September 7, 2012
Big Box v. Little Bavaria: Lessons in Animus from the Sixth Circuit
The Sixth Circuit's recent decision in Loesel v. City of Frankenmuth, 10-2354, 2012 WL 3553272 (6th Cir. Aug. 20, 2012) provides us new lessons both in the big box wars and for this blog's on-going debate about what constitutes animus for purposes of equal protection claims in the land use context.
Frankenmuth, “Michigan's Little Bavaria,” is one of the top tourist destinations in Michigan. Despite its popularity with tourists, Frankenmuth maintains a small town atmosphere with a population of 4,838 in the City and 2,049 in the Township, according to the 2000 U.S. Census (the last Census taken before the events relevant to this case occurred). The City is famous for its Bavarian-themed stores, restaurants such as the Bavarian Inn and Zehnder's serving family-style chicken dinners, and its gift shops. Bronner's Christmas Wonderland, the world's largest year-round Christmas store, draws over two million visitors annually.
The Loesels, the plaintiffs, were the co-owners of a 37–acre tract of land that borders Main Street just outside the Frankenmuth city limits but within the city's urban growth area established by the city and surrounding township to maintain the city's character. In 2005, the Loesels, who were renting to land to a tenant farmer, entered into an agreement with Wal-Mart to purchase the property for $2.9 million, but subject to a condition that permitted Wal-Mart to back out of the agreement during a "feasibility period" if it determined that it would not be able to build a store on site. At the time of the agreement, the store Wal-Mart wanted to build was permitted by local zoning code. However, local officials took significant steps to change the local zoning in a way that other cities had done in successful efforts to keep out Wal-Mart.
September 6, 2012
Salkin on Small Scale Renewable Energy and Local Land Use Regulation
Patricia Salkin (Touro Law Center) has posted Key to Unlocking the Power of Small Scale Renewable Energy: Local Land Use Regulation, Journal of Land Use & Environmental Law No. 27 (2012). The abstract:
This article provides an overview of some of the strategies that have been used to increase the use of small-scale renewables, focusing on non-commercial renewable energy systems installed at the home or business level. The article begins in Part II with a discussion of various renewable energy incentives offered by the federal and state governments to promote the use of these alternative sources of electricity, including financial and permitting incentives. Part III continues with a detailed examination of how the land use regulatory system can be used to promote small-scale renewable energy by employing traditional zoning techniques, asserting that without an appropriate local land use regime, the incentives reviewed in Part II cannot be effectively utilized. Part IV concludes with a warning to local governments that if they fail to accommodate the emerging federal and state policies supporting the siting of renewable energy sources, they may face preemptive statutory measures in the area of land use regulation. This creates perhaps the greatest incentive for local governments to plan and regulate responsibly for promoting the appropriate use of small-scale renewable energy.
September 5, 2012
Pomeroy on the Case for Standardized Vesting Documents
Chad Pomeroy (St. Mary's) has posted A Theoretical Case for Standardized Vesting Documents. The abstract:
real estate professionals, and lay people throughout the country rely
on the recording system to provide critical information regarding
ownership rights and claims. Indeed, the recording system acts as a
virtually mandatory repository and disseminator of all potential
parties’ claims. This system, in turn, relies on these claimants and
their agents to publicize their claims: property purchasers, lenders,
lien-claimants, title companies, attorneys - these parties interact,
make deals, make claims, order their affairs, and then record. The
information system available to us, then, is only as good as what we
make of it and what we put into it.
As such, it is surprising how little thought has been put into exactly what it is that we record. Should the mortgage of a lender in Ohio look like that of a lender in Florida? Should a deed from an individual in Texas differ from that of a corporation in Nevada? As it stands now, no one familiar with real estate law or commerce would expect different parties in different jurisdictions to record identical, or even similar, instruments. In an immediate sense, this heterogeneity of the recorded documents (“vesting heterogeneity”) does not seem a good thing: parties utilizing the recording system generally seek to make known, or to discern, the same generic type of information – that is, evidence of claims upon property – so why are different forms and types of documents utilized all over the country?
This article analyzes this vesting heterogeneity from a new perspective and concludes that it is, in fact, cause for significant concern. Vesting heterogeneity has arisen organically, growing with the recording system as they both evolved over time. This historical explanation does not, however, excuse the cost associated with such a lack of uniformity. Anyone seeking information with respect to any piece of property must navigate the complexities and uncertainties that arise because all such information is heterogeneous and, as a consequence, difficult to understand and utilize. This represents both a immediate transactional cost and an increased risk of ill-informed behavior.
This is particularly troublesome because this sort of cost-based concern arising from variability has a well-established analogue in property law that the law clearly desires to avoid. That analogue is the cost that would arise if property law were to permit unlimited property forms and gives rise to what is known as the numerus clausus theory. This theory explains the law’s hostility toward new, or different, types of property and holds that such heterogeneity is not generally permitted because of the extremely high informational costs associated with such creativity.
This article suggests that this common law concept can, and should, inform our analysis of vesting heterogeneity and that it precipitates strongly against such lack of uniformity. This is because the costs that drive the numerus clausus to hold that variability should be limited are strikingly similar to those created by variability of vesting documents. As such, this theory is relevant here such that the same analysis should be applied to vesting heterogeneity by asking whether a different (or “new”) document is helpful enough to outweigh the informational costs inherent therein.
Based on this reasoning, this article concludes that the law is wrong to systematically ignore heterogeneity in vesting documents. Instead, a numerus clausus type of analysis should be applied to new or different vesting documents to determine whether any inherent lack of uniformity is defensible. Where it is not, uniformity should be imposed.
Anything But Peripheral: An Occasional Blog Series on California's Delta | Part 1: A Second Chance for the Peripheral Canal
This is the first in an occasional series of blog posts I intend to write this fall about California Gov. Jerry Brown's proposal to build a new peripheral canal in the California Delta. While living in California for the past decade (I moved to Idaho last year to become a professor), I was slowly enchanted by the Delta: its history, its wildlife, its role in California's water wars, and beyond. I wanted to find a way to convey the peculiar issues arising in the Delta to a wider audience and explain why, as I noted in a previous post, I believe the issues in the California Delta are arguably the biggest land use story going on right now. Standing behind that claim, I figure, requires some dedication to the cause. And so, I plan to write this series in an effort to explain the current proposal for the Delta, but also some of the history of the place. I will ultimately make an argument for why what happens in the Delta is a bellwhether for how we will engage with the necessities of adaptation to climate change in the next century.
One caveat, before I begin, is that I intend these posts to be mini-primers of a sort, but by no means definitive, in contemplating the Delta's future. It's a blog, after all! But those who have followed Delta politics over the years will know that simply listing the agencies and coalitions that have had a hand in shaping the Delta could go on for pages. I'm not going to tell all of those stories of agencies come and gone, but rather, seek to cut through the legal muck and provide those who are not mired in the Delta's details a little light into why we should all care about the Delta. Moreover, I will seek to convince readers that what happens in the Delta speaks to larger questions we all face about resources, conservation, and climate change.
And so, without further adieu...
A Very Brief Introduction to the Peripheral Canal Proposal
First, some history on water infrastructure in California. Constructon of a peripheral canal around California's Delta has been proposed since at least 1965. In 1960, California voters approved the Burns-Porter Act, which authorized (1) the construction of the State Water Project and (2) the issuance of $1.75 billion of general obligation bonds to assist in financing the project. In 1982, Gov. Jerry Brown, in his first term as governor, proposed a peripheral canal around the California Delta to link the two other parts of the State Water Project, which included a dam and reservoir in Oroville, California that stores water in the winter for release into the Sacramento River and the Sacraemento-San Joaquin River Delta in the summer and a large pumping plant at the southwestern edge of the Delta (near the Clifton Court Forebay, on the map below), to pump water from the Delta into an aqueduct system that services San Joaquin Valley and southern California.
Gov. Jerry Brown's father, Gov. Pat Brown, was a major architect of the State's water program. In 1982, when Gov. Jerry Brown was in his first term as governor, he committed to building a peripheral canal that would substantially complete the water project begun by his father. He received the votes he needed to get the canal through the state legislature, which passed SB 900 (1979-80 session) approving the canal. But the canal soon became a political battle without match, pitting many of the states biggest players against each other. Voters subjected SB 900 to a referendum, and in June, 1982, resoundingly voted against the canal by a 2-to-1 margin.
Many years of wrangling as to the Delta's future ensued, to be discussed in future posts.
In July, 2012, Gov. Jerry Brown, now in his second term, returned to the podium with a new version of the peripheral canal. Many thought the resounding defeat some thirty years ago made such a proposal untenable. Ubiquitous declarations of the canal being a "third rail" of California politics were heard.
The 2012 version of the peripheral canal is wrapped in the July, 2012 Bay Delta Conservation Plan (BDCP). The mechanics of the new peripheral canal on the Sacramento River north of the Delta would include: three pumpling plants; state-of-the-art fish screens that would protect passing fish; a forebay for temporarily storing water pumped from the river; and two tunnels to carry water 35 miles to the existing pumping plants in the south Delta. From there the water would enter the existing aqueducts that supply much of southern California and the San Joaquin Valley. See diagram below.
Opinion around the state has exhibited a complex mix of complete shock that the governor would dare to bring the peripheral canal to the fore again, proclamations that the proposal is dead on arrival, declamations that it's the end of every fish in the Delta, and others arguing that, well, maybe California really needs the peripheral canal now. (See news stories in San Francisco, Los Angeles, Sacremento, San Jose, and especially this nice summary). Environmental groups, one of the constituencies that helped sink the original peripheral canal plan back in the Eighties, are giving the peripheral canal a more nuanced look this time. (See NRDC, Sierra Club.)
But arguably the most important single document in bringing the peripheral canal proposal back from the dead, and one of the most important documents in changing people's opinion about the canal, was a 2007 report by the Public Policy Institute of California (PPIC), Envisioning Futures For the Sacramento-San Joaquin Delta, that spoke about the current status of the Delta, and why something big needs to be done there. And fast.
More about the ecosystem of the Delta, and the PPIC report, in the next installment.