Friday, February 22, 2013

Eagle on Economic Impact in Regulatory Takings Law

Steven J. Eagle (George Mason) has posted "Economic Impact" in Regualtory Takings Law, forthcoming in the West-Northwest Journal of Environmental Law & Policy.  The abstract:

In Penn Central Transportation Co. v. City of New York the Supreme Court stated that the existence of a regulatory taking would be determined through “essentially ad hoc, factual inquiries,” and that one of three factors of “particular significance” was the economic impact of the regulation on the claimant. This article examines the conceptual problem whereby the Fifth Amendment requires compensation for the taking of property and not a fraction of its owner’s worth. The fact that economic impact of stringent regulations is greater when parcels are smaller has led to a complex “parcel as a whole” test that conflates impact with another Penn Central test, owner’s expectations. Furthermore, application of the impact test to parcels held as investment property might vitiate the temporary taking. The Federal Circuit’s recent abandonment of its prior “return on equity” approach is emblematic of this problem. 

Measuring the economic impact upon owners also is complex where government condemns part of an owner’s parcel, leading to difficulties in computing severance damages. Broad assertions that “offsetting benefits” conferred upon property owners by government actions reduce the impact of regulations also requires clarification. 

The article concludes that unresolved issues and complexities in adjudicating the “economic impact of the regulation on the claimant” test provide an additional reason why the conceptually incoherent Penn Central doctrine must be replaced.

Matt Festa

February 22, 2013 in Caselaw, Constitutional Law, Eminent Domain, Property Rights, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

President & CEO position, Insight Center for Community Economic Development

I recently received word that Roger Clay, long-time president and CEO of Insight Center for Community Economic Development (formerly the National Economic Development and Law Center) in Oakland is stepping down.  I worked for Roger almost a decade ago as a summer law clerk and had a great summer there.  Insight is now looking for someone to fill Roger's shoes.  This would be a tremendous opportunity to head a national community economic development organization for the right practitioner.  Read more at the position announcement and position profile.

And best wishes to Roger on what's next!

Stephen R. Miller

February 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Yale Law CED fellowship

Great community economic development fellowship at Yale Law:

In the Community and Economic Development Clinic

Yale Law School seeks applications for a Ludwig Clinical Fellowship for a two-year position beginning on July 1, 2013.  The Fellowship is designed for lawyers with at least five years of practice who are interested in preparing for a career in law school clinical teaching.  The Fellow will work with the Ludwig Community and Economic Development (CED) Clinic and will be supervised by CED faculty member Jay Pottenger. 

The primary responsibilities include supervising students as they represent clients in a wide range of areas (from community development banking to commercial & residential real estate development to foundation tax law), teaching classes, and working on one’s own scholarship.   This year we are looking for a Fellow with particular experience in community development financial institutions, but will consider applicants who have other relevant experience. The Fellow will be allowed sufficient time, resources and assistance to engage in research and writing. All work will be conducted with the assistance of the clinical faculty.  Visit our website at to learn more about the CED Clinic.
Candidates must be able to work both independently and as part of a team, and must possess strong written and oral communication skills.   Annual salary is $63,000.  In addition, the Fellow will receive health benefits and access to university facilities.  Send (or email) a resume, cover letter, writing sample, and names, addresses and telephone numbers of three references by April 12, 2013 (early applications are encouraged) to: Kathryn Jannke, Office Manager, The Jerome N. Frank Legal Services Organization, P.O. Box 209090, New Haven, CT 06520-9090; telephone: (203) 432-4800; fax: (203) 432-1426;

Yale Law School is an Affirmative Action,
Equal Opportunity, Title IX employer

Stephen R. Miller

February 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2013

Ngov on Selling Land and Religion

Eang L. Ngov (Barry) has posted Selling Land and ReligionKansas Law Review, Vol. 61, No. 1, 2012 .  The abstract:

Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object. 

Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the objects and land to private parties. Some transactions have included restrictive covenants that require the buyer to maintain the religious object or reversionary clauses that allow the government to reclaim the land. Others have sold or transferred the religious object without soliciting bids from other buyers. 

This article provides an in-depth analysis of five cases in which governmental bodies resorted to privatizing public land to avoid violating the Establishment Clause. Drawing from Establishment Clause jurisprudence involving religious displays, this article utilizes the Lemon and Endorsement tests as analytical tools for resolving the constitutionality of land dispositions involving religious displays.

This article considers the purported secular government purposes for selling or transferring land to private parties. The government has sought to justify these land dispositions as a means to provide memorials that honor veterans or promote civic-mindedness, to preserve the religious object in order to avoid showing disrespect to religion, and to avoid violating the Establishment Clause. I argue that these purported government purposes are secondary to a religious interest because there are other alternatives to achieve the government’s purposes.

I also examine the effects of these land dispositions on the reasonable observer. The Herculean efforts exerted by the government to save the religious monument send a message of government endorsement of religion. Restrictive covenants that require the private owner to maintain the religious monument and reversionary clauses that allow the government to reclaim the monument and underlying land perpetuate state action and excessively entangle the government.

I conclude that the best measure to avoid the Establishment Clause is to simply remove the religious object. Removing the religious object will protect the dilution of sacred religious symbols through their secularization and will provide greater inclusiveness in public spaces for religious minorities and nonbelievers.

An original and helpful analysis of an issue that I think has been relatively neglected over the last couple of years, particularly since the Summum case came out-- the interplay between private land use rights and the religion clauses always tends to highlight some of the salient fault lines in many communities.

Matt Festa

February 21, 2013 in Constitutional Law, First Amendment, Politics, Property Rights, RLUIPA, Scholarship, Supreme Court | Permalink | Comments (0) | TrackBack (0)

ABA Forum of Aff. Housing and Comm. Dev. Law Student Writing Competition-2013


Every year, the ABA Forum of Affordable Housing and Community Development Law sponsors a student writing competition.  The winner gets a $1000, plus an expenses-paid trip trip to DC in May for our Annual Meeting chock full of potential private and public-sector legal employers as well as a chance to publish the submitted piece in our Journal. 

As Editor-in-Chief of the Journal of Affordable Housing and Community Development Law, I wanted to make sure you and your students already knew about the Student Writing Competition.  Particularly if you know of a relevant student-written scholarly work (a note, a seminar paper or the like) that deserves consideration, encourage the student to submit the work to me at the email address below on or before Friday, March 8th


Jim K.

February 21, 2013 in Affordable Housing, Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 20, 2013

Serkin on The State's Constitutional Obligations to Property Owners

Christopher Serkin (Brooklyn) has posted Affirmative Constitutional Commitments: The State's Obligations to Property OwnersBrigham-Kanner Property Rights Conference Journal, Forthcoming. The abstract:

This Essay, prepared for the 2012 Brigham-Kanner Property Rights Conference, argues that social obligation theories in property generate previously unrecognized obligations on the State. Leading property scholars, like Hanoch Dagan, Greg Alexander, and Eduardo Peñalver, have argued that the institution of property contains affirmative duties to the community as well as negative rights. This Essay argues that those affirmative duties are two-way streets, and that moral bases for social obligations also generate reciprocal obligations on the State to protect property owners. The social obligation theories rely upon a dynamic not static vision of property rights. The community’s needs change, the conditions of ownership change, and the appropriate allocation of benefits and burdens within a society changes over time. Therefore, a legal obligation that is justified and permissible at the time it is enacted because it is consistent with moral obligations may become impermissible over time, even if the content of the legal obligation does not change. At the extreme, the State’s failure to respond to certain kinds of changes in the world can lead to a regulatory taking.

An interesting and important take on some of the implications of progressive property theory.  Especially interesting is Serkin's appreciation for the changing social notions of property over time, and how that challenges static notions of property rights and obligations.

Matt Festa

February 20, 2013 in Conferences, Constitutional Law, Federal Government, History, Property, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Nolon on Shifting Paradigms in Environmental and Land Use Law and Sustainable Development

John R. Nolon (Pace) has posted Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, forthcoming in the Pace Environmental Law Review (2013).  The abstract:

We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.

Prof. Nolon has spearheaded the scholarly movement toward framing land use as an area of law that incorporates local government mechanisms and the imperatives of environmental regulation, which he has led into a broader conception of sustainability. This essay provides a great overview of how our communities depend on land use law.

Matt Festa

February 20, 2013 in Environmental Law, Local Government, Planning, Scholarship, Sustainability, Urbanism | Permalink | Comments (0) | TrackBack (0)

Plummer on The Effects of Property Tax Protests on Assessment Uniformity of Residential Properties

Elizabeth Plummer (Texas Christian) has posted The Effects of Property Tax Protests on the Assessment Uniformity of Residential Properties, forthcoming in Real Estate Economics.  The abstract:

This study examines whether the appeals process improves assessment uniformity for residential properties. The sample includes all single family residential properties in Harris County, Texas, for 2006-2008. I use a hedonic pricing model and Heckman’s two stage approach to explain the assessed values of all properties before and after the appeals adjustments. Full sample results suggest that the appeals process increased assessment uniformity and that the value adjustments were appropriate in amount. I also present results across properties of different values (low, medium, high). The first stage probit model provides evidence on the factors that affect the likelihood that an owner will protest.

I'm personally excited to see this study of real estate value effects in my own backyard, here in The Unzoned City.  

Matt Festa

February 20, 2013 in Housing, Houston, Local Government, Property, Real Estate Transactions, Scholarship, Texas | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 19, 2013

Hydraulic fracturing and the emergent dormant Commerce Clause

I was recently invited to write a short essay on hydraulic fracturing and the dormant Commerce Clause based upon a post on this blog in January, 2012.  The essay just came out and, since this blog was the source of the essay's origin, I thought it was only fitting to post it here, too.  Here is the abstract:

This essay reviews the increasing prominence of the dormant Commerce Clause in debates over hydraulic fracturing. In particular, the essay is framed around New Jersey Governor Chris Christie’s citing of the dormant Commerce Clause as a reason for vetoing a ban on hydraulic fracturing wastewater disposal passed by the New Jersey Legislature. The Governor’s reasoning is compared to analysis in a New Jersey Office of Legislative Services' memorandum indicating the dormant Commerce Clause would not be implicated by the proposed ban. The legal reasoning of the New Jersey dispute regarding the applicability of the dormant Commerce Clause to hydraulic fracturing is then considered in light of other scenarios around the country.

Get a free copy here!  I welcome comments.  And thanks to Jim Wedeking (Sidley Austin, ABA SEER Constitutional Law Committee) for the invitation to write the essay.

Stephen R. Miller

February 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, February 18, 2013

Follow up: Readers comments on “Two hypotheses on why there are so few new urbanism cases”

Last week I wrote a blog post stating two hypotheses for why there are so few form-based code cases.  Briefly, my hypotheses were that form-based codes are still largely optional in jurisdictions where they would be controversial; or, in the alternative, they are essentially acting as a form of pre-project approval for large developments, and thus have implicit developer approval. 

I received several great comments from all over the country, both from professors and practicing attorneys, each largely confirming my hypotheses.  That was re-assuring!  I wanted, in particular, to acknowledge the helpful comments of Nick Morantz, a Ph.D. candidate at MIT's planning school, who has studied the issue and wrote the following nice summary to me:

Based on my observations, form based codes seem to fall into four broad categories: (1) advisory documents; (2) components of design guidelines for expedited permitting review; (3) components of CC&Rs for homeowners associations; and (4) binding public law. Categories 1 and 2 correspond to your hypotheses. Category 4 seems vanishingly small.

Mr. Morantz, who has studied form-based codes in depth, recommended Blaesser's Discretionary Land Use Controls as the best compilation of form-based code cases.  He has also written an interesting book chapter I’d recommend, “The Business of Codes:  Urban Design Regulation in an Entrepreneurial Society,” along with MIT planning professor and planning department head Eran Ben-Joseph in the book Urban Design in the Real Estate Development Process

Thanks to Mr. Morantz, and all the others, who wrote in on this interesting topic.

Stephen R. Miller

February 18, 2013 | Permalink | Comments (2) | TrackBack (0)