Saturday, January 14, 2012
More news from the AALS Section on State & Local Government: Christopher Tyson (LSU) has started a subject-matter blog! Here's the link:
Local Government Law: the online home for scholars and practitioners of local government law
Looks like the editor lineup is Prof. Tyson, Paul Diller (Willamette), and our own recent guest-blogger Michael Lewyn (Touro).
Congrats, and welcome to this corner of the legal academic blogosphere!
From an email sent by Rick Su (Buffalo), the Chair of the AALS Section on State & Local Government Law, here is something that may be of interest to land users. The Section is already planning for the 2013 AALS meeting in New Orleans:
The tentative title is Cities in Recession. The program will look into the many ways that cities have not only been affected by, but are also responding to, the current economic downturn. This should provide a timely lens for exploring a wide range of local government issues, from municipal finance to education to economic development. In addition, it offers an opportunity to look at both distressed and resilient cities. The planning for this panel is in its early stages; I eagerly welcome any comments or suggestions that you might have (firstname.lastname@example.org).
Friday, January 13, 2012
This year I started the University of Idaho College of Law’s new Economic Development Clinic (the “Clinic”), which is a transactionally-focused clinic that draws from land use, administrative, state and local government, and environmental law. As I was planning the Clinic, I came across Praveen Kosuri’s (UPenn) excellent article, "Impact" in 3D - Maximizing Impact through Transactional Clinics, 18 CLINICAL L. REV. 1 (2011).
In that article, I felt Kosuri made a number of great points that aligned with, and affirmed, nascent ideas I had about how to structure my Clinic, and provided what I saw as a new way forward for traditional community economic development (CED) clinics like the one I took in law school.
Foremost, he noted that “impact” clinics have typically been structured as litigation-based clinics, with the idea of providing benefits to a group or class through litigating individual claims. Kosuri makes a strong case that transactional clinics can have a broader impact, as well. Kosuri says that his clinic takes on three types of transactional clients: (i) “low to moderate income entrepreneurs from economically distressed communities”; (ii) “bigger projects with client representations that will have a substantial multiplier effect on impact simply if the entrepreneurs, who are engaged in community revitalizing efforts themselves, are successful in their endeavors”; and (iii) “double bottom-line businesses, those not focused solely on profit, but also on societal benefit.” I find this approach invigorating in that it both focuses on individual clients, while also trying to use the knowledge gleaned from individual representation to help a larger group. I think it is also potentially valuable because this is an approach that can have a real impact on a community in a way that is community building rather than adversarial. While this does not displace the role of impact litigation, what a valuable experience it would be for students to recognize that they can have an “impact” through transactional lawyering as well as through litigation. I think this is especially true because a number of lawyers who end up doing transactional work, as many land use lawyers essentially do, as well as many corporate lawyers, can find it difficult to find pro bono opportunities in the real world that have significance beyond individual clients. Teaching students how to structure transactional work to have a broader impact seems a valuable long-term tool to give students who go on to become transactional lawyers.
Kosuri also notes that this kind of representation can be a supplement to what he calls traditional CED lawyering, such as representation of community groups and institutions. By expanding the notion of CED, and potentially CED clinics, along the lines Kosuri discusses in his article, I believe there is a chance to breathe new life into the CED clinic practice. Kosuri’s “impact” approach is one I hope to integrate into my Clinic as it grows through the years.
Thursday, January 12, 2012
Proving that he is, indeed, smarter than a fifth grader, comedian Jeff Foxworthy has placed a conservation easement on 1,000 acres of his farm in west Georgia. From the article in the Atlanta Journal-Constitution:
“As someone who grew up in Atlanta and watched it explode, I thought, ‘Wouldn’t it be cool if this could be here forever and nobody could develop it? ‘ ” said Foxworthy in a phone interview today from the property, which is based in Harris County between LaGrange and Columbus, about 100 miles south of downtown Atlanta. “It’s my escape. It’s my farm. I can drive through the gate and not have to be Jeff Foxworthy. Just Jeff.”
The land, which Foxworthy purchased in 2003, was being eyed as a possible golf course, he said. It was originally part of Cason Callaway’s 40,000-acre Blue Springs Farm, which was established as an agricultural experiment in the 1940s to promote better farm practices. The easement allows Foxworthy to maintain private property rights and the ability to live on the land. He also receives a tax break.
Foxworthy has spent most of his comedic career helping folks decide whether or not they were rednecks. It's good to see him putting his success to good use in the land conservation arena.
Jamie Baker Roskie
Wednesday, January 11, 2012
Happy New Year everyone! Now that the spring semester has begun, I know many of you are thinking: "how long until my summer break?" Or, if not that, "how much land use should I cover in the 1L Property course?" Since land use is my area of specialty and Property is a 6 credit course at Chapman, the answer for me is a lot. But how much should you teach? What aspects of land use are really essential in the property course? By land use, I specifically mean government regulation of land, setting aside private land use controls like nuisance, servitudes, and HOAs.
The basic conceptual difficulty with covering land use in 1L property is that property is, like the other 1L classes, a common-law course. Bringing in land use regulation obviously takes you out of the common-law world, and requires some introduction to things like, you know, the government. Such an introduction is probably useful, but one wonders how to incorporate it into a first-year class whose focus up to that point has been on how judges arrive at decisions in a world where we assume regulation is either non-existent or incompetent. One of the reasons I like the common-law orientation of the first year is that students too readily assume upon entering law school that every problem can be solved simply by passing a command-and-control regulation -- so if someone is polluting, just ban pollution, and problem solved. The common law does not permit such pat answers, and so students learn to engage in more complex problem solving (such as, how nuisance law can deal with the problem of pollution).
At the same time, private land use controls have serious limitations about which students should be aware -- nuisance law is indeterminate, ad hoc, and beset by collective action/transaction cost problems; covenants, servitudes and HOAs face similar problems and are also unable to deal with impacts outside the properties subject to the restrictions. I introduce land use, zoning specifically, in my property class to bring out the flaws in private land use controls and show how zoning, as it was originally envisioned, aspired to overcome these flaws by coercively submitting an entire community to a comprehensive set of clearly defined restrictions. I use the canonical Euclid case and introduce Euclid's zoning map for the purpose of showing how, as the Court saw it, zoning was an evolutionary advance on the common law: instead of adjudicating land use disputes on a parcel-by-parcel basis as in nuisance law, or subdivision-by-subdivision as in servitude/HOA law, zoning enables the comprehensive planning of an entire town. I spend about twenty minutes in class just examining Euclid's zoning map to get a sense of what the village's plan was, and how Ambler's parcel fit in with that plan. You can see the way the village was trying to channel industrial development around the Nickel Plate Railroad and preserve its single-family districts by using multi-family and other "intermediate" uses as buffer zones between industry and single-family residence. This is designed to reinforce to students how we have left the world of the common-law and entered a new world in which each parcel is seen as part of a whole. (By the way, here is a copy of Euclid's 1922 zoning map: Download 1922 Zoning Map. In land use, I show this map as well as Euclid's current zoning map (Download Euclid Zoning Map) with which I like to compare the original, and the city of Irvine's zoning map, (Download Zoning-Map) which I see as kind of a post-modern answer to Euclid's zoning map.)
In doing this, though, I am deliberately setting my students up to be disillusioned (as if one semester of property hasn't already accomplished that.) As I said before, the last thing I want is for students to think that regulation can solve all our problems, and that the common law is all just a waste of time, or a prelude to what's really important. After one class period discussing Euclid, I spend a few classes showing that, in fact, regulation doesn't solve the problems of the common law. I provide a very brief overview of things like variances, spot zoning, special uses, and nonconforming uses, all designed to show one thing: that zoning has left behind the lofty claim of comprehensive planning and instead returned to the very case-by-case adjudication that was supposed to be the common-law's fatal flaw! And courts, in reviewing these modern zoning techniques, are not blindly deferential as Euclid was, but apply common-lawish reasoning to adjudicate these disputes. In short, one cannot escape the common law method of adjudication even in a regulatory state. I think it is extremely important for teachers of first-year courses to impress upon students that the common law is a foundation for their legal education that will continue to be important even when they "graduate" to learning about the administrative state. For me, a brief excursion into zoning serves that purpose.
While on the subject, there is the small matter of takings (groan), which is a very challenging subject for both first-year students and, uh, everyone else. Again, in teaching takings in Property, my focus is on reinforcing the lessons from the common law, and showing how the common law remains relevant in assessing the validity of regulation. And indeed, it is the case that many hallmarks of common-law adjudication are present in takings jurisprudence, including the importance of expectations (see Penn Central), the debate between certainty and fairness (per se rules v. balancing tests), the significance of the right to exclude (physical occupations), the problem of transaction costs (U.S. v Causby, for example), and, ultimately, how we define that elusive term "property," which as I see it is the foundation of the entire course. For the basic property course, I find brief discussion of chestnuts such as Loretto, Mahon, Penn Central, and Lucas sufficient to sketch these themes. Loretto brings out the right to exclude issue, and I also use it to digress into a brief discussion of Causby and the transaction cost problem (why distinguish physical occupations from other types of equally serious non-possessory interferences?) Mahon and Penn Central bring out the importance of expectations and the basic merits and flaws of a balancing test, as well as a few other points, while Lucas shows the virtues and vices of a bright-line rule. If I were confined to a shorter period of time, I would probably just do a short mini-lecture on Mahon to introduce Penn Central and curtail the discussion of Lucas significantly (students really struggle with "background principles of state law").
For me, the key thing in deciding how much land use to incorporate into the first year property class is to keep your eye on the ball, which is the common law of property and teaching students to appreciate the common-law method. Every aspect of my discussion about land use is designed to reinforce something we learned about the common law and to highlight the continuing relevance of the common law in the regulatory state.
I hope this gives you some food for thought, and if anyone cares to comment on how you incorporate land use into the 1L property class, I welcome your contributions.
While in the DC area last week, I took the opportunity to make a pilgrimage to the Kentlands, one of the first—and largest—New Urbanist communities in the country. Located west of Gaithersburg, Maryland, it is now 21 years since Kentlands first residents moved in. To get there, one must first drive far into the Maryland suburbs, past the “Anywhere, USA” stretches of arterials, highways, wide lawns, and subdivision developments whose standard is, as Frank Lloyd Wright put it, “the man seated in his motor car . . . rather than the man standing on his legs or his limitations in a trap hitched to a horse.” But out in the land of the automobile, a right turn takes you into a peculiar transformation, one that looks like Georgetown dropped into a leafy, lake-filled setting. This is Kentlands, or, as the names of the lakes might lead you to believe, a place for inspiration, placidity, even nirvana.
The beautiful pictures of Kentlands are legion, and no doubt about it, Andres Duany and Elizabeth Plater-Zyberk (collectively, “DPZ”) brought a magic to this suburban location not typical in developments of this type. The 8,000 residents here have something unique in the DC ‘burbs. But for this audience, I wanted to report on a couple thoughts—and offer a couple pictures—that I thought might give this groups something to contemplate.
First, it was immediately evident to me the legacy of Clarence Perry’s neighborhood unit scheme on Kentlands. DPZ have openly acknowledged their reliance on Perry’s neighborhood unit scheme (see their Smart Growth Manual section on neighborhoods), but it was interesting to see it play out in the suburbs. As many of you know, Perry was highly influenced by the success of Forest Hills Gardens in New York City’s Queens’ borough, and wanted to find a way to establish a neighborhood that could preserve a walkable community in the age of the motor car. His 1920s solution: invert the traditional street-car suburb. Late 19th century neighborhoods had evolved around trolley stops—long strips of commerce around a stop—and then residential behind that. Many of our cities have this legacy, such as Park Slope in Brooklyn, Noe Valley in San Francisco, Elmwood in Berkeley, and Boise’s Hyde Park, to name a few. Perry thought that if “arterials,” as traffic engineers were calling the new big roads they wanted to "drive" through cities, were built along the trolley tracks, they would divide the neighborhoods. Instead, Perry sought to move the traffic to the exterior of the neighborhood unit, place the commerce along those external arterials, and in the middle, place all the components of daily life within a walkable community. That included schools, churches, and neighborhood-serving retail. Perry imagined the neighborhood unit size around 5,000 – 10,000. Kentlands fits this model to a tee. It is surrounded by arterials, but once inside, the roads are narrow, serviced by street parking and rear-alley parking, all streets have sidewalks, there is an elementary and junior high school in the project, a church, and neighborhood-serving retail. At its center, just like Perry also proposed, are amenities, such as common lawns, a tennis center. If you want to see Perry’s model brought to life in the suburbs, Kentlands is a must to visit.
One tenant of Kentlands is supposed to be the neighborliness engendered by the design. Notably, I did not see anyone walking or out on their porch, though perhaps one could chalk this up to a cool winter’s day. I did notice that most of the shops in Kentlands traditional downtown center appeared to be mostly professional services, such as dentists, accountants, and such, which typically do not provide tremendous foot traffic. I did not see an abundance of restaurants or retail (there were a few) in the "retail center." No doubt this mix of stores was affected by the very Anywhere, USA big-box store complex immediately adjacent to this neighborhood retail center and the big-boxes attendant fields of parking lots and large-footprint stores. I couldn’t help but wonder whether the closeness of this car-dependent retail didn’t, in some manner, affect how people used the rest of Kentlands. If you are going to drive your car to the grocery store, then won't you also use it to drop off Timmy at school rather than walk him there? It was unclear from my visit whether the big-boxes were part of the original Kentlands design, but it does affect the character of the division as it is experienced—and perhaps also how it is used by its residents—as it has evolved.
There was a nice mix of unit size and affordability throughout the development, though it did seem that the apartments lacked the character of the single-family unit portion, and also had especially large floorplates.
I was particularly interested in how DPZ dealt with cars, and in particular, their road design. I must admit, this is a particular indulgence of mine, and I loved a recent report produced by Berkeley about legal issues that play out in street design (full disclosure: I am on the advisory board of one of the groups that drafted this report, but did not participate in the research). DPZ did a great job of keeping neighborhood streets small, creating great alleys for services, and as a result, the cars get tucked away and don’t dominate the development. I’ve included some pictures of this here for those of you who may be interested. Finding ways to accommodate this type of road-work is one of the great challenges of land use planning to my mind.
Finally, I found myself reflecting on who it was that would live in Kentlands. After all, if the idea is to have a community that looks like Georgetown, why not just live in Georgetown? It reminded me of a recent housing report from the Urban Land Institute that spoke of the future of development. It noted that many Baby Boomers and Gen X’ers would like to live in urban areas, but either find it too expensive or don’t want to deal with the headaches. The report indicates that there is a growing interest in urban-style communities on the urban fringe, largely because the cost is cheaper and developers can have large plots of land with which to work. Is there any better description of Kentlands? As much as Kentlands was in the vanguard of the 1990s, it may well be the future of what will be developed on a mass scale in the next decade.
Monday, January 9, 2012
Uma Outka (Kansas) has posted an essay called The Energy-Land Use Nexus, forthcoming in the Journal of Land Use & Environmental Law, 2012. The abstract:
This Symposium Essay explores the contours of the “energy-land use nexus” – the rich set of interrelationships between land use and energy production and consumption. This underexplored nexus encapsulates barriers and opportunities as the trajectory of U.S. energy policy tilts away from fossil fuels. The Essay argues that the energy-land use nexus provides a useful frame for approaching policy to minimize points of conflict between energy goals on the one hand and land conservation on the other.
New Markets Tax Credits (“NMTCs”) are up for re-authorization this year. While among the more complicated of development-based tax credit schemes, NMTCs basically boil down to this: an investor receives a 39 percent federal tax break over 7 years (five percent for each of the first three years, and six percent for each of the remaining four years) for investing in a qualified low-income community, which is defined by census tracts.
The program has grown in popularity since its first authorization in 2000, as has its allocations, which total $29.5 billion since 2000. The original NMTC legislation provided $15 billion in NMTCs from 2000 to 2007. Most recently, Congress allocated $3.5 billion in NMTCs for each of the 2010 and 2011 fiscal years. The bills currently before the House and Senate propose to allocate $5 billion in NMTCs for each of the next 5 years.
One of the most interesting things about NMTCs is the wide variety of uses to which NMTCs can be put . . . at least on paper: almost any real estate or small business loan subsidy or grant in a qualifying low-income community is eligible. In reality, the majority of NMTCs thus far have been used for real estate projects in low-income areas. (See 2010 GAO report, Figure 3). The CDFI Fund recently issued regulations to try to spur use of NMTCs to assist small businesses. NMTC loans to small businesses are inherently more risky, seeing as the entity receiving the tax credit wants to make certain the investment remains for the full seven years to receive the entirety of the tax credit.
Other issues with NMTCs have been that they are simply extremely complicated transactions. As a result, in researching NMTCs a couple months ago, one national lender told me that his institution wanted deals of at least $5 million in order to be able to make the transaction pencil out, while another national lender told me that number was $15 million in her organization. That means that the transaction costs are probably too high with NMTCs to facilitate smaller projects; hopefully, this cycle can streamline some of that transactional weight, as the 2010 GAO report noted above recommended.
My investigation into NMTCs suggests that they have great promise, especially when states are willing to double up the value by providing NMTCs that apply to state taxes, such as Ohio. In particular, I have been extremely impressed with the use of NMTCs in Cincinnati’s Over-the-Rhine neighborhood. I grew up in Ohio and visited Over-the-Rhine while in Cincinnati in December. I was impressed by the ability to make headway in a troubled area (you may recall the 2001 riots there) that continues to have its share of problems, but appears to also have signs of life once again, thanks in part to NMTC funding. Check out the work of 3CDC and its related entities using NMTCs.
In thinking of the relative importance of NMTCs, I’d also note that the budget for Community Development Block Grants (“CBDGs”) was $5.6 billion in 2001. In 2011, CBDG funding was just $3.3 billion, which is less than NMTCs. NMTCs appear to have bi-partisan support (see list of bill sponsors at House/Senate links above), and appear to be on the rise. Of course, it will be a challenge to get anything passed this election year, even with bi-partisan support, but I believe re-authorization of NMTCs will be an important issue to watch this year, especially for those who work in low-income communities.
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- Local Regulation of Hydraulic Fracturing