Saturday, October 3, 2015

Announcing the Launch of NY Geographic Information Gateway website

The New York Department of State just launched the New York Geographic Information Gateway. The Gateway is a new educational, interactive and user-friendly website that identifies New York’s diverse land and offshore assets. It provides the public access to free and reliable geographic data, including over 400 datasets, a map viewer and interactive stories describing how the NY Department of State’s Office of Planning and Development uses geospatial information in its planning and development efforts. It offers real-time information, interactive tools, and expert knowledge on New York’s resources, including climate change and community resilience.

As described in the Secretary of State's press release, the Gateway will empower residents, businesses and local governments to improve resiliency, grow the economy and invest in New York State Communities.

Post by Sarah J. Adams-Schoen, Assistant Professor of Law and Director of Touro Law’s Institute for Land Use & Sustainable Development Law, and managing author of the blog Touro Law Land Use.

October 3, 2015 in New York | Permalink | Comments (0)

Just how much are those Grand Central Terminal TDRs worth?

The next story line in the Penn Central saga.  From Reuters...

The owner of Grand Central Terminal has filed a $1.13 billion lawsuit accusing New York City of effectively taking away his air rights over the landmark train station by letting the developer SL Green Realty Corp (SLG.N) build a giant skyscraper.

The complaint filed late on Monday on behalf of owner Andrew Penson is the latest chapter over Grand Central, which was declared a landmark in 1967, four years after the demolition of Pennsylvania Station sparked a movement to preserve significant architectural works.

Two of Penson's companies said the city rezoned the area around Grand Central to let SL Green build a roughly 1,400-foot tall tower - higher than the Empire State Building and Chrysler Building - known as One Vanderbilt across the street, if it also made nearby transit and pedestrian infrastructure improvements.

Rest of the story here.

October 3, 2015 | Permalink | Comments (0)

Friday, October 2, 2015

Friday at the Movies: Land Use Edition

It's Friday, so why not grab that second cup of coffee and sit back with a couple of  these feel-good EPA videos highlighting the winners of the 2015 National Award for Smart Growth Achievement.  






October 2, 2015 | Permalink | Comments (0)

The Nation on Community Land Trusts and Homelessness in Baltimore

The Nation has a new story today entitled "Can Community Land Trusts Solve Baltimore's Homelessness Problem?" written by Michelle Chen.  A community land trust (CLT) is a community-controlled nonprofit organization that holds land in perpetuity for the benefit of the local community.  Typically, CLTs act as stewards of subsidized homes that they have built or rehabilitated.  In areas where land values are high, CLTs can be an opportunity for low- and moderate-income residents to own homes that will also be affordable to similarly qualified future homebuyers.

Chen's article explores the possibilities for such a strong community stewardship model in the struggling inner-city neighborhoods of Baltimore.   I think the piece can be interesting for students and others who wonder why aren't vacant houses being made available to the homeless, but it also leads the reader to make connections between the many components that make for a strong neighborhood.

October 2, 2015 in Affordable Housing, Race, Redevelopment | Permalink | Comments (1)

Sink or Swim: In Search of a Model for Coastal City Climate Change Resilience

New York City, like other major cities around the world, has acknowledged the problem of climate change, undertaken a comprehensive risk assessment, created a suite of adaptation and mitigation planning initiatives, and begun to implement policies to both decrease the city’s contribution to the problem and make the city less vulnerable to the effects of climate change. In an article published in the Columbia Journal of Environmental Law, I provide a detailed analysis of the city’s climate change resilience initiatives and conclude that many of the city’s initiatives provide a model for other coastal communities, but the city's initiatives nevertheless fall short of what is likely required to sufficiently moderate harm from dangerous interference with the climate system.

The city’s robust suite of initiatives put it ahead of the pack as compared to most other U.S. municipalities, especially with respect to comprehensive reform of zoning and building codes, integrated mitigation and adaptation planning, transparent climate change-related data analysis initiatives, and commitment to reduce GHG emissions 80% by 2050 from 2005 levels and progress toward that goal. However, the city also faces a host of wicked policy binds, ineffective regional structures, a lack of support at the federal level, and numerous conditions that constrain its ability to remain resilient. In light of this, the “toughness” theme that runs throughout the city’s plans risks undermining its robust data analysis and reporting initiatives by instilling in New Yorkers a false sense of security with respect to both the scope of the problem and their local government’s ability to protect them from it. The city faces an equally wicked policy bind with respect to waterfront development. Given the foreseeable risks of increasingly intensive and frequent coastal storms, flooding and storm surges, coastal municipalities must carefully evaluate their waterfront development policies to assure consistency with future climate risks and adopt regulations that curtail or eliminate waterfront development in high-risk areas, encourage or require relocation away from vulnerable areas, and take maximum advantage of opportunities to develop natural flood-mitigation infrastructure.

See Sink or Swim: In Search of a Model for Coastal City Climate Change Resilience, 40 Columbia J. Envt’l L. 433 (2015), available here.


Post by Sarah J. Adams-Schoen, Assistant Professor of Law and Director of Touro Law’s Institute for Land Use & Sustainable Development Law, and managing author of the blog Touro Law Land Use.

October 2, 2015 in Climate, Coastal Regulation, Green Building, Local Government, New York, Planning, Scholarship, Zoning | Permalink | Comments (0)

Sign Regulation after Reed: Suggestions for Coping with Legal Uncertainty

Alan C. Weinstein (Cleveland-Marshall) and Brian J. Connolly (Independent) have posted "Sign Regulation after Reed: Suggestions for Coping with Legal Uncertainty," which I imagine scholars and practitioners will both find of particular interest.  Here is the abstract:

This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. Practically, we note that Thomas's opinion leaves several questions unanswered and and the uncertainty is further compounded by the inconsistencies between Thomas and Justice Alito's concurrence. In light of these uncertainties, we advise local governments to consider how much legal risk they are willing to take in seeking to retain workable sign regulations.

October 2, 2015 | Permalink | Comments (0)

Thursday, October 1, 2015

Vermont Law Environmental Clinic Seeks Fellows

David Mears, director of the Environmental and Natural Resources Law Clinic at Vermont Law, has asked us to publicize the upcoming deadline for their fellowship

The Environmental and Natural Resources Law Clinic (ENRLC) is pleased to invite eligible candidates to apply for a two-year Clinic Fellow position from June 1, 2016 through May 31, 2018. The fellowship combines the opportunity to obtain an LLM degree in Environmental Law from one of the leading environmental law programs in the nation with the opportunity to work with experienced environmental attorneys and students in a clinic focused on public interest cases. 

This is an excellent opportunity for young lawyers interested in clinical teaching. Vermont Law has an unmatched program in environmental and land use law, with some of the leading scholars, teachers and practitioners on their faculty. Plus, they're just really great folks.  Please share this announcement widely.

Jamie Baker Roskie

October 1, 2015 in Environmental Law, Teaching | Permalink | Comments (0)

CFP: Detroit Mercy Law Review Symposium: The Past, Present, and Future of Detroit

Here is the CFP as a PDF:   Download Detroit Mercy Law Symposium CFP

Text of CFP below:

The University of Detroit Mercy Law Review is celebrating its 100th anniversary with an
academic Symposium to be held on March 4, 2016. This Symposium will showcase the past,
present, and future of the City of Detroit, and will gather scholars, policy makers, and
community members to discuss the past, present, and future of Detroit.
Articles submitted may focus either on a specific era – past, present, or future – or they may trace a specific subject through the past, present, and propose future solutions. Specific topics could include, but are not limited to:

1. The Past
o Civil rights and race relations
o Labor law
o Relationship between the City and the suburbs (or the rest of Michigan)
2. The Present
o The Impact of the Bankruptcy
o Efforts to eradicate blight and abandoned buildings
o Public Education in Detroit
3. The Future
o Impact of new developments on the future of Detroit
o Relations between the City and the suburbs
o The role of the law in developing new economic opportunities

The Law Review invites interested individuals to submit an abstract for an opportunity to present at the Symposium. Those interested should send an abstract of 250-300 words that details their proposed topic and presentation. Included with the abstract should be the author’s name, contact information, and a copy of their resume/curriculum vitae. Since the above list of topics is nonexhaustive, the University of Detroit Law Review encourages all interested parties to develop

their own topic to present at the Symposium. In addition, while submitting an article for
publication is not required to present at the Symposium, the Law Review encourages all speakerswho are selected to submit a piece for publication in the Fall 2016 edition of the Law Review.

The deadline for abstract submissions is October 26, 2015. Individuals selected to present at the Symposium will be contacted by November 2. Law Review editorial staff will contact those
selected for publication at a later date regarding details and deadlines for full-length publication. The submissions, and any questions regarding the Symposium or the abstract process, should be directed to Law Review Centennial Symposium Director Katherine Ross at

October 1, 2015 | Permalink | Comments (0)

Land use law-related articles posted on SSRN in September

It's the beginning of a new month, which means it is time to check in on all of the land use law-related articles posted to the SSRN Property, Land Use & Real Estate Law eJournal in September.  The articles below are in reverse order of posting (i.e., those at the top were posted later in the month) and, thus, the order bears no relation to downloads.

This month there were also a large number of international land use-law related articles.  As I have in previous months, I have divided the list into two parts.  First, I present those land use law articles posted to the eJournal written by U.S. scholars; second, that list is followed by articles posted to the eJournal by non-U.S. scholars.  This seemed to make sense to me, though I welcome your thoughts on whether this division is valuable or perhaps creates artificial divides between an increasingly global academic community.

Articles by U.S. scholars:

 Assessing the Impacts of Climate Change on the Built Environment Under NEPA and State EIA Laws: A Survey of Current Practices and Recommendations for Model Protocols
Jessica A. Wentz 
Columbia University - Law School 

 Potential Liability of Governments for Failure to Prepare for Climate Change
Jennifer Klein 
Columbia University - Sabin Center for Climate Change Law 

 Property Tax Limits and Female Labor Supply: Evidence from the Housing Boom and Bust
Shimeng Liu 
University of Southern California 

 The State's Right to Property Under International Law
Yale Law Journal, Vol. 125, 2016 (Forthcoming)
Peter Tzeng 
Yale Law School 

 Co-Location, Co-Location, Co-Location: Land Use and Housing Priorities Reimagined
39 Vermont Law Review 925 (2015), Kreisman Working Papers Series in Housing Law and Policy No. 24, U of Chicago, Public Law Working Paper No. 547
Lee Anne Fennell 
University of Chicago Law School 

 Gentrification: The Class Conflict Over Urban Space Moves into the Courts
Fordham Urban Law Journal, Vol. 10, No. 2, 1981
Harold A. McDougall 
Howard University School of Law 

 Novel Takings Theories: Testing the Boundaries of Property Rights Claims
4 Brigham-Kanner Property Rights Conference Journal 39 (2015)
James S. Burling 
Pacific Legal Foundation 

 Why a New Uniform Equitable Distribution Jurisdiction Act is Needed to Reduce Forum Shopping in Divorce Litigation
49 Family Law Quarterly 359 (2015), U of Houston Law Center No. 2015-A-20
J. Thomas Oldham 
University of Houston Law Center 

 Antimonopoly in Public Land Law
Michael C. Blumm and Kara Tebeau 
Lewis & Clark Law School and Lewis & Clark Law School 
 The Dominant Mineral Estate in the Horizontal Well Context: Time to Extend Moser Horizontally
53 Hous. L. Rev. 193 (2015), U of Houston Law Center No. 2015-A-19
Bret Wells 
University of Houston Law Center 

 Teaching an Old Dog a New Trick: Examining the Intersection of the Accommodation Doctrine and Groundwater Rights Through the Lens of Lubbock v. Coyote Lake Ranch, LLC.
Texas A&M Law Review, Forthcoming
Brent Robert Dore 
Texas A&M University (TAMU), School of Law, Students 

 No Competing Theory of Constitutional Interpretation Justifies Regulatory Takings Ideology
Andrew William Schwartz 
Shute, Mihaly & Weinberger LLP 

 Doing a Double Take: Rail-Trail Takings Litigation in the Post-Brandt Trust Era
39 Vt. L. Rev. 703 (2015)
Danaya C. Wright 
University of Florida Levin College of Law 

 Land Shark at the Door? Why and How States Should Regulate Landmen
Fordham Environmental Law Journal, Forthcoming
Ann M. Eisenberg 
West Virginia University, College of Law, Students 

 Interpreting Conservation Easements
29 Probate & Property 30 (2015)
Nancy A. McLaughlin 
University of Utah S.J. Quinney College of Law 

 Sacred in the City: The Huron Indian Cemetery and the Preservation Laws
John W. Ragsdale 
University of Missouri at Kansas City - School of Law 

 Bryant Park as a Site of Production: Revenue and Social Control
Oñati Socio-Legal Series, Forthcoming,
Emily Kaufman 
University of Kentucky 

 Divine Sovereignty, Indian Property Law, and the Dispute Over the Padmanabhaswamy Temple
Modern Asian Studies, 2016
Deepa Das Acevedo 
University of Chicago 

 Owning Red: A Theory of Indian (Cultural) Appropriation
Forthcoming Texas Law Review (2016)
Angela Riley and Kristen A. Carpenter 
University of California, Los Angeles (UCLA) and University of Colorado Law School 

 Rolling Back the Tide: Toward an Individual Mandate for Flood Insurance
Fordham Environmental Law Journal, Vol. 26, No. 2, 2015
Alexander B. Lemann 
Georgetown University Law Center 

 Validity of Superfund Liens
Roger Bernhardt 
Golden Gate University - School of Law 

 Notices of Abatement vs Defects of Title
Roger Bernhardt 
Golden Gate University - School of Law 

 Attempting to Collect on Barred Mortgages
Roger Bernhardt 
Golden Gate University - School of Law 

 Variances & Hardship
Real Property Law Reporter (Cal CEB [May 2015)
Roger Bernhardt 
Golden Gate University - School of Law 

 Lessons Not to Learn About Merger
Real Property Law Reporter (Cal CEB [July 2015)
Roger Bernhardt 
Golden Gate University - School of Law 

 Potential Tort Liability for Personal Use of Drone Aircraft
St. Mary’s Law Journal, Vol. 46:573, 2015, 
Benjamin D. Mathews 

 Environmental Review as an Incentive for Parking Provision in New York and California: Moving from Conservatism to Conservation
41 Transportation Law Journal 157 (2014).
Noah M Kazis 

 Public Actors, Private Law: Local Governments’ Use of Covenants to Regulate Land Use
Yale Law Journal, Vol. 124, No. 5, 2015
Noah M Kazis 

 Articles by non-U.S. scholars:

 Mitigation, Specific Performance and the Property Developer: A Case Comment on Southcott Estates Inc. v. Toronto Catholic School Board

(2013) 51 Alberta Law Review 165-180
Jeff Berryman 
University of Windsor - Faculty of Law 

Does Unconventional Gas Require Unconventional Ownership? An Analysis of the Functionality of Ownership Frameworks for Unconventional Gas Development
Pittsburgh Journal of Environmental and Public Health Law, Vol 8, Issue 1, Winter 2013
Samantha Jane Hepburn 
Deakin University - Deakin Law School 

 Judicial Conservatism V. Economic Liberalism: Anatomy of a Nuisance Case
13 Isr. L. Rev. 298 (1978)
David Kretzmer 
Hebrew University of Jerusalem 

 The Nature and Scope of Rights of Removal
Property Law Review, vol. 2, no. 3, pp. 123-138
Samantha Jane Hepburn and Steve Jaynes 
Deakin University - Deakin Law School and Deakin University - Deakin Business School 

Ownership Models for Geological Sequestration: A Comparison of the Emergent Regulatory Models in Australia and the United States
Environmental Law Reporter, Vol. 44, No. 4, 2014
Samantha Jane Hepburn 
Deakin University - Deakin Law School 

 The Practical Choice for Real Property Tax Reform
Journal of Chinese Tax and Policy, Vol. 4, Special, pp.114-122, April 2014
Yansheng Zhu 
Xiamen University 

 More Safeguards Instead of a Ban of Economic Development Takings: The Kelo Case from a German Perspective
B Hoops, EJ Marais, H Mostert, JAMA Sluysmans, LCA Verstappen (eds), Rethinking Expropriation Law II, Context, Criteria, and Consequences of Expropriation, The Hague, Boom (2015 Forthcoming), University of Groningen Faculty of Law Research Paper 2015/36
Björn Hoops 
Faculty of Law, University of Groningen 

Statutory Verification of Water Rights: The 'Insuperable' Difficulties of Propertising Water Entitlements

Australian Property Law Journal, 2010
Samantha Jane Hepburn 
Deakin University - Deakin Law School 

 Native Title Rights in the Territorial Sea and Beyond: Exclusivity and Commerce in the Akiba Decision
University of New South Wales Law Journal, Volume 34(1)
Samantha Jane Hepburn 
Deakin University - Deakin Law School 

 Public Participation in New Zealand's Regulatory Processes
"Public Participation in New Zealand’s Regulatory Processes" in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis, Wellington, 2013). , 
Mark J. Bennett and Joel I. Colón-Ríos 
Victoria University of Wellington - Faculty of Law and Victoria University of Wellington - Faculty of Law 

 Sovereignty and the Politics of Property
GlobalTrust Working Paper 10/2015
Eyal Benvenisti 
Tel Aviv University, Faculty of Law 

 Property and Secrecy
Amnon Lehavi 
Interdisciplinary Center Herzliyah - Radzyner School of Law 

 Meer Aandacht Voor Privacy in De Openbare Registers? (More Attention for Privacy in the Public Registers?)
NJB 2015/23, 1520-1527
Anna Berlee 
Maastricht University - Faculty of Law 

Negotiating Conduct and Compensation Agreements for Coal Seam Gas Operations: Developing the Queensland Regulatory Framework
(2014) 17 (1) Australasian Journal of Natural Resources Law and Policy 75-100
Laurence Boulle and Katherine A Curnow 
Australian Catholic University (ACU) and T.C. Beirne School of Law, The University of Queensland 

 The Concept of 'Home' in Relation to a Professional's Office, According to the Jurisprudence of the European Court of Human Rights
Social Economic Debates, 2015, Vol. 4, No. 1
Andreea Seucan 
Bucharest Academy of Economic Studies 

 The Analogy of Land Conflicts and Resettlement Schemes in Kenya
Antony Munene Kamakia 

 The Right to Not Be Excluded: Common Property and the Struggle to Stay Put
Bud Osborn (1999) ‘amazingly alive’ Hundred Block Rock, Arsenal Pulp Press, Vancouver, p. 10, 
Nicholas Blomley 
Simon Fraser University (SFU) - Department of Geography 

 Complex Industrial Uses, Community Engagement and Environmental Issues - Challenges of Planning for Ports in Queensland
Australian Environment Review LexisNexis, Forthcoming
Antra Hood and Matthew Roach 
Minter Ellison and 

 Queensland Releases New Coastal Hazard Mapping: Implications for Local Governments and Developers
Local Government Reporter, 2015
Andrea Noble and Matthew Roach 
Minter Ellison Lawyers, Rialto Towers and 

 The Palestinian Property Tax Law (Estate, Buildings and Lands)
Nidal Rashid Sabri 
Birzeit University 

From Registration of Deeds to Registration of Title: A History of Land Registration in Scotland
George L Gretton and Kenneth G C Reid, 'Land Registration' (Avizandum Publishing Ltd, Edinburgh; 2016 Forthcoming), Edinburgh School of Law Research Paper No. 2015/29
Kenneth Reid 
University of Edinburgh - School of Law 

 Ownership of Minerals in Situ in South Africa: Australian Darning to the Rescue?
The South African Law Journal, 2010
Pieter Badenhorst 
Deakin University - Deakin Law School 

October 1, 2015 | Permalink | Comments (0)

Wednesday, September 30, 2015

CFP: Idaho Law Review: Hydropower and the Energy of the Future: Is There a Place for Dams?

From Jerry Long:




The Idaho Law Review solicits articles and topic submissions for the Fall 2016 Natural Resources and Environmental Law (NREL) Edition. In this third annual NREL Edition, the Idaho Law Review will explore the future of hydropower as an energy source, with a particular focus on whether dam removal is realistic and responsible. Specific topic ideas include the wisdom, or lack thereof, of dam removal, the legal and policy challenges from social, ecological, and economic perspectives, the ecological impacts of dams or dam removal, potential replacement for hydroelectric energy generation in the Pacific Northwest, tribal perspectives on dams or dam removal, or case studies examining the successes or failures of dam removal projects already completed. Other topic ideas related to hydropower, dam removal, or the future of energy without hydropower would be welcomed and encouraged.

The NREL Edition of the Idaho Law Review is one of few formally peer-reviewed law-journal publications, with all articles undergoing review by outside experts in the tradition of academic scholarship. Articles should be submitted by April 1, 2016 to allow time for outside review before our December 2016 publication. Preferred length is approximately 10,000 words. We request written commitments to submit, with topics identified, by December 31, 2015.

For topic submissions or questions, please contact Idaho Law Review 2015-2016 NREL Editor Patrick Johnson at:, or Professor Jerrold Long at Our first peer-reviewed NREL Edition (Vol. 51, Issue 1) can be viewed at

Download Idaho Law Review NREL Edition CFP

September 30, 2015 | Permalink | Comments (0)

October 1: Cal Air Resources Board webcast re next AB32 Scoping Plan

For those trying to keep up on the latest iterations of California's climate change policies, this webcast would be a good start...

As previously noticed, the California Environmental Protection
Agency, California State Transportation Agency, California Energy
Commission, California Public Utilities Commission, California
Natural Resources Agency, California Department of Food and
Agriculture, Air Resources Board, and Governor’s Office of
Planning and Research will hold a public workshop on October 1,
2015, to discuss the updated AB 32 Scoping Plan, which will
reflect California’s new goal to reduce greenhouse gas emissions
40 percent below 1990 levels by 2030, as directed in Executive
Order B-30-15.   The original listserv notice for this workshop
is available at

The meeting is open to the public and full participation by all
parties is encouraged.  The workshop will be webcasted for those
unable to attend in person and can be accessed the day of the
workshop at

Date:  Thursday, October 1, 2015

Time:  10:00 am – 4:00 pm

California Secretary of State Building(Main Office) Auditorium
1500 11th Street
Sacramento, California 95814


Presentation slides for this workshop will be posted at 8:00 am
on October 1, 2015, at

In addition, ARB is collecting public comments on the workshop
material at

September 30, 2015 | Permalink | Comments (0)

CFP: May 20-21: Association of Law, Property & Society's 2016 meeting in Belfast

From Robin Hickey:

I am delighted to announce details of the 7th Annual Meeting of ALPS, from Friday 20 - Saturday 21 May 2016 at Queen's University Belfast, Northern Ireland. An optional city field trip and opening reception will take place on the afternoon of Thursday 19 May (details later). 

The call for papers/panels is attached to this message, and registration and further details are available from the conference website here:

Download ALPS 2016 Belfast CFP


September 30, 2015 | Permalink | Comments (0)

Friday, September 25, 2015

The sharing economy versus HOA CC&Rs: The battle begins

I was recently made aware of what I believe is the first state supreme court case addressing the relationship between short-term rentals (Airbnb, VRBO, and such) and CC&Rs.  Thanks to Bill White, an attorney here in Boise, for sending this my way.

On June 22, 2015, the Idaho Supreme Court decided Adams v. Kimberley One Townhouse Owner's Ass'n, Inc., 158 Idaho 770, 352 P.3d 492, 493-94 (2015), reh'g denied (July 28, 2015), which upheld an amendment to CC&Rs of an HOA that all-but-eliminated the use of a single-family residence for short-term rentals.

As issue in the case was a single-family residence ("Residence") purchased in a subdivision controlled by an HOA that had CC&Rs defining the permitted “Use and Regulation of Uses” for the lots within the subdivision, and providing that “each lot shall be used for single family residential purposes only, on an ownership, rental or lease basis.”  The CC&Rs under which the residence was purchased also "contemplated the possible need for future amendments" to the CC&Rs.

In Summer, 2012, the owner began renting the Residence on short-term rental sites (the specific sites were not stated in the opinion, but I understand from other conversations that they were Airbnb and VRBO).  In 2013, the HOA amended its CC&Rs by providing that units may be rented

only in strict accordance with the following" conditions: (a) the owner must execute a written
document with the renter; (b) the document must be approved in advance by the board; (c)
advertising for the unit must be approved by the board; (d) no rentals for fewer than six months will be approved; (e) no subleasing is permitted; (f) owner must provide contact information to the board; and (g) the board has discretion to grant exceptions to these rental requirements and to create house rules for their enforcement.

The owner of the Residence continued to engage in short-term rentals after the amendment and the HOA board enacted house rules that imposed a $300 fine for each day a unit is rented in violation of the short-term lease requirements and a $100 fine for each day a unit is advertised in violation of those requirements.  The owner challenged the amendment.

The Idaho Supreme Court has a lengthy analysis of whether the new CC&R, which essentially eliminated a short-term rental use, was permissible, but this may be the most interesting section of the opinion:

Adams [the owner] argues Idaho has not addressed the distinction between adding a new restriction to CC & Rs and amending an existing restriction, and he cites to several out-of-state cases to support his proposed distinction. Indeed, there is a split of authority among the states as to whether a new restriction on rental activity may be reasonably added under a general amendment provision, or whether a new restriction is per se unreasonable. E.g., compare Wilkinson v. Chiwawa Cmts. Ass'n, 180 Wash.2d 241, 327 P.3d 614, 622 (2014) (holding a new restriction on short-term rental activity invalid, reasoning “homeowners cannot force a new restriction on a minority of unsuspecting Chiwawa homeowners unrelated to any existing covenant.”) with McElveen–Hunter v. Fountain Manor Ass'n, 96 N.C.App. 627, 386 S.E.2d 435, 435–36 (1989) (upholding an amendment that added a new restriction against rentals of less than one year, reasoning that the plaintiff purchased the units subject to the rights of other owners to restrict their occupancy and with notice before buying the units that the declaration was subject to change).
We find Idaho's approach to CC & R amendments to be more consistent with that line of cases which do not draw a bright-line distinction between the addition of new restrictions and the modification of existing restrictions. We do, of course, agree with the Shawver Court that there is a point at which an amendment to CC & Rs will go too far, and have too adverse an effect on those bound by it, in which case the amendment would be precluded. See 140 Idaho at 365, 93 P.3d at 696. However, the fact that a restriction was not previously addressed in the CC & Rs prior to an amendment does not automatically mean that amendment has gone too far, as shown by Best Hill.
The amendment in the case at hand has not reached the tipping point. Shawver generally *498 suggests that parties should be bound by the terms to which they agree, including a term allowing the significant future alteration of the agreement, unless a term produces unconscionable harm. The record reflects that Adams had only been renting his unit as a vacation property for a few months when the Association began discussing an amendment. We are not faced with a situation where Adams was permitted to engage in short-term renting for ten years and then, all of a sudden, an amendment no longer permitted such use. Additionally, he is still permitted to rent his property as long as he complies with the terms of the new amendment. Even prior to the amendment, the rental activity was limited by the declaration to allow rentals or leases “for single family residential purposes only.” In substance, the 2013 Amendment simply narrowed what may be considered a “single family residential purpose.” That term implies a certain degree of long-term or stable occupancy of the residence, rather than it being used as a hotel as Adams had. The 2013 Amendment simply provided clarity to that term.

Id. at 497-98.  This reasoning raises several interesting questions.  
First, the court frames the issue as whether a new restriction on rental activity may be reasonably added under a general amendment provision, or whether a new restriction is per se unreasonable.  That is perfectly legitimate; however, as the Idaho court notes, there is a split of authority in other states on this threshold issue.  Presumably other states could see it differently than the Idaho court, and in those states, you could have a greater proliferation of short-term rentals in HOAs even though short-term rentals as we know them today were not in place at the time most HOA CC&Rs were written.  Will we soon have divided state courts on whether provisions eliminating short-term rental uses in HOA CC&Rs are permissible?  Another question is whether the short-term rental use of a property was really part of the bargained-for expectation of entering into CC&Rs that existed prior to the sharing economy's rise within the last few years?  How could anyone purchasing the Residence prior to the rise of Airbnb and VRBO ever have predicted the potential new use of private property that they would permit?  Could the property owner really have contemplated that he was bargaining away a short-term rental use in agreeing to amend the CC&Rs even though short-term rentals weren't even in existence when he purchased the Residence?  Should that even matter?
Second, the court does not give much attention to the fact that the HOA's rule essentially eliminates the potential to engage in short-term rentals.  It will be interesting to see what public opinion comes to think of an approach like this:  should a local HOA really be able to entirely eliminate a short-term rental use?  What would it mean for a CC&R to "go too far" under the above analysis, and why doesn't elimination of a short-term rental use go beyond that limitation?  The court doesn't explain that in depth and it is worthy of a further analysis, especially given that the language--going too far--seems to clearly reference the language used in regulatory takings cases.  Sure, in the regulatory takings analysis, the Lucas "deprivation of all beneficial use" test applies, but should that be the same standard in CC&Rs?
Third, the court seems to announce a type of analysis--perhaps it sounds in reliance, or laches, or something else--that the amount of time that the owner engaged in short-term rentals matters here.  But, of course, Airbnb and other short-term rental companies have only been around for several years; for instance, Airbnb wasn't incorporated until 2008 and didn't really become popular until 2011.  And so, the court's hypothetical--that perhaps the answer would be different if the owner had engaged in short term rentals for 10 years--is an impossibility:  there was no service to engage in short-term rentals 10 years ago.  So, it does not seem to me that the owner should lose on this fact alone because the nature of the use is completely new:  there was no way to have established a pattern of rentals before these types of services emerged in the last few years.
Perhaps of more interest is a corollary to the third point:  it is worth asking whether, going forward, HOAs should potentially lose the right to enforce a new restriction on short-term rentals if residences covered by the HOA have established a pattern of engaging in such rentals or, even further, merely invested in the unit in a manner that would enhance its short-term rental appeal.  What would, or should, such a time frame be that would limit further HOA restrictions on short-term rentals?  If the amount of time that the unit governed by an HOA's CC&Rs engages in short-term rentals in violation of a CC&R, or in the absence of a CC&R directly on point, could foreclose later CC&R restrictions, then HOA boards, and lawyers that represent them, should be getting their act together now to foreclose such claims in the future, should they seek to do so.
I welcome others thoughts on the case.  I am also curious if anyone knows of another state supreme court case addressing this same issue.


September 25, 2015 | Permalink | Comments (0)

Two upcoming ABA webinars on the sharing economy

I am delighted to be a panelist on two upcoming webinars on the sharing economy hosted by the ABA. 

The first webinar, Is Sharing Really Caring? Part I: The Law of Transportation Sharing: Uber, Lyft, and the Sharing Economy, will be held on October 16, 2015 and will offer 1.50 CLEs.  Here is the description:

We all have heard about – and have maybe even used – Uber and Lyft, a new model of public transportation which uses technology to put passengers together with car owners so they can, for a fee, "share" a ride. As these and similar services become more ubiquitous (did you know you can "share" an airplane or a boat?), their more traditional competitors such as taxicabs, the state and local governments charged with regulating such services, and the passengers who use them all want to know: what legal questions do ride and transportation sharing raise? 

Registered attendees of this webinar will be eligible for a 20% discount on part 2, taking place on October 28, 2015: Is Sharing Really Caring? Part 2: The Laws of Sharing Residential Properties (Airbnb, VRBO etc.) .

The second webinar, Is Sharing Really Caring? Part 2: The Laws of Sharing Residential Properties (Airbnb, VRBO etc.), will be held on October 28, 2015 and will also offer 1.50 CLEs.  Here is the description:

Businesses such as Airbnb, VRBO, Couchsurfing, and FlipKey allow residents to "share" their apartment or house with a visitor for a fee. Use of these services is widespread and runs the gamut from renters making extra cash "sharing" a spare bedroom on the weekend, to owners "sharing" homes on a short-term but full-time basis with a parade of visitors, to entrepreneurs developing quasi-hotels and marketing them exclusively through "sharing" sites. Short-term rental services raise a host of legal and regulatory questions, but the answers may vary depending on how these services are used, by whom, and how often.

Registered attendees of this webinar will be eligible for a 20% discount on part 1, taking place on October 16, 2015: Is Sharing Really Caring? Part 1: The Laws of Transportation Sharing, Uber, Lyft, etc..

More details are available at the links.  I hope some of you can join us!


September 25, 2015 | Permalink | Comments (0)

Wednesday, September 23, 2015

Online Professional Development Course in Adaptive Planning & Resilience

Land Use Prof colleagues -- please share the following information about an online self-paced course in adaptive planning and resilience as broadly as possible.  It's especially relevant for professionals who are engaged in planning and would benefit from skills to make their planning processes more adaptive and resilience-oriented.  Students, professors, and other professionals are welcome too.  Thanks for your interest and help!  All best wishes, Tony Arnold

I’m writing to let you know about an online self-paced professional development course in adaptive planning and resilience.  This course is aimed at any professional who engages in planning under conditions of uncertainty, complexity, or unstable conditions, whether in the public sector, private sector, local community, or multi-stakeholder partnerships. 

The course is ideal for professionals in sectors such as urban planning, community development water supply, water quality, disasters/hazards, environmental protection, land management, forestry, natural resources management, ecosystem restoration, climate change, public infrastructure, housing, sustainability, community resilience, energy, and many others.  I hope that you and the employees and/or members of your organization will consider enrolling in this course.

 The 12-hour course is offered by the University of Louisville for a cost of $150 and is taught by Professor Tony Arnold, a national expert in adaptive planning and resilience, and a team of professionals engaged in various aspects of adaptive planning.  The online lectures are asynchronous, and the course is self-paced; this offering will last until November 22.

 More information is provided below and at the registration web page:  This offering of the course begins October 12 but registration will be accepted through November 15 due to the self-pacing of the course.  We are seeking AICP CM credits for the course in partnership with the Kentucky Chapter of the American Planning Association, but cannot make any representations or promises until our application is reviewed. 

Please share this blog post or information with anyone who might be interested.  Please contact me at, if you have any questions. 

Adaptive Planning and Resilience

Online and self-paced

Oct. 12 – Nov. 22, 2015

Adaptive Planning and Resilience is a professional development course in which professionals will develop the knowledge and skills to design and implement planning processes that will enable their governance systems, organizations, and/or communities to adapt to changing conditions and sudden shocks or disturbances.

Adaptive planning is more flexible and continuous than conventional planning processes, yet involves a greater amount of goal and strategy development than adaptive management methods. It helps communities, organizations, and governance systems to develop resilience and adaptive capacity: the capacity to resist disturbances, bounce back from disasters, and transform themselves under changing and uncertain conditions. Adaptive planning is needed most when systems or communities are vulnerable to surprise catastrophes, unprecedented conditions, or complex and difficult-to-resolve policy choices.

The course will cover the elements of adaptive planning and resilient systems, the legal issues in adaptive planning, how to design and implement adaptive planning processes, and case studies (including guest speakers) from various communities and organizations that are employing adaptive planning methods.  Enrollees will have the opportunity to design or redesign an adaptive planning process for their own professional situation and get feedback from course instructors.

The six-week course totals about 12 hours broken into 30-minute segments. It is conducted online and is asynchronous. Cost is $150.

 About Professor Tony Arnold

Professor Craig Anthony (Tony) Arnold is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in both the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility. Professor Arnold is an internationally renowned and highly-cited scholar who studies how governance systems and institutions – including planning, law, policy, and resource management – can adapt to changing conditions and disturbances in order to improve social-ecological resilience. He has won numerous teaching awards, including the 2013 Trustee’s Award, the highest award for a faculty member at the University of Louisville.

Professor Arnold has clerked for a federal appellate judge on the 10th Circuit and practiced law in Texas, including serving as a city attorney and representing water districts. He served as Chairman of the Planning Commission of Anaheim, California, and on numerous government task forces and nonprofit boards. He had a land use planning internship with the Boston Redevelopment Authority, did rural poverty work in Kansas, and worked for two members of Congress. Professor Arnold received his Bachelor of Arts, with Highest Distinction, Phi Beta Kappa, in 1987 from the University of Kansas. He received his Doctor of Jurisprudence, with Distinction, in 1990 from Stanford University, where he co-founded the Stanford Law & Policy Review and was a Graduate Student Fellow in the Stanford Center for Conflict and Negotiation. He has affiliations with interdisciplinary research centers at six major universities nationwide and is a part of an interdisciplinary collaboration of scholars studying adaptive governance and resilience.

 Professor Arnold will be joined in co-teaching the course by a team of his former students who are

professionals knowledgeable in adaptive planning. They include:

  • Brian      O’Neill, an aquatic ecologist and environmental planner in Chicago
  • Heather      Kenny, a local-government and land-use lawyer in California and adjunct      professor at Lincoln Law School of Sacramento
  • Sherry      Fuller, a business manager at the Irvine Ranch Conservancy in Orange      County, California, and former community redevelopment project manager
  • Andrew      Black, who is Associate Dean of Career Planning and Applied Learning at      Eckerd College in St. Petersburg, Florida, and a former field      representative for two U.S. Senators in New Mexico
  • Andrea      Pompei Lacy, AICP, who directs the Center for Hazards Research and Policy      Development at the University of Louisville
  • Jennifer-Grace      Ewa, a Postdoctoral Fellow in Inequality and the Provision of Open Space      at the University of Denver
  • Alexandra      Chase, a recent graduate of the Brandeis School of Law who has worked on      watershed and urban resilience issues with the Center for Land Use and      Environmental Responsibility and now lives in St. Petersburg, Florida.


October 12 – November 22, 2015,

Online, asynchronous, and self-paced



For more information



September 23, 2015 in Agriculture, Beaches, Charleston, Chicago, Coastal Regulation, Comprehensive Plans, Conferences, Conservation Easements, Crime, Density, Detroit, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Exurbs, Federal Government, Finance, Financial Crisis, Food, Georgia, Green Building, Houston, HUD, Impact Fees, Inclusionary Zoning, Industrial Regulation, Lectures, Local Government, Montgomery, Mortgage Crisis, New York, Planning, Property, Race, Redevelopment, Scholarship, Smart Growth, Smartcode, Sprawl, State Government, Subdivision Regulations, Suburbs, Sun Belt, Sustainability, Transportation, Water, Wind Energy, Zoning | Permalink | Comments (0)

Two Great Long Island, NY Land Use Planning and Zoning Programs this Week

Are you in the New York metro area? Join planners and attorneys, municipal board members and others this Thursday for the APA's 2015 East End Planning Conference and this Friday for Touro Law's Bagels with the Boards program.

  • 2015 East End Planning Conference

Thursday, September 24, 2015, 3 PM – 7:30 PM

Tour of Marine Sciences Center 2pm – 3pm

Stony Brook University

Tuckahoe Road, Southampton, NY 11968

For more information visit here

  • Bagels with the Boards

Friday, September 25, 2015, Program 9 – 10 AM (breakfast 8:30 – 9 AM)

Telecommunications Law for Planning and Zoning Boards by Christopher B. Fisher, Charles J. Gottlieb and Anthony F. Morando, of Cuddy & Feder LLP

For more information and to register visit or email

New cases, including recent U.S. Supreme Court cases, continue to shift the legal landscape relevant to planning for, permitting and siting telecommunications infrastructure. This one-hour program will provide participants with an update on recent changes in the law, and is especially relevant as municipalities continue to see increased deployment of wireless communications infrastructure to address the explosion in data use and demand for mobile broadband. To harness these advancements and growth in technology, municipalities must fully understand recent developments in Federal law to ensure that their local codes are not only compliant with the most recent Federal law and policy, but properly balance their own administrative burdens with the nature of the infrastructure being deployed. Tools to aid in the deployment of wireless infrastructure includes as-of-right sites, town wide planning, amendment of local laws including zoning regulations, as well as development of ongoing policies at the municipal level including use of municipal rights-of-way and properties. Successful use of these tools, however, requires staying abreast of federal law--which is evolving quickly as federal statutes and regulations are amended and as federal courts issue opinions interpreting these laws.

And save the date for future Land Use & Sustainable Development Law Institute programs:

  • Oct. 16, 2015 – Land Use & Zoning for Fair and Accessible Housing including Overview of Regional Trends and Impediments by Chris Jones of the Regional Plan Association; Fair Housing Act Nuts and Bolts by Kevin Dwarka, land use and economic consultant and Senior Fellow at Pace's Land Use Law Center; Fair Housing Is Accessible Housing by Robin Malloy of Syracuse College of Law, Brian Baer of The Elevated Studio, and Marcie Roth of FEMA; Affirmatively Furthering Fair Housing by George D. Williams, Sr., Deputy Assistant Secretary, Office of Policy, Legislative Initiatives, and Outreach at HUD/FHEO, and Lorraine Collins, Assistant Commissioner/Director Fair and Equitable Housing Office at NYS HCR; and Disparate Impact by Michael Goldberger, Chief of Civil Rights, Civil Division, Assistant US Attorney, USAO Eastern District of NY, and Peter L. Contini of L'Abbate, Balkan, Colavita & Contini.
  • Oct. 30, 2015 – Bagels with the Boards: Planning & Zoning for Disaster Resilience by Maggie Palmer, Sam Capasso & Chelsea Holland of the New York City Environmental Law Leadership Institute (NYCELLI)
  • Nov. 20, 2015 – Bagels with the Boards: Reed v. Town of Gilbert – Signs of Our Times by A. Thomas Levin of Meyer Suozzi English & Klein PC
  • Feb. 26, 2016 – Bagels with the Boards: Form Based Codes by Joel Russell, Executive Director of the Form-Based Codes Institute
  • Mar. 11, 2016 – Second Annual Long Island Coastal Resilience Summit
  • Apr. 22, 2016 – Bagels with the Boards: The Grasping Hand – Kelo v. City of New London and the Limits of Eminent Domain by Ilya Somin, Professor of Law at George Mason University School of Law
  • May 27, 2016 – Bagels with the Boards: Planning & Zoning for Small and Medium Wind Energy by Sarah Adams-Schoen and Evan Zablow, Land Use & Sustainable Development Law Institute Director and Graduate Fellow
  • June 24, 2016 – Bagels with the Boards: Ethics Update by Touro Law Dean Patricia Salkin


All Land Use & Sustainable Development Law Institute programs at Touro Law Center are accredited for CLE (professional practice credits), AICP CM Law credits are anticipated for the Sept., Oct., Mar., April and June programs, and AICP CM general credits are anticipated for the Nov., Feb., and May programs. The Law Center issues certificates of attendance for self-accreditation for architecture, engineering and municipal board continuing education credits.

September 23, 2015 in Conferences, New York, Planning, Zoning | Permalink | Comments (0)

Hills & Schleicher: Can ‘Planning’ Deregulate Land Use?

Roderick M. Hills Jr. (NYU) and David Schleicher (Yale) have a new article, "Can 'Planning' Deregulate Land Use?" in this month's edition of the Cato Institute's Regulation magazine that will be of interest to blog readers.  Here are the first few paragraphs:

New York City’s deal with Alma Realty was a “game-changer,” Mayor Bill de Blasio boasted in his November 2014 State of the City speech. The city, the mayor said, had shown that it can drive a hard bargain with real estate developers by demanding 456 units of affordable housing in exchange for approving Alma’s 1,700–residential unit “Astoria Cove” megaproject in West Queens. His implication was that, through tough project-by-project bargaining, the city could force developers to solve New York’s housing affordability crisis by supplying belowmarket-rate housing in exchange for greater building rights.

But upon more careful inspection, Astoria Cove looks a lot more like the same old big-city zoning game rather than a gamechanger. Alma spent millions on well-connected lobbyists to dicker with the city over percentages of below-market-price units. The bargaining process took years. The mega-project was located on marginal land far from any “NIMBY” (“Not in my backyard!”) neighbors who would pressure their council member to scotch the deal and keep out a horde of low-income residents. And it’s not even clear that the project will be built because it hasn’t qualified for the tax breaks necessary to make its numbers work.

The rest of the article is free at the link above.

September 23, 2015 | Permalink | Comments (0)

Tuesday, September 22, 2015

Breaking news: No listing for the sage grouse under ESA

Secretary Jewell, take it away (video here)...



September 22, 2015 | Permalink | Comments (0)

Sept 27-29: American Planning Association Policy and Advocacy Conference in D.C.

I am excited to be speaking at the American Planning Association's Policy and Advocacy Conference in Washington, D.C. in just a few days.  Below is the tentative schedule, and a version with links is available here.  Registration is open through September 25.  If you are in the D.C. area, come and join us!


Sunday, September 27

Policy Forum and Discussion of APA Policy Priorities

1:00–1:45 p.m.

Keynote: The Science of Persuasion and the Planning Story

2:00–3:15 p.m.

Speaker: Christopher Graves

Leadership Development and Training Sessions (Concurrent Sessions)

3:30–4:45 p.m.

Concurrent topics include:

Contentious Meetings and Effective Engagement

Speaker: Mittie Rooney

Speaker: Roberta Rewers

Building Coalitions with Social Media

Speaker: Michele Late

Speaker: Jason Ray, AICP

Jacob Peters, Deputy Press Secretary, Office of Rep. Scott Peters
Emily Pasi, Communications and Outreach Associate, American Planning Association

Effective Messaging

Speaker: Louisa Hart

State Issues & Advocacy

Speaker: Louis Jacobson

Planners' Day on Capitol Hill Advance Briefing

Pursuing Inclusive Growth: Placed-based Strategies for Economic Growth, Social Mobility and Housing Affordability

Opening Plenary: The Daniel Burnham Forum at the National Building Museum 
5:15–6:30 p.m.

Moderator: Emily Badger

Speaker: Renée Lewis Glover

Speaker: Paul Jargowsky

Speaker: Shelley Poticha



Monday, September 28

Planners' Day on Capitol Hill Help Desk

7:30 a.m.– 5:00 p.m.
(Open All Day)

Breakfast Event: Federal Agency Resource Marketplace

7:30–8:30 a.m.

Plenary: The Next 50 Years in Housing and Urban Development Policy

8:45–9:45 a.m.

Speaker: Rep. Dan Kildee (D-Mich.)

Speaker: Harriet Tregoning

What's Next in Transportation Reauthorization and Policy

10:00–11:00 a.m.
Concurrent Session: Priority Issue

Speaker: Jennie Wright

Speaker: Margo Pedroso

Planning, Partnerships and Philanthropy

10:00–11:00 a.m.
Concurrent Session: Advocacy Leadership

Park Policy and Reauthorizing the Land and Water Conversation Fund

11:15 a.m.–12:30 p.m.
Concurrent Session: Priority Issue

Spencer Kimball, Professional Staff, House Committee on Natural Resources, Subcommittee on Federal Lands

Leading and Planning in the Sharing Economy

11:15 a.m.–12:30 p.m.
Concurrent Session: Advocacy Leadership

Speaker: Nicole DuPuis

Speaker: Stephen Miller

Luncheon: Innovation and Disruption in Today's City

12:30–2:00 p.m.

Speaker: Gabe Klein

Policy Directions in Affordable Housing

2:15–3:30 p.m.
Concurrent Session: Priority Issue

Local Ideas and Action for Effective Advocacy

2:15–3:30 p.m.
Concurrent Session: Advocacy Leadership

Speaker: Roxanne Blackwell

Speaker: Carley Ruff

Plenary: The Planning, Policy and Politics of Water

3:40–5:00 p.m.

Speaker: Former U.S. Sen. Mary Landrieu (D-La.)

Free Event: A Night with D.C.'s Planning Director

6:30 p.m., Busboys and Poets, 1025 Fifth St. NW, Washington

Join the crowd at the APA Policy and Advocacy Conference for a Monday evening conversation with Washington, D.C., Director of Planning Eric Shaw. He'll discuss local planning issues and nationwide trends, and you'll have a chance to network with PAC attendees and area planners. No cost, no registration, free appetizers.

Tuesday, September 29 (Planners' Day on Capitol Hill)

Planners' Day on Capitol Hill Reporting Form

Mentor Meet Up

7:00–7:30 a.m.

Breakfast Briefing and Orientation

7:30–8:45 a.m.

Beginner Training

9:00–10:00 a.m.

Advanced Advocacy Training

9:00–10:00 a.m.

Meetings on Capitol Hill

10:30 a.m.–Noon

Congressional Luncheon

Noon–1:00 p.m.

Meetings on Capitol Hill

1:00–4:00 p.m.

Congressional Briefing: Planning and Public Health

2:00–3:00 p.m.


5:00 p.m.

September 22, 2015 | Permalink | Comments (0)

Friday, September 18, 2015

CFP: USF Law Symposium: Housing for Vulnerable Populations and the Middle Class: Revisiting Housing Rights and Policies in a Time of Expanding Crisis

From Tim Iglesias...

Download CALL FOR PAPERS - University of San Francisco Law Review Symposium 2015



Symposium on Housing for Vulnerable Populations and the Middle Class:

Revisiting Housing Rights and Policies in a Time of Expanding Crisis


To be held Friday, January 29, 2016 in San Francisco, California

Sponsored by the University of San Francisco Law Review

Deadline for submission of an abstract is Monday, October 19, 201


Symposium Purpose and Scope

This year the United States Supreme Court reaffirmed the breadth of the Fair Housing Act, and HUD is taking a new approach to affirmatively further fair housing. The California Supreme Court recently upheld inclusionary zoning. States and cities are newly considering rent control and other progressive housing policies.  Micro-housing developments are challenging longstanding housing standards. The time is ripe to revisit the state of legal rights to housing and progressive housing policies: What is in place? How is it working? And what more can be done? Does the widely-recognized expansion of the housing crisis to the middle class change the debate about housing rights and policies? If so, how? Should we refine and add to existing housing rights?  Are there creative new laws and policies worth considering?

The University of San Francisco Law Review will hold a symposium on January 29, 2016, to engage this current moment.  We will gather legal and housing scholars, practicing attorneys, policymakers and other stakeholders from around the nation to examine the problem, critically evaluate current laws and propose new solutions.

Over the past decade, California’s chronic housing crisis has spread to burden the middle class as well as traditionally vulnerable populations--low income people, seniors, homeless people and persons with disabilities. While these problems show up intensely in the San Francisco Bay Area in part because of the widening wealth and income gaps created by the burgeoning tech sector, this is a national issue.  The daily news is full of stories about skyrocketing home prices, steeply increasing rents, evictions, gentrification and displacement. People who have full-time “good jobs” are scrambling to figure out where they can live.

The significance of this new housing crisis extends beyond the importance of housing itself as an essential human need.  Stable, safe and affordable housing located in good neighborhoods has been linked to citizens’ economic and social mobility. Yet the gap between those who can afford such housing and those who cannot is increasing. Substantial residential segregation by race, ethnicity, and income persists. The society we are heading towards resembles a developing county, not one where democracy and opportunity are the foundations. It is more separate and more unequal.  There is more separation between disinvested communities and communities of opportunity.

The federal government substantially cut finding for affordable housing in the early 1980’s, but some subsidies still exist. While there is no “right to housing” in the United States, there are a collection of individual housing rights recognized in most states, including habitability, non-discrimination, and security of tenure. In addition, California and other states have long regulated local governments’ land use authority to promote housing for all income levels and economic integration, but these laws have not been as effective as hoped. Some local jurisdictions have pursued their own solutions, but they too are limited in regional housing markets.

There are no simple answers. Housing has never been only a matter of supply and demand because it interacts with race, education, employment, transportation, environmental issues, public health and the provision of social services.  Economic theories alone seem incapable of understanding or solving the multifaceted problem. Solutions will include a variety of types of regulation as well as funding.

Symposium Format

This one day symposium will include a keynote speaker, panel presentations, a luncheon, and a reception following the symposium.  In this announcement, we are inviting proposals for research papers to be presented on panels.

We currently anticipate three sequential panel sessions:  The first will concern the nature and scope of the housing problem (both for traditionally vulnerable populations and the middle class); the second will examine existing laws and their application; and the third will explore proposals to reach beyond the current laws and policies.

Potential Research Paper Themes

We invite proposals on topics of your own framing consistent with the symposium’s theme.  Below are several possible specific themes and issues grouped by proposed panel presentation session.  These panel sessions can be used as a guide for your paper.  If your abstract is selected, we will invite you to join one of our panels and consider publishing your paper in the Symposium issue of the USF Law Review.


We need to understand the history and extent of the housing crisis—how did we get to where we are now? What are the links between affordable housing and fair housing; and what are the potential conflicts? What are the key linkages between affordable housing, transportation, jobs, education, social mobility, etc. What are the social, political, and economic consequences of our housing crisis, e.g. displacement and disenfranchisement?


How are the existing laws and policies working? How can they be improved?

Depending upon the jurisdiction, individuals have numerous housing rights derived from federal, state, or local laws, e.g. habitability, anti-discrimination, rent control, just cause eviction, and the housing rights of people living in government-subsidized housing.

In addition, progressive housing policies at each level of government shape housing markets including by subsidizing affordable housing development and by regulating local governments’ discretion in exercising land use authority. The latter group includes laws requiring “fair share” housing as part of a city’s general plan, density bonus laws, laws promoting certain kinds of housing development (e.g. secondary housing units or transit-oriented development), inclusionary zoning, and fair housing law, including the duty to affirmatively further fair housing.


We want to encourage the exploration of new, creative and practical ideas that will effectively address the nature and scope of our housing crisis and serve positive policy goals. The following questions are merely suggestive. Should we create new individual housing rights? Are there federal, state, regional, or local policies that can shape housing markets to better achieve desired results? What should be the role of affected communities in setting housing policy and determining outcomes, e.g. preventing displacement? Should laws mandate, favor, or specifically enable certain kinds of housing developments, e.g. community land trusts, limited equity cooperatives, mixed income housing or micro-housing? Should the federal mortgage interest deduction continue as our sole true housing entitlement?

Submission Process & Deadlines

Individuals interested in presenting a research and/or policy panel session paper should submit an abstract of no more than 1000 words describing the paper’s proposed topic, theme, and research methodologies by no later than Monday, October 19, 2015.  This summary should be sent as an attachment to Tanya Rivera (the Symposium editor) at and Professor Tim Iglesias (Symposium faculty advisor) at

September 18, 2015 | Permalink | Comments (0)