hopefully, Joplin’s civic leaders will learn from the experiences of other tornado-ravaged towns.  An article published in the Kansas City Star last week discusses what Joplin might glean from Greensburg, Kansas—a town that has redefined itself as a cutting-edge “green” community after encountering its own tornado.   A different article published in today’s Charlotte Observer describes the successes and failures of Wheatland, Pennsylvania, and Xenia, Ohio, in land use policymaking as those cities recovered from major tornado damage in years past.  According to the article, Tuscaloosa, Alabama, has already appointed a 50-person task force to generate a recovery plan following that city’s April 27 tornado.  Land use planning should play an important role as both Tuscaloosa and Joplin rebuild in the years ahead.

Troy Rule

ABA-RPTE Fellowship

Tanya Marsh from Property Prof Blog asked me to spread the word about a great opportunity for anyone interested in getting involved in the ABA's Real Property section.  It's the ABA-RPTE Fellows program.  Prof. Marsh was a fellow a few years ago, and in her blog post she tells us about the terrific opportunities it provided her to do substantive work and to get to know other leading lawyers in the field.  The application deadline is June 17.  You can get to the application materials at the link or through her informative post here.

Matt Festa

Somin on State Court Limits on Eminent Domain since Kelo

Ilya Somin (George Mason) has posted The Judicial Reaction to Kelo, 4 Alb. Gov't L. Rev 1 (2011). Here's the abstract:

Kelo v. City of New London was one of the most controversial decisions in Supreme Court history, generating a massive political backlash that led 43 states to adopt eminent domain reform laws restricting economic development takings of the kind the Court ruled were constitutional. In addition to the better-known legislative reaction, Kelo was also followed by extensive additional property rights litigation in both federal and state courts. This is the first article to systematically analyze the judicial reaction to Kelo.
Part I briefly summarizes Kelo and its holding. Part II considers state court interpretations of their state constitutional public use clauses since Kelo. Most of these cases have repudiated Kelo, either banning economic development takings outright or significantly constraining them. Part III considers judicial interpretations of Kelo’s “pretext” standard. This is the one area where Kelo might potentially permit nontrivial public use constraints on condemnation. Kelo indicated that condemnations are unconstitutional if the officially stated rationale for the taking is a pretext “for the purpose of conferring a private benefit on a particular private party.” State and lower federal courts have not come to any consensus on what qualifies as a pretextual taking. Nevertheless, several decisions suggest that the pretext standard may have some bite.
Overall, state courts have taken a skeptical view of Kelo, often rejecting it as a guide to the interpretation of their state constitutions. This reaction continues the pre-Kelo trend of increasing judicial protection for property rights at the state level.

The article introduces a symposium issue entitled Eminent Domain in the United States: Public Use, Just Compensation, & “The Social Compact.” Published participants include Steven Eagle, Gideon Kanner and Amy Lavine.

Jim K.

Reiss on Foundations of Federal Housing Policy

David J. Reiss (Brooklyn) has posted Foundations of Federal Housing Policy, a chapter in the book COMMUNITY, HOME, AND IDENTITY, Michael Diamond, Terry Turnipseed, eds., 2011.  The abstract:

Federal housing policy is heavily funded and made up of a morass of programs. This book chapter provides a taxonomy of goals for housing policy. The chapter first asks what the aim of housing policy is. In other words, what can a well-designed and executed housing policy achieve? The answer to this question is not at all clear-cut. Some argue that the aim of housing policy is to allow all Americans to live in safe, well-maintained and affordable housing. Others argue for a more modest aim – achieving an income transfer to low- and moderate-income families that mandates that the income transferred is consumed in increased housing. And yet others argue that the main aim is to create a nation of homeowner-citizens, a goal which hearkens back to Jefferson’s idealized “yeoman farmer” and continues through to George W. Bush’s "ownership society."

Beginning with these possibilities, I identify and categorize various "principles" of American housing policy. This is an important exercise because 80 plus years of housing policy; hundreds of billions of dollars; and literally hundreds of different housing programs have all conspired to confuse the essential aims of American housing policy. This chapter seeks to clarify debates surrounding American housing policy as the Obama Administration puts its own stamp on this field.

Looks like a fascinating contribution on a very important topic.

Matt Festa