Saturday, August 27, 2011

Hurricane Irene

Looks like as I write this on Saturday, Hurricane Irene has hit North Carolina and is poised to strike the Northeast tonight or tomorrow. It's not particularly strong (as hurricanes go) but it's incredibly wide, so a lot of people will be affected. I'm currently looking at a baseball game that was moved up a day for a doubleheader. Major hurricanes and their aftermaths bring all sorts of land use and other legal issues into focus (see, e.g., Robin Paul Malloy, ed., Law and Recovery from Disaster: Hurricane Katrina (Ashgate 2009).

But right now I'll just offer a few basic observations from experience living on the Gulf Coast. Growing up in New York I had no experience with hurricanes. Since living here I've been through the storm or the aftermath of Tropical Storm Allison and Hurricanes Katrina, Rita, and Ike.

The most important decision is whether to stay or go. On this question you should really trust the authorities. In 2005, Houston was the major evacuation center from New Orleans for Hurricane Katrina. Having volunteered to help with the 100,000+ refugees in person and being well tuned-in to the scenes of the destruction, suffering, and lawlessness in the aftermath, many Houstonians instinctively decided to evacuate several weeks later when Hurricane Rita bore down on the Southeast Texas coast. But the mass evacuation turned out to be miserable--or worse--for most. The entire state's highways were gridlocked, all the gas stations were sucked dry, and the majority of evacuees either spent 24+ hours on the road (in 100 degree heat) or got stranded.

Most local governments now have fairly sophisticated data on where storm surges (which are the most dangerous parts of hurricanes) are going to hit. During Hurricane Ike in 2008, the civil authorities did an outstanding job in communicating exactly which low-lying areas needed to evacuate, while the word of the day to everyone else was to "hunker down." This turned out to be quite effective. You can see that New York City has something similar with it's pre-planned hurricane zones and it's order as of this writing to evacuate Zone A. Ike devastated Galveston but loss of life was kept down and the 4+ million in Houston handled it much better than Rita.

If you rely on public transportation, prepare for it to be shut down. New York has already closed the subway. Don't plan to drive unless you have to. In fact, if you do "hunker down," get your hands on as much stuff as possible, particularly water, ice, batteries. Gas up and get cash now. Get some food that will last a week or more. Tie down or move indoors anything that could become a projectile. There are lots of hurricane-preparedness websites out there (even Louisianan James Carville has chimed in) so I won't repeat everything you'll find there. Prepare to be without electricity, internet, or cell phone service. If you have relatives or friends in the interior, it's a good idea to contact them now and ask them to serve as a "rally point" for communications or even to meet up with family in case power and communications go out for a while after the storm.

Bottom line, take it seriously. Don't assume that the danger is linked to the "cat" number--Allison was downgraded to a Tropical Storm before it hit Houston, and did more damage than any of the other hurricanes (just ask my friends at the University of Houston Law Center). But don't overreact by fleeing if you don't need to or without proper supplies. Go ahead and have that hurricane party, and bond with neighbors in the cleanup, but not until after you've done everything you can to prepare. Remember, it it turns out to be not as bad as you thought, that's a good thing. Prepare for the worst and hope for the best. Hopefully you'll all safely bid Goodnight Irene.

UPDATE: Looks like the storm has moved into New England towards Canada, and it turned out to be not as bad as anticipated. Great news. Some pundits will predictably complain that it was overhyped, but that's doing a disservice to everyone involved, and hopefully will not cause excessive underreaction next time. These are incredibly dangerous and destructive events, and once people start dying it's too late to change your mind and start taking it seriously. Better safe than sorry, and it doesn't hurt to have a dress rehearsal in an area of the country that doesn't have as much experience responding to this particular type of emergency.


Matt Festa

August 27, 2011 in Beaches, Environmentalism, Houston, Local Government, New York, Transportation | Permalink | Comments (0) | TrackBack (0)

Friday, August 26, 2011

Craig on Defining Riparian Rights as 'Property' through Takings Litigation

Robin Kundis Craig (Florida State) has posted Defining Riparian Rights as 'Property' Through Takings Litigation: Is There a Property Right to Environmental Quality?, forthcoming in Environmental Law. The abstract:

The U.S. Constitution’s prohibitions on governments taking private property without compensation have always operated most clearly in the context of real property. In contrast, arguments that these takings restrictions should apply to water and water rights throw courts for a loop. A fundamental problem for takings decisions in the water rights context is the fact that both the status of water rights as property and the defining elements of any property rights that exist are contested.

This Article argues that takings litigation can become a productive occasion for defining the status and nature of water rights, especially, increasingly, in the riparianism context. It first provides a quick review of basic takings jurisprudence, emphasizing how the constitutional prohibitions on government takings apply to property use rights, such as easements. It then examines the potential for takings litigation to help define the nature of water rights in general, focusing on relatively recent litigation involving water rights connected with cattle grazing. The Article ends by discussing a series of cases involving riparian water rights and claims that those rights entitle the owners to certain basic environmental quality standards, especially with respect to water quality. It concludes that takings jurisprudence in the riparian rights context may yet align private property rights and environmental protection, providing a more focused - and potentially more predictable/less balancing - private cause of action than nuisance for certain kinds of environmental degradation.

Matt Festa

August 26, 2011 in Agriculture, Environmental Law, Property Rights, Scholarship, Servitudes, Sustainability, Takings, Water | Permalink | Comments (1) | TrackBack (0)

Urbanology: On-Line Urban Planning Game

This might be fun for students:  the BMW Guggenheim Lab has posted the on-line urban planning game Urbanology.  Answer 10 questions to find your future city (based on your decisions on issues like converting an affordable housing block into a hotel and allowing startup companies to pay less than minimum wage). My future city was most like Toronto, maybe because I would allow the local college to build a 50 story dorm.

Jamie Baker Roskie

August 26, 2011 in Community Design, Humorous, Planning | Permalink | Comments (1) | TrackBack (0)

Thursday, August 25, 2011

Wisconsin hiring announcement

From Stephanie Tai at the University of Wisconsin:

THE UNIVERSITY OF WISCONSIN LAW SCHOOL invites applications for one or more tenure-track faculty positions to begin Fall 2012 (negotiable). Applications are welcome across legal fields and at the intersection of law and other academic disciplines. The University of Wisconsin Law School has a strong institutional commitment to diversity of all types, and we encourage applications from those whose backgrounds can further contribute to the diversity of the faculty. Applicants should submit a letter of interest, current résumé (including a list of teaching interests), a research agenda, and references to: Professor Anuj C. Desai, Chair, Faculty Appointments Committee, University of Wisconsin Law School, 975 Bascom Mall, Madison, WI 53706-1399 (or via e-mail to <>). The University of Wisconsin-Madison is an affirmative action/equal employment opportunity employer.

They're doing a general search, but since they reached out to us here at the blog, we can assume that land use applications are welcome!

Matt Festa

August 25, 2011 in Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 24, 2011

NYU Furman Center on Mortgage Lending in the Recession

The NYU Furman Cente for Real Estate and Urban Policy has published some great stuff over the last few weeks. Here's one of their terrific recent reports:

We are pleased to share with you the latest publication from the Furman Center’s Institute for Affordable Housing Policy, Navigating Uncertain Waters: Mortgage Lending in the Wake of the Great Recession.

This report summarizes our February 4, 2011 Roundtable of the same name, and provides an in-depth exploration of credit availability and lending patterns during the recession. The event brought together 75 policymakers and academics from across the nation to assist government, the mortgage industry, academics, and non-profits address the challenge of mortgage credit need and availability through informed discussion and research.

By publishing this report, we aim to make the discussion and insights shared during the Roundtable available to a wider audience. We hope you find the materials informative, and we look forward to receiving your feedback.

Matt Festa

August 24, 2011 in Finance, Financial Crisis, Housing, Mortgage Crisis, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Vermont Law Prof Jailed in Protest Against Tar Sands Pipeline

Vermont Law professor and former Yale Forestry dean Gus Speth spent 48 hours in a DC jail over the weekend, protesting the plan for a 1,700 mile pipeline from Canada's tar sands to Texas.

According to this article from the Rutland Herald, Speth issued a statement from jail:

We the prisoners being held in the Central Cell Block of the D.C. Jail need company and encourage the continuation of the protests against the tar sands pipeline. … I've held numerous positions and public office in Washington but my current position feels like one of the most important.

There's a chance to join the Vermonters in their protest next week, if you're so inclined.

Thanks to Lora Lucero, land use prof at UNM for the tip on this story.

Jamie Baker Roskie

UPDATE: As it turns out, Lora herself was arrested Sunday as well...

August 24, 2011 in Clean Energy, Environmentalism | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 23, 2011


I realize no one is relying on the Land Use Prof blog for breaking news (thank heaven) but it's interesting to note that there have been two relatively major earthquakes in the continental US in the last two days.  One struck Colorado near the New Mexico border last night shortly before midnight. The other hit Richmond, Virginia shortly before 2:00 this afternoon, and was felt up and down the Eastern Seaboard (including here in Athens, although not by this blogger, who was in an office near a active rail yard at the time).

No speculation being reported yet about any relationship between the two quakes.

Jamie Baker Roskie

August 23, 2011 | Permalink | Comments (1) | TrackBack (0)

Monday, August 22, 2011

2020 View of Urban Infrastructure: The Urban Lawyer's Juergensmeyer Festschrift

This exciting issue of The Urban Lawyer came in the mail recently, and I didn't get a chance to blog it when it came in, but it's chock full of great articles as well as a fitting tribute to one of the leaders in our field.  The articles start at the citation 42 Urban Law. 1 (Winter 2011).  It's a longish list but there are so many interesting contributions.  From "A 2020 View of Urban Infrastructure: A Festschrift Symposium in Honor of Julian Conrad Juergensmeyer, on the Occasion of his 45th Year of Teaching Law":

Infrastructure Planning


  • Patricia E. Salkin, From Bricks and Mortar to Mega-Bytes and Mega-Pixels: The Changing Landscape of the Impact of Technology and Innovation on Urban Development
  • Arthur C. Nelson, Reforming Infrastructure Financing with 2020 Vision
  • Robert W. Burchell, Matthew S. Crosby, & Mark Russo, Infrastructure Need in the United States, 2010-2030: What is the Level of Need? How Will it be Paid For?


  • Catherine L. Ross, Bruce Stiftel, Myungje Woo, & Arthi Rao, Measuring Regional Transportation Sustainability: An Exploration
  • Edward H. Ziegler, Sustainable Urban Development and the Next American Landscape: Some Thoughts on Transportation, Regionalism, and Urban Planning Law Reform in the 21st Century
  • Thomas G. Pelham, Transportation Concurrency, Mobility Fees, and Urban Sprawl in Florida


  • Fred Bosselman, The Future of Electricity Infrastructure


  • James Bross, Sewers: Infra Dig and Infra Dug
  • Dwight H. Merriam, The Last Thing That Planners Talk About Should Be the First
  • Colin Crawford, Wastewater Resources: Rethinking Centralized Wastewater Treatment Systems, Land Use Planning and Water Conservation

Social Infrastructure

  • James A. Kushner, Affordable Housing as Infrastructure in the Time of Global Warming
  • Juli Ponce, Affordable Housing as Urban Infrastructure: A Comparative Study from a European Perspective
  • Michael Prieur, Draft Convention on the International Status of Environmentally-Displaced Persons
  • Janice C. Griffith, Green Infrastructure: The Imperative of Open Space Preservation

Infrastructure and Property Rights

  • David L. Callies, Mandatory Set-Asides as Land Development Conditions
  • Rachelle Alterman, The U.S. Regulatory Takings Debate Through an International Lens
  • Michael Bothe, Property Rights and Local Zoning v. Nature Protection: Some Comparative Spotlights
  • Craig M. Call, Resolving Land Use and Impact Fee Disputes: Utah’s Innovative Ombudsman Program

Future Directions

  • Ellen Margrethe Basse, Urbanization and Growth Management in Europe
  • Jerry Weitz, The Next Wave in Growth Management
  • Julian C. Juergensmeyer & James G. Nicholas, Loving Growth Management in the Time of Recession

Matt Festa



August 22, 2011 | Permalink | Comments (0) | TrackBack (0)

Fershee on The Problems with Piecemeal Federal Transmission

Joshua P. Fershee (North Dakota) has posted Reliably Unreliable: The Problems with Piecemeal Federal Transmission and Grid Reliability Policies, Center for Energy and Environmental Law, University of Connecticut School of Law Policy Paper, July 2011.  The abstract:

In the past, electricity was considered a local concern, but over time major portions of the electrical grid have become regional, national, and even international in scope. Electricity regulation has evolved into a complex web of multijurisdictional oversight, and this evolution has created both tensions and opportunities. National legislation and regulation have helped increase reliability, diversify the fuel mix for electricity generation, and create a more open market for electricity. However, national regulation designed to enhance open markets also created opportunities for abuse. In addition, the increasing level of federal oversight has led to conflicts between state and federal entities as the traditional sense of local control over siting and delivery of electricity has been eroded.

A large portion of the current U.S. transmission system is between thirty and fifty years old. As the transmission grid ages, reliability concerns increase; an old grid is simply more likely to fail. Still, new transmission infrastructure is expensive, laborintensive, and complex. Further, there are significant concerns about whether upgraded and expanded transmission lines are the best way to improve safety and reliability.Certainly, with the advent of microgrids and other technologies, transmission lines are not the sole option. A multi-faceted approach that considers local and regional needs, as well as those of the nation as a whole, is necessary.

There are several areas in need of consideration. Recent federal legislation designed to address transmission siting has been well intended, but limited in scope. Further, recent court decisions have all but eliminated the potential effectiveness of the federal siting authority. In addition, cost allocation issues for new energy facilities have emerged as paramount in the relatively new era of competitive markets for power generation, and these issues have been exacerbated by recent energy policy developments. Finally, policies designed to address public safety and environmental concerns have impeded (or run the risk of impeding) broader policy goals, because the policies are often limited in scope and not part of a comprehensive package then ensures necessary synergies to improve grid reliability.

There is no shortage of effort at the state, regional, and federal levels to improve electricity grid reliability and safety. Unfortunately, in many cases, the efforts have been competitive with other energy-related policies (such as climate change initiatives and renewable energy mandates), and jurisdictional conflicts have obstructed, rather than facilitated, many such efforts. It is time for Congress to provide clear authority to someone to make and coordinate changes. A failure to act to preserve and improve the safety and reliability of our electric system would be a costly and avoidable failure. And that is something no one can afford.

Prof. Fershee had a very interesting presentation at SEALS last month too; check out this timely paper.

Matt Festa

August 22, 2011 in Clean Energy, Environmental Law, Federal Government, Local Government, Scholarship | Permalink | Comments (0) | TrackBack (0)

Lewis & Clark Clinic Wins Big Victory Against Coal

I'm a bit tardy in getting this out, but over the summer the folks at Lewis & Clark's Pacific Environmental Advocacy Center won a big victory against Portland General Electric, effectively making Oregon a coal free state.  LC law students were integrally involved in this case, making for one of the most fantastic clinical experiences ever (in my opinion).

Read more about it on the LC website. (Full disclosure: If it seems like I'm bursting with price, perhaps it's because I am an LC [undergraduate] alumna.)

Jamie Baker Roskie

August 22, 2011 in Clean Energy, Climate, Environmental Law, Teaching | Permalink | Comments (0) | TrackBack (0)