Tuesday, October 16, 2012

Hirokawa on Euclid to Federal Environmental Law in Northern Ohio

Keith Hirokawa (Albany) has posted From Euclid to the Development of Federal Environmental Law: The U.S. District Court for the Northern District of Ohio and the Regulation of Physical Space, forthcoming in Justice and Legal Change on the Shores of Lake Erie: A History of the U.S. District Court for the Northern District of Ohio, Paul Finkelman and Roberta Alexander, eds., (2012, Ohio University Press).  The abstract:

In 1969, the Cuyahoga River burned. Although it was not the first time that the River was in need of assistance, it was the 1969 fire that helped to compel a radical transformation in the way that we interact with the environment. The U.S. District Court for the Northern District of Ohio was not called upon to adjudicate the liabilities resulting from this pivotal event. But in the years preceding the Cuyahoga fire, the district court was asked to navigate conflicting jurisprudential approaches to the use of land, air, and water. This chapter explores a handful of these cases in order to illustrate the nation's struggle over suspicious conceptions of economic advantage and fairness, flexible distinctions of private and public property, and evolving ideas of nature and health. The chapter begins with the 1924 decision in Ambler Realty Corporation v. Village of Euclid, which remains the most famous challenge to the constitutionality of zoning regulations. It then turns to the 1930 decision in Swetland v. Curtiss Airports Corporation, where the district court addressed the inevitable limitations in property rights above land following the advancement of powered human flight. Finally, it considers an opinion released on the eve of the Cuyahoga River fire, when the court was asked to choose between saving a town and protecting railroad operations in Biechelle v. Norfolk Western Railway Company. Although the district court's decisions in these controversies do not bear the indelible character that we often attribute to law, the federal district courts for the Northern District of Ohio contributed to a legal framework in which the fire could occur and, perhaps more significantly, in which the fire could be perceived as an important event.

It's true that Northern Ohio has been at the forefront of the development of modern land use law!  Land use and legal history are more connected than might be apparent.  The entire volume looks worth reading.

Matt Festa

October 16, 2012 in Environmental Law, Federal Government, History, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 29, 2012

Proposed Final Settlement in Baltimore Fair Housing Case

The Baltimore Sun reported this past weekend on the proposed final settlement in Thompson v. HUD, a fair housing case that dates to 1995. 

The case arose when the American Civil Liberties Union of Maryland sued HUD, saying that it demolished old public housing high-rises where mostly African-Americans lived — only to move the residents to equally segregated housing and poor conditions in other parts of the city.

Attorneys for the residents said Friday that the government in effect “perpetually locked” African-American families in neighborhoods of concentrated poverty, violating federal civil right laws. The settlement, which would cover all claims in the case, was filed in conjunction with Baltimore City and the Housing Authority of Baltimore City.

As the Legal Defense Fund, which worked with the ACLU on the case, notes in its press release, the court had ruled in 2005 “that the U.S. Department of Housing and Urban Development (“HUD”) violated the Fair Housing Act by unfairly concentrating African-American public housing residents in the most impoverished, segregated areas of Baltimore City.  Judge Garbis held that HUD must take a regional approach to promoting fair housing opportunities throughout the Baltimore Region.” 

The settlement requires HUD to allocated money towards expansion of the Baltimore Housing Mobility Program, which has been in place since a partial settlement in the 1990s.  The program has enabled over 1,800 families to move to neighborhoods in other parts of the city and to surrounding suburbs.  Under the settlement, the program will, among other things, fund vouchers and counseling over the next seven years for up to 2,600 additional families.

The case is particularly interesting given its regional approach to questions of housing and segregation.  Housing vouchers can be used throughout the region, enabling participants to voluntarily move to suburban areas with greater employment and educational opportunity.  The program provides extensive housing counseling and mobility assistance to aid families interested in moving to lower-poverty neighborhoods.  For more details, see this  2009 report discussing the progress of the program at that time. 

John Infranca

August 29, 2012 in Affordable Housing, Federal Government, Housing, HUD, Local Government, Race, Suburbs | Permalink | Comments (0) | TrackBack (0)

Friday, August 24, 2012

Stern on Property's Constitution

James Y. Stern (Virginia) has posted Property's Constitution, forthcoming in the California Law Review.  The abstract:

Long-standing disagreements over the meaning of property as a matter of legal theory present a
special problem in constitutional law. The Due Process and Takings Clauses set forth individual rights that can only be asserted if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property and in some instances reach opposite conclusions about its meaning. Most notably, government benefits are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain.

This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. It begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people. It then argues that legal rights are a kind of private property and that, while courts and commentators are correct that legal entitlements to government benefits — so-called “new property” — should receive constitutional protection, they mistakenly believe the property at issue is the good that a recipient has a right to receive, rather than the legal right to receive it. The Article proceeds to show that legal rights are the only kind of things whose existence government can altogether extinguish and therefore that ownership of legal rights is the only kind of property right government can terminate without conferring equivalent property rights on others. The Article further argues that while due process protection should be read to apply whenever a person is denied an asserted property right (a deprivation), takings protection should only come into play when property rights are transferred from one party to another (a taking). Combining these observations, the Article concludes that termination not only of “new property” rights but also of old-fashioned in personam legal rights should trigger due process but not takings protection. This analysis provides theoretical coherence to constitutional doctrine that has thus far been lacking and it sheds light on the essential characteristics of property rights as a general matter, helping theoreticians understand more clearly the core structures of property law.

Matt Festa

August 24, 2012 in Constitutional Law, Federal Government, Property, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, August 19, 2012

Bauer on Age-Restricted Communities and Civil Rights Laws & Regulation

Mark D. Bauer (Stetson) has posted ‘Peter Pan’ as Public Policy: Should Fifty-Five-Plus Age-Restricted Communities Continue to Be Exempt from Civil Rights Laws and Substantive Federal Regulation?  The abstract:

Although millions of Americans live in 55-plus age-restricted housing, little research has been done to determine whether these communities benefit their residents, or the nation as a whole. This is particularly ironic because these communities exist in contravention to anti-discrimination laws by virtue of a specific exemption granted to real estate developers by an Act of Congress. Ordinarily age discrimination is prohibited by the Fair Housing Act, Title VIII of the Civil Rights Act of 1968. Successful lobbying by special interest groups carved out an exemption for 55-plus housing.

The original exemption required developers to offer elders special services and facilities in these communities in return for the exemption. Over time, those requirements were eliminated and now the only requirement is that these communities exclude families and children.

While lifestyles focused on golf and tennis may be attractive to younger retirees, older Americans often find themselves in communities bereft of the services and facilities they need for basic life activities and safety. The very nature of these communities result in elders left with depreciating homes, and many are without the financial means to retrofit their 55-plus home or to move into a community better adapted for their needs. This Article explores a popular form of “senior housing” that is unsuitable for most older Americans.

Matt Festa

August 19, 2012 in Community Design, Constitutional Law, Development, Federal Government, History, Homeowners Associations, Housing, HUD, Real Estate Transactions, Scholarship, Sun Belt | Permalink | Comments (0) | TrackBack (0)

Sunday, August 12, 2012

Krakoff & Rosser book on Tribes, Land, & the Environment

Sarah Krakoff (Colorado) and Ezra Rosser (American U) have posted Tribes, Land, and the Environment (Introduction), the intro to their new book TRIBES, LAND, AND THE ENVIRONMENT, Sarah Krakoff & Ezra Rosser eds., Published by Ashgate, ISBN 978-1-4094-2062-0, 2012.  The abstract:

About the book: Legal and environmental concerns related to Indian law and tribal lands remain an understudied branch of both indigenous law and environmental law. Native American tribes have a far more complex relationship with the environment than is captured by the stereotype of Indians as environmental stewards. Meaningful tribal sovereignty requires that non-Indians recognize the right of Indians to determine their own relationship to the land and the environment. But tribes do not exist in a vacuum: in fact they are deeply affected by off-reservation activities and, similarly, tribal choices often have effects on nearby communities. This book brings together diverse essays by leading Indian law scholars across the disciplines of indigenous and environmental law. The chapters reveal the difficulties encountered by Native American tribes in attempts to establish their own environmental standards within federal Indian law and environmental law structures. Gleaning new insights from a focus on tribal land and property law, the collection studies the practice of tribal sovereignty as experienced by Indians and non-Indians, with an emphasis on the development and regulatory challenges these tribes face in the wake of climate change. This volume will advance the reader's knowledge and understanding of these challenging issues.

Prof. Rosser also sends along the links to the Ashgate publisher's page and to the Table of Contents.  There are a lot of land use issues involved here and it's definitely a book worth checking out.  Contributions include essays by the two editors and our own Jessica Owley, among other thoughtful writers.

Matt Festa

August 12, 2012 in Books, Environmental Law, Federal Government, History, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, August 9, 2012

Bronin & Byrne Casebook on Historic Preservation Law

Bronin byrne HPSara C. Bronin (Connecticut) and J. Peter Byrne (Georgetown) recently published a new casebook called Historic Preservation Law, Foundation Press 2012.  HP is quickly becoming a central part of land use planning, as the authors make clear in this excerpt from the Preface:

This book was written for anyone interested in the increasingly important area of historic preservation law.  With this book, we hope to advance and encourage the teaching of preservation law, shape the way the field is conceived, and create a practical resource that will be consulted by attorneys and other preservation professionals. 

Our approach to the subject is reasonably straightforward.  We present the most significant legal issues in preservation and place them in a contemporary context, identifying contested questions and areas of reform.  The format of the book is traditional: edited leading cases with notes that provide explanation, extension, and issues for discussion.  Given the interdisciplinary nature of the field, we belive that the legal issues can only be understood in light of historical, aesthetic, political, and administrative issues that make up the larger realm of preservation.  Accordingly, we provide secondary materials, both legal and non-legal.

Because we focus on preservation of buildings and sites, we present preservation as part of land use or urban development law.  Thus, we provide extensive treatment of local preservation law, which regulates private property, as well as relevant issues in real estate finance and project development.  We also provide comprehensive treatment of federal law, including the National Historical Preservation Act and related statutes.  In addition, we explore federal laws that address preservation vis-a-vis cultural property issues, particularly regarding Native American and archaelogical sites.  Preservation has also generated important and interesting constitutional questions related to takings, religious freedoms, and free speech rights, which we address.

This is the first, or at least the most recent, major casebook on the law of historic preservation that I know of.  Professors Bronin and Byrne, who are also accomplished scholars in the land use field generally, have provided us a major contribution with this book, which looks to be *the* significant text in HP law.  Land use scholars and professionals should definitely have this one on their shelves.

Matt Festa

August 9, 2012 in Constitutional Law, Development, Federal Government, Historic Preservation, History, Local Government, Property, Real Estate Transactions, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, July 30, 2012

Salkin on the Quiet Revolution and Federalism

Patricia Salkin (Touro Law Center) has posted The Quiet Revolution and Federalism: Into the Future, 45 John Marshall Law Review (2012).  The abstract:

This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local land use across three time periods: first, that which existed before the publication of THE QUIET REVOLUTION; second, legislation that emerged a quarter century after the publication of THE QUIET REVOLUTION; and third, more recent federal programmatic and legislative approaches. Part IV provides analysis of the future of federalism in land use regulation, noting the increasing trend of the federal programmatic influence and the potential future influence on local land use controls. The Article concludes with a warning to local governments to be vigilant and to rethink the paradigm of land use regulation to regain control in certain areas to prevent further encroachment by the federal government into matters of local concern.

This article comes from last year's excellent Kratovil Conference retrospective on The Quiet Revolution in Land Use Control (David Callies & Fred Bosselman (Council on Environmental Quality, 1971)), hosted by John Marshall Law School in Chicago.

Matt Festa

July 30, 2012 in Federal Government, History, Local Government, RLUIPA, Scholarship, State Government, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 25, 2012

Piekielek and Hansen on Land Use Near National Parks

The authors study land use near national parks and how those land uses affect biodiversity in the parks. The article is helpful for its results but also the methodology of studying and comparing land uses.

Extent of fragmentation of coarse-scale habitats in and around U.S. National Parks by Nathan B. Piekielek, Andrew J. Hansen -- Biological Conservation, Volume 155 (2012)

U.S. National Park Service land managers face a variety of challenges to preserving the biodiversity in their parks. A principle challenge is to minimize the impacts of surrounding land use on park condition and biodiversity. In the absence of ideal sets of data and models, the present study develops methods and results that demonstrate a coarse-filter approach to understanding the effects of land use change on habitat types for four pilot study-areas. The area of analysis for each park is defined by a protected-area-centered-ecosystem. Habitat types were defined by biophysical factors assumed to represent the distribution of vegetation communities as they may have existed prior to European settlement.

Present-day land use was overlaid on historical habitat and change in area and pattern was quantified for private and public lands separately. Results suggest that patterns of development are affecting study-areas differently. Therefore, the conservation challenges faced by each study-area are distinct to their landscape contexts. For some parks, the primary challenge is to work towards maintaining ecosystem condition in its present or near-present state while paying particular attention to habitats that are underrepresented on public lands. For other parks, the challenge is to address spatially aggregated land use that is affecting only a few habitat types. For still other parks, the challenge is to maintain connectivity with a regional network of protected lands and to undertake restoration projects where feasible. The present methods and results help to focus conservation attention on habitats that have been most impacted by land use change.

Jessie Owley

July 25, 2012 in Environmental Law, Federal Government, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 24, 2012

Land Use Profs Present at Harvard/Stanford/Yale Junior Faculty Forum

Over at Property Prof, Steve Clowney gave well-deserved kudos to two property professors who were selected to present their papers at the prestigious Harvard/Stanford/Yale Junior Faculty Forum this summer. 

I should add, though, that these two rising stars are not just property profs, but land use profs in their teaching and research.  Our own Land Use Prof blogger Ken Stahl (Chapman) presented his very interesting paper Local Government, One Person/One Vote, and the Jewish Question, and Ashira Ostrow (Hofstra) presented her forthcoming article Land Law Federalism

Congrats to both, and way to represent those of us in the property and land use junior ranks!

Matt Festa

July 24, 2012 in Conferences, Federal Government, Local Government, Politics, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 23, 2012

Disputes over Westchester Housing Settlement Continue

    Westchester County's protracted battle with HUD over the implementation of a 2009 lawsuit continues.  By way of background, the case, United States ex rel Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, was brought as a qui tam action under the False Claims Act, alleging that the county, through certifications made to HUD to receive Community Development Block Grant funds, falsely certified that it fulfilled its obligation to "affirmatively further fair housing."  The Anti-Discrimination Center (ADC), which brought the case, claimed that Westchester failed to consider race-based impediments to housing choice and failed to identify and take steps to overcome these impediments, as required by law.  The DOJ intervened and negotiated a settlement on behalf of HUD.  The settlement requires Westchester to, among other things, spend $51.6 million to develop, primarily in municipalities with overwhelmingly white populations, at least 750 affordable housing units that affirmatively further fair housing.  The County also must affirmatively market the housing in surrounding areas with significant non-white populations.  The court appointed a monitor to oversee and facilitate implementation of the settlement. (In the interest of disclosure, through my work at the Furman Center, I provided technical assistance to the Monitor's team earlier in the process). 

    The County argues that it is complying with the settlement and is ahead of schedule in constructing the units.  However, the ADC has asserted, that the locations of these units so far, which are often isolated from the surrounding community, fail to further the settlement's underlying goal of desegregating housing patterns.  The County has responded that the cost and availability of land restrict the options available.  The County Executive, who was elected after the settlement was reached (and has repeatedly said he would not have signed it), contends that HUD is overreaching, requiring the County to take actions beyond the terms of the settlement.  In May, the District Court ruled against the County, finding that it failed to comply with the settlement's requirements that it promote legislation prohibiting source-of-income discrimination.

        The most recent contentions focus on zoning issues and the County's compliance with a requirement that it conduct an "Analysis of Impediments" (AI), which examines barriers to fair housing choice.  HUD has withheld funding from the County, declaring the AIs it has filed fail to properly consider the impact of race on housing choice and whether local zoning regulation is exclusionary.  The County's AI concluded that no exclusionary housing existed in its municipalities.  Rather than revise that submission in response to the Monitor's list of deficiencies, the County refiled the same AI, accompanied by a legal analysis by the Land Use Law Center at Pace Law School, supporting its approach. 

The County argues that its review of local zoning followed the analysis of exclusionary zoning put forth by the NY Court of Appeals in Berenson v. New Castle, which requires that local zoning ordinances consider regional housing needs in developing a "properly balanced and well-ordered plan."  It concludes that all of the local ordinances consider regional needs and allow the development of multi-family housing and a range of uses and consequently are not exclusionary.  Therefore the County need not take any further steps to comply with the settlement's requirement that it use "all available means," including taking legal action, to address a municipality's action or inaction in promoting the settlement. 

HUD's response, and the next steps in this dispute, will raise interesting questions regarding the relationship between a County and its municipalities, the definition of exclusionary zoning and scope of judicial review of local zoning, and the courses of action available to HUD in challenging local zoning.  

John Infranca

 

July 23, 2012 in Affordable Housing, Federal Government, Housing, HUD, Local Government, Zoning | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 26, 2012

Ryan on Obamacare, Federalism, and . . . Land Use

No, this is not a lame attempt by me at expanding the bounds of the "what can't Festa turn into a land use issue" parlor game that I play in class, in order to reach the hot issue du jour.  Erin Ryan (Lewis & Clark) recently posted a fascinating essay on the Environmental Law Prof Blog about the potential effects of the ACA decision on federalism and, in turn, on land use and environmental issues.  From Obamacare and Federalism's Tug of War Within:

In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions.  And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal.  For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.

. . . .

In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms.

Read the whole thing for a good legal analysis that goes well beyond the immediate politics of the decision.  Professor Ryan has a new book on the subject called Federalism and the Tug of War Within

And, so yes, there is a land use angle to the Obamacare decisions.  But you already know that there's a land use angle to everything

Matt Festa

June 26, 2012 in Constitutional Law, Environmental Law, Federal Government, Local Government, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Thursday, May 31, 2012

Craig on the Clean Water Act, Climate Change, and Energy Production

Robin Kundis Craig (Utah) has posted The Clean Water Act, Climate Change, and Energy Production: A Call for Principled Flexibility Regarding 'Existing Uses,' forthcoming in the George Washington Journal of Energy & Environmental Law.  The abstract:

Numerous provisions of the Clean Water Act affect electricity generation, from potential siting restrictions that arise as a result of Section 404’s restrictions on discharges of dredged or fill material to effluent limitations that require power plants to cool their spent cooling water before returning it to streams, rivers, and lakes. This article focuses on two aspects of the Clean Water Act that directly raise — and, in a climate change era — will increasingly force — confrontations between electricity production, on the one hand, and water quality and aquatic ecosystem protections, on the other: (1) water quality standards, including both the Act’s antidegradation policy and states’ implementation of their standards through Section 401’s requirement that states certify federally-controlled discharges within their borders; and (2) Section 316’s requirement for cooling water intake protections, which — together with thermal discharge requirements to comply with water quality standards — is becoming increasingly important for thermoelectric plants.

After reviewing the history and import of the Clean Water Act for electricity production, this article discusses how climate change impacts on both water quality and electricity demand and production are likely to sharpen the perceived conflicts between the Act’s water quality requirements and goals and future energy policy. Applying the paradigm of principled flexibility, this article concludes that a key component of future energy and water quality policy should be the recognition that stationarity is dead on both sides of the equation — that is, while energy demands and production capability will be changing in response to climate change, so will aquatic ecosystems and the relevance of existing water quality standards. As a result, different kinds of decisions may be warranted for electricity production in and near aquatic ecosystems that climate change is fairly clearly destroying than for electricity production in and near aquatic ecosystems where strict enforcement of the Clean Water Act’s “existing use” requirements is likely to enhance the ecosystem’s ability to adapt to — and survive — climate change.

Matt Festa

May 31, 2012 in Climate, Environmental Law, Federal Government, Scholarship, Sustainability, Water | Permalink | Comments (0) | TrackBack (0)

Monday, May 28, 2012

Memorial Day

Memorial Day Houston National CemeteryToday was Memorial Day in the US.  There are lots of land use issues that we can associate with Memorial Day, which, stripped to its essence, is designed as a day to remember the military members who died in service to the nation.  There is the obvious land use issue of cemeteries, and the related legal and cultural norms governing how we memorialize the dead (check out any of the interesting blog posts or scholarship by Al Brophy and Tanya Marsh on cemeteries).  It gets even more relevant when we start talking about government-owned national or veterans' cemeteries, and the attendant controversies about First Amendment and other issues.  [The photo is from last year's Memorial Day ceremony at Houston National Cemetery, which my daughter attended to honor fallen Marine Lance Corporal Matthew Sauer Medlicott.]  Of course, there are always land use and local government issues involved with things like parades and public ceremonies, and in many communities there are specific rules that govern the "summer season" informally commenced on Memorial Day weekend.

For this post, though, I'll go back to the origins of the holiday.  Interestingly, it started as a private or quasi-public endeavor (perhaps like most civic affairs in the nineteenth century).  In the immediate aftermath of the American Civil War--and for much of the rest of the lives of the generations that fought it--Americans on both sides focused a great deal of attention on preserving its history and creating/controlling its public memory.  In 1868 General John Logan, head of the Union veterans' organization the Grand Army of the Republic (a private society with a great deal of government involvement), issued General Order No. 11, creating what became known as Decoration Day:

The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.

Even though this Decoration Day was only adopted in Union states until after World War I (when it was renamed Memorial Day and formally associated with all American wars), the former Confederate states had their own versions to remember the war dead at cemeteries and public venues.  And according to eminent Yale historian David Blight, the first Memorial Day celebration was performed in Charleston, SC, by newly-liberated blacks:

Thousands of black Charlestonians, most former slaves, remained in the city and conducted a series of commemorations to declare their sense of the meaning of the war. The largest of these events, and unknown until some extraordinary luck in my recent research, took place on May 1, 1865. During the final year of the war, the Confederates had converted the planters' horse track, the Washington Race Course and Jockey Club, into an outdoor prison. Union soldiers were kept in horrible conditions in the interior of the track; at least 257 died of exposure and disease and were hastily buried in a mass grave behind the grandstand. Some twenty-eight black workmen went to the site, re-buried the Union dead properly, and built a high fence around the cemetery. They whitewashed the fence and built an archway over an entrance on which they inscribed the words, "Martyrs of the Race Course" . . . . Then, black Charlestonians in cooperation with white missionaries and teachers, staged an unforgettable parade of 10,000 people on the slaveholders' race course. The symbolic power of the low-country planter aristocracy's horse track (where they had displayed their wealth, leisure, and influence) was not lost on the freedpeople.

Anyone interested in the contested history of these issues--with full attention to the negative aspects as well--should read the magnificent book by Prof. Blight (with a name like that, it's a shame he didn't go into land use!), Race and Reunion: The Civil War in American Memory.  And a related part of this history, along with the Decoration/Memorial Day commemorations, was the incipient historic preservation movement.  This confluence of impulses, as well as the also-new movement for environmental conservation, led to the novel idea of having the federal government acquire and administer large tracts of land for the purpose of preserving Civil War history.  As noted in the fascinating monograph by the late National Park Service Historian Ronald F. Lee, The Origin & Evolution of the National Military Park Idea, this was a new and not-uncontroversial exercise of government power over land use:

The idea of the Nation acquiring an entire battlefield and preserving it for historical purposes was new in 1890. It is therefore not surprising that it soon engendered a serious controversy, which arose, fittingly enough, at Gettysburg. The controversy involved two questions of fundamental importance to the future of historic preservation by the Federal Government. Is preserving and marking the site of an historic battlefield a public purpose and use? If so, is it a purpose for which Congress may authorize acquisition of the necessary land by power of eminent domain? The circumstances of this dispute, which had to be settled by the Supreme Court of the United States, are of unusual interest and provide an appropriate introduction to our story.

Lee describes the case, United States v. Gettysburg Electric Ry. Co., 160 U.S. 668 (1896), in the on-line version of the book provided by the NPS.  The case was brought by a railway which objected to the federal government's use of eminent domain to condemn their right of way for construction of a railway to take tourists to the significant "Devil's Den" area of the battlefield, "claiming that establishment of Gettysburg National Park was not a public purpose within the meaning of earlier legislation and that 'preserving lines of battle' and 'properly marking with tablets the positions occupied' were not public uses which permitted the condemnation of private property by the United States."  [What a long way from Kelo that was!]  Justice Rufus Peckham wrote for the unanimous majority in upholding the taking for preservation purposes (and not simply because members of the public could visit the park):

Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the constitution for the purpose of protecting and preserving the whole country.

The Court thus established the constitutionality of taking land by the federal government for national parks, and struck an important legal blow for historic preservation generally.

So from cemeteries to public memory to national parks and historic preservation and much more, Memorial Day is tied to land use law in many ways.  I hope that our US readers have had a good one, and with remembrance for those whom the holiday commends.

Matt Festa

May 28, 2012 in Caselaw, Constitutional Law, Eminent Domain, Environmentalism, Federal Government, First Amendment, Historic Preservation, History, Houston, Politics, Property Rights, Race, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Saturday, May 26, 2012

Stevenson & Eckhart on Standing as Channeling in the Administrative State

My colleague Drury D. Stevenson (South Texas) and Sonny Eckhart (JD, South Texas) have posted Standing as Channeling in the Administrative State, forthcoming in the Boston College Law Review, Vol. 53 (2012).  The abstract:

For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing.

This Article takes the suggestion a step further, and argues that Congress has implicitly delegated the matter to the administrative agencies with primary enforcement authority over the subject matter. Courts regularly allow agencies to fill gaps in their respective statutes, meaning congressional silence on a point often constitutes discretionary leeway for the agency charged with implementation of the statute. Agencies already have explicit statutory authority to preempt citizen suits or define violations for which parties may sue. The existing statutory framework therefore suggests agencies could promulgate rules for the injury-in-fact and causation prongs of standing in citizen suits. Moreover, agencies have an advantage over courts in terms of expertise about the harms involved and which suits best represent the public interest. On the more delicate question of citizen suits against agencies themselves, agencies could default to the “special solicitude for states” rule illustrated in Massachusetts v. EPA. Finally, this Article explains how standing can function as a beneficial channeling tool rather than an awkward screening device, by allowing agencies to align citizen suits more closely with the larger public interest and established policy goals.

The article's administrative-law approach would have special significance for environmental and land use issues, as evidenced by its discussions of American Electric Power v. Connecticut and Massachusetts v. EPA, and the fact that environmental issues are an important subject-matter source of citizen suits. 

You should really check out Dru Stevenson's excellent Privatization Blog, which follows a lot of important land use issues in state & local government, including the privatization of schools, prisons, and other local services.  And some of you may remember Sonny Eckhart's guest-post here last year on a development in the Severance case. 

Matt Festa

May 26, 2012 in Constitutional Law, Environmental Law, Environmentalism, Federal Government, Local Government, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Thursday, May 24, 2012

Nolon on Regulatory Takings, Property Rights, and Sea Level Rise

John R. Nolon (Pace) has posted Regulatory Takings and Property Rights Confront Sea Level Rise: How Do They Roll.  The abstract:

Under the Beach and Shore Preservation Act, the State of Florida is authorized to conduct extraordinarily expensive beach renourishment projects to restore damaged coastal properties. The statute advances the State’s interest in repairing the damage to the coastal ecosystem and economy caused by hurricanes, high winds, and storm surges. The effect of a renourishment project conducted under the statute is to fix the legal boundary of the littoral property owner at an Erosion Control Line. Plaintiffs in Walton County v. Stop the Beach Renourishment, Inc. claimed that the statute took their common law property rights to their boundary, which would, but for the Act, move gradually landward or seaward, maintaining contact with the water. The Florida Supreme Court disagreed and the U.S. Supreme Court granted certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection to determine whether the state court reinterpreted Florida’s common law as a pretext for upholding the statute against the plaintiffs’ taking claim and, if so, whether that reinterpretation constituted a “judicial taking.” The Court ultimately decided that the Florida court’s interpretation was correct and that there was no regulatory taking. A majority of the Court could not agree as to whether a state court’s interpretation of state common law could constitute a “judicial taking.”

This article discusses greenhouse gas emissions, global warming, sea level rise, and the ferocity of coastal storms associated with climate change. It explores the tension between these movements in nature and the policy of the State of Florida to fix property boundaries, which under common law would move landward as sea level rises. The property rights and title to land of littoral landowners are described and the effect of the Beach and Shore Preservation Act on them discussed. The article contrasts the Florida coastal policy regarding beach and shore protection with the policies and programs of federal, state, and local governments that use other approaches such as accommodating rolling easements, prohibiting shoreline armoring, requiring removal of buildings, purchasing development rights or the land itself, and imposing moratoria on rebuilding after storm events. These may be less expensive and more realistic approaches to long-term coastal erosion and avulsive events and the inevitability of sea level rise as the climate warms and worsens. The article concludes with a recommendation that the framework for federal, state, and local cooperation in coastal management be revisited and strengthened so that the critical resources and knowledge are brought to bear on this critical issue. It suggests that strengthening those ties, rather than radically restructuring the relationship between state and federal courts, is a more productive method of meeting the needs of a changing society.

This is the latest in a series of articles by Prof. Nolon addressing how local land use law can be used to manage climate change, including  The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change; Land Use for Energy Conservation: A Local Strategy for Climate Change Mitigation; and Managing Climate Change through Biological Sequestration: Open Space Law Redux.  The article also discusses Stop the Beach and our favorite Texas Open Beaches Act "rolling easement" case Severance v. Patterson, and offers some solutions toward an integrated federal-state-local framework for coastal management.

Matt Festa

May 24, 2012 in Beaches, Caselaw, Climate, Coastal Regulation, Conservation Easements, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Local Government, Property Rights, Scholarship, State Government, Supreme Court, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)

Sunday, May 20, 2012

Dod & Duhart on Evaluating Katrina

Eloisa C. Rodriguez-Dod and Olympia Duhart (Nova Southeastern) have posted Evaluating Katrina: A Snapshot of Renters’ Rights Following Disasters, Nova Law Review Vol. 31, p. 467.  The abstract:

Hurricane Katrina destroyed the homes of many people living in parts of the Gulf Region. The storm displaced as many as 800,000 victims and it is still difficult for them to return home. Consequently, many homeowners have turned to renting because of the slow recovery process. Renters face added difficulties; they are often the last in line for government benefits and other assistance. There is much hostility towards the rights of renters, creating even more difficulties for them.

This article focuses on the difficulties facing evacuee renters in New Orleans following the disaster. These renters face such obstacles as scarcity of land, increases in costs for repairs, higher insurance, infrastructure uncertainty, rental property inflation, uncertainty over flood protection, zoning restrictions, and criminalization. This article discusses legislation and attempted legislation impacting renters post Katrina. The article explores the increase in rent after disasters and a suggested control. It further discusses the manner in which criminal backgrounds determine rental options following disasters. Specifically, the article focuses on legislation limiting access to rentals and suggests, with the right legislation in place, New Orleans will be able to successfully rebuild its lower and middle income housing.

Matt Festa

May 20, 2012 in Coastal Regulation, Federal Government, History, Housing, Landlord-Tenant, Politics, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, May 7, 2012

Blumm & Wigington on the Oregon and California Railroad Grant Lands

Michael C. Blumm (Lewis & Clark) and Tim Wigington have posted The Oregon and California Railroad Grant Lands’ Sordid Past, Contentious Present, and Uncertain Future: A Century of Conflict, forthcoming at 40 Boston College Environmental Affairs Law Review No. 1 (2013).  The abstract:

This article examines the long, contentious history of the Oregon & California Land Grant that produced federal forest lands now managed by the Bureau of Land Management (“O&C lands”), including an analysis of how these lands re-vested to the federal government following decades of corruption and scandal, and the resulting congressional effort that created a management structure supporting local county governments through overharvesting the lands for a half-century. The article proceeds to trace the fate of O&C lands through the “spotted owl wars” of the 1990s, the ensuing Northwest Forest Plan (NWFP), the timber salvage rider of 1995, and the George W. Bush Administration’s unsuccessful attempts to change the compromise reached in the NWFP. The article then explains how decreases in timber harvesting and declines in federal payments have brought the counties reliant on these lands to the brink of bankruptcy, and analyzes two current legislative proposals aimed at increasing harvests on the O&C lands in order to bolster flagging county economies. The article concludes by identifying significant economic and environmental flaws in these proposals and suggests several alternative revenue-producing options that could provide economic security and diversity to the counties without eviscerating the key environmental protections provided by the NWFP and other federal environmental protection statutes.

The article looks like a fascinating interdisciplinary blend of law, policy, and history. 

Matt Festa

May 7, 2012 in Environmental Law, Federal Government, History, Politics, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 1, 2012

Happy May Day

It's May 1, 2012, and that means a few different things around the world.  Regular readers know that we like to do the occasional holiday-themed post on related land use issues, but this one needs to be disaggregated!

The original May Day celebrations were pagan rituals throughout Europe, particularly in Celtic, Germanic, and other Northern European societies.  These tended to focus on the traditional spring/early summer themes of rebirth and fecundity, with venerations of the deities of earth and flowers and so on.  As Christianity spread, the Church tended to co-opt these pagan celebrations, which continued the tradition of Maypoles and public festivities.  This tradition obviously relates to land use in its focus on the renewal of the earth and its bounty going into the new summer.

Then in the late nineteenth and early twentieth centuries, May Day became a nearly universal labor holiday known as International Workers Day, as well as a day that became associated with socialism and communism.  Because the American Labor Day is not until September, I always assumed that this must have some European or Soviet origin.  But my exhaustive Wikipedia-based research for this post led me to realize that May 1 as International Workers Day originated right here in the U.S. of A., thanks to the 1886 Haymarket Riots in Chicago, where police fired shots into the crowd at a worker's strike after a bomb exploded.  This galvanized the interational labor movement, which led the Second International to declare May 1 as International Workers Day in 1889.  In fact, the reason the American Labor Day is set in September seems to have been a desire to disassociate it with the Haymarket anniversary.  Any time we're talking about riots, strikes, public demonstrations, or urban politics, there is always a host of land use issues involved.

The theme of May 1 as an international labor day has led some of the Occupy Movement to plan to Occupy May 1 to urge a general strike and as a chance to relaunch their protest movement in cities around the world.  The Occupy Movement deserves some further study for the interesting land use issues it presents, both in terms of its attempts to, well, "occupy" public and private spaces in cities, and also for its organization of those spaces-- I have heard from more than one observer that in some of the Occupy encampments they have instituted an informal sort of zoning apparatus.  At this hour it seems that the Occupy May Day affairs have been generally peaceful

Another prominent commemoration of May 1 in the U.S. comes with Law Day.  While not widely known outside the legal profession, bar associations across the land have programs to celebrate and educate members on the importance of law (e.g., today I went to the local bar's Law Day banquet to recognize a major award earned by one of my students).  Land use law being a field of growing importance in the profession, it goes without saying that any commemoration of law generally should include a nod to those who practice land use law in our communities.  I had thought that Law Day was mostly an inside-baseball event for lawyers and bar organizations, but again (thanks to Wikipedia) I just learned that the origin of Law Day was really an anti-communist maneuver.  In response to the growing importance of May 1 in the communist and particularly the Soviet sphere (think back to parades of tanks and nuclear missiles down the central square), President Eisenhower declared the first Law Day as a celebration of the rule of law and its critical importance to democracy and civilization.  The commemoration of Law Day is codified at 36 U.S.C. 113.

So whether you celebrate May 1 for it's pagan/Christian celebration of earthly renewal; it's relevance to the international labor movement and urban politics; or for it's commemoration of the importance of the rule of law in society, May Day has an important relationship with land use.  The last use of the term "Mayday," as a distress signal, comes not from the first day of this month, but rather from the French venez m'aider (come help me).  The only academic connection I can think of from that usage, however, is that it is perhaps being muttered right now by the students who are taking my exam tomorrow.

Matt Festa

May 1, 2012 in Agriculture, Federal Government, History, Humorous | Permalink | Comments (0) | TrackBack (0)

Monday, April 30, 2012

Carlson on Priceless Property

Kirsten Matoy Carlson (Wayne State) has posted Priceless Property, forthcoming in the Georgia State University Law Review.  The abstract:

In 2011, the poorest Indians in the United States refused to accept over $1 billion dollars from the United States government. They reiterated their long held belief that money – even $1.3 billion dollars – could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected over $1 billion dollars in compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless by studying the formation of the Black Hills claim. It constructs a new, richer approach to understanding dispute formation by combining narrative analysis with the sociolegal framework for explaining dispute formation. The article argues that narratives enrich the naming, claiming, and blaming stages of dispute creation and illustrates the usefulness of this new approach through a case study of the Black Hills claim. It uses the autobiographical work of an ordinary Sioux woman to provide a narrative lens to the creation of the Sioux claim to the Black Hills. American Indian Stories by Zitkala-Sa presents a narrative of Sioux life around the time of the claims emergence. By contextualizing and humanizing the claim, my analysis provides insights into why the Sioux claim to the Black Hills emerged into a legal dispute and helps to explain why the Black Hills remain priceless property to the Sioux Nation today.

This article employs more of a law-and-humanities approach focusing on social and historical context and personal stories, which I think makes it an interesting read.

Matt Festa

April 30, 2012 in Constitutional Law, Federal Government, History, Property, Property Rights, Race, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 25, 2012

A Post-Public-Lands West?

As a person whose academic focus is on the regulation of private lands, I suffer from something of an existential dilemma. I grew up in Idaho, now live and teach in Idaho, and understand myself as a westerner. But to the extent that the western United States possesses any unique, defining characteristic that might distinguish it – or its people – from other regions of the country, it must be the public lands. I believe that the land shapes us as individuals as much as we shape the land. And so as westerners, we are shaped by the National Forests, National Parks, and BLM lands that make up the public lands more so than any other lands.


But is that still the case? Are westerners still defined – if we ever were  – based on our placement in a public-lands landscape?


A few years ago I noticed, quite after the fact, that the Targhee National Forest had substantially revised its travel plan, reducing historic access to roads and trails. And it appeared that no one had complained. But just a decade earlier when the Targhee started closing old roads to protect Grizzly habitat, Teton County banned federal vehicles from its roads, Helen Chenoweth showed up with her posse to hold Congressional hearings, and a bomb showed up at the front door of the local Forest office. More recently, while using land ownership maps to place private land-use regulation in our public lands context, one of my students asked what all of the green on the map represented. Those are the National Forests, I said. Oh, he said, so what is the yellow? That’s the Bureau of Land Management.

He grew up in Idaho, where 22% of all land is managed by the BLM, and 62% in total managed by the federal government. He did not seem aware of that fact.

People define themselves through conflict, at least in the decision that there is something worth fighting about. So by investigating those conflicts we are investigating emerging cultural values. In considering contemporary western conflicts, we should ask whether the nature of those conflicts suggests that “western values” might have changed.

From a simple cartographic perspective, the West remains distinguishable from the rest of the country based on the substantial amounts of federal lands found there. But it is possible that the era has ended in which the West defines itself primarily – culturally, socially, and cartographically – by the presence of those public lands. Obviously, we can and should still care about those public spaces, but the West is now much more similar to the rest of the country, where the primary land-related concern for most residents is the use and regulation of their homes and towns. Comprehensive plans make the front page; forest plans do not. New subdivisions matter more than new timber harvests. And whether my street is plowed regularly is more significant than whether I can still drive on that old logging road. Local cultures and economies, and social conflicts, in this post-public-lands West originate in the same private lands uses and disputes that arise anywhere in the United States, and increasingly, anywhere in the world. The primary landscape in which western human-land relationships are realized is now more likely to be a private landscape than a public one—development, change, and conflict in the West’s private lands now describe, define, and determine the West’s personality more than the public lands that are increasingly foreign to the region’s residents.

So why does this matter? Wallace Stegner claimed that the West is the native home of hope, and that its true potential lies in finally creating a society to match the scenery. You can’t be a westerner without believing the first part. And perhaps you can’t be a westerner without disbelieving the second. That’s why a recognizing a post-public-lands West matters. Because we have to get past that disbelief, and it’s on our private lands where our homes, towns, relationships, and societies are built.

-- Jerry Long

April 25, 2012 in Federal Government | Permalink | Comments (1) | TrackBack (0)