Friday, February 3, 2012
Holly Doremus (Berkeley) has posted Climate Change and the Evolution of Property Rights, University of California Irvine Law Review, Vol. 1 (2012). The abstract:
Climate change will unsettle expectations about both land and water. Those changes will reduce the extent to which existing resource allocations effectively serve societal interests. In the United States, we typically rely on market transactions to adjust property allocations as societal needs and interests change. Markets, however, will not adequately protect the collective, as opposed to the private, interests climate change will put at risk. Changes to underlying property rules will be needed if those interests are to be sustained.
Because current property rules stand in the way of efficient and effective adaptation to climate change, evolution of property law is an important aspect of adaptation. But because property rules are especially sticky, the needed changes will not come easily. Federal courts must play the keystone role because they control the interpretation of key constitutional doctrines. The chief legal impediment to climate adaptation at the moment is federal court resistance to changes in property rules. If that resistance can be softened, state courts and legislatures can, and likely will, make needed adjustments. Federal courts should be careful not to stand in the way of such adjustments, although they also have a role to play in ensuring that the costs of change are fairly distributed.
Thursday, February 2, 2012
Rohan Price (Tasmania) has posted Exceptionalism and the Rule of Law in Post-War Hong Kong. The abstract:
A comprehensive body of case law developed in the immediate postwar years which interpreted and applied Proclamation No. 15 - Landlord and Tenant (1945). The BMA’s policy rent control and preservation of residential tenure were realized by a sympathetic predisposition towards tenants in the Tenancy Tribunal on natural justice grounds which, on appeal, the District Court shored up by reference to the legal requirements of the Proclamation. In the major cases when the landlord prevailed in the District Court, it is notable that the Tribunal was, in one case, admonished for not having a sufficiently hard-headed reason for it siding with the tenant (Ching Sum Co) and, in the other, the landlord won because the Tribunal made a factual error in relation to the bona fides of the tenant (Re On Lok Co). A closer examination of the case law shows that the District Court permitted the executive’s pro-tenant policy to prevail if the reasons for decision in a tenant’s favor in the Tenancy Tribunal could be dressed up in legal terms and the tenant was not so repulsive as to make a finding of their bona fides impossible. This note argues that judicial independence was proclaimed in Hong Kong by the Bench in exceptional cases while the trend of decisions indicates nothing short of loyalty to the executive.
Good morning. I'm looking forward to guest blogging here this month. I will be posting about the many issues we are working on here in the Columbia Environmental Law Clinic. Our students are working extensively on hydraulic fracturing, easement defense and many other issues. Today we begin with the challenges fracking presents to home rule in New York.
Preemption Challenges to Local Fracking Bans in New York
New York state has arrived at a critical passage in the ongoing debate over hydraulic fracturing. The NY DEC's comment period for the Draft Supplemental Generic Environmental Impact Statement and the proposed regulations for "high-volume hydraulic fracturing" closed on January 11, 2012, paving the way for an administrative decision that may lift the statewide fracking moratorium and determine whether - and if so, how - fracking will occur in the state. In this context, it's worth considering the question (referenced previously on this blog, but now more pressing and developed) of whether a NY municipality may ban fracking through exercising its zoning authority.
Citing home rule powers delegated by statute under the state constitution, dozens of municipalities across the state - including Syracuse and Buffalo - have adopted zoning ordinances that remove natural gas exploration and extraction from the list of permissible land uses within their borders. (Click here for a map of of others, with links to the text of each ordinance.) In late 2011, natural gas leaseholders and industry sued two of those municipalities - Dryden and Middlefield - arguing that the state Oil, Gas, and Solution Mining Law (OGSM) (codified as Environmental Conservation Law (ECL) § 23) preempts local efforts to ban fracking. OGSM expressly supersedes “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries.” ECL § 23-0303(2). Thus, the question presented is whether a generally applicable zoning ordinance that bans natural gas extraction “relate[s] to the regulation” of natural gas.
No court has addressed this clause in the OGSM, and neither statutory language nor legislative history gives clear guidance. Thus the courts will likely look to parallel preemption clauses in other state statutes. Most relavent is the Mined Land Reclamation Law (MLRL), which provides that it “shall supersede all other state and local laws relating to the extractive mining industry.” ECL § 23-2703(2). In Frew Run Gravel Products v. Town of Carroll, the Court of Appeals directly addressed whether the MLRL preempted a town’s zoning laws. 71 N.Y.2d 126 (1987). The DEC had granted Frew Run a permit to conduct “sand and gravel” operations on property in the Town of Carroll. However, because the property was zoned exclusively for agricultural and residential development, the town notified Frew Run that its operation was prohibited. The Court held that Carroll’s zoning ordinance related “not to the extractive mining industry but to an entirely different subject matter and purpose: i.e., regulating the location, construction and use of buildings, structures, and the use of land in the Town of Carroll." Id. at 131 (internal quotations omitted). The Court noted that land use regulation “inevitably exerts an incidental control” over regulated businesses, and reasoned that such “incidental control resulting from the municipality’s exercise of its right to regulate land use through zoning is not the type of regulatory enactment . . . within the prohibition of the statute.” Id. That is, the MLRL’s purpose is not to control town zoning, but rather to provide uniform mining regulations. Thus, the Court ruled that local regulations dealing with “the actual operation and process of mining” would be preempted, but not local zoning ordinances concerned with the appropriate use of local lands. Id. at 133.
In light of this and other precedent, the court should adopt similar reasoning and uphold a generally applicable zoning ordinance removing oil and gas activities from the list of permissible land uses. Indeed, it has applied a similar analysis and reached the same conclusion in other contexts as well. See DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 91 (2001) (upholding zoning authority in relation to alcohol in the face of implied preemption by Alcohol Beverage Control Law).
The normative considerations underlying home rule authority likewise favor a municipality’s power to decide whether natural gas extraction may occur in its territory. The NY Court of Appeals has recognized that land use is one of the essential home rule powers because it addresses distinctively local matters of concern. Even setting aside the well-documented possible environmental and human health impacts, fracking is undeniably a high-impact land use that dramatically and often irreversibly alters the character of localities, regardless of the stringency of state regulations. Forests are fragmented by roads and rights of way; land is clear-cut and covered over by cement well pads; rural ambience is replaced by the drone of compressor stations, drilling and fracking equipment, and diesel truck engines; and rural sceneries are punctuated by metal towers rising among forest or farmland. These changes are not merely subjective intrusions: they can negatively impact local economies and the character of local communities dependent on rural tourism and recreation, uses that are essentially incompatible with an industrialized landscape. While DEC should determine whether and how fracking may occur in the state, and preempt localities from enacting duplicative and/or conflicting regulations relating to oil and gas activities that would unnecessarily burden industry, localities should retain the authority to decide whether such activities are appropriate for their landscapes and communities in the first instance.
Regardless of the outcome of the Dryden and Middlefield cases, appeals are certain. The resolution of this question in these initial cases very well may influence other courts, and may encourage or discourage further local bans on fracking, depending of course on the outcomes. Meanwhile, legislation passed in the New York Assembly (Bill No. A03245-2011) and now pending in the state Senate (Bill No. S3472-2011) proposes to amend the OGSM to expressly provide that the OGSM does not prevent any local government from "enacting or enforcing zoning ordinances or laws which determine permissible uses in zoning districts." Enactment of such an amendment would no doubt moot the pending cases. But unless and until the legislature acts, this question will wind its way through New York courts, where elected judges will determine a crucial if tentative element of New York's fracking regime.
President Obama gave a speech yesterday in Falls Church, VA, explaining his State of the Union thoughts on housing. From the White House transcript:
As I indicated at the State of the Union last week, I am sending Congress a plan that will give every responsible homeowner in America the chance to save about $3,000 a year on their mortgage by refinancing at historically low rates. (Applause.) No more red tape. No more runaround from the banks. And a small fee on the largest financial institutions will make sure it doesn’t add to our deficit.
I want to be clear: This plan, like the other actions we’ve taken, will not help the neighbors down the street who bought a house they couldn’t afford, and then walked away and left a foreclosed home behind. It’s not designed for those who’ve acted irresponsibly, but it can help those who’ve acted responsibly. It’s not going to help those who bought multiple homes just to speculate and flip the house and make a quick buck, but it can help those who’ve acted responsibly.
What this plan will do is help millions of responsible homeowners who make their payments on time but find themselves trapped under falling home values or wrapped up in red tape.
Wednesday, February 1, 2012
We've posted before on Groundhog Day. Hope you have a happy one, and that you get the predictive result you prefer!
This year I'm thinking most about the local government aspects suggested by the movie, part of which I saw the other day. Last year I wrote that "Bill Murray is the arrogant city slicker who looks down at the rubes in the small town, until he comes to realize the importance of the small-town community values in Punxsutawney."
As local governments enter (or continue) in crisis mode, with severely constrained abilities to maintain the same level of public services as in the past, it's time more than ever for the rest of us to get involved, check on our neighbors, and really appreciate the communities in our lives where we can find them. When I watched part of the Groundhog Day movie recently, I started to think that the most important theme of the film was not big city vs. small town, but rather the importance of social capital and civic spirit in every community.
Hope your winters' ends are just around the corner.
UPDATE: Punxsutawney Phil saw his shadow-- so that means "six more weeks of winter." Frankly, I never understood that. Where I grew up (upstate NY), having to face *only* six more weeks of winter as of February 2d would have been fantastic!
Mark Fenster (Florida) has posted Failed Exactions, 36 Vermont Law Review No. 3 (2012). The abstract:
This symposium essay considers the doctrinal quandary created by 'failed exactions' - regulatory conditions on property development that government agencies contemplate but that are never finalized or enforced, usually because the property owner rejects them. A narrow but conceptually challenging issue to the relationship between the unconstitutional conditions doctrine and regulatory takings law, failed exactions could prove profoundly unsettling to current land use practices. A decade ago, the issue of whether failed exactions deserve heightened scrutiny prompted Justice Scalia to issue a dissent from a denial of petition for certiorari in which he stated, somewhat tentatively, that an extortionate demand made of a land owner by a government agency for land or money as a condition on development could and perhaps should trigger rigorous judicial review.
Both before and after Justice Scalia’s ruminations, which only Justices Kennedy and Thomas joined, courts have struggled with this question. As the litigation that ended with the Florida Supreme Court decision in Koontz v. St. Johns Water Management District (2011) reveals, judicial efforts to put the unruly peg of an unenforced condition into the narrowly defined categories of regulatory takings creates an excess of confusion. The essay identifies the doctrinal, remedial, procedural, and consequential dangers of any effort to apply heightened federal constitutional scrutiny to failed exactions.
Stephen Miller recently posted the compelling question whether there will be a "lost generation" of land use lawyers, due to the recession, the weak legal hiring market, and the related lull in the land development economy. Jamie and a couple of other observent commenters added their thoughts. This is a very well-founded and important concern.
I share the concern, but I am somewhat less pessimistic. One of the great things about land use is that it is so fundamentally interdisciplinary, and this in turn means there are many areas of practice that involve (and often require) a good undertanding of land use issues. I have had a number of students report to me that they are meeting with some success as new practitioners in the current economy, including land-use related practices. Here are some ways in which a new lawyer interested in land use can (or must) get involved in the field:
- Real estate practice. This may be obvious, but a practice oriented around real estate transactions--both residential and commercial--needs to be able to navigate the land use system for clients. Permits, variances, and servitudes are huge concerns in real estate transactions.
- Environmental law. Even if you don't get a government or nonprofit job, there are more environmental concerns than ever in private practice, from compliance to impact studies to permitting, and consulting.
- Litigation. You might be surprised how often land use issues intersect with general civil and commercial litigation. This was the route I took towards conceiving of myself as a "land use lawyer." As a new general litigation associate at a firm, I took on cases representing HOAs, local government entities, and businesses in all sorts of litigation ranging from siting disputes to HOA takeovers to eminent domain.
- General practice. I know from my recent grads that the model of hanging out a shingle is alive and well. Our communities need good lawyers to serve people who need help with real estate, contracts, small businesses, family law, estate planning, and so on. All of these activities involve land use issues.
- Community involvement. This isn't always--or even very often--a paid gig. But every community has important land use issues, and one of the agreed-upon tenents of good land use today is that it requires community participation and involvement. Smart lawyers can always be valuable in these processes, from charrettes to comprehensive plans to zoning and development code amendments. Jamie commented that her students get involved in local planning commissions. If you care about land use, you should care about getting involved in your community and offering your expertise (and don't sell yourself short-- if you've studied land use law at all, you probably know more than most people). If you do a good job, there may also be networking benefits in addition to having served your community.
I know it's tough out there in this economy. But my recent grads have given me some optimism that there is still a great need for smart lawyers out there, and that lawyers who are passionate about land use can find a way to apply that interest in practice.
Michael Kimmelman, the New York Times's architecture critic, ran an interesting feature recently contrasting the fates of two urban renewal-era housing projects: Pruitt-Igoe in St. Louis and Penn South in New York City. Pruitt-Igoe has become synonymous with the failures of urban renewal. It opened during a time of great optimism in 1954, the product of Modernist ideology that urban pathologies could be solved with great design. The structure was demolished in 1972 after it became a hornet's nest of drugs and crime. Its vaunted design actually contributed to many of the building's social problems, thus delegitimizing the Modernist confidence in the ability of design to improve lives. According to Kimmelman: "Critics of welfare, big government and modern architecture all used the project as a whipping boy."
Kimmelman reveals, however, that a very similarly designed structure, Penn South, has quietly prospered with little of the notoriety that has accompanied Pruitt-Igoe. (I confess that I never even heard of Penn South until this article, and I lived in New York for many years and have spent much time studying urban renewal.) So what accounted for the disparity: Penn South, unlike Pruitt-Igoe, was not public housing:
Two bedroom apartments cost $3,000 when the complex opened in 1962....
Steady income from maintenance payments and retail units in commercial buildings the co-op owned guaranteed Penn South a stable income. Tax relief from the city shielded it from escalating real estate values. Residents poured money into improvements. Repeatedly they declined the right to sell their apartments at market rates, preserving the ideal of moderate-income dwellings, adding facilities for toddlers and the elderly, playgrounds, a community garden and a ceramics studio.
Few people chose to leave, aging in their apartments, and in 1986 Penn South became the country’s first Naturally Occurring Retirement Community, or NORC. That’s an official designation for housing that wasn’t built for elderly people but is occupied by enough of them to become eligible for special grants.
Most urban renewal housing projects, like Pruitt-Igoe, were composed of rental units with strict maximum-income requirements. Once your income got too high, you were out. This ensured that housing projects stayed income-segregated. The most successful and motivated would leave, taking all their social capital with them, leaving behind those least capable of rising out of poverty with no support system in place. In this transient environment, residents had little incentives to make improvements to the property or to take steps towards forming any kind of community.
Certainly, the success of Penn South should give us some pause before writing off the entire urban renewal era as an unmitigated failure. It is worth taking some time to assess what aspects of urban renewal actually worked, and why.
First, thanks so much to Stephen Miller for doing such a terrific job guest-blogging throughout January. Great stuff.
Next, we're proud to welcome Susan J. Kraham (Columbia Law School) as our guest blogger for the month of February. Here's Susan's bio:
Susan J. Kraham is a Senior Staff Attorney and Lecturer-in-Law at Columbia Law School's Environmental Law Clinic. Susan has spent her legal career representing public interest clients with a particular focus on environmental and land use law. Prior to joining the Environmental Law Clinic, Susan served as Counsel to the New Jersey Audubon Society. From 1998 until 2005 she was an Associate Clinical Professor in the Environmental Law Clinic at Rutgers Law School, Newark. Susan was a 1992 graduate of Columbia Law School. She also has a Masters in Urban Planning from New York University’s Wagner School. After graduation from Law School, Susan clerked for the Honorable Justice Gary Stein of the New Jersey Supreme Court. She was a Skadden fellow. Susan was also an echoing green fellow where she partnered on a community-based environmental justice project.
We're excited to have her on board, and we look forward to reading her posts!
Late last year I posted twice (here and here) about a proposal to put a mixed-use development, anchored by a 100K square foot Wal-Mart, into downtown Athens. Today things heated up in a very Athens way, with Patterson Hood of the Drive-By Truckers unveiling a protest song and a group called "Protect Downtown Athens" launching an incredibly thorough website analyzing many aspects of the development. This group is supported by members and management of R.E.M., and other local movers and shakers. Release of the song has already increased coverage of this issue in the national blogosphere and MSM. This just keeps getting more interesting!
Jamie Baker Roskie
February 1, 2012 in Community Economic Development, Development, Downtown, Economic Development, Georgia, Local Government, Redevelopment, Smart Growth, Urbanism | Permalink | Comments (0) | TrackBack (0)
From Heidi Gorovitz Robertson at CSU, an announcement for their upcoming symposium:
Cleveland-Marshall College of Law seeks proposals for presentations at Urban Agriculture: It’s Not an Oxymoron, Policies for Cultivating City Land and Increasing Access to Local Food, a symposium on law and policy issues connected to urban agriculture, land use, and the local food movement.
As the movement towards local food continues to grow, cities are finding that they must develop law and policies to allow for and regulate agricultural practices within urban communities. Many cities are implementing policies to increase urban food production through regulation, incentives, and more comprehensive land-use and public-health policies. Cities are doing so because they are recognizing that increasing agricultural land use can be a good answer to declining populations and an excess of abandoned or foreclosed properties. Cities are also recognizing that increasing access to local food can provide economic and public health benefits.
This symposium will explore the laws and policies that cities have implemented to increase local food production and access to local food. It will also address some of the benefits and challenges of implementing these policies. Finally, it will address the need to strengthen the urban, suburban, and rural food connection to move towards more sustainable and reliable local food production. All papers concerning these or related issues are welcome.
The symposium will take place in Cleveland, Ohio on April 20, 2012. C|M|LAW invites academics, practitioners, policymakers, and others to submit presentations or scholarly papers on related topics. A proposal for your paper or presentation, of no more than three pages, should be...submitted via the link below.
For more information about the symposium, please visit C|M|Law’s website.
Jamie Baker Roskie
Frank Michelman (Harvard) has posted "The Property Clause Question." In this essay, the preeminent property theorist of our time offers an engaging look at the constitutional protection of private property rights that a society seeking to establish a liberal social democracy should consider. Here's the abstract:
A “property clause” is a dedicated text in the written basic law of a constitutional-democratic state, addressing the question of the security of asset-holdings (and of their values to their owners) against impairment by action or allowance of the state. The clause provides a defensive guarantee against such impairments, in the form of a trumping right of every person to be protected – perhaps not absolutely and unconditionally, but not negligibly, either – against state-engineered losses in lawfully established asset-holdings or asset-values.
How should someone writing a constitution for an expectantly “social liberal” state regime think about the question of a property clause? Without suggesting that there can be any one-size-fits-all sort of answer to the question of including such a clause or not, this paper confines itself to doubting sharply one sort of a reason our constitution-writers might consider for including one – namely, that a liberal constitutional bill of rights ought to contain clauses covering all classes of interests of persons that qualify in liberalism as basic rights and freedoms and the interest distinctively protected by a property clause does so qualify – and suggesting some pros and cons regarding a quite different sort of reason for inclusion that the writers will also undoubtedly ponder – namely, that the clause will serve to keep lawmakers and constitutional adjudicators properly attuned to a national foundational commitment to a system of political economy in which markets play a key role.
This essay, prepared as an after-dinner talk for the Conference on Constitutional Revolutions and Counter-Revolutions held at the New School for Social Research, May 5-7, 2011, is a companion to my “Liberal Constitutionalism, Property Rights, and the Assault on Poverty,” Stellenbosch Law Review (2012) (forthcoming), which treats more expansively some points made summarily here. A version of this essay will appear in Constellations 12 (2012).
Tuesday, January 31, 2012
I have thoroughly enjoyed guest-blogging on Land Use Prof Blog this past month. As my final post in this stint, I thought I’d throw out a “truism” an august member of the California land use community once told me, which was that “the best planning happens in recessions.” This attorney’s argument was that, given the cyclical nature of the real estate market, when things are going hot and heavy, there is no time for local governments to think—they are simply trying to keep up with the permits that are coming across their desks. It is also hard for local governments to change course in peak of a market because so many private-side decisions have been made based upon existing policies, and so it become politically difficult in a lot of jurisdictions to make changes that would jeopardize those large projects.
The recessionary part of the cycle, on the other hand, gives a chance for local governments to think about big ideas, and try to find ways to make their long-term goals emerge once the market returns. This also makes sense for the private sector, because once the market heats up, they know the rules created in the recessionary phase, have stability in the growth phase, and that certainly helps in conversations with lenders.
My question to the group is: is this “truism” true? Does the best planning happen in a recession? And if so, is the community where you live doing the most right now to make sure that, when the market returns, the growth that happens will fulfill the community’s vision and also be predictable for developers and investors? My sense is that most communities in this recession are still looking backwards, trying to clean up the foreclosure mess and trying to solve the jobs issue. I’d like to encourage each of us to think about how we can get communities looking forward on land use issues and planning for the future, even when there is so much to clean up from the Great Recession. My gut instinct is that the best planning does happen in recessions, and communities that look forward now will be those prospering most in the decades ahead.
Monday, January 30, 2012
Walter Russell Mead (Bard College) has posted a fascinating essay at The American Interest called Beyond Blue Part One: The Crisis of the American Dream. An excerpt:
I’ve written in earlier posts about the shift from the first American Dream to the second: from the family farm to the suburban “homestead.” It was a profound change in American life and culture that has not yet been fully explored. The family farm integrated production and consumption, work and leisure, family and business. The family wasn’t just a union of sentiment: it was an element of production. Mom and Dad worked as a team to feed, house and clothe the family, and as the kids grew up they took on greater and greater responsibilities in the common effort. Their lives at home prepared them for the new lives they would lead on their own: the kids would grow up, marry, and start farms.
The 20th century suburban homestead was a very different place.
This is almost exactly the theme of an article I am writing, so naturally I find it interesting! Mead's essay ranges well beyond land use, but his grounding of the "American Dream" in patterns of living and social organization speaks to how incredibly relevant land use models are to the compelling issues facing American society in the 21st Century.
Sunday, January 29, 2012
We all know it is a tough time for young lawyers out there, but I wonder if it may be even harder for those interested in land use law. I was lucky enough to land an associate position doing land use and environmental law straight out of law school. I don’t know if I would have the same fate in today’s market: as we all know, the construction industry remains in a deep slump in all but a few markets, and only a few major public works projects still have the green light. Only a few hot markets are keeping “dirt” lawyers busy on the developer side, and with many local governments pinching pennies on the regulatory side, it seems to me now is a particularly difficult time to try to enter into the land use law field.
That leaves me wondering what this group of professors can do beyond students’ law school graduation to foster the next generation of land use practitioners, which I believe is part of our mission. Personally, I have contemplated creating a “fellows” program associated with my economic development clinic that would permit those interested in land use and related fields to retain a foothold in the field and exhibit their continued interest to employers down the road. Whatever approach taken, I think it is incumbent upon all of us to ensure there is not a “lost generation” of land use lawyers out there, and that the practitioner field remains vital and gets growth opportunities in their early, formative years of practice.
What other ideas could we pursue? Perhaps this is a subject for a panel at an upcoming conference?
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- Stephen R. Miller on Why are building inspectors so often on the take?
- Josh Hightree on What makes people leave rural areas, and what makes them stay
- Jessica Shoemaker on What makes people leave rural areas, and what makes them stay
- Jamie Baker Roskie on Why are building inspectors so often on the take?
- Stephen R. Miller on What makes people leave rural areas, and what makes them stay
- Land Use Law-Related Articles Posted on SSRN in February
- March 4-6: Stanford 2015 Rural West Conference: Preservation and Transformation: The Future of the Rural West
- March 3 - J.B. Ruhl to deliver Boehl Distinguished Lecture in Land Use Policy at U Louisville Law
- Is this blog post "advertising"? California's bar proposes bright-line rule for regulating attorney blogs
- Two upcoming RMMLF events: 61st Annual Institute (July 16-18 in Anchorage) and 17th Institute for Natural Resources Law Teachers (May 27-29 at Utah Law)