January 18, 2011
Connecticut vs. American Power
Kermit Lind just alerted me to a case the rest of you are probably already following, Connecticut vs. American Electric Power. Following is a synopsis from the Climate Change and Clean Technology Blog.
On December 6, 2010, the Supreme Court granted certiorari in American Electric Power Co. v. Connecticut, a federal nuisance case on appeal from the Second Circuit. Plaintiffs -- eight states, the City of New York and three non-profit land trusts -- seek abatement and reduction of greenhouse gas emissions from defendants, who include some of the United States’ largest electric utility companies. The Second Circuit ruled that: (1) the case did not present a non-justiciable political question, (2) the plaintiffs have standing, (3) the plaintiffs stated claims under the federal common law of nuisance, (4) the plaintiffs' claims are not displaced by the Clean Air Act ("CAA"), and, finally, (5) the Tennessee Valley Authority (“TVA”), a quasi-governmental defendant, is not immune from the suit. See Connecticut v. American Electric Power Co., 582 F.3d 309 (2nd Cir. 2009).
This is a case to watch out for during this Supreme Court term.
Read more here.
Jamie Baker Roskie
January 18, 2011 in Climate, Environmentalism, Federal Government, Industrial Regulation, Land Trust, Local Government, New York, Nuisance, Property Rights, State Government, Supreme Court | Permalink | Comments (0) | TrackBack
Price on the New Deal and the Federalization of the Mosquito
Polly J. Price (Emory) has posted Federalization of the Mosquito: Structural Innovation in the New Deal Administrative State, Emory Law Journal vol. 60 (2010). The abstract:
Malaria was a significant problem in the southern United States during the early decades of the twentieth century. Part of President Franklin D. Roosevelt’s New Deal focused on economic development of the South, with improvement of public health in that region as an integral part. This Article is a case study of increased federal public health efforts during the New Deal and World War II eras, which replaced some traditionally state and local areas of control. Efforts to "federalize" the mosquito encountered significant limitations, and never accomplished primary federal responsibility for the eradication of malaria. One federal agency in particular - the Office of Malaria Control in War Areas - institutionalized the federal response to malaria in the South during World War II. This assertion of wartime jurisdiction maintained only nominally the primacy of state authority.
The New Deal administrative state saw structural experimentation and innovation at a grand level; this Article’s study of federal efforts to combat malaria in the southern United States provides a good example. In one decade, federal efforts ranged from Works Progress Administration employment, experiments with scientific expertise within the Tennessee Valley Authority, federal intervention in civilian areas as a war strength rationale, and malaria control by federal appropriation. The most significant step resulted from reorganization of the New Deal administrative state under the Federal Security Agency, an independent agency of the U.S. government established pursuant to the Reorganization Act of 1939.
From a federalization perspective, a critical point is that the federal government initiated a malaria eradication effort with broad jurisdiction that helped reshape public perception of the federal government’s responsibilities. It did so under a "national security" mandate that blurred the distinction between domestic and international security, with an effect on the federal government’s regulatory power. But the federal government then withdrew from this wartime assertion of jurisdiction, leaving public health federalism largely unchanged.
The New Deal and of the rise of the administrative state had some significant land use stories that are not as well known as they should be.
December 15, 2010
Hirokawa & Gonzalez on Regulating Vacant Property
Another one from Keith H. Hirokawa (Albany), with Ira Gonzalez (JD Candidate, Loyola-New Orleans & former Chief of Operations/Code Enforcement, City of Miami): Regulating Vacant Property, from The Urban Lawyer, Vol. 42, No. 3, p. 647 (2010). The abstract:
Local governments have recently noted a correlation between the characteristics of neglected properties (e.g., unkempt yards, garbage accumulation, unsightly and dangerous structures) and the onslaught of neighborhood blight. Local governments have also noted the coincidence of unoccupied structures and property deterioration through lack of maintenance. Accordingly, local governments (in droves) have employed the police power to regulate property vacancy. In other words, to clamp down on blight, lawmakers are turning to regulation of non-use of real estate through vacant property regulatory programs.
Vacant property regulations may provide an efficient way for local governments to contain neighborhood deterioration. In a troubled real estate market, such efforts may also support the property owners' interests in the maintaining property values until market conditions improve. However, vacant property regulations pose special, perhaps unanticipated, problems for owners and neighborhoods. This article considers whether the current iterations of vacant property regulation may do more harm than good.
December 07, 2010
Supreme Court to Hear Case on Nuisance & Global Warming
The U.S. Supreme Court granted cert on Monday to hear American Electric Power Company, Inc. v. Connecticut. The case, on petition from the Second Circuit, was brought by several states against the entities they contend are the leading causers of global warming in the U.S. It hasn't gone to trial yet. What's significant about the case--both as a matter of legal theory and policy--is that the theory of the case is based on nuisance. Via SCOTUSblog, a statement of the issues:
Issue: (1) Whether states and private parties may seek emissions caps on utilities for their alleged contribution to global climate change; (2) whether a cause of action to cap carbon dioxide emissions can be implied under federal common law; and (3) whether claims seeking to cap carbon dioxide emissions based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct would be governed by “judicially discoverable and manageable standards” or could be resolved without “initial policy determination[s] of a kind clearly for nonjudicial discretion.” (Sotomayor, J., recused.)
Plain English Issue: Whether federal law allows states and private parties to sue utilities for contributing to global warming. (Sotomayor, J., recused.)
Again, what's implied in this issue statement is that the case is based on (federal) nuisance (common) law. You can read an analysis from Lyle Denniston on SCOTUSblog (scroll down a bit), and view the links to the briefs, orders, and amici at SCOTUSblog here. There are lots of conlaw and administrative law bigwigs and interest groups on both sides of what will likely be an important case.
July 10, 2010
Salkin & Kansler on Medical Marijuana Meets Land Use
Patricia E. Salkin (Albany) wrote to let us know that she and Zachary Kansler (Albany) have posted Medical Marijuana Meets Land Use: Can You Grow, Smoke, and Sell that Here? The abstract:
June 24, 2010
Kermit Lind on Cleveland Housing Code Enforcement
From Kermit Lind of Cleveland State:
The Court issued the following statement on its web site:
“In these two cases, the Court imposed fines on the Defendants for extended and extensive violations of the City’s codes. The Court analyzed in depth the aggravating and mitigating factors and found no basis, at this time, for mitigation of the fines. Defendants are related, out-of-state, for-profit corporations in the business of buying and selling real estate. The Court discussed at length the impact that neglected properties have on the city and the harm caused by investors who neglect properties and shift the costs of nuisance abatement to the City’s taxpayers. Among
the factors the Court found aggravating were Defendants’ ongoing failures to correct violations and their “offer” to the City of a sum insufficient to cover even the outstanding demolition costs and unpaid taxes on the properties. The Court imposed total fines of $11,948,000 on Interstate Investment Group and $1,059,000 on Paramount Land Holdings, LLC.”
The Court’s decision sends a message to those presuming that compliance with local building and housing ordinances that protect the public health, safety and welfare is not required of those who own housing for business purposes. In Cleveland, banks and bulk purchasers of bank real estate owned (REO) properties have claimed in legal proceedings that municipal laws do not apply to them when it conflicts with their business interests in holding title to real property.
The Court also scolded City Prosecutors for weak prosecution in the sentencing phase of these cases. It calculated the small costs to chronically lawless investor-owners of violating in rejecting the prosecution’s proposed sentences. Judge Pianka’s judgment also stated the Court’s now familiar policy of sentencing for compliance over punishment. That policy mitigates fines where the guilty homeowners abate or pay the costs of abating nuisance conditions.
With the new Cuyahoga County Land Reutilization Corporation now in operation as an advanced capacity land bank, some banks and other absentee commercial owners of residential properties, including Fannie Mae, are looking to it for help in disposing of unmarketable houses.
The Court’s web site is http://www.clevelandhousingcourt.org/hc_rd_m.html.
Jamie Baker Roskie
May 19, 2010
Thomas on the Public Forum Doctrine
David A. Thomas (Brigham Young University) has posted Whither the Public Forum Doctrine: Has this Creature of Courts Outlived its Usefulness?, from Real Property, Probate and Trust Law Journal, Vol. 44, pp. 637-743 (Winter 2010). The abstract:
March 25, 2010
I Am the Crazy Neighbor
As I mentioned in my previous post, one of the latest dramas in my life is a ginormous pile of dirt that a developer recently dumped on three residential lots around the corner from my house. The dirt originally came from a massive, at least by Athens standards, excavation of about 75,000 cubic yards of dirt for the basement of the new Special Collections library here at UGA. Fill dirt was once quite a commodity when the housing market was hot, but now, according to a friend of mine who's a commercial contractor, you can't give the stuff away. Or, apparently, you can, to a developer who will then store it in some lots where he maybe has plans, sometime in the future, to build on the lots.
The problem is that he hasn't drawn up any plans, nor does he have any engineering drawings to show how to accommodate between 1,000 and 2,000 cubic yards (about 100-200 tandem dump truck loads) of dirt on the property. We got wise to the problem one morning earlier this month when we heard the sounds of diesel engines idling, and dump truck after dump truck banging as it emptied its load.
Now we get to the part where I'm the crazy neighbor lady. I went away for Spring Break, hoping that my neighbors would be able to stop this madness by calling in the county enforcement folks. However, apparently dumping continued unabated for at least 3 days. When I returned to town the pile had grown to its current size. I then read a column in our local weekly about the great Special Collections library project. While I agree about the coolness of the SC library, I felt like the folks at the magazine should know about its shadow side. So, I e-mailed the columnist and, while I was at it, the on campus newspaper and the local daily. The campus newspaper, the Red and Black, ran the story (see first link above). It turns out that the Atlanta TV stations read the R&B, and next thing I knew I was getting calls from television reporters. They were really interested in our giant dirt pile! I was surprised, but I agreed to give them interviews. While they were out, they got the developer on tape too and ran the story. (Visit this link on the law school's website to see most of the media coverage - thanks to the law school's public relations staff for pulling that together.)
The next day I was a local celebrity, and not in a totally good way. My favorite reaction was from a university staffer in my husband's building who, not realizing my husband was related to me, told him, "That land use lady needs to find something to do!" (When a co-worker of my husband brought our relationship to the staffer's attention, he was apologetic and chagrined. I just think it's funny!)
I've worked all sides of the development game in my career, including representing developers and neighbors. I figure it was inevitable I would turn out to be the cranky neighbor myself. I've started calling myself the queen of the dirt pile.
The local weekly, the Flagpole, has the most interesting take on the story. Their City Editor, Dave Marr, ran a good column that explains our confusion about how the developer seems to have threaded multiple loopholes in the code.
I've got some great folks in the neighborhood working with me, including a couple of experts on soil and erosion and a civil engineer. A local commissioner pulled together a good meeting with county staff yesterday and we're working toward a solution. In the meantime, I'm trying to catch up on my work and get ready for UGA's annual Red Clay conference on environmental issues. I'm moderating a panel on Georgia's water rights problems called "Is Atlanta Really the 800 Pound Gorilla?"
Jamie Baker Roskie
UPDATE: The latest from the UGA student newspaper on the controversy.
UPDATE TWO: The dirt pile now has its own website.
March 16, 2010
Smith & Fernandez on Aesthetic Nuisance
George P. Smith II (Catholic) and Griffin W. Fernandez have posted The Price of Beauty: An Economic Approach to Aesthetic Nuisance, Harvard Environmental Law Review, Vol. 15, No. 1, p. 1991. The abstract:
This Article advocates a wider judicial recognition of nuisance actions based on aesthetic considerations. Contrary to the majority of legal opinion to the contrary, it is argued that a right to enjoy property should include a right to be free from non-invasive aesthetic or visual nuisances. With modern real estate appraisal methods making it possible to express community aesthetic preferences in monetary terms, courts are now no longer prevented from using these tools in assessing injuries to real estate. Thus, determinations of aesthetic nuisance actions are not any more subjective than the current task of courts in the context of aural and olfactory nuisance disputes. Indeed, the judiciary should resolve conflicts emanating from the unaesthetic uses of land through the Restatement of Torts “objective” balancing test in order to determine what, according to prevailing community standards, is reasonable under the circumstances.
The expanded popularity of aesthetic zoning in many municipalities demonstrates anew the social value of aesthetics and thereby illustrates with clarity a very conscious relationship which exists between economic development and American nuisance law. Judicial recognition of police powers to enforce zoning regulations of this order contradicts - clearly - the heretofore seen reluctance of the Common Law to confront aesthetics in the realm of nuisance and thus invites a more contemporary and enlightened judicial response to this legal issue.
February 04, 2010
Nuisance Law and the Mortgage Crisis
I'm just now getting around to posting a link sent to me by Kermit Lind from Cleveland State's Urban Development Law Clinic. The page contains materials from their (fairly) recent Public Nuisance CLE. Professor Lind hopes this information will be helpful to others engaged in nuisance abatement and code enforcement in the context of the mortgage crisis. CSU's clinic has done a lot of interesting an innovative work in the context of a contracting urban center. I hope we'll be able to persuade Prof. Lind and his colleague Professor Carol Heyward to share more about their work.
Jamie Baker Roskie
May the bells toll . . . in Phoenix?
There seems to be a big church-state land use battle brewing in Arizona. From the Arizona Republic story Court hears arguments over church bell in Phoenix:
The arguing over the silencing of church bells grew louder in two Phoenix courtrooms on Monday.
The legal conflict centers on a church in north Phoenix. In 2008, it started to ring its bells 13 times a day, seven days a week, to the annoyance of its neighbors.
In May 2009 Phoenix Municipal Court Judge Lori Metcalf told the church, Cathedral of Christ the King, to pipe down.
The bells could ring, she said, but only once a week on Sunday morning.
She also found the church's leader, Bishop Rick Painter, guilty on two counts of disturbing the peace. He received a 10-day suspended sentence and three years' probation.
On Monday morning, a national Christian legal group, the Alliance Defense Fund, argued in U.S. District Court that the Phoenix noise ordinance is overly vague and unconstitutional.
The legal conflict centers around a city noise ordinance. The language of the Phoenix noise ordinance isn't at all uncommon, and is based on nuisance theory. In the "Nuisance and Noise" section, the Phoenix City Code sec. 23-12 reads:
"Subject to the provisions of this article the creating of any unreasonably loud, disturbing and unnecessary noise within the limits of the City is hereby prohibited."
Is the ordinance unconstitutionally vague? Does targeting church bells infringe on First Amendment free exercise, or RLUIPA? It's a generally-applicable rule, but the text certainly gives a wide berth of discretion to local government officials to make enforcement decisions under the "reasonableness" standard. Too much discretion, or necessary flexibility? That's the classic land use regulation debate, and the religious land use cases tend to bring this point out.
Either way, though, sentencing a bishop to (suspended) jail time in pursuit of nuisance code enforcement is pretty hard core. The battle is joined and it looks to be an interesting federal case.
UPDATE: Erik Stanley, the ADF attorney for the churches cited in the article, has a post in the comments section.
January 29, 2010
Newsweek on-line has the article "An Unquiet Nation" The subtitle is "Audio ecologist Gordon Hempton talks about America's vanishing quiet spaces, and how our lives can be helped by listening to the silence." Hempton has traveled the world looking for silent places, and he's finding fewer and fewer. In 2007 there were only 3 places left with 15 minute intervals of silence, one of which is in Olympic National Park in Washington state. The primary problem is air travel, which is not a land use problem per se.
However, many communities struggle with the issue of noise and the similar problem of light pollution. (See a UGA Land Use Clinic guidebook on local regulation of light pollution here.) My clients in the Newtown neighborhood of Gainesville, Georgia would probably find Hempton's search for absolute silence a bit precious. They're just hoping for some relief from the constant background hum from the nearby grain mill and the intermittent crash of metal on the junkyard site that sometimes exceeds OSHA standards - meaning folks should be wearing earplugs in their yards to avoid hearing loss. (See our environmental consultants' report here and give it a few moments to download.)
Still, noise pollution of all kinds is wearing on the nerves and potentially damaging to health (also as documented in the report linked above). I'm not sure I've ever been in a place totally free of mechanical sound and, although I hadn't thought about it before I read this article, that thought does make me a bit sad.
Jamie Baker Roskie
December 31, 2009
Hills & Schleicher on the Steep Costs of Noncumulative Zoning
Roderick M. Hills, Jr. (NYU) and David Schleicher (George Mason) have posted The Steep Costs of Using Noncumulative Zoning to Preserve Land for Urban Manufacturing, forthcoming in the University of Chicago Law Review, Vol. 77, No. 1, 2010. The abstract:
In cities around the country, huge swaths of property in desirable locations house only empty warehouses, barely-used shipping facilities, and heavily subsidized industrial-age factories, often right across the street from high-end condos and office buildings. The reason is a widely-used, but poorly understood form of local industrial policy known as non-cumulative zoning. In contrast with traditional Euclidean zoning, in which manufacturing uses were prohibited in residential areas but not vice versa, areas that are zoned non-cumulatively allow only manufacturing uses and bar any residential (and sometimes even commercial uses) of property. The arguments for non-cumulative zoning are always the same: Cities seek to (a) reduce the degree to which urban manufacturers are held responsible for nuisance and (b) subsidize urban manufacturing by reducing the competition for land and hence reducing the price.
In this essay, we argue that non-cumulative zoning is an idea whose time has passed, if there ever was a convincing case for it at all. The two major justifications for non-cumulative zoning are flawed, and alternative means could achieve the same ends with fewer costs. The large number of nuisance claims engendered by urban manufacturing could be addressed by creating a “right to stink” in certain zones, allowing residential and commercial users to move into these zones but prohibiting them from suing manufacturers who are not violating regulatory laws. As for the second manufacturer-subsidizing justification, subsidies cannot be justified in terms of a subsidizing city’s own welfare unless the external “agglomeration” benefits of manufacturing exceed the cost of the subsidy to the city. Moreover, the broader social perspective also requires that some cities are better able to capture those agglomeration benefits than others, meaning that competition between jurisdictions could result in total increases in wealth. However, non-cumulative zoning is unlikely to achieve either local or broader social efficiency. Its scope is not closely tied to any theory of external benefit; it encourages the inefficient use of land and the substitution of land for other inputs; and it hides the true cost of urban manufacturing subsidies from the public. If urban manufacturing must be subsidized, a direct cash subsidy system would be preferable, particularly if it could be funded directly from taxes on the increased value of land caused by the removal of a non-cumulative zoning designation.
Looks very interesting. I agree that non-cumulative industrial zoning is counterproductive, not only from the efficiency standpoint but also because it is the mirror image of residential-only zoning, which creates sprawl and prevents mixed use.
December 07, 2009
"Life in the shadow of industry"
Today our clients the Newtown Florist Club, and the Clinic, got some great coverage in the Gainesville (GA) Times. This article, hopefully the first in a series, covers the impact of industry on the Newtown neighborhood, something I've discussed in a previous blog post and that one of my students also discussed in his guest post. I'm very pleased with this coverage - this reporter, Ashley Fielding, has really gotten at the history and nuance of this complicated situation, which implicates zoning, public health, nuisance, race, class, community and economic development, and much more. Who says newspaper reporting is a dead art?
Jamie Baker Roskie
December 7, 2009 in Community Design, Community Economic Development, Environmental Justice, Environmental Law, Georgia, Industrial Regulation, Local Government, Nuisance, Planning, Politics, Property, Race, Redevelopment, Zoning | Permalink | Comments (0) | TrackBack
November 24, 2009
Environmental Justice & Scrapyard Regulation
This is another in an occasional series of UGA Land Use Clinic student-authored posts. Today's guest blogger is Ryan H. Dodd, former Army JAG lawyer and current LL.M. Candidate in Environmental Law.
By way of background, the Newtown Community has been actively fighting these environmental justice issues for decades now. Because of the community’s location in the midst of the city’s industrial zone, many of the battles fought have been between the community and neighboring industrial businesses. Currently, the focus of attention has fallen on a neighboring scrap yard and the nuisance it is creating via fugitive dust and noise from its scrap processing operations. With regard to many of the other types of heavy industrial businesses near Newtown, the Georgia Environmental Protection Division (EPD) has been able to step in and regulate. This has been because these businesses are required to carry permits that are enforceable by EPD. Unfortunately, scrap recycling is one of those businesses, as I have found, that does not have any stringent regulation or permitting process. Therefore, the EPD has taken a hands-off approach, leaving it up to the local government to regulate.
Specifically, my involvement in this process has centered on the issue of code enforcement. I have looked at how similar issues have been handled throughout the nation. Not only is Georgia failing to regulate scrap yards, but so are most states. The exceptions are Florida, New Hampshire, and Indiana, which have enacted programs known as “Green Yards” and “Clean Yards” respectively that create an incentive-based system to get scrap yard owners to voluntarily comply with environmental laws and regulations. This is a potential model that we are looking at proposing in Georgia.
Another issue that I have been researching is the utilization of existing code enforcement for dealing with nuisances, particularly fugitive dust and noise. In the cases of Gainesville, these issues are enforced by the public works department. However, other municipalities use their health departments for enforcement of these issues and it appears that these are working quite effectively. This is because, in most cases, a health department has the knowledge base and tools to deal with nuisance issues. It will be interesting to see how receptive local governments will be to taking some new approaches to code enforcement. Many may continue to wrestle with budgetary constraints or personnel shortages. However, if a municipality is to truly deliver the best services it can to its citizens, then it is incumbent upon them to embrace new frameworks in order to competently address some of these old problems.
One thing that continually amazes me is how many communities in Georgia struggle with unregulated scrapyards creating nuisances and hazards. While these are outliers in an industry that generally provides a needed community service, it's enough of a problem that the clinic has taken this up as a project theme over many semesters. Let's hope that Georgia is willing to adopt a "Green Yards" or similar approach as a step in the right direction.
Jamie Baker Roskie
October 01, 2009
The World of No Zoning
This morning my co-editor Matt Festa posted about the fact that Houston doesn't have zoning, and may be the only major city not to have it. However, according to Matt, folks there seem to have found work-arounds to this problem, including private agreements. When I was in law school I wrote a paper about the use of nuisance law as a type of land use regulation, and it seemed like Houston was a great example of that. My impression was that in Houston use of prospective nuisance seemed to get at some of the same problems addressed through zoning by other cities. Of course, I wrote that paper a long time ago, so things may have changed. I'll be curious to see if Matt has a perspective on that.
Here in Georgia the issue of no zoning has some other ramifications. I'm often contacted by rural jurisdictions who have no zoning controls whatsoever, and are being confronted by having nuisance-type uses located in their city or county. Landfills and scrapyards seem to be the two biggest issues. Atlanta has to send its trash somewhere, and nearby jurisdictions with no zoning seem to be prime targets. In fact, a few years ago some commissioners from Taliaferro County went to jail to stop a landfill in their county.
The UGA Land Use Clinic is working with our partner GreenLaw to help some of these counties get appropriate regulation in place. Sometimes it means passing ordinances strictly related to landfills or scrapyards. This is because, in my experience, getting a full scale zoning scheme in place can be heavily contested. I'm often told that Georgia "is a property rights state" and that folks are reluctant to have the government tell them what to do with their land. I don't think this is unique to Georgia, but it's possible it's a more prevalent attitude here. I'll be curious what commenters and my fellow editors have to say about this.
Jamie Baker Roskie