Wednesday, May 2, 2012

Things are (Literally) Looking Up

Many thanks to Matt for inviting me back as a guest blogger!   If nothing else, a bit of blogging will provide me a productive distraction this month from grading spring semester exams.   Matt and the entire team of editors continue to do an outstanding job with the blog, and it’s absolutely one of my favorite morning reads.

I’ll use my first post to respond to Matt’s half-joking question:  why should a land use prof spend time thinking about the space above land?   After all, airspace rights receive scant attention in most land use casebooks.  Discussions of airspace rights might seem better suited for a course on aviation law.  Land use profs should stay down in the dirt, right?       

Not necessarily. Over the past few years, I've managed to convince myself that some of the most perplexing and unsettled land use conflicts of the day involve the oft-forgotten space just above the surface of land.  

For me, it all began while I was still practicing at a large law firm in Seattle.  Our wind energy developer client approached us with a puzzling question:  can a landowner be liable for stealing a neighbor’s wind?   The client and a competing developer had leased adjacent parcels for wind farms.  Our client wanted to install a wind turbine immediately upwind of one of the competitor’s turbine sites that was situated just on the other side of their common property boundary line.  If both turbines were installed, the turbulent “wake” from the upwind turbine would render the downwind turbine largely ineffective.  Only one of these two prime turbine sites could be profitably developed.  Under the law, who should prevail in this dispute over wind – the upwind party or the downwind party

While I was wrestling with that question, I stumbled upon the topic of solar access--a similar sort of airspace use conflict that involves solar energy devices instead of wind turbines.  Should landowners be liable when trees or buildings on their parcels shade a neighbor’s solar panels?  Laws Wyoming and New Mexico effectively give solar energy users strong legal protections against shading—“solar rights”—drawing analogies to water law’s prior appropriation doctrine.  But these analogies to water law are misguided, ignoring neighbors’ longstanding rights in the airspace above their land.  Better governance rules are needed for these conflicts that are capable of balancing policymakers’ general interest in promoting solar energy with the existing airspace rights of neighbors.

These wind and solar energy disputes over airspace are just two examples of how airspace is playing an increasingly crucial role in the sustainability movement.  Vertical construction and infill development that occupy additional airspace continue to be significant strategies for curbing suburban sprawl, and city-based tree planting programs are occupying more urban airspace as well.   At the same time, planners and sustainability advocates are pushing other strategies that require that more airspace be kept open.  For example, city-sponsored urban gardens need significant amounts of un-shaded sunlight to thrive, and even LEED certification standards award points for natural lighting designs that often rely on skylights, windows, and minimal shade.  When combined with the solar and wind energy uses of airspace mentioned above, these developments are collectively generating an unprecedented level of competition for scarce airspace.      

In summary, I think that airspace is very much a topic worth covering in a land use course.  There is reason to believe that the challenge of crafting policies that can fairly and efficiently govern airspace conflicts is only beginning and will continue to vex policymakers and legal scholars well into the future.

Troy Rule

May 2, 2012 in Clean Energy, Density, Development, Green Building, Planning, Property Rights, Smart Growth, Sustainability, Wind Energy | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 1, 2012

Hail and Farewell--Welcome Back Troy Rule

First, a great big thank you to guest-blogger Jerrold Long.  Jerry will be wrapping up his guest stint this week, but he is more than welcome back anytime.  I know I speak for my colleagues and our readers when I say that Jerry contributed the most interesting and thoughtful posts to this blog during the month of April.

Rule-tNext, I am thrilled to announce that Troy A. Rule, land use prof from the University of Missouri, will be rejoining us for the month of May.  After his terrific guest-blogging service last May, we're thrilled to welcome him back.  From his Missouri facutly bio page:

Professor Rule joined the law faculty as an Associate Professor of Law in 2009. Prior to entering law teaching, he was an attorney at K&L Gates LLP in Seattle, where his practice focused primarily on commercial real estate transactions and wind energy development.

Professor Rule graduated summa cum laude with a B.S. in economics from Brigham Young University in 2001. He graduated with honors from the University of Chicago Law School in 2005, where he served on the Chicago Journal of International Law and was awarded a John M. Olin Student Fellowship in Law & Economics.

Before attending law school, Professor Rule was a credit manager at a finance company and taught a preparation course for the Law School Admission Test (LSAT). Professor Rule’s research focuses primarily on renewable energy and property law. He teaches Land Use, Secured Transactions, Sales & Leases, and Real Estate Transactions and was awarded the Gold Chalk Award for Excellence in Teaching in 2011.

Now, Troy has published a remarkable string of articles on solar access, wind rights, and airspace.  My only question is why does a land use prof focus so much on the space above the dirt?  Of course it's all critically important, and we're very much looking forward to hearing from Troy this month. 

Matt Festa

May 1, 2012 in Clean Energy, Scholarship, Wind Energy | Permalink | Comments (0) | TrackBack (0)

Happy May Day

It's May 1, 2012, and that means a few different things around the world.  Regular readers know that we like to do the occasional holiday-themed post on related land use issues, but this one needs to be disaggregated!

The original May Day celebrations were pagan rituals throughout Europe, particularly in Celtic, Germanic, and other Northern European societies.  These tended to focus on the traditional spring/early summer themes of rebirth and fecundity, with venerations of the deities of earth and flowers and so on.  As Christianity spread, the Church tended to co-opt these pagan celebrations, which continued the tradition of Maypoles and public festivities.  This tradition obviously relates to land use in its focus on the renewal of the earth and its bounty going into the new summer.

Then in the late nineteenth and early twentieth centuries, May Day became a nearly universal labor holiday known as International Workers Day, as well as a day that became associated with socialism and communism.  Because the American Labor Day is not until September, I always assumed that this must have some European or Soviet origin.  But my exhaustive Wikipedia-based research for this post led me to realize that May 1 as International Workers Day originated right here in the U.S. of A., thanks to the 1886 Haymarket Riots in Chicago, where police fired shots into the crowd at a worker's strike after a bomb exploded.  This galvanized the interational labor movement, which led the Second International to declare May 1 as International Workers Day in 1889.  In fact, the reason the American Labor Day is set in September seems to have been a desire to disassociate it with the Haymarket anniversary.  Any time we're talking about riots, strikes, public demonstrations, or urban politics, there is always a host of land use issues involved.

The theme of May 1 as an international labor day has led some of the Occupy Movement to plan to Occupy May 1 to urge a general strike and as a chance to relaunch their protest movement in cities around the world.  The Occupy Movement deserves some further study for the interesting land use issues it presents, both in terms of its attempts to, well, "occupy" public and private spaces in cities, and also for its organization of those spaces-- I have heard from more than one observer that in some of the Occupy encampments they have instituted an informal sort of zoning apparatus.  At this hour it seems that the Occupy May Day affairs have been generally peaceful

Another prominent commemoration of May 1 in the U.S. comes with Law Day.  While not widely known outside the legal profession, bar associations across the land have programs to celebrate and educate members on the importance of law (e.g., today I went to the local bar's Law Day banquet to recognize a major award earned by one of my students).  Land use law being a field of growing importance in the profession, it goes without saying that any commemoration of law generally should include a nod to those who practice land use law in our communities.  I had thought that Law Day was mostly an inside-baseball event for lawyers and bar organizations, but again (thanks to Wikipedia) I just learned that the origin of Law Day was really an anti-communist maneuver.  In response to the growing importance of May 1 in the communist and particularly the Soviet sphere (think back to parades of tanks and nuclear missiles down the central square), President Eisenhower declared the first Law Day as a celebration of the rule of law and its critical importance to democracy and civilization.  The commemoration of Law Day is codified at 36 U.S.C. 113.

So whether you celebrate May 1 for it's pagan/Christian celebration of earthly renewal; it's relevance to the international labor movement and urban politics; or for it's commemoration of the importance of the rule of law in society, May Day has an important relationship with land use.  The last use of the term "Mayday," as a distress signal, comes not from the first day of this month, but rather from the French venez m'aider (come help me).  The only academic connection I can think of from that usage, however, is that it is perhaps being muttered right now by the students who are taking my exam tomorrow.

Matt Festa

May 1, 2012 in Agriculture, Federal Government, History, Humorous | Permalink | Comments (0) | TrackBack (0)

Monday, April 30, 2012

Carlson on Priceless Property

Kirsten Matoy Carlson (Wayne State) has posted Priceless Property, forthcoming in the Georgia State University Law Review.  The abstract:

In 2011, the poorest Indians in the United States refused to accept over $1 billion dollars from the United States government. They reiterated their long held belief that money – even $1.3 billion dollars – could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected over $1 billion dollars in compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless by studying the formation of the Black Hills claim. It constructs a new, richer approach to understanding dispute formation by combining narrative analysis with the sociolegal framework for explaining dispute formation. The article argues that narratives enrich the naming, claiming, and blaming stages of dispute creation and illustrates the usefulness of this new approach through a case study of the Black Hills claim. It uses the autobiographical work of an ordinary Sioux woman to provide a narrative lens to the creation of the Sioux claim to the Black Hills. American Indian Stories by Zitkala-Sa presents a narrative of Sioux life around the time of the claims emergence. By contextualizing and humanizing the claim, my analysis provides insights into why the Sioux claim to the Black Hills emerged into a legal dispute and helps to explain why the Black Hills remain priceless property to the Sioux Nation today.

This article employs more of a law-and-humanities approach focusing on social and historical context and personal stories, which I think makes it an interesting read.

Matt Festa

April 30, 2012 in Constitutional Law, Federal Government, History, Property, Property Rights, Race, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)