July 9, 2011
Georgia Theater to Reopen
I've blogged previously here and here about efforts to rebuild Athens' historic Georgia Theater after a devastating fire in 2009. It's been a long, tough road for the building's owner, and I'm sure he felt there were times when the reopening just wasn't meant to be. So, in grand Athens fashion, there will be a big, weeks long party to celebrate, starting August 1. They have a fantastic lineup of local and national favorites such as The Glands, Kenosha Kid, and Bela Fleck and the Flecktones.
The UGA student paper The Red & Black has a nice article about the rebuilding and refitting of the interior. The Theater is beloved by music and architecture fans alike. It's wonderful to see it taking on a new life.
Jamie Baker Roskie
July 8, 2011
A Major Development in the Southeastern Water Wars
I've only blogged a very little bit about the on-going water conflict between Alabama, Georgia and Florida, but it's a very big deal around here. A recent 11th Circuit decision is worth noting. From an Atlanta Journal Constitution story:
The court threw out a 2009 ruling by Senior U.S. District Judge Paul Magnuson, who had found it was illegal for the Corps of Engineers to draw water from Lake Lanier to meet the needs of 3 million metro residents. In its decision Tuesday, the 11th U.S. Circuit Court of Appeals found that one of the purposes of the man-made reservoir about 45 miles upstream of Atlanta was to supply water to the metro region.
Alabama will appeal the ruling to the full Circuit Court.
Magnuson had also set a doomsday clock ticking for Georgia, Alabama and Florida to arrive at a water-sharing agreement. If the states could not reach a settlement by July 2012, Magnuson said, metro Atlanta would only be allowed to take the same amount of water it received in the mid-1970s -- when the population was less than one-third its current size.
That deadline is no longer in effect.
Instead, the 11th U.S. Circuit Court of Appeals set a new deadline. It gave the corps one year to make a final determination over water allocation from Lake Lanier. And the court reminded the corps that the water litigation has already been going on for more than two decades...
Tad Leithead, chairman of the Atlanta Regional Commission, said Magnuson's order posed a serious threat to metro Atlanta's water supply and noted the judge himself said his ruling could lead to a "draconian" result if the July 2012 deadline were not met.
"Had his ruling gone into effect in July 2012, the water supplies that millions of people depend on would have been cut off," Leithead said. "As a result of today’s action by the 11th Circuit, now that won’t happen."
Demming Bass, chief operating officer of the Cobb Chamber of Commerce, said the ruling takes uncertainty off the table in terms of recruiting businesses to locate to metro Atlanta.
"The good news is that because of Judge Magnuson's decision, it forced Georgia and Atlanta to come together and look at worst-case scenarios," Bass said. "It made us pass some great legislation that's going to help us conserve water and get plans in place to look at additional reservoirs, which is something we're going to need anyway."
If you're interested in reading the judge's 95 page ruling, it's available here.
Jamie Baker Roskie
July 6, 2011
Mulvaney guest-blog on Severance's latest development: Mootness?
[This guest post is from Prof. Timothy Mulvaney (Texas Wesleyan), whom we've featured here before for his scholarship and commentary on judicial takings and on Severance v. Patterson--on which he hosted an excellent program in March. Here are his thoughts on the latest development in the case. Thanks!--Matt Festa]
The Land Use Prof Blog previously has included several entries on the long-running dispute regarding the Texas Open Beaches Act in the case of Severance v. Patterson (see here, here, here, here, and here). The case took yet another surprising turn last week when the plaintiff sold the last remaining property at issue in the suit.
At the filing of the complaint in 2006, the lawsuit involved three residential gulf-front properties owned by plaintiff Carol Severance. Following 2005’s Hurricane Rita, these properties ended up seaward of the vegetation line; after Rita, that is, Ms. Severance’s properties were composed almost entirely of dry sand beach. Ms. Severance challenged the State’s policy of removing homes that, due to erosion or coastal storms, now rest within the public’s “rolling” beach access easement.
In a 6-2 decision in November of 2010 on three certified questions from the Fifth Circuit, the Texas Supreme Court largely sided with Ms. Severance. The Court distinguished between (1) an easement destroyed by an avulsive event—which the majority held does not “roll” upland, such that the state must prove that a public easement across the “new” strip of beach adjacent to the post-Rita mean high water line has been established by custom, dedication, or prescription in each individual case, including Ms. Severance’s—and (2) an easement destroyed by imperceptible erosion—which the majority held does “roll” upland.
Yet in March of this year, the Court, at the request of the State and nearly two dozen amici, took the rather extraordinary step of deciding to re-hear the case. The Court ultimately conducted a second round of oral argument in April. Yet just last week, with the re-hearing decision pending, Ms. Severance sold the third and final property subject to the litigation (she had sold the other two properties several years earlier).
Upon receiving notice that Ms. Severance sold this last remaining property (notably, through a FEMA-funded buy-back program administered by the City of Galveston on the final day that she could avail herself of that option), the State immediately sent a letter to the Court suggesting that (1) the case is moot, and (2) the Court “should follow the established practice of vacating the latest opinion [the November 2010 opinion] before returning this matter to the Fifth Circuit.” Otherwise, said the State, the Court would be authorizing “a prevailing party to obtain through unilateral action what it was unable to accomplish in opposing a rehearing motion or a petition for review. … [the Court should not] permit an opinion to stand, by default, that was under active reconsideration.”
Counsel for Ms. Severance, David Breemer of the Pacific Legal Foundation, responded with a letter stating that the case is not moot because: (1) mootness cannot permit the state “to avoid a controversy over its property restrictions” by using those same controversial restrictions to force Ms. Severance to sell; (2) Ms. Severance owns another property in Galveston that was not included in her 2006 complaint but that is now subject to the State’s rolling easement policy; and (3) “there are ongoing personal and legal consequences to Severance” for which the Court can fashion a remedy.
In his letter, Mr. Breemer requested that the Court issue an expedited briefing schedule on the mootness issue. The Court obliged. The State filed its brief today, and Ms. Severance’s response is due next Tuesday. Stay tuned to the Land Use Prof Blog for updated information on Severance v. Patterson.
In Memorium: David Getches
The environmental law community is mourning the passing of former Colorado Law dean David Getches. While I never had the pleasure of meeting Dean Getches, it is evident he was deeply loved and respected, as well as very accomplished. From his faculty bio:
David Getches is the Raphael J. Moses Professor of Natural Resources Law at the University of Colorado School of Law. He teaches and writes on water law, public land law, environmental law, and Indian law. Professor Getches has published several books including: Water Law in a Nutshell (1997); Searching Out the Headwaters: Change and Rediscovery in Western Water Law and Policy, with Bates, MacDonnell and Wilkinson (1993); Controlling Water Use: The Unfinished Business of Water Quality Control, with MacDonnell and Rice (1991); Water Resource Management, with Tarlock and Corbridge (1993); and Federal Indian Law, with Wilkinson and Williams (1998). He has written many articles and book chapters that appear in diverse scholarly and popular sources, including recent articles calling for reform of Colorado River governance and criticizing the Supreme Court’s departure from traditional principles in Indian law.
From 1983-1987, David Getches was Executive Director of the Colorado Department of Natural Resources under Governor Richard D. Lamm. The department includes ten divisions of state government that deal with parks, wildlife, land, water, and minerals. While in that post he strongly advocated water conservation, pressed for groundwater law reform, advanced ideas for better cooperative management and control of the Colorado River, urged expansion of the state’s designated wilderness areas, and spoke out on the importance of recreation and wildlife to the state’s economy.
Mr. Getches was the founding Executive Director of the Native American Rights Fund (NARF). He developed the staff, funding, and program of this national, nonprofit Indian-interest law firm. Major cases he litigated include a Northwest Indian fishing rights case (United States v. Washington, also known as “the Boldt decision”) and a case on behalf of Eskimos to establish the North Slope Borough, the largest municipality in the world, which includes the Prudhoe Bay oil fields. His other cases dealt with water rights, land claims, federal trust responsibilities, environmental issues, education, and civil rights on behalf of Native American clients throughout the West.
He obviously will be deeply missed.
Jamie Baker Roskie
July 5, 2011
Ziegler on Sustainable Urban Development
Edward Ziegler (Denver) has posted Sustainable Urban Development and the Next American Landscape: Some Thoughts on Transportation, Regionalism, and Urban Planning Law Reform in the 21st Century, 43 Urb. Lawyer ___ (forthcoming 2011). Here's the abstract:
This article discusses sustainable development problems in the United States related to regional automobile-dependent sprawl and focuses on the need for devising and implementing growth strategies that provide people in the United States with affordable and sustainable housing and transportation options. The article provides a critical global perspective on the potential for creating sustainable neighborhoods of transit-oriented urban core areas within a metropolitan region and calls for the reform of the legal primacy in the United States of local zoning and urban planning controls which largely operate to require low density automobile-dependent living arrangements. The article crystallizes four major sustainable development points that highlight the need for developing integrated regional urban planning policies that support regional transit planning in the United States in the twenty-first century.
Metropolitan areas cannot resolve their challenges alone. Counties, cities, and suburbs operate within a national policy framework, and face challenges [bigger] than their own capacities. What’s needed is a new partnership between federal, state, local, and private-sector players to help metropolitan areas build on their economic strengths, foster a strong and diverse middle class, and grow in environmentally sustainable ways.
CFP: Connecticut Conference on Legal Solutions to Climate Change Adaptation
From Prof. Sara Bronin, here's an announcement about an opportunity to participate in an upcoming conference. There is more information at the conference website.
Call for Papers:
“Legal Solutions to Coastal Climate Change Adaptation in Connecticut”
Conference Date: February 10, 2012
Conference Location: University of Connecticut School of Law,
Deadline for paper abstract submissions: September 30, 2011
Key Issues covered by the conference: The conference presentations and
discussions aim to enhance understanding and promote discussion of
cutting-edge policy and legal approaches to climate change adaptation
in coastal areas, with potential application to Connecticut.
Topics of Interest: We invite practitioners, academics, and students
in the field of law as well as others with expertise and interest to
submit a 2 to 3 page paper proposal that focuses on existing or
proposed innovative legal, policy and related incentive-based options
for climate change adaptation in coastal environments. We invite
papers that lay out the existing legal and regulatory structure in
Connecticut as well as in other states, identify gaps and obstacles in
these approaches, present innovative and environmentally sound
approaches to climate change adaptation and stimulate legal thinking
on legal and policy remedies to this issue of international
importance. All submitted papers must contain a legal, policy or
regulatory approach, solution or tool designed to facilitate climate
change adaptation in Connecticut.
Specific Topics: Topics of interest include, but are not limited to:
· Opportunities for and roadblocks to adaptation in existing
laws and policies; lessons from other areas:
· Interplay between the protection of public resources and
private property rights
· Using the CZMA and Coastal Management Act for climate change
· Rolling easements, ambulatory vs. fixed property lines
· Ecosystem-based adaptation incentives via policy and legal
· Land use planning, growth strategies and regulatory
approaches to climate change at the municipal and state levels
· Climate Justice and Adaptation Planning: Who bears the
burden? Who reaps the benefits?
· Legal approaches to emergency planning and changing hazards
· Adaptation Economics: the costs of adapting or not adapting,
who pays and when?
· Reactive versus proactive legal approaches to climate change
· Legal strategies or barriers to financing climate change
Publication of Papers: Submitted papers that are accepted for
presentation will be published in a special issue of the Sea Grant Law
and Policy Journal. How to Submit: 2 to 3 page paper proposals should be submitted via e-
mail to firstname.lastname@example.org by September 30th. Be sure to
include your affiliation and contact information.
July 4, 2011
Independence Day, Property, and the American Dream
For some land-use related Independence Day commentary, I ran across this column by center-right political analyst Michael Barone, Replacing Property as a Source of Wealth Creation.
Barone's interpretation is that while the Founders established a repubic where suffrage was originally based on property qualifications, the very widespread nature of property ownership in America helped move democratic rights first to all white males and then to universal suffrage. It's a broad claim but an interesting one.
Barone also references a couple of fascinating essays by Walter Russell Mead that I've been meaning to post about. From his ViaMedia blog at The American Interest, part I and part II of The Death of the American Dream. After bad news from the housing market:
It means something bigger. For eighty years we have defined the American dream as an owner occupied family home, preferably with a nice swathe of crabgrass-free lawn around it. The home mortgage was the centerpiece of a society of consumers based on debt-financed living. It was life on the installment plan. The latest downturn in the housing market is one more grim signal that in its current form, the American Dream is going the way of the dodo.
Mead goes into the history of the American Dream as, first, the family farm, and then, the single-family home, ranging from Jefferson to Levittown to the current recession and quoting from Little Shop of Horrors ("In a tract house that we share/Somewhere that’s green'). It's really quite fascinating and a great read. He sees this crisis as a transformative moment in American social history.
His conclusion isn't quite as depressing as the excerpt above might indicate, but does focus on the terrific challenge ahead of re-tooling the American Dream. In fact, he has a Fourth-of-July column in the Wall Street Journal called The Future Still Belongs to America.
Here in Houston the weekend belonged to the visiting Boston Red Sox (to my delight and my daughter's ire). But there will still the post-game fireworks pictured above (despite the drought-mandated ban on personal fireworks--another land use issue!). Hope you all had a safe and happy Fourth.