Friday, January 6, 2012

CFP: Wetlands Policy Conference at Buffalo

Via Jessica Owley, news of an interesting upcoming conference at Buffalo:

Save The Date and Call for Papers
Beyond Jurisdiction:
Wetlands Policy for the Next Generation
26-27 April 2012 at SUNY Buffalo Law School
Buffalo, New York

Beyond Jurisdiction: Wetlands Policy for the Next Generation will bring together academics from law and other fields to join advocates in an exploration of the future of wetlands law and policy from a variety of perspectives (normative, empirical, instrumental, etc.). As is true of many areas of law and social policy, the world of wetlands is inherently political and value-laden—the law is often be a poor means of accomplishing contested social objectives in this area. A debate sparked by U.S. Supreme Court decisions and related federal actions have focused wetlands scholarship and advocacy during the past decade on exploring the parameters of which “waters of the United States” fall under federal jurisdictional. Such concentration has detracted from scholarship and study of many other important issues related to wetlands policy, such as mitigation, the Tulloch rule, nationwide permits, local and state policy developments, international treaty obligations, and other matters. This conference is designed to broaden the focus of exploration and include voices of scholars, activists, scientists, media professionals, and others.

We welcome many voices to this discussion, and invite submissions on any related topic of legal, policy, or additional matters related to wetlands and other jurisdictional waters, including:

· Mitigation
· Tulloch/discharge issues
· Ecosystem services
· State and local governance
· Enforcement
· Permit processes (including nationwide and regional permits)
· Administration of the Clean Water Act
· International and transnational protections

Accepted papers will be published either in a special journal issue or as a chapter in an academic press book. You are invited to submit a paper abstract or presentation proposal of no more than 400 words by Monday, 13 February 2012 to <> .

For more information, contact Kim Diana Connolly at or 716-645-2092

Matt Festa

January 6, 2012 in Conferences, Environmental Law, Federal Government, Scholarship, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)

Thursday, January 5, 2012

Field trip!

As  a newbie to the AALS conference, I was relieved to learn that no permission slip was required to attend the Environmental Law Committee and Natural Resources Law Committee Field Trip, which was held today at the Smithsonian’s Natural History Museum.  It was a wonderful time, and I met a number of great scholars I hope to get to know better over the years.

For those that weren’t able to attend, I thought I’d share a couple ideas that I found useful and fun, which are, I admit, idiosyncratically chosen from among the idea-packed day:

 --A panel of academics who had spent time in the administration spoke about the role of academics in relation to governance.  A number of insights were mentioned.  One idea a panelist mentioned that  I liked went to the heart of making scholarship useful, and recommended that writing the law review article was just the first step.  After that, she suggested writing a shorter version for a lay audience, and then trying to place an op-ed.  Perhaps this “three-fer” strategy is one we could all try as a path to both prominence and relevance.

 --A great panel about urban parks introduced a new idea to me, which is that of “redfields.”  Redfields were defined as those properties that might have been overleveraged and are now underperforming, especially in our urban areas, and where there is no perceived foreseeable chance of redevelopment.  Think of that strung out strip mall or abandoned factory you walk or drive by.  The concept is to turn “redfields to greenfields,” re-purposing these areas as parks, and in turn, using parks as a means of driving economic development of the area.  Those interested in the idea can learn more here. I thought this was a novel idea and one worth a closer look.  (And speaking of taking a closer look in urban parks, have you seen the amazing photography of MacArthur genius grant recipient Walter Kitundu, who does amazing photos of birds in urban parks?  Check it out.)

--For the techie, a speaker from the Smithsonian noted that the museum now has an app you can download that will let you identify tree species from leaves.  It’s called Leafsnap.  Maybe you should download it for that next hiking trip.

 That’s all from AALS today.  More tomorrow.

 Stephen Miller

January 5, 2012 | Permalink | Comments (0) | TrackBack (0)

City Journal's take on the California Redevlopment decision

I've been enjoying the outstanding posts on last week's landmark California Supreme Court ruling by Ken Stahl (here and here) and guest-blogger Stephen Miller (here and here) (I smell a great panel or symposium topic in the making).  Just now I came a cross an early analysis by Stephen Greenhut at City Journal, the always-interesting center-right urban affairs journal.  Greenhut has a strongly positive take on the decision in Crony Capitalism Rebuked California’s supreme court strikes a blow for property rights and fiscal sanity:

On December 29, the California Supreme Court handed down what the state’s urban redevelopment agencies (RDAs) and their supporters called a “worst of all worlds” ruling—first upholding a law that eliminates the agencies, then striking down a second law that would have allowed them to buy their way back into power. This was great news for critics who had spent years calling attention to the ways modern urban-renewal projects distorted city land-use decisions, abused eminent-domain policies, and diverted about 12 percent of the state budget from traditional public services to subsidies for developers, who would build tax-producing shopping centers and other projects sought by city bureaucrats. As of now, the agencies are history, though the redevelopment industry is working to craft new legislation that would resurrect them in some limited form.

Matt Festa

January 5, 2012 in California, Caselaw, Constitutional Law, Development, Economic Development, Eminent Domain, Judicial Review, Local Government, Politics, Property Rights, Real Estate Transactions, Redevelopment, State Government | Permalink | Comments (1) | TrackBack (0)

Saying No to Wal-Mart Downtown

Apparently Athens, Georgia isn't the only Georgia community facing controversy over a downtown Wal-Mart (see my previous posts here and here).  The City of Sandy Springs, in metro Atlanta, just placed a moratorium on big box development in its downtown in light of rumors that Wal-Mart wants to place a store there. As Chad Emerson blogged last year, Wal-Mart has been eyeing the urban market for awhile.  It seems now they're getting some pushback.

Jamie Baker Roskie

January 5, 2012 in Architecture, Community Design, Development, Downtown | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 4, 2012

Alternatives to carbon offset funds for those too much up in the air?

I like to imagine myself as someone who lives light on the land.  I buy organic fruits and vegetables from the weekly farmer’s market.  I took public transportation to work for the past fourteen years (in New York and San Francisco), and now bike to work daily along Boise’s beautiful greenbelt.  I’ve written multiple articles about how to build buildings and cities more efficiently.  But I’m all-too-increasingly aware that living light on the land doesn’t do much for my overall carbon footprint, in large part because of all the time I spend up in the air.

Air travel, you see, is where my green tendencies go awry, and send any calculation of my carbon footprint sinking into the red.  It’s a new year’s resolution of mine to try to figure out what to do about it (short of, you know, not taking a honeymoon in Turkey and not going to my friend’s wedding in England).  I went over to the Carbon Fund to see what it would cost me to off-set my trip to the AALS conference in Washington, D.C. I took today (will I see you there?).  It tells me that for just $7.40 each way, I can settle with the planet for my cross-country trip.  I can assuage my guilt for last year’s trip to England for $19.38 each way, and last year's trip to Turkey melts for just $24.29 each way.  Is it really so easy?  I’m sure one of you out there has thought through this.  What can we do about air travel carbon emissions—and still keep on our explorer hats—other than throw money to the carbon offset funds?  Other than, of course, use the restroom before boarding the plane, as one airline recently requested its passengers do. 

Stephen Miller

January 4, 2012 | Permalink | Comments (2) | TrackBack (0)

Redevelopment, once more

Thanks for the welcome, Ken!  I appreciated your comments below on California redevelopment, and perhaps more importantly, California local government finance generally.  Reading your post below I began to feel that perhaps I have grown cynical on California too early. Have I simply bought into the ol’ yarn about Prop 13 being the “third rail” of California politics, snuggled into a mid-life call for realpolitik, believing all-the-while that the local government financing system was just . . . too . . . broken to do anything about it?  I like your optimism, and do hope that California might actually try to take a stab at the bigger issues.  Maybe California voters will even get a proposition to vote on! 

I also thought your idea of trying to either sever TIF from a blight determination or otherwise tighten up the blight findings made sense.  I remember when I was first looking through the blight determination statutory provisions some years ago and coming across the one about “construction that is vulnerable to serious damage from seismic or geologic hazards.” (Cal. Health & Safety Code § 33031(a)(1).)  I always thought was as good a description as I ever found to describe every building standing in that State.  Snarkiness aside, it does seem some integrity could be brought back to the blight determination process.  But you also point out the difficulty of creating an adequate standard.  Would we prefer something more quantitative ?  Or should we just rap the knuckles of judges that interpret qualitative standards too broadly (or, at least, too broadly for us)?  Tough choice.

No matter, what’s brewing now is a multi-billion-dollar game of chicken that makes my head hurt just thinking about it, but the next few months of wrangling will be oh-so-fun to watch.   

Stephen Miller

January 4, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 3, 2012

The Future of Redevelopment in California

I want to be the second to welcome (Matt was first) our new guest-blogger, Stephen Miller. I appreciate Stephen's recent post on the future of redevelopment in California, following my initial post on the subject. I would like to pick up where Stephen left off, highlighting some areas where we agree and disagree.

I take Stephen's main point to be that given the fiscal environment in California (bad), cities desperately need redevelopment, specifically TIF, in order to finance just about any significant development. I agree with that premise, and I'll even add to it. The state of California is notorious for sticking cities with unfunded mandates, the most recent and significant of which is the landmark climate change legislation, SB 375. This legislation requires cities to take steps to address climate change, but doesn't give them any money to do this. And, of course, after Proposition 13, cities don't have any money lying around for this purpose either. Redevelopment seems nicely tailored for SB 375  (as the excellent CP&DR argues) because (a) TIF is one of the few sources of money cities do (or did) have and (b) eminent domain is thought to be an effective tool for "infill development" that can combat sprawl, reduce vehicle miles travelled and, thus, abate climate change.  The second point is debatable and I've seen evidence both ways, so I'll leave it for now and focus on the first, which is really the gist of Stephen's post.

In my view, the fact that TIF is one of the few sources of revenue California cities have to address unfunded mandates and/or undertake significant development projects is an indictment of California's present system of municipal finance, not a justification for TIF. It is true that TIF allows cities to assume debt to finance redevelopment, but any type of bonded indebtedness would do the same. What makes TIF different are the following: (1) it is the only type of debt California cities can incur without voter authorization; (2) it directs the incremental tax revenue to the redevelopment district, thus depriving other local governments of their share; and (3) it needs only a flimsy "blight" justification to be used. I elaborated on these latter two points in my previous post. This combination of factors, coupled with Prop 13, practically assures that TIF will be abused.  Surely this cannot be the best way to finance needed development in California.

Redevelopment agencies have gotten away with this because TIF rests on two fictions, both of which should be seriously questioned.   The first is that a city should not have to share the incremental tax revenue with other jurisdictions because that revenue is all attributable to the redevelopment itself having increasing local property values.  This fiction has obviously been proven false by the recent real estate downturn.  If redevelopment projects account for all the incremental increase in property values in a given area, can we also blame those projects when property values collapse?  The reality is that while improvements are certainly capitalized to some degree in local property values, other factors also affect changes in property value.  Thus, when we authorize local governments to use TIF, we are really making a policy decision that local governments should be able to funnel money away from schools, highways, affordable housing, etc and toward redevelopment, that redevelopment is a bigger priority than these other things.  California is contemplating a lot of hard choices right now, including releasing scores of inmates from prisons, deeper cuts to public schools, and laying off cops and firefighters.  TIF should not be immune from that discussion.

Ths second fiction is this "blight" idea.  The focus on blight is a throwback to the era of urban renewal, when it was thought, at least initially, that redevelopment was such a radical tool that it could only be used when a neighborhood was so economically depressed that it could not be saved by conventional means. Blight quickly evolved into rationalization that was used to justify the condemnation of viable but poor areas ("stable, low-rent neighborhoods" in Herbert Gans's formulation,) to turn them into something deemed more desirable (convention centers, stadiums, highways, etc.) Although the failures of urban renewal caused it to be repackaged as "redevelopment," little has really changed. Blight is still a vague, manipulable, and arguably culturally biased standard. States like it, and courts like it, because it gives the appearance that redevelopment actually has some limitations (This may explain some of the outrage over the Kelo decision, which refused to place any substantive limitations on the use of eminent domain). But blight isn't a real limitation. 

Even if blight were a meaningful limitation on TIF, it's not the right limitation.  If TIF's best use is either to finance development that could not be financed by other means or to implement unfunded mandates like SB 375, then those should be the criteria for its use, not blight.  Of course, with any standard there is the danger of it being manipulated.  I can just imagine Robert Moses justifying Lincoln Center as "infill development."  Hopefully the legislature will think through these issues when it considers whether to revive redevelopment. 

Ken Stahl

January 3, 2012 in California, Local Government, Redevelopment | Permalink | Comments (0) | TrackBack (0)

Monday, January 2, 2012

The party’s over, but the hangover goes on for California’s redevelopment agencies . . . and the state’s development industry

The California Supreme Court slipped in an earthquake-of-a-decision just before the new year, effectively ending redevelopment and tax increment financing (TIF) in the state that invented it.  The case, California Redevelopment Association v. Matosantos, upheld the State Legislature’s power to eliminate redevelopment agencies.  The case also struck down a proposed money-sharing arrangement that would have permitted redevelopment agencies to pay-their-way back into existence.  Ironically, it was a proposition floated by redevelopment agencies and passed by voters to keep the State from raiding redevelopment coffers that nixed the latter deal.  Ken Stahl had a great post on this blog a couple days ago that lays out the details. 

I wanted to weigh in with some new year’s prognostication based on my experience in private practice in California.  My bet:  redevelopment returns in 2012, but with strings attached.  Here's why. 

Much of the coverage of this case has focused on the public side—in particular, noting that this was really a fight about money, and the byzantine cost-sharing arrangements between the State and its local governments that have arisen since Prop 13.  That is certainly true.  But let’s not forget the beauty of TIF:  it lets local governments obtain money today to pay for infrastructure improvements necessary to spur private development tomorrow.  Without TIF, especially in a post-Prop 13 world where local government funding mechanisms have been systematically hamstrung, it’s hard to imagine how California's local governments will be able to finance any—and I mean any—medium- or large-scale infrastructure projects.  The effect:  it’s hard to imagine how any—and I mean any—medium- or large-scale private development projects goes forward in California without TIF.  The loss of redevelopment agencies then, isn't just bad news for cities; it could mean substantial uncertainty, and potentially some very hard times, for the development industry in California. 

For instance, back in February, 2011, San Francisco’s Planning Director, John Rahaim, noted that without TIF, “the significant infrastructure needs of [San Francisco’s] large-scale projects could remain unmet and the ability to move forward with development in these areas would be questionable for the foreseeable future.”  Rahaim wasn’t just talking about any old project, he was talking about every single major project going on in San Francisco:  Treasure Island, the new Transbay Terminal, the massive UCSF project at Mission Bay and Lennar’s massive 500-acre, 12,000 home Hunter’s Point project, to name a few.  Rahaim gave the example of Treasure Island:  “without the proposed seismic stabilization of Treasure Island,” which was to be paid for with TIF, “meaningful development there is not possible.”  Rahaim’s warnings ring true for every city in the State.

Jeopardizing so much development would be a long-term disaster, and one I don’t believe the State, or any of its local governments, want to see come to pass in this economy.  That’s why I don’t believe redevelopment is dead in California, at least not for the long-term.  It's not just the governments that care; it's the development industry that cares, too.  Keep in mind that the be-header of redevelopment, Governor Jerry Brown, was once one of the most sophisticated users of redevelopment, and he surely understands its importance in California’s development economy.  As mayor of Oakland, Brown more than doubled the land mass of redevelopment areas in the city to lure developers; today, over half of the city’s land mass is in a redevelopment zone as a result of Brown’s efforts (well, it was until last week).

It is perhaps because the Governor understands redevelopment so well, that he is willing to take it on, be-head it for now, if only to put it back together again when the Legislature is in session, in a form that requires more revenue sharing, and more money for the State’s embattled school districts.

It will be interesting, too, to see if any other states decide to take on their redevelopment agencies in these cash-strapped times.  As Richard Briffault’s excellent article, The Most Powerful Tool:  Tax Increment Financing and the Political Economy of Local Government, 77 U. Chi. L. Rev. 65 (2010), notes, TIF began in California in 1952.  In 1970, there were just 26 TIF districts in California.  By the early 1990s, 56 percent of cities in the United States with population over 100,000 had used TIF; today, every state but Arizona authorizes TIF.  Surely other governors are watching how the redevelopment battle will unfold in California, and what it might mean for finances in their own states.

Stephen Miller

January 2, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 1, 2012

A Land Use Auld Lang Syne

“Should old acquaintance be forgot and never brought to mind?”  So we sing at the beginning of each new year (or at least, those of us who can remember the words in the wee hours).  Given today’s focus on looking back and remembering, I wanted to write about how we remember the past in our cities.  I immediately thought of these strange red contraptions (pictures attached, showing viewer and image inside) here in my new hometown, Boise. 

Photo2Photo 1

There are three of these viewers, and they were the first thing I noticed when I stepped out of my hotel for my job interview here almost a year ago.  Their purpose:  a testament to Boise’s Chinatown, once a thriving community for over a hundred years, demolished to build a large hotel—the one in which I was staying—and a convention center. 

Boise’s Chinatown was razed only after a fight and an Idaho Supreme Court case, Boise Redevelopment Agency v. Yick Kong Corp., decided on Berman v. Parker reasoning.  The story is well known to the land use community and to cities around the country:  according to an amicus brief filed in Kelo v. City of New London, about 1,600 similar communities across the country, mostly minority, were destroyed through urban renewal. 

I appreciate Boise’s effort to try, in some small way, to remember its Chinatown.  It makes me wonder, are there other installations out there, in cities big or small, paying homage to the communities lost in urban renewal?  Have I somehow missed them in my travels?  If there are not memorials, should there be?  And if so, should the remembrance be only to the lost community, or also to urban renewal itself?  There are likely no easy answers to remembering urban renewal’s legacy, but I think the question of how to remember it remains worth considering, and perhaps even more so on ruminative days like this one.      

Along these lines, I’m offering a new year’s gift to readers, which is Amy Lavine’s excellent article, Urban Renewal and the Story of Berman v. Parker, about the historic facts of that case.   An interesting and informative look back.

Stephen Miller

January 1, 2012 | Permalink | Comments (1) | TrackBack (0)

Excited to be here!

Thank you for the introduction, Matt!  I am excited—probably more than I should admit—to be a part of this blog.  It was just six months ago that I packed up my life as a land use lawyer in private practice in San Francisco and joined the faculty at the University of Idaho College of Law’s new Boise campus.  While in private practice, this blog was one of my simple pleasures, routinely dropping little gems of ideas into my world and playing no small part in helping to lure me back academics.  As a guest blogger over the next month, I hope to re-pay my debt to this blog by providing readers—academics and practitioners alike—some little gems of ideas to noodle on as the new year begins.  I hope you find these posts of use, and of course, feel free to contact me if you’d like to carry the conversation further. 

Happy new year to you all!

Stephen Miller

January 1, 2012 | Permalink | Comments (0) | TrackBack (0)