Friday, September 14, 2012
From Dwight Merriam comes news of what looks like a really interesting new website and blog on Religious Land Use and Institutionalized Persons Act (RLUIPA) litgation:
Dwight Merriam and Evan Seeman of Robinson & Cole LLP (Dwight teaches at Vermont Law School
and UConn Law School) on August 29, 2012 launched a new land use and zoning law website, RLUIPA-Defense (http://www.rluipa-defense.com) – a resource for anyone wanting to prevent RLUIPA claims or defend against them. RLUIPA-Defense track news and provides a database of RLUIPA federal and state court decisions, trial materials (oppositions to motions for preliminary injunction, motions for summary judgment, motions to dismiss, jury instructions), and appellate materials (circuit court briefs and petitions for writs of certiorari). It also includes scholarly articles and legislative history concerning RLUIPA. Visitors can register to receive e-mail about news and updates.
Prof. Merriam is one of the leading thinkers and writers bridging the land use, planning, and practitioner communities. Check out the resource at www.rulipa-defense.com
Wednesday, September 12, 2012
I just got around to reading a report released back in January, 2012 by the National Trust for Historic Preservation, which openly exposes the degree to which historic preservation can be at loggerheads with the green building movement. The report, entitled The Greenest Building: Quantifying the Environmental Value of Building Reuse, provides fuel to back the notion that the greenest building is the one that exists. A nice summary table making the point is the one below:
While this report could have many purposes, I can't help but imagine that it will find--or has already found--use in both federal and state environmental review documents (EISs, EIRs, etc.) or challenges to such documents, especially where a historic building is proposed for demolition and the new building proposed is a gleaming, LEED-certified darling of a thing.
Developers in hard-to-develop areas have come to realize offering up green construction can be a way to combat historic preservationists who are often popular before local zoning and planning boards. Will this report make a difference in that battle, or will it be viewed as just one more tool of advocacy?
Tuesday, September 11, 2012
Contributing to the growing national dialogue on agriculture and food law, the University of Montana’s Land Use Clinic recently issued a report on agricultural protection through local planning, regulation, and incentives. While portions of the report are specific to Montana, other portions are more national in scope, discussing a variety of communities that have used land use planning techniques to not only protect agricultural lands from development but also build agricultural support systems that keep producers in operation.
The Montana Constitution is unique in requiring state lawmakers to “protect, enhance, and develop all of agriculture” (Mont. Const. art. XII, § 1), and Montana is among a small handful of states in expressly requiring mitigation of impacts to agriculture during subdivision review after submission of an Environmental Assessment (Mont. Code Ann. § 76-3-603, -608(3)). These legal protections were implemented in the early 1970s but have yet to be fully carried out by Montana local governments, many of which are now facing the reality of dwindling agricultural lands and growing demand for local food supply. A Missoula Independent story titled "Digging In" profiles one case study that is representative of the larger issue.
Agricultural protection is revealing itself to be contentious in Montana, with property rights interests pitted against interests in local food supply and the protection of agricultural heritage. Last month, I attended a community listening session that was packed with a divided crowd. Participants were often emotional, but also quite thoughtful, in explaining the dilemma. Dozens of young farmers belonging to the Community Food Agricultural Coalition sported green t-shirts that read “I like AG in my culture.” These new farmers expressed a strong desire to pursue agriculture as their livelihood but need significant help locating farmland on which to operate. This proves difficult because they are not born into farming families and thus unlikely to inherit agricultural property. The new farmers also need older operators to train them in the trade. Farmers market representatives added their perspective about the growing demand for local food as a key part of the economy. Even 4H kids stood up and said “I want to protect agriculture!”
Existing farmers, often nearing retirement age, admonished the audience that their farmland is their “IRA”---the sale of farmland to developers is often their sole source of retirement income after years of hard labor working the land. To keep the land in production, they argue, requires that the community pay them to do so. Mitigation requirements, they contend, are simply taking more off the farmers’ backs. Representatives from the realty organizations argued that people also have a right to housing, and that urbanizing communities will need to look beyond their boundaries for food supply.
The Clinic’s report offers a possible road map for local governments to begin the long process of creating robust agricultural protection programs that balance these competing interests. We were lucky enough to receive a grant from the Pleiades Foundation to print and disseminate this report to local governments. If there are case studies that you believe should be mentioned in the report, we welcome additional suggestions before the final version goes to print.
Monday, September 10, 2012
Adam J. Levitin (Georgetown Law) and Susan Wachter (Penn--Wharton--Real Estate) have posted Why Housing?, Housing Policy Debate, vol. 23 (2012). The abstract:
come and go. Only the housing bubble, however, brought the economy to its knees.
Why? What makes housing uniquely a cause of macroeconomic risk?
This Article examines the workings of the housing market as well as theories and empirical evidence about the housing bubble. It explains why housing is a particular source of macroeconomic risk and how changes in the housing finance channel were the critical element in the formation of the bubble.
Interesting stuff. A lot has been written about the mortgage/financial crisis, but this is a good point in time for looking back with a more long-term perspective.
Sunday, September 9, 2012
Professor Michelle Bryan Mudd teaches in the law school’s environmental program, including the Land Use Planning and Water Law courses. She is also Director of the Land Use Clinic, which works on behalf of Montana local governments and is among only a few such clinics nationwide.
Professor Bryan Mudd was drawn to the fields of land use and water law because of her background growing up in ranching and farming communities in the West. Before joining the law school faculty, she was in private practice specializing in land use and water law in both the transactional and litigation contexts. She worked with a variety of clients including local governments, private landowners, non-profits, developers, and affected neighbors and community groups. She brings this diversity of perspective to her work with students and government clients.
Her current research interests include the relationship between land and water use, the balancing of environmental and land use rights, the role of public trust in water rights, and the evolution of eminent domain law.
We're very excited to have her with us for the next few weeks!
Tim Iglesias (San Fransisco) has posted Reunifying Property in the Classroom: Starting with the Questions, not the Answers. The abstract:
essay argues that the myriad property doctrines and rules are answers to
several consistent legal questions, and that these questions provide a
useful framework for teaching Property law. The problem with Property
Law courses is that we cover a slew of topics in which we load students
up with a wide variety of (often conflicting) answers to these questions
without ever revealing that all of the doctrines and rules are
responses to the same set of questions.
The proposed framework offers the questions as reference points for navigating the sea of common law Property doctrines and rules. A student still must deal with the treacherous straits of the Rule Against Perpetuities and similar difficulties. However, using the framework of questions she can always look up to see key questions and thereby orient and guide herself to an answer (or set of possible answers).
This is simply a must-read for anyone teaching property and land use. Prof. Iglesias provides a great overview of some of the contested questions in teaching property, and suggests that regardless of the particulars of theory and doctrine that we choose to teach, we can all profit from thinking hard about the common questions that property issues present. The essay might be helpful for property students as well.