February 21, 2013
Ngov on Selling Land and Religion
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.
February 12, 2013
Dispute over Yard Sign Destroys Fairfax HOA
A Virginia Homeowner's Assocation appears to have gone bankrupt due to litigation over its attempts to enforce its rules against a four-inch violation by a couple's Obama yard sign during the 2008 election. After four years, skyrocketing assessments, and hundreds of thousands of dollars in legal fees, the bankrupt HOA is considering selling off the central common area. From the Washington Post, Feud over sign could force Fairfax's Olde Belhaven to sell square.
Such HOA disputes are as suburban as cul-de-sacs and two-car garages, but few metastasize into legal battles that spend years in the courts, break legal ground and bankrupt the HOA.
Most damaging of all, though, was a move probably unprecedented in area neighborhood feuds: The common area that is the literal and metaphoric heart of Olde Belhaven was put up for sale last year to settle its debts. It appeared that “the square,” as some called the neighborhood, would no longer have a square.
“It destroyed our community,” Maria Farran said.
The litigation ranged from a challenge to the HOA's power to fine the owners, and a retaliation claim. It made some new law:
In 2010, a county judge sided with the Farrans on the fining issue. The case set a Virginia precedent that HOAs cannot claim powers, such as fining, that are not specifically laid out in their covenants.
You can read the whole article for a great description of the legal issues and the story. As HOAs trend toward more extensive sets of rules, and as not everyone buys in, you can probably finds examples of similar (if not quite so expensive) conflicts in communities around the country. And one thing that's common to both public and private regulation: when individual property rights clash with collective restrictions regarding people's homes, passions run high--even (especially?) when the stakes are as low as four inches on a political yard sign.
Thanks to Helen Jenkins for the pointer.
February 12, 2013 in Common Interest Communities, Constitutional Law, First Amendment, Homeowners Associations, Politics, Property Rights, State Government, Subdivision Regulations, Suburbs | Permalink | Comments (0) | TrackBack
February 01, 2013
Smith on the Law of Yards
I am on the lookout for interesting scholarship that might make appropriate extra-credit reading for my Land Use Planning students. Just in time for the aesthetic regulation and First Amendment sections of the course, I found that Jim Smith (Georgia) has recently posted The Law of Yards, 33 Ecology. Q 203 (2006). Here's the abstract:
Property law regimes have a significant impact on the ability of individuals to engage in freedom of expression. Some property rules advance freedom of expression, and other rules retard freedom of expression. This Article examines the inhibiting effects on expression of public land use regulations. The focus is on two types of aesthetic regulations: (1) landscape regulations, including weed ordinances, that regulate yards; and (2) architectural regulations that regulate the exterior appearance of houses. Such regulations sometimes go too far in curtailing a homeowner's freedom of expression. Property owners' expressive conduct should be recognized as “symbolic speech” under the First Amendment. The Supreme Court developed the symbolic speech doctrine in contexts other than land use, but the rationale for the doctrine supports its extension to aesthetically based land use regulations. The clearest case of protected speech is a homeowner's conduct that conveys a political message, such as a yard display that protests a decision made by a local government. Other conduct, however, that is nonpolitical in nature can convey a particularized message, and thus can merit First Amendment protection. Examples are a homeowner's decision to plant natural landscaping, motivated by ecological concerns, or to install a nativity scene at Christmas. A regulation that restricts an owner's protected speech is unconstitutional unless the government proves both that the regulation is narrowly tailored and that it protects a substantial public interest. If the public interest is solely based on the protection of aesthetic values, ordinarily it is not substantial enough to justify the restriction on speech. The government must come up with a plausible justification other than aesthetics to prevail. When the justification consists of an interest in addition to aesthetics, the balancing rules developed by the Supreme Court for symbolic speech should apply. If the regulation restricts expressive conduct, it may survive scrutiny only if it protects the community from conduct that causes significant economic or other non-aesthetic harm, while minimizing infringement on expression.
August 24, 2012
Mandelker book on Free Speech Law for On Premise Signs
Daniel R. Mandelker (Washington University) has published a new book on the important topic of sign regulation under the First Amendment: Free Speech Law for On Premise Signs (2012). Professor Mandelker's short summary:
The handbook explains the free speech law that determines how sign ordinances for on premise signs should be drafted. It first discusses the general free speech principles that apply, and next the free speech law that applies to different types of signs and the regulations that apply to these signs, such as height and setback requirements and design review.
Free Speech Law for On Premise Signs is available for free download at the United States Sign Council website, and also at Professor Mandelker's excellent website Land Use Law (the website--a companion to the Mandelker et al. Casebook, has a great collection of statutes, cases, scholarship, photos, and other resources for land use students and practitioners).
One of my most interesting teaching experiences was having a nontraditional student who was semi-retired from the billboard business; his experiences of the interaction between free speech law and sign regulation were what inspired him to go to law school. Free Speech Law for On Premise Signs, which explains these sophisticated legal concepts in a readable and practical way, will be very valuable to any planner, policymaker, or lawyer whose work brings them into this area.
August 04, 2012
Police Powers, Free Speech, and the Chick-fil-A Land Use Controversy
The Chick-fil-A land use controversy has mostly focused on freedom of speech, but I think there is a larger point about the police-power basis of land use regulation that has been overlooked. In the wake of the Chick-fil-A CEO's comments on gay marriage, and the subsequent statements of public officials in Chicago and Boston indicating their opposition to building new Chick-fil-A franchises in their jurisdictions, there seems to be a general agreement that it would be illegal to deny building rights on the basis of the CEO's speech. Ken Stahl and Stephen Miller have offered additional insights on the political, tax, and other potential motivations behind this controversy, with which I completely agree. In this post, I want to expand on Ken's point about a potential Fourteenth Amendment violation of basing a land use decision on "animus" against the owner, and to peel back the onion a little bit and consider what might be the primary legal basis to a challenge to such a land use denial.
The general agreement seems to focus on the First Amendment free speech issue. Eugene Volokh seems to have the definitive analysis that, whether or not one agrees with the CEO's opinions, it would be a First Amendment violation to deny a building permit on that basis (h/t Property Prof). Viewed through the general prism of free speech and the Bill of Rights, this is entirely correct, and is probably sufficient for the public understanding of the issue. As Prof. Volokh's caselaw indicates, there can be a First Amendment violation in denying a permit based on the property owner's speech. But I think that's actually a secondary issue when it comes down to hypothetical litigation here. What's really the primary issue, as I see it, is whether or not such a denial would be a violation of the police power itself.
The Chick-fil-A hypothetical permit denial does not on its face regulate speech: neither the CEO's personal remarks, nor the official speech of the corporation are being suppressed. While there is a colorable as-applied claim of retaliation through the land use process in this hypo, the way I see it is that the primary cause of action would be that the permit denial was a violation of the statutory zoning/regulatory power itself. In other words, Chick-fil-A would start by arguing that the city's denial of permission to build is not legitimately related to the purposes for which the state legislature granted the power to regulate.
The power of local governments to engage in planning, zoning, and building regulations comes from the police powers--the state legislature's plenary authority to regulate. The Standard State Zoning Enabling Act, promulgated by Secretary Hoover's Commerce Department in 1926, starts with the standard description of the police-power font of authority for all modern land use regulation, which is "[f]or the purpose of promoting health, safety, morals, or the general welfare of the community . . . ." This means that in theory, as long as there is a legitimate reason for regulating on those broad bases, a local government can be empowered to regulate land use in its political discretion. Therefore there is a "presumption of constitutionality" granted to land use regulations (see Mandelker & Tarlock 1992 for a nuanced analysis of the presumption in judicial review). Judicial review--again, in theory--has generally centered on whether the regulation itself (whether a use restriction, site requirement, etc.) is legitimately related to one of the police-power purposes. A classic Euclidean example would be restriction of industrial uses from a residential area, for health and safety purposes.
While the courts have given broad interpretation to the police power justifications of land use regulations, the outer limit is supposed to be--again, in theory--that the nature of the restriction is itself somehow related to the objective. What it can't be is an arbitrary and capricious restriction based on considerations outside the police power. It's very similar to the "rational basis" standard of scrutinty that all lawyers learn about in consitutional law.
The reason this is important is because the presumption of constitutionality usually holds, the police powers usually win, and "arbitrary and capricious" challenges to land use decisions are hard to prove and usually lose. Steve Clowney noted Matt Yglesias' insight that almost any seemingly-legitimate content-neutral reason could give a police-power justification to regulate despte ulterior motives (though I think his example of a Sunday-opening requirement isn't the best one--just about anything involving traffic, for example, would be much easier to justify), and this is obviously a longstanding issue in land use law. But if I were trying to prove that a negative land use decision was outside the bounds of the police power basis of government regulation, I couldn't ask for a better piece of evidence than a published statement by a City Alderman like this:
"Because of this man's ignorance, I will now be denying Chick-fil-A's permit to open a restaurant in the 1st Ward."
(emphasis added). In other words, the primary reason for the negative land use decision does not have anything to do with the actual use of the land itself, but instead is based primarily on the government official's opinion about the property owner's opinions about topics extraneous to the land use (again, the decision is not based on any discriminatory practice, or on speech taking place on the site). This may in fact be a decision that is not rationally related to the police power basis for regulation, and could be struck down for that reason alone. This is important because while the First Amendment angle that had dominated the discussion of the issue could apply "strict scrutiny" to the decision, this situation could be the much rarer case where a court could find a government decision to be arbitrary and capricous, and therefore to flunk the rational basis test itself. Which means that this is potentially much more than just a case of an individual right trumping the regulatory power; it means that the city didn't have the power to do it in the first place.
This way of looking at the controversy allows us to consider the larger issue of what are the outer bounds of legitimate land use regulation, in a way that we don't often get to see in the real world. I'm still no fan of the substance of the CEO's remarks on gay marriage, but as a land use specialist, I'm also very disturbed by what Ken identified as an attitude of "entitlement" to near-absolute discretion over land use decisions by government officials in informal systems such as Chicago's traditional "aldermanic privilege," which is apparently so ingrained that it can lead an elected official to say things like:
"You have the right to say what you want to say, but zoning is not a right."
Well, maybe not, but the latter certainly can't depend on what a government official thinks of the former. Zoning still has to comport with the rule of law.
July 30, 2012
The Politics of Chick Fil-A Bans
Matt has the legality of the various proposed Chick Fil-A bans covered. As numerous commentators have pointed out, prohibiting Chick Fil-A stores based on the opinions of the store's owner is flagrantly unconstitutional. While most commentators have focused on the First Amendment, I think Chik Fil-A has an equally strong legal argument under the Fourteenth Amendment given the Supreme Court's decision in Village of Willowbrook v. Olech, 528 U.S. 562 (2000): it is a violation of the equal protection clause to discriminate against a particular landowner due to "animus" against the landowner.
To me, the more interesting question is why city officials would propose something that is obviously unconstitutional (leaving aside the possibility that these officials are dumb, which is of course a legitimate possibility). In fact, if city officials really wanted to prevent Chick Fil-A from locating in their towns, the very worst thing they could have done is announce publicly their discriminatory animus toward the franchise. As land use folks have seen time and again, it's really easy for communities to exclude land uses they don't like (e.g., affordable housing) by citing vague concerns about traffic, noise, congestion, and so on. They rarely make the mistake of saying "we just don't want poor people living here." Now, because of what the various officials in Chicago, San Francisco, Boston, etc have said, it will only be harder to exclude Chick Fil-A even if the city has legitimate concerns about traffic, noise, etc because the inference of discriminatory animus will be so hard to shake. So why, to repeat my question, are city officials doing this? There are two possible answers, as I see it:
1) City officials see themselves as having nearly absolute power over zoning. Such a sense of entitlement may stem from a variety of sources: 1) city officials' authority is rarely challenged by repeat-player developers who would rather not anger city officials they may have to deal with again and again; 2) the news media rarely takes up zoning issues as causes celebre, and 3) courts are largely deferential toward local zoning practices. This sense of entitlement may be especially acute in Chicago, where the informal practice of "aldermanic privilege" essentially grants the alderman in each ward the unfettered right to dole out land use permissions.
This is the less likely of two alternatives, however.
2) City officials knew all along that what they were proposing was unconstitutional, and never had any serious intention of banning Chick Fil-A. The real reason for their strident statements: signalling that they are gay-friendly communities. Under the public choice model of local governance, cities are conceptualized as "firms" who compete for affluent residents and tax revenues. Richard Florida has provocatively argued that one of the greatest potential resources for cities are gay residents, who tend to have high disposable incomes and have had a history of revitalizing depressed neighborhoods in many urban areas. Thus, it makes sense that these cities would want to signal their friendliness toward gays, and it especially makes sense that once one city so signalled, others did the same to ensure that they're not seen as any less gay-friendly. In this sense, the proposed Chick Fil-A bans are very similar to then-mayor Gavin Newsom performing gay marriages in San Francisco in 2004 in flagrant violation of California law.
One footnote here: If I'm right, why did New York mayor Mike Bloomberg so forcefully diverge from these other big-city officials and declare that cities have no right to ban Chick Fil-A? Perhaps Bloomberg felt he already had sufficient credibility with gays that this was an unnecessary stunt. In addition, cities aren't just competing for gays but for business. Bloomberg's corporate instincts probably led him to conclude that potential investors in NY real estate might be deterred if the city started engaging in viewpoint-discrimination among different businesses. This shows the delicate tap-dance big city officials have to constantly engage in: give sufficient tribute to the liberal constituencies while not alienating big business.
July 28, 2012
Chick-fil-A, Gay Marriage, Constitutional Law, and Land Use
Even the culture wars often end up in a land use controversy. Over the past few days, public officials in Boston and Chicago made statements that Chick-fil-A restaurants would not be welcome in their jurisdictions because of the anti-gay-marriage opinions expressed by the company's CEO. According to the Wall Street Journal's Jack Nicas, one Chicago alderman went so far as to state that he would personally deny a permit solely on that basis. From First Amendment Trumps Critics of Chick-fil-A:
Chicago Alderman Proco Moreno wrote in the Chicago Tribune Thursday, "Because of [Mr. Cathy's] ignorance, I will deny Chick-fil-A a permit to open a restaurant in my ward."
I don't agree with the CEO's statements either, but it's pretty clear that, under the Constitution, his opinions can't legitimately be the basis for granting or denying land use permission. Cleveland State law prof Alan Weinstein put it best:
Alan Weinstein, a professor of law at Cleveland State University who specializes on the intersection of land-use law and constitutional issues, said he has seen officials try to use zoning laws to block adult stores or religious institutions, but never a commercial enterprise because of political views. He said that beyond the First Amendment, "in the land-use sphere, the government has no legitimate interest" in the political views of an applicant.
That last observation is key. Most of the commentary on this issue has revolved around the CEO's First Amendment rights. And it's true that free speech is one of the only areas where the courts will apply strict scrutiny to overturn government land use decisions. But as Prof. Weinstein notes, this question isn't even really about regulating actual speech on land; it's about the rational basis for land use regulation itself under the police powers.
From a pragmatic perspective, it's pretty easy to imagine a counterfactual scenario where an unpopular political opinion on the other side of the spectrum could likewise result in negative land use decisions under such a precedent. It appears that this constitutional reality is setting in, and the public officials are backtracking. Here's a video interview with the WSJ reporter:
I was one of the other "land use experts" who talked to the reporter, but Prof. Weinstein definitely said it best.
So to sum up: Many of us disagree with the Chick-fil-A CEO's opinions, but everyone seems to agree that it would be unconsitituional to prohibit the company's land use on that basis.
July 18, 2012
Murfreesboro Mosque Supporters Obtain US District Ct. TRO
It's been exactly a year since we last blogged about the siting of the mosque in Murfreesboro, Tenn. Last month, opponents of the mosque convinced a county judge to enjoin its construction by alleging that they were not given adequate notice of the zoning proceedings. Today, US District Court Todd Campbell granted the proponents an injunction based on RLUIPA to allow construction to proceed. The members of the local Muslim community were represented by the The Becket Fund for Religious Liberty. Here's a copy of the TRO.
June 19, 2012
Newsgathering in public forums: a personal encounter with the Daily Show
A couple weeks ago I had the opportunity to watch Daily Show “correspondent” Aasif Mandvi at work here in Boise. Apparently he was in Boise for a piece that recently aired on the Daily Show about a two-headed fish. No joke. The clip is here.
My interest in Mandvi, however, has nothing to do with the substance of his story (which is potentially blog-worthy another day), but how he went about some of his “reporting.” Namely, he did so by accosting me, my wife, and a lot of others, while we were trying to have lunch in outdoor seating along a street on one of the first beautiful spring days here. Here is how it went down: I’m eating my veggie burger, my wife is eating her salad, and out of the blue, Mandvi was in our faces, asking my wife where she worked, two television cameras behind him and rolling. When I asked him who he was, he refused to identify himself or state that he was with the Daily Show (I figured it out a few minutes later because, well, I watch the Daily Show). He aggressively asked me who I worked for, I said I’d tell him when he told me who he worked for, we went around a little like that, and eventually he left. We then watched Mandvi do this all up and down the street for about an hour. The basic approach is that Mandvi huddles with his crew, they pick out a victim, then they all charge the person at once with the cameras on. The goal, of course, is to elicit a remark that, when taken out of context, will be funny on the show and most likely show the person interviewed to be less than informed about the world. Any watcher of the Daily Show knows what I’m talking about (I admit, I’ve laughed at plenty of these “gotcha” moments). If not, watch the clip, and you’ll see what I mean. Apparently my confrontation with Mandvi was not deemed funny enough, as I am not in the clip, nor is my wife.
I did find myself reflecting back on Mandvi in action. I have always enjoyed the Daily Show, but that afternoon was one of those “when you see the sausage being made” moments. As my mind inevitably does, my mind turned to the law, and I wondered whether there was anything out there on situations like this. Could it really be that it’s okay for someone to badger an entire street for an hour, and then broadcast comments of those people out of context? Since Mandvi goes up to people with cameras rolling, there is no meaningful way to opt out of the “interview.” Can Mandvi really just take a person by surprise and broadcast it nationally? It just seemed bizarre to me. Could you really call what Mandvi was doing “newsgathering” and thus protected speech under the First Amendment?
Well, rather than working on the articles I am trying to write this summer, I found myself researching obscure aspects of the First Amendment. One interesting issue is whether what Mandvi does is “newsgathering” at all or, is the Daily Show just an entertainment product (i.e., what is the First Amendment standard for “truthiness”?). That question aside, it seems the best legal claims against what Mandvi is doing, if one were the litigious sort, would be one of the several privacy torts. However, my cursory review of these didn’t yield any cases that seemed particularly like a slam-dunk.
For a refresher on these torts, here are several of the most relevant. The Restatement (Second) of Torts § 652B defines the tort of “Intrusion Upon Seclusion” as:
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
The Restatement (Second) of Torts § 652C defines the tort of “Appropriation Of Name Or Likeness” as :
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.
The Restatement (Third) of Unfair Competition § 46 states:
One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability. . . .
As I say, my cursory review of these torts didn’t really seem to fit the situation. What did seem apropos was the following excerpt from Grant v. Esq., Inc., 367 F. Supp. 876, 884 (S.D.N.Y. 1973):
Taggart v. Wadleigh-Maurice, supra (3d Cir. September 21, 1973) presents an interesting illustration of the problem here involved. Plaintiff in that case had been an employee of a company which had contracted to provide portable latrines to the now famous Woodstock music festival. Plaintiff's job had been to empty the latrines. In the course of shooting film for their documentary “Woodstock”, defendant movie makers: (a) shot pictures of plaintiff going about his task; and (b) engaged him in conversation, producing comic effects which defendants included in their final product, to great critical acclaim. Plaintiff sued under § 51. In reversing a grant of summary judgment for defendant, the Third Circuit Court of Appeals found that an issue of fact was presented by the question whether plaintiff had been “drawn out as a performer” rather than merely “photographed as a participant in a newsworthy event”. Although the Court articulated the question in slightly different language, the message of Taggart appears to be that the First Amendment does not absolve movie companies-or publishers-from the obligation of paying their help. They are entitled to photograph newsworthy events, but they are not entitled to convert unsuspecting citizens into unpaid professional actors.
This analysis rang true to how I saw Mandvi work. In other words, if what Mandvi is doing is drawing people out as performers—singling them out in advance, not giving them fair warning, refusing to identify himself, trying to get them to say something dumb—rather than merely engaging the person on the street in a newsworthy event, then First Amendment protections may not apply. It’s an interesting question to me about the nature of public spaces and the media (and one I happen to have lived!) It seems especially relevant in this era obsessed with “reality,” and also especially for an enterprise like the Daily Show, which openly plays with the distinctions between news and entertainment. Our public forums increasingly have to address these issues of privacy when everywhere there are media outlets, and even You Tube-savvy individuals, looking to capture, and profit off of “reality.” How should the law respond, or should it?
May 29, 2012
New Lawsuit Challenges San Francisco Billboard Settlement
Most land use profs are familiar with Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), a U.S. Supreme Court case that helped to clarify the extent to which billboards could be regulated under the First Amendment. In the years following Metromedia, several cities have adopted billboard restrictions based on the case's holding, which generally allows for greater restrictions on offsite and commercial signage. Still, despite decades of case law on the subject, billboard regulation remains a relatively risky and controversial endeavor. A new lawsuit against the City of San Francisco is the latest example of cities' ongoing difficulty in restricting billboards.
In 2002, San Francisco voters passed Proposition G--a ballot measure later codified as City Planning Code Section 611 that severely restricts offsite commercial billboards within city limits. Earlier this month, the citizen group "San Francisco Beautiful" filed a complaint alleging that a settlement agreement between an outdoor advertising company and the City of San Francisco violated the provisions of Proposition G. According to local newpaper articles posted here and here, the settlement required Metro Fuel LLC, a billboard company, to remove several large billboards and pay $1.75 million in fines. However, the settlement also effectively forgave more than $5 million in other fines and allowed Metro Fuel to replace its decommissioned billboards with an even greater number of smaller signs.
In a new complaint filed in a California Superior Court, San Francisco Beautiful is alleging that the City's settlement violated Proposition G by allowing an overall increase in billboards. Assuming that Metro Fuel's aggregate square footage of signage is reduced under the settlement, should it matter that the company's actual number of signs is allowed to increase? This may be a worthwhile case for land use profs to follow in the coming months, particularly since most of us will be covering Metromedia in our courses again next year.
May 28, 2012
Today 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.
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
February 28, 2012
Infranca on a New Framework for Interpreting RLUIPA
John J. Infranca (Research Fellow, NYU Furman Center) has posted Institutional Free Exercise, Charitable Purposes, and Religious Land Use: A New Framework for Interpreting RLUIPA. The abstract:
The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects religious landowners from the imposition, through a land use regulation, of a substantial burden on religious exercise, absent a compelling interest. For purposes of RLUIPA, a religious landowner may be a person, or, as is more likely, an assembly or institution. This Article contends that courts and commentators have failed to consider the implications of the institutional identity of the vast majority of land use claimants under RLUIPA. As a result, courts frequently focus inappropriately on the substantial burden claims of individual adherents, rather than institutional claimants. The concept of institutional free exercise, as articulated in case law and legal scholarship, provides a framework for distinguishing between the religious exercise and substantial burdens of religious institutions and individual adherents and can aid in clarifying substantial burden doctrine. In addition, the treatment of religious and non-profit institutions in comparable land use contexts, particularly hardship claims under landmark laws, can help shape the evaluation of institutional substantial burden claims.
I propose that courts should distinguish between the substantial burden claims of “existing institutions,” those that have made use of a particular property for a period of time and seek to alter or expand their use, and “new institutions,” those seeking a parcel of land for their first location or seeking to obtain and use a new parcel of land. Existing institutions should receive protection akin to that provided by courts to existing uses under the “natural expansion doctrine.” Given their bonds with a specific location and community, certain land use restrictions will impose a substantial burden on their institutional religious exercise. In contrast, new institutions cannot claim the same degree of burden when denied the use of a particular parcel and their claims are adequately protected by other provisions of RLUIPA. Both new and existing institutions may have claims when the land use process itself, rather than the simple denial of a desired use, imposes a substantial burden, but those claims should be addressed through RLUIPA’s other provisions.
February 07, 2012
The Bizarro Mount Laurel Doctrine
How do you like the working title for my next law review article? In a recent decision, the New Jersey Supreme Court (of Mount Laurel fame) held that the first amendment does not necessarily require a particular municipality to provide access to adult businesses, as long as adult businesses can find adequate locations elsewhere in the metropolitan region --- even if the only accessible locations are across state lines. I call this the "bizarro" Mount Laurel doctrine because where Mount Laurel requires every municipality in New Jersey to accommodate its fair share of the regional need for a particular use (there, affordable housing rather than adult businesses,) under this reasoning municipalities do not need to accommodate their fair share provided that someone else in the region does. Several courts have used this bizarro logic to justify other forms of exclusionary zoning. Consider the Sixth Circuit's 1955 decision in Valley View v. Proffett, 221 F.2d 412 (6th Cir. 1955), regarding a zoning ordinance designed to maintain the exclusively residential character of a suburban village:
Traditional concepts of zoning envision a municipality as a self-contained community with its own residential, business and industrial areas. It is obvious that Valley View, Ohio, on the periphery of a large metropolitan center, is not such a self-contained community, but only an adventitious fragment of the economic and social whole. . . .The council of such a village should not be required to shut its eyes to the pattern of community life beyond the borders of the village itself . . . [but has the authority] to pass an ordinance preserving its residential character, so long as the business and industrial needs of its inhabitants are supplied by other accessible areas in the community at large.
The bizarro Mount Laurel doctrine seems suspiciously like a recipe for ghettoization. Those communities that have permitted land uses deemed undesirable by other communities, perhaps out of a willingness to absorb their fair share, will be branded as red-light districts or ghettos and become dumping grounds for undesirable uses, while those that have guarded their exclusiveness most zealously will get to continue doing so for no better reason than that they always have. City leaders will of course get the message that it's better to exclude everything than even try to be a good neighbor and accommodate your fair share. At least adult uses can lean on the first amendment for some protection. Where are advocates of affordable housing to turn? Obviously not to New Jersey governor Chris Christie, who has denounced the Mount Laurel decision as an "abomination" and is working hard to dismantle its legacy.
(Here's the court's opinion:Download A6610BoroughofSayrevillev35Club)
December 14, 2011
Bad Acronym: The Real Problem With RLUIPA
Some argue that the Religious Land Use and Institutionalized Persons Act (RLUIPA) is an unconstitutional establishment of religion. Others claim that it unduly restricts municipal land use authority. Still others wonder what constitutional authority Congress had to enact such a law. While these are important questions, this blog post argues that RLUIPA suffers from a far more serious defect that has so far been neglected in the legal scholarship: it has a really bad name. I mean, seriously, how do you even pronounce RLUIPA? Is is Ahrr-loopa? Uhrrr-loopa? Rah-loopa? All of these are equally plausible and, frankly, equally awful. For those of us who need to actually pronounce this acronym at least fifty times during a semester, it's a big problem.
So what to do? Some statutes with unwieldy names are simply called by the names of their sponsors. I like the Taft-Hartley Act myself (standing in for the acronymically challenged "Labor-Management Relations Act" or LMRA. "Lmoora?" OK, that's pretty bad too). RLUIPA, unfortunately, had six sponsors, and I'm afraid the Hatch-Daschell-Kennedy-Canady-Nadler-Edwards Act would be a bit of a mouthful. Other statutes are given cool nicknames -- the Comprehensive Environmental Response, Compensation and Liability Act is called "Superfund" (and let's be honest, even "CERCLA" isn't half as bad as RLUIPA.) I'm not sure there's an obvious nickname for RLUIPA though -- unless it's "the Establishment Act."
I invite your thoughts during this grading season about how to handle this pressing problem. One solution, of course, is to just do nothing. Maybe we should just embrace the fact that land use and environmental law are full of terrible acronyms. After all, we're the people who brought you such gems as PUDs, TPPs, CUPs, MURPs, SIDs, MUDs, and SMSAs, among others. On this list, RLUIPA is practically a beauty queen. Please feel free to leave a note with your favorite horrible land use acronym.
October 31, 2011
Occupy Athens Creates Controversy
We're having our own mini-controversy here in Athens over the Occupy Wall Street-related protests. The Occupy Athens protesters are stationed outside The Arch, known as the "front door" to the University. It's the entrance to the historic north quadrangle, and the main entrance from downtown Athens.
As outlined in this article from the local paper, the UGA police chief has been warning the protesters not to block The Arch or the stops leading up to it. I've passed this protest on foot and in my car several times, and while protesters have been standing on the steps and near the Arch, I've never had my way blocked, nor seen them block anyone else, but apparently there have been complaints. Now a UGA law professor has weighed in to say that the University is violating the protestors' free speech rights.
There have been arrests and violence at Occupy protests all over the country, mostly notably in Oakland. I doubt very much we'll see anything that dramatic here - we tend to be polite and quiet here in Athens, even in our protesting.
Jamie Baker Roskie
UPDATE: Some interesting parallels between the situation in Athens and controversy over Occupy London's site on the steps of St. Paul's Cathedral - as reported in The New York Times. The City of London Corporation is suing to have the encampment removed:
Last week, the corporation went to court to seek an order dismantling the St. Paul’s camp as a breach of the historic right of unimpeded access to the country’s “highways.” Though the St. Paul’s encampment is concentrated on the cathedral forecourt, a pedestrian area in normal times, a corporation executive, Michael Wellbank, overlooked the distinction. “Protest is an essential right in democracy, but a campaign on the highway is not,” he told reporters. “Encampment on a busy thoroughfare clearly impacts the rights of others.”
September 08, 2011
City of South Bend Enjoined by U.S. District Court from Transferring Land to Catholic HS
The South Bend Tribune reports that U.S. District Judge Robert Miller (NDIN) has granted a preliminary injunction sought by four local residents represented by the ACLU of Indiana. The plaintiffs object to the transfer of the former Family Dollar site, recently bought by the City for $1.2 M, to a local CDC that would turn it over to St. Joseph High School, a co-ed Catholic school which would use it for athletics and parking and had committed to accomodate requested public use for 10 years. (FD: my two older children recently began attending St. Joseph High School here in South Bend, shortly after I began my new post here at Notre Dame.) The local council had approved the acquisition and transfer on a 5-4 vote.
In the opinion, Judge Miller agrees with the plaintiffs that the transfer constitutes a direct subsidy to a religious institution in violation of the First Amendment's Establishment Clause. The Court distinguished recent school voucher program precedent by emphasizing that the below-market transfer by the City is not part of a program with religion-neutral criteria. To me, this point about the ad hoc nature of public-to-private land transfers makes the opinion an interesting land use case. It raises the question: Are religious institutions quarrantined from economic development land transfers even though (as the Court agrees) they are not from public benefits generally?
Related to this point is the nature of the endorsement of (a?) religion. With the qualification that I am not a First Amendment scholar, I did note that the Court found that the transfer violated the second prong of the Lemon test (you know, whether the action's primary effect is to advance/inhibit religion) Even though neither the City nor the plaintiffs thought the issue determinative, the Court disagreed. The Court implied in its ruling that the proposed transfer sends a message to adherents and non-adherents that they are insiders and outsiders respectively. Was that part-and-parcel of the Court's distinction between programmatic and ad hoc public subsidies?
I would be glad to hear from you. I will be following the developments with not-just-an-academic interest.
June 29, 2011
Test for Content-Neutrality
Content Based: Earlier this year, the Town of Cary was enjoined from enforcing its sign ordinance
against the sign pictured here. The District court held that the Town’s code was content based because certain categories of signs (holiday decorations, public art, signs for town events) are exempt from regulation because of their content. The plaintiff’s received $44,000+ in attorney’s fees and the town is now appealing.
Content Neutral: In contrast, the district court in Neighborhood Enterprises v. St. Louis found the zoning code for the City of St. Louis to be content neutral even though exceptions to the definition of “sign” include “works of art”. Here, the Missouri Eminent Domain Abuse Coalition displayed a 363 square foot sing which said,” End Eminent Domain Abuse” inside a red circle and slash.
I heard summaries of these cases as part of today’s APA 2011 Planning Law Review. During this webinar Dwight Merriam (VLS) summarized another first amendment case at the Supreme Court, Nevada Commission on Ethics v. Carrigan. This is an interesting recusal case, but not as exciting as the proposed construction of a Wal-Mart in the Town of St. Albans, Vermont. An issue currently at the Vermont Supreme Court is whether the Environmental Court erred in affirming the site plan of this Wal-Mart despite obvious conflicts of interest on the part of several development review board members. The alleged behavior of the board members is particularly surprising given other incidents by board members in this town with regard to the same proposal. In 2004, a board member wore a hat with the inscription “St. Albans Needs Wal-Mart.”
Here is some testimony we have used during ethics discussions at the beginning of the semester…
“In the deposition, he stated that he wore the hat because “[i]n America I thought it was a free country so I wore the hat” and that “I thought in America you could wear anything you wanted on your head at any time because it’s still a free country.” In answer to a request that he further explain his interrogatory answer that he chose to wear the hat for its historical significance, he stated: “Historical, historically because there’s a gentleman named Sam Walton had nothing in his pocket and he built himself an empire. I say the American dream came true to him. That’s the only reason I wore the hat. No other reason."”
May 28, 2011
Free Speech in Baltimore's Inner Harbor Festival Marketplace
Today's Baltimore Sun reports on an ongoing controversy over the rights of protestors to leaflet in Baltmore's Inner Harbor. The ACLU of Maryland sued the City over First Amendment rights on the promenade surrounding the harborside shops and restaurants. Eight years later, the parties are still negotiating over permitted activities on the Inner Harbor's " hidden patchwork of quasi-private and public spaces."
The article made me wonder what Jim Rouse, creator of this and many other open-air shopping malls called festival marketplaces, would have to say were he still alive. So much of his work in developing Columbia, Md. and the Enterprise Foundation was aimed at social inclusion. Yet, free speech controversies are not necessarily resolved by such singlemindedness.
May 23, 2011
Singer on Property Regulation as the Infrastructure of Democracy
In his most recently posted work, Property Law as the Infrastructure of Democracy, Joseph Singer (Harvard) confronts the libertarian notion that aggressive regulation of private property rights threatens individual freedom and democratic institutions. Here's the abstract:
It is commonly thought that if one is in favor of strong protection for property rights, liberty, and the free market, one must believe in a minimal state that limits "regulation." But if we pay attention to the history of property law, it becomes clear that all these things can only exist with a robust regulatory structure. Libertarian calls for small government fail to recognize that modern property rights came into existence because of laws that prohibited feudalism, slavery, caste status, and discriminatory barriers to entry to the marketplace. Modern statutes go beyond these foundational regulations to protect consumers by establishing minimum standards for market relationships. Property law (including consumer protection laws) functions as a private constitutional structure that shapes the contours of economic and social relationships; it is the infrastructure of democracy. Its core mission is to define the framework for a free and democratic society that treats each person with equal concern and respect.
This talk was the Fourth Wolf Family Lecture on the American Law of Real Property delivered April 4, 2011, at the University of Florida Fredric G. Levin College of Law and will be published in Powell on Real Property (Michael Allan Wolf ed., LexisNexis Matthew Bender).
April 04, 2011
The Final Four and Land Use in the Unzoned City
As many of you might be aware, the NCAA Men's Basketball Final Four has been this weekend in Houston, where I live and teach. As I write this, the championship game is set to tip off in about an hour in Reliant Stadium, about a mile from my home. So of course you must be thinking "how is Festa going to turn this into a land use issue?"
Already done, with my students' help. On the first day of the semester, to make the point that land use issues intersect with almost everything that goes on in our communities, I put up the home page of the Houston Chronicle and challenged them to explain the land use issues in a given story. The lead story was something about the then-upcoming Final Four. So here's some of what we came up with on the fly:
Land assembly--where did they get the land to build the stadium and the parking? It's next to the old Astrodome (you can see a corner of it in the picture), so I don't believe eminent domain was needed this time around, but you know that's always a big issue with new sports stadiums.
Use--the Reliant/Astrodome complex was just used up until about two weeks ago for one of the nation's largest Livestock Show & Rodeo events with accompanying carnival. It's impressive that they could retrofit for the Final Four so quickly.
Transportation--can people get there? Do the roads need to be widened, etc.? If so, who pays, and are there legal changes needed? Houston has a seven-year old light rail that goes from downtown through the Texas Medical Center to the stadium, and it's been quite busy the past weekend. Also, there've been lots of limos, helicopters, and blimps around town the last few days--where do they go?
Local government--the stadium is goverened not by the City of Houston, but by an independent quasi-public County Sports Authority. Plus the transportation is governed by a separate Metro agency. However a lot of coordination is necessary for big events like the Final Four.
Facilities--lots of people coming in from all over the country; where do they stay, etc. For example, I took a ULI-sponsored construction site tour about a year ago of the just-opened Embassy Suites downtown. The city's goal was to get a hotel opened in time for the Final Four, so there was a fairly complicated tax incentive scheme put in place that involved changing the law to provide an occupancy-tax break for new hotels sited in a particular space (and they say we don't have zoning based on use). The incentivized siting was between the light rail and the new Discovery Green park--where a lot of free concerts have been given as part of the festivities--and the downtown convention center, where the "Bracketown" official hoopla program was held. All of this is just a few blocks from where I teach at South Texas College of Law. Discovery Green is itself also a recently-built and critically acclaimed new urban park and public space. Finally, all of the planning and coordination that involves a city's hosting a big event requires lots of logistics, regulatory changes, and many many permit approvals, for things ranging from temporary buildings to new signs.
So my students and I think there are a lot of land use issues involved with having the Final Four in town, and it goes to show that even in the Unzoned City, there are many ways that land use gets regulated and controlled. It's been fun having all the activity in town, and . . . Go Butler!
UPDATE: It wasn't to be for the underdogs, so congrats to Connecticut. The photo above was taken by Natalie Festa at almost the exact time that the national championship game tipped off. "The Road Ends . . ." = land use metaphor? Tuesday is the women's championship--don't tell my fellow Texans that I'll be pulling for Notre Dame vs. A&M.
April 4, 2011 in Development, Downtown, First Amendment, Green Building, History, Houston, Humorous, Local Government, Planning, Politics, Property, Property Rights, Scholarship, Signs, Sun Belt, Teaching, Texas, Transportation, Urbanism | Permalink | Comments (0) | TrackBack