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)

Monday, September 14, 2015

Great Opportunity for Law Students Writing on Land Use and Related Topics

Law students writing on land use and related topics should consider submitting their papers to the ABA State and Local Government Law Young Lawyers Section's annual writing competition. The winning article will be published in The Urban Lawyer, the journal of the American Bar Association (ABA) State and Local Government Law Section. The Urban Lawyer is published quarterly with UMKC Law faculty members as its editors and UMKC law students as its staff members.

The journal publishes articles on legal and policy issues relevant to state and local government law, including land use and development, public education, state and local government law and ethics, constitutional law, real estate development, and environmental law. The journal has an extremely large circulation with nearly 6,000 hard-copy subscribers and nearly 3,000 online subscribers. Articles in it have been cited by the Supreme Court and numerous Courts of Appeals and state supreme courts and are also reprinted in many legal treatises. Washington and Lee University’s Law Journal Rankings place The Urban Lawyer among the top ten peer-edited law journals most cited by other journals and among the top twenty peer-edited law journals most cited by cases, and rank the journal as the third-highest rated peer-edited law journal that publishes articles relating to public policy, politics, and the law.

In addition to publishing in the Urban Lawyer, the winner will be invited to the ABA State and Local Government Law Section's 2016 spring meeting in Puerto Rico to present the winning article. Travel and lodging expenses will be reimbursed, up to $1,500.

Articles should range between 25 and 50 pages and should be properly footnoted.

For more information see here. To join the ABA State & Local Government Law Section, click here or call 1-800-285-2221. ABA law student members are free.


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.

September 14, 2015 in Scholarship, Teaching | Permalink | Comments (0)

Edsall in NY Times on Milliken v. Bradley and Overconcentration of Poverty

Last week in the NY Times, Thomas Edsall (Columbia-Journalism) had an op-ed that looks at the past, present and future of overconcentration of poverty in the U.S.   In "Whose Neigborhood Is It?", Edsall begins with the U.S. Supreme Court's refusal in Milliken v. Bradley to extend school desegregation remedies across a municipal boundary without a showing that a defendant suburban district had a history of de jure racial segregation.   Legal scholars have frequently pointed to this 1974 case as a signal from SCOTUS that the suburban schools would be protected from inner-city decline. Interestingly, Edsall emphasizes the resulting exodus of middle-class African-American families to inner-ring suburbs.  The op-ed moves on to discuss the findings of Thomas, David Card and Paul Jargowsky, quickly bringing the reader into strong insights on a crucial issue. 

Today's op-ed is just one in a series that Edsall has written this year on the metropolitan geography of poverty.  Although  I found his criticism last month of low-income housing developers misplaced, that op-ed and others on the political fallout from the Inclusive Communities litigation and educational opportunities for low-income children make good resource material for supplemental assigned reading.

Jim K.

September 14, 2015 in Affordable Housing, Housing, Inclusionary Zoning, Planning, Race, Zoning | Permalink | Comments (0)

Friday, September 11, 2015

Recent (9/3/2015) 9th Circuit opinion in RANCHO DE CALISTOGA V. CITY OF CALISTOGA. ( opinions/2015/09/03/12-17749.pdf).

Affirmance of district court’s dismissal of an
action brought by the owner of a mobile home park who
alleged that the City of Calistoga’s mobile home rent control
laws violate the Takings, Due Process and Equal Protections
Clauses of the United States Constitution.


Itzchak Kornfeld

September 11, 2015 | Permalink | Comments (0)

Thursday, September 10, 2015

Free Monthly Program on Land Use Law

As the Vice Chair of the Land Use Committee of the ABA State & Local Government Law Section, I’m pleased to share a number of opportunities for land use law profs, students and practitioners. Committee Chair Jessica Bacher, Executive Director of the Pace Land Use Law Center, will be guest blogging in October, so subscribers to the Land Use Prof blog can also expect live reporting from the Section’s Fall Meeting in Louisville, Kentucky.

ABA State & Local Government Law Section members are welcome to join the Land Use Committee for its monthly teleconference, at which we briefly discuss business before turning to a substantive program featuring cutting edge subjects in the area of land use, planning and zoning law. ABA law student members can join the Section for free. (Join by clicking here or calling 1-800-285-2221.)  

The Land Use Committee’s next meeting is scheduled for Friday, September 11, 2015, at 2:00 pm EST, and we will feature as speakers David L. Callies, FAICP, Kudo Professor of Law at the University of Hawaii, and Tim Iglesias, Professor of Law at the University of San Francisco School of Law. Professor Iglesias organized and co-authored an amicus brief in support of the City of San Jose. They will be presenting a 30-minute program on the Law of Affordable/Workforce Housing Exactions and Set-Asides.

The speakers will discuss the holding and rationale of the recent California Supreme Court decision in California Building Industry Association v. City of San Jose, which challenged an inclusionary zoning ordinance, and the effect of this decision on the law of affordable/workforce housing exactions and set-asides, and implications for exactions and impact fees generally. The court found that the challenged inclusionary zoning ordinance was a land use regulation subject to rational basis review and not an exaction subject to heightened judicial scrutiny.

The Law of Affordable/Workforce Housing Exactions and Set-Asides

Friday, September 11, 2015

2:00 p.m. EST

Dial-in 888-3967955

Passcode 797687#  

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 here.

September 10, 2015 in Affordable Housing, California, Caselaw, Housing, Inclusionary Zoning, Lectures, Zoning | Permalink | Comments (0)

Wednesday, September 9, 2015

Call for abstracts: AALS Section on Property: Junior Scholar Mentoring Session @ 2016 AALS Annual Meeting


AALS Section on Property
Junior Scholar Mentoring Session

2016 AALS Annual Meeting
Property Section Breakfast
7:30 AM
January 7, 2016
New York, NY


The AALS Section on Property is pleased to invite junior faculty members to submit an abstract of a current writing project or an abstract outlining a possible paper idea.  Authors of selected abstracts will informally present their theses/ideas during a mentoring session to be held as one part of the Section breakfast at the 2016 AALS Annual Meeting in New York.  The breakfast will take place at 7:30 am on January 7, 2016.

The goal of this event is to create a safe and organized (but informal) space at the AALS meeting for junior property scholars to meet and engage with more experienced scholars.  Selected presenters will have a maximum of 5 minutes to informally present their emerging theses/ideas to their table at the breakfast, after which the members of the Section at each table can offer feedback.  Each table will have at least one member of the Section’s Executive Committee as well as other more senior property scholars who will provide mentoring advice, including constructive comments and guidance designed to help suggest ideas and directions of research that might assist with the junior scholar’s project. 

Interested full-time, junior faculty members (defined for these purposes as 10 years or less in the academy) of AALS member law schools are invited to submit an abstract of one to three pages to Professor Donald J. Kochan (Chapman University Fowler School of Law), Secretary of the AALS Section on Property, at by September 30, 2015.  A review panel consisting of seven property scholars will select three to five junior scholars’ abstracts for these informal presentations and table discussions at the Section breakfast.  Selected presenters will be notified of the review panel’s decision in mid-October.  Each selected presenter will be responsible for paying his/her annual meeting registration fee, the registration fee for attending the Property Section breakfast, and travel expenses.

Please feel free to direct questions to Professor Kristen Barnes (University of Akron School of Law), Chair of the AALS Section on Property,, or Professor Kochan at

September 9, 2015 | Permalink | Comments (0)

Memorial Service for Marc Poirier at Seton Hall

Recently on this blog I memorialized our friend Marc Poirier, one of my favorite people and an excellent scholar and teacher.  Today I received an invitation to his memorial service. The service will be Tuesday, September 29th at 4:00 p.m. at Seton Hall University School of Law in Newark.  If you would like more information, or to RSVP, follow this link.

Jamie Baker Roskie

September 9, 2015 | Permalink | Comments (0)

Interdisciplinary Readings on Land Use: Ecosystem Services and Land Use

The field of ecosystem services is one of the most under-studied yet important topics in land use law.  Ecosystem services are the socially or humanly valuable benefits that nature’s systems provide.  Land uses depend on ecosystem services, yet many land uses adversely affect the capacity of ecosystems to produce these services.  For example, the water-absorbing functions of wetlands protect developed lands from flooding, but land development projects have filled or altered many wetlands and thus reduced their functions.

Ecosystem services have gotten significant attention in environmental law scholarship, thanks largely to the influential work of Jim Salzman ( and J.B. Ruhl (  In fact, one of the important interdisciplinary books on ecosystem services that land use scholars should read is J.B. Ruhl, Steven E. Kraft, and Christopher L. Lant, The Law and Policy of Ecosystem Services (Island Press 2007). 

However, land use scholarship has not given much attention to ecosystem services.  Keith Hirokawa has written several excellent articles on various aspects of ecosystem services, land use, and local governance (  I addressed the extent to which the land use regulatory system is well suited or poorly suited to sustaining and protecting ecosystem services in Arnold, The Structure of the Land Use Regulatory System in the United States, 22 Journal of Land Use and Environmental Law 441 (2007), available at SSRN:  Keith and I joined Jim Salzman, interdisciplinary scholars at Duke University’s Nicholas Institute for Environmental Policy Solutions, and several other scholars and practitioners to tackle head-on the need for new and more research on the law and policy of urban ecosystem services.  We identified 3 major categories of promising research questions: 1) the equitable provision of urban ecosystem services; 2) payment for urban ecosystem services; and 3) urban ecosystem governance.  Our article was published as James Salzman, Craig Anthony (Tony) Arnold, Robert Garcia, Keith Hirokawa, Kay Jowers, Jeffrey LeJava, Margaret Peloso, and Lydia Olander, The Most Important Current Research Questions in Urban Ecosystem Services, 25 Duke Environmental Law and Policy Forum 1 (2014), available at

Any land use scholar seeking to explore ecosystem services should start with the seminal book on the subject: Gretchen C. Daily, ed., Nature’s Services: Societal Dependence on Natural Ecosystems (Island Press 1997).  Other classic books include Robert Costanza, ed., Ecological Economics: The Science and Management of Sustainability (Columbia University Press 1991), and Herman Daly and Joshua Farley, Ecological Economics: Principles and Applications (Island Press 2004).  A more recent book, written for a lay audience, is Mark R. Tercek and Jonathan S. Adams, Nature’s Fortune: How Business and Society Thrive by Investing in Nature (Basic Books 2013).  Tercek is President and CEO of The Nature Conservancy, and Adams is a conservation biologist.  Chapter 8 gives special attention to urban and land-use issues. 

Those who are interested in exploring the scientific issues about how to measure, map, and value ecosystem services, the following books are worth attention:

Peter Kareiva, Heather Tallis, Taylor H. Ricketts, Gretchen C. Daily, and Stephen Polasky, eds., Natural Capital: Theory and Practice of Mapping Ecosystem Services (Oxford University Press 2011);

Steve Wratten, Harpinder Sandhu, Ross Cullen, and Robert Costanza, eds.., Ecosystem Services in Agricultural and Urban Landscapes (Wiley-Blackwell 2013);

Millennium Ecosystem Assessment, Ecosystems and Human Well-Being: A Framework for Assessment (Island Press 2003); and

Millennium Ecosystem Assessment, Ecosystems and Human Well-Being: Synthesis (Island Press 2005). 

Those who are interested in the social-justice and philosophical issues surrounding ecosystem services should check out Thomas Sikor, ed., The Justices and Injustices of Ecosystem Services (Earthscan/Routledge 2013). 

A scholarly book on policy that transcends several disciplines, including geography, ecology, economics, and political science, is Sander Jacobs, Nicolas Dendoncker, and Hans Keune, eds., Ecosystem Services: Global Issues, Local Practices (Elsevier, 2013). 

A new book directly addresses the relationship between ecosystem services and land use: Jinyan Zhan, Impacts of Land-use Change on Ecosystem Services (Springer, 2015). 

If you are interested in developing new, collaborative research projects on ecosystem services and land use, please contact me at  I’d love to explore potential opportunities for collaboration on this much under-researched topic.   But whether you seek to pursue new research collaborations, plan to develop your own individual research projects, or are merely interested in knowing more, I urge you to explore the topic of ecosystem services.


September 9, 2015 | Permalink | Comments (0)

Saturday, September 5, 2015

Only 6 Months Until New FEMA Guidance Requiring Consideration of Future Climate Risks in State HMPs Becomes Agency Policy

In March 2015, FEMA issued a State Mitigation Plan Review Guide, following notice and comment. Under the new guidance, state Hazard Mitigation Plans (HMPs) must consider the probability of future hazards, taking into consideration changing future conditions including changing climate and weather conditions.  And, on March 6, 2016, this new guidance will become the agency’s official policy on the natural hazard mitigation planning requirements of Title 44 of the Code of Federal Regulations (CFR) Part 201, and FEMA’s interpretation of federal regulations for state hazard mitigation plans.

A change in the requirements for state HMPs can mean real money to state governments because these plans are one of the conditions of eligibility for certain federal assistance—for example, Public Assistance Categories C-G and Hazard Mitigation Assistance mitigation project grants. Although states are currently required to adopt HMPs in order to qualify for certain disaster funds, under past FEMA guidelines state governments could assess their potential risks based on historic data. In other words, their HMPs could ignore risks from the foreseeable effects of climate change, including rising sea levels, higher storm surges, and more frequent and intense storms, droughts and heat waves. Expressly recognizing the significance of climate change to risk mitigation planning, the new guidance explains that future climate-change related risks must be considered because

“Past occurrences are important to a factual basis of hazard risk; however, the challenges posed by climate change, such as more intense storms, frequent heavy precipitation, heat waves, drought, extreme flooding, and higher sea levels, could significantly alter the types and magnitudes of hazards impacting states in the future.” (State Mitigation Plan Review Guide § 3.2.)

The new FEMA guidance also recognizes the significance of land use planning to risk reduction. The guidance suggests that to effectively increase community resilience the HMP must be more than an emergency management plan and the planning process must include the full range of effected sectors, including land use, economic development, housing, health and social services, and infrastructure.

In an apparent shot across the bow to state climate change deniers, the new guidance also finds that 44 CFR §201.4(c)(6), which requires state HMPs to “be formally adopted by the State,” means that the plan must be adopted by the highest elected official in the state or his or her designee. The guidance states that

“[Plan adoption by the state’s highest elected official or designee] demonstrates commitment to the mitigation strategy and may serve as a means to communicate priorities to entities within the state agencies regarding vulnerability and mitigation measures . . . [and] may increase awareness of and support from the state agencies with mitigation capabilities and responsibilities, not just the state agency responsible for the mitigation planning program.” (State Mitigation Plan Review Guide § 3.7.)

A survey of state HMPs from the 2010-11 period by Columbia Law School’s Sabin Center for Climate Change Law, found that

  • 18 state HMPs had “[n]o discussion of climate change or inaccurate discussion of climate change.” (AL, DE, GA, ID, IN, IA, KT, MS, MO, MT, NE, NV, NM, ND, OK, TN, SD, WY)
  • 11 state HMPs had “[m]inimal mention of climate change related issues.” (AZ, AR, IL, KA, LA, OH, PA, SC, TX, UT, VA)
  • 10 state HMPs had an “[a]ccurate but limited discussion of climate change and/or brief discussion with acknowledgement of need for future inclusion.” (FL, ME, MI, MN, NJ, NC, OR, RI, WV, WI)
  • 11 state HMPs had a “[t]horough discussion of climate change impacts on hazards and climate adaptation actions.” (AK, CA, CO, CT, HI, MD, MA, NH, NY, VT, WA)

Even though it appears 21 states already include at least an accurate, albeit sometimes limited, discussion of climate change, the new FEMA guidance requires significantly more—which raises the question of whether states are equipped to address future hazards, including climate-related hazards, as robustly as the new guidance requires. For example, are states equipped to quantify climate-change related risks at the state level? For most, the answer is probably “no.” The Guide gives a nod to this problem, suggesting that “states are expected to look across the whole community of partners (for example, public, private, academic, non-governmental, etc.) to identify the most relevant data and select the most appropriate methodologies to assess risks and vulnerability.” (State Mitigation Plan Review Guide § 3.2.) However, notwithstanding potential support from community partners, the complexity of scaling global climate data to a regional scale and identifying related risks within a relatively short time frame means that most states will be hard pressed to quantify future hazard probabilities by the time their next HMP update is due.

New York may be among the few states that are equipped to respond in time. New York’s Department of State and Department of Environmental Conservation began developing statewide climate-related projections earlier this year in response to the newly enacted New York Community Risk and Resiliency Act, which among other things directs the state agencies to prepare climate projections and model municipal laws taking into consideration sea-level rise and other climate-related events.

Given the unmet need for state and local resources to adequately assess, plan and ultimately implement hazard mitigation strategies that account for climate change, as well as the political backlash from the new requirement, is FEMA’s new guidance ill conceived? My answer is “no.” Many resources exist to help states in their hazard mitigation planning process, and I suspect FEMA will accept plans that consider climate change risks even if the supporting climate data are not scaled to the state level, as long as the state risk assessment takes into consideration FEMA's updated flood maps and other available climate-related risk projections.

And, more significantly, the new guidance is a necessary step in closing a troubling gap between climate-related vulnerabilities and preparedness that exists in the United States. Global temperatures are increasing and the rate of increase is accelerating, with corresponding increases in sea levels, acidification of oceans, and losses of flood-mitigating wetlands. Many communities are already experiencing climate change related hazards, including eroding shores, more massive storm surges, more severe storms, salt water intrusion, loss of land, heat waves, wildfires, and droughts. State HMPs based solely on historic data that don’t take into account these changing conditions fail to address the full gambit and magnitude of hazards that are likely to impact the states—with resulting loss of lives, public health and welfare impacts, property damage, and potentially avoidable expenditures of federal disaster funds. Thus, although some lawmakers are charging FEMA with politicizing the hazard mitigation planning process and access to disaster funds, state administrations that are unwilling to fully consider and plan for foreseeable hazards are themselves jeopardizing public health and welfare in order to hold onto a political position that no longer holds water.

For more information check out:

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.

September 5, 2015 in Climate, Federal Government, New York, Planning, State Government | Permalink | Comments (0)

Friday, September 4, 2015

CFP: Memphis Law Review Symposium: Urban Revitalization: The Legal Implications in Restoring a City

Download Memphis Law Call for Papers


The University of Memphis Law Review Annual Symposium


March 18, 2016 in Memphis, TN 


It is a pleasure to invite you to The University of Memphis Law Review’s 2016 Annual Symposium. The theme this year is “Urban Revitalization: The Legal Implications in Restoring a City.”  As the name suggests, we will focus our attention on the legal issues of cities that face large turnover, abandonment, and blighted properties. The University of Memphis Law Review, organizer of the event, will host Symposium sessions at the Cecil C. Humphreys School of Law at 1 North Front Street Memphis, TN 38103 on March 18, 2016.

The University of Memphis Law Review Symposium is held every spring on a topic of current interest to the student population, the legal community, and the city. The Symposium is a one-day CLE event. An issue of The Memphis Law Review will be published in conjunction.

This law symposium is unique in that it will be followed by a Community Summit at the Law School on March 19, 2016. The Summit is specifically designed for local, regional and state officials, civil leaders and others who put law and public policy into practice.

Topics of interest

With this symposiums focus on the legal implications of revitalizing distressed communities, neighborhoods, and properties, we are particularly interested in the intersection of law and policy as local government, together with community, institutional and philanthropic partners, deploy a wide variety of policies, strategies, and legal remedies to address blighted properties.  Our topic specifically covers the areas of municipal, real property, and environmental law.  Under this broad umbrella, we are particularly interested in articles addressing:

  • Code enforcement laws and policies to defeat residential blight
  • Mortgage foreclosure, bankruptcy and property abandonment
  • Use of data in the fight against blighted property
  • Criminal nuisance theory and procedure
  • Health law and Healthy Homes theory and procedure
  • Disparate impact in revitalizing neighborhoods
  • Property rights in the light of community beautification projects
  • Land banking functions, structures and legislative requirements
  • Tax delinquency and issues of takings or eminent domain
  • Disparate racial impact in neighborhood stabilization policies and practices
  • HUD’s new affirmative fair housing policy in blighted urban neighborhoods
  • Administrative versus judicial remedies in property revitalization
  • Special purpose housing and environmental courts
  • Public policies and programs for better health in homes and neighborhoods

Guide for authors

The deadline to submit abstracts is October 1, 2015. To submit your abstract, please click on the following link:

Click “Submit Now” and search for The University of Memphis Law Review. Follow the remaining prompts to upload and submit your article.  Please identify your submission as a symposium proposal so it will be sent to the correct editor.

You may also submit directly to The University of Memphis Law Review through email at

Important Dates

Deadline for submission: November 1, 2015

Notification of acceptance: November 30, 2015

Organizing committee:

For any additional questions about the event or about submitting an article, please email Kelly Masters Peevyhouse at



September 4, 2015 | Permalink | Comments (0)

The Negev Desert: There is nothing as rotten as a decaying dream.

So prized was the Negev to Israel’s founding generation that David Ben-Gurion, the man who is considered to be one of the founders of the state, and its first Prime Minister, built a home there, which he called Sde Boker – translated as cowboy field.  Moreover, he and his beloved wife Paula are buried there.  Ben Gurion and later, Prime Minister Arik Sharon, who also lived in the Negev, considered that land a blissful respite from their weekly work.  These men and the thousands of others, who have made the desert their home, see it as a picturesque and superbly scenic habitat that freshens the soul.

Nevertheless, there was and is a darker side to Ben Gurion’s ideal of the Negev.  He had a vison of “blooming the desert”, which he expressed as follows:

"The desert provides us with the best opportunity to begin again.  This is a vital element of our renaissance in Israel.  For it is in mastering nature that man learns to control himself.  It is in this sense, more practical than mystic, that I define our Redemption on this land.  Israel must continue to cultivate its nationality and to represent the Jewish people without renouncing its glorious past.  It must earn this — which is no small task — a right that can only be acquired in the desert."

This dream conflicts with that of most Jewish Israelis.  Indeed, until recently land-use in the Negev was primarily recreational.  The desert is seen by most Israelis as a place of calm and serenity, one to be utilized for hiking, day trips and the home of the Bedouin.  Nevertheless, the dream of “blooming the desert” persists. 

There is nothing as rotten as a decaying dream.  One rooted in a romantic vision of the past.  And in the second decade of the twenty-first century Ben Gurion’s dream reeks.  Today, we are in an age of sustainability, protection of common resources for future generations and ecotourism.  Moreover, science continues to teach us that desert ecosystems are both fragile and complex.  Therefore, they must be left alone.  The land is to be used for non-use.

However, that began to change in the mid-1990s.  First, as the government became more right-leaning and nationalistic, a number of commissions were empaneled to draft plans to import as many as 500,000 Jews into the Negev and to force some 80,000 Bedouin to concentrate into the government’s pre-built and pre-planned towns - away from their indigenous tribal and family-based settlements.  Another factor is the decision by the government, which was upheld by the Supreme Court of Israel, that those Bedouins who did not have a paper title or whose families did not register their lands with the British in 1921, de facto did not own the lands they occupied, i.e., they are squatters.

In essence, the Government of Israel (“GOI”) seeks to Judaize the Negev.  Like previous like-minded European colonialists, the government seeks to concentrate its indigenous peoples into reservations or ghettos, see e. g., the South Africa’s townships; the United States’ Indian reservations and broken treaties; Canada’s First Nations; Australia’s Koori (e), Murri, Nunga, Nyoongah, the Tasmanian Palawa and New Zealand’s Mauri.  The main difference between Israel and the other colonial powers is that they ghettoized their aboriginal populations during the eighteenth and nineteenth centuries, while Israel is doing so in the present day – an era of human rights, and the government’s accession to numerous human rights treaties, which would lead one to believe that it should know better.  However, when ideology collides with reality, reality always appears to be vanquished, until it catches up.

September 4, 2015 in Aesthetic Regulation, Community Design, Comparative Land Use, Eminent Domain, Environmentalism | Permalink | Comments (0)

Thursday, September 3, 2015

Land use law-related articles posted on SSRN in August

August saw another bumper-crop of land use-law related articles posted to the SSRN Property, Land Use & Real Estate Law eJournal.  Below is a survey of those articles posted to SSRN in the month of August listed in the reverse order of posting (e.g., the articles at the top were posted later in the month).  The order here has no relation on the number of downloads.  Lots of land use law scholarship going on, which is exciting to see.  

(Since I am a few days late in conducting this survey, I thought I'd clarify that I am only including those articles posted to SSRN in August.  I will list those article posted in September at the end of this month.)

Happy reading!


 Relative Administrability, Conservatives, and Environmental Regulatory Reform
Florida Law Review, Vol. 68, No. (2016, Forthcoming)
Blake Hudson 
Louisiana State University, Baton Rouge - Paul M. Hebert Law Center 

 The City as a Commons
Sheila Foster and Christian Iaione 
Fordham University School of Law and Università degli Studi Guglielmo Marconi 

 Underwriting Sustainable Homeownership: The Federal Housing Administration and the Low Down Payment Loan
Georgia Law Review, Forthcoming, Brooklyn Law School, Legal Studies Paper No. 420
David J. Reiss 
Brooklyn Law School 

Order and Disorder in the Urban Forest: A Foucauldian/Latourian Perspective
L. Anders Sandberg, Adrina Bardekjian, and Sadia Butt (eds.), Urban Forests, Trees, and Green Space: A Political Ecology Perspective (Routledge/Earthscan), pp. 132-146, 2014, SUNY Buffalo Legal Studies Research Paper No. 2015-034
Irus Braverman 
State University of New York (SUNY), Buffalo, SUNY Buffalo Law School 

 Public Opinion on Hydraulic Fracturing in the Province of Quebec: A Comparison with Michigan and Pennsylvania
Issues in Energy and Environmental Policy, No. 17, October 2014
Erick Lachapelle and Eric Montpetit 
Université de Montréal and University of Montreal 

 Shifting Public Land Paradigms: Lessons from the Valles Caldera National Preserve
Virginia Environmental Law Journal, Forthcoming, UNM School of Law Research Paper No. 2015-21
Melinda Harm Benson 
University of New Mexico 

 This Land's Not My Land? Eminent Domain Research in Virginia
Virginia Lawyer, Vol. 5, October 2010
Marie Summerlin Hamm 
Regent University - School of Law 

 Revealing the Rapist Next Door: Property Impacts of a Sex Offender Registry
International Review of Law and Economics, Forthcoming, George Mason Legal Studies Research Paper No. LS 15-06, George Mason Law & Economics Research Paper No. 15-24
Susan Yeh 
George Mason University School of Law 

 An Introduction to Conservation Easements in the United States: A Simple Concept and a Complicated Mosaic of Law
1 Journal of Law, Property, and Society 107 (2015), U Denver Legal Studies Research Paper No. 15-45
Federico Cheever and Nancy A. McLaughlin 
University of Denver Sturm College of Law and University of Utah S.J. Quinney College of Law 

Explaining the Certainty of Term Requirement in Leases: Nothing Lasts Forever
Cambridge Law Journal, Forthcoming
Ian Williams 
Faculty of Laws, University College London 

 Takings for Granted: The Convergence and Non-Convergence of Property Law in the People's Republic of China and the United States
Duke Journal of Comparative & International Law, Vol. 19, No. 133, 2008
Dennis Schmelzer 
Dechert LLP 

Statutory Right of Redemption and the Selling Price of Foreclosed Houses
Journal of Real Estate Finance and Economics, Vol. 51, No. 3, 2015
Bruce L. Gordon and Daniel T. Winkler 
University of North Alabama and University of North Carolina (UNC) at Greensboro –

Housing Tax Reform and Foreclosure Rates
Journal of Real Estate Finance and Economics, Vol. 51, No. 3, 2015
Richard Dusansky and Firas Zebian 
University of Texas at Austin and Independent 

 Wilderness: Good for Alaska Legal and Economic Perspectives on Alaska’s Wilderness
Washington Journal of Environmental Law & Policy, 2015
Elizaveta Barrett Ristroph and Anwar Hussain 
University of Hawaii at Manoa and Auburn University - School of Forestry & Wildlife Sciences 

 Traditional Cultural Districts — An Opportunity for Alaska Tribes to Protect Subsistence and Traditional Lands
Alaska Law Review, Vol. 31, No. 2, 2015
Elizaveta Barrett Ristroph 
University of Hawaii at Manoa 

 Bankruptcy Weapons to Terminate a Zombie Mortgage
Washburn Law Journal, Vol. 54, No. 3, 2015
Andrea J. Boyack and Robert Berger 
Washburn University - School of Law and U.S. Bankruptcy Court 

 The Government’s Right to Destroy
47 Arizona State Law Journal 269 (2015), U of Houston Law Center No. 2015-A-17
Kellen Zale 
University of Houston Law Center 

 Sharing Property
University of Colorado Law Review (Forthcoming), U of Houston Law Center No. 2015-A-16
Kellen Zale 
University of Houston Law Center 

Climate Change is Winning the Race: Using Negotiated Rulemaking to Push Wind Energy to First Place
Nicole Gallerano 

 Realizing the Cooperative Advantage at the Atkinson Housing Cooperative: The Role of Community Development to Improve Public Housing
Journal of Entrepreneurial and Organizational Diversity, Vol. 4, No. 1 (2015): 52-74
Jorge Sousa 
University of Alberta - Educational Policy Studies 

 Mutual Exclusivity and the Nature of Property
James Y. Stern 
William & Mary Law School 

 Property Management Company in Housing Institutions
Feng Frederic Deng 
Chongqing Technology and Business University 

 Green Buildings: The Indian Perspective
Arpitpushp Chaturvedi 
OP Jindal Global University - Jindal Global Law School (JGLS) 

 Is the Sky the Limit? Following the Trajectory of Aboriginal Legal Rights in Resource Development
Macdonald-Laurier Institute Paper Series (June 2015)
Dwight G. Newman 
University of Saskatchewan College of Law 

 ‘The Sacredness of Private Property:’ State Constitutional Law and the Protection of Economic Rights Before the Civil War
NYU Journal of Law & Liberty, Forthcoming, Vanderbilt Public Law Research Paper No. 15-21, Vanderbilt Law and Economics Research Paper No. 15-17
James W. Ely Jr. 
Vanderbilt University - Law School 

 Locke, Hegel, and Rights to Property: Examining the Unstable Ideological Architecture of the Canadian Law of Aboriginal Title
University of Toronto Faculty of Law Review, Vol. 69, No. 1, 2012
Malcolm Lavoie 
University of Alberta Faculty of Law 

 Indigenous Cooperatives in Canada: The Complex Relationship between Cooperatives, Community Economic Development, Colonization, and Culture
Journal of Entrepreneurial and Organizational Diversity, Vol. 4, No. 1, (2015): 121-152
Ushnish Sengupta 
Ontario Institute for Studies in Education 

 [Re]Integrating Community Space: The Legal and Social Meanings of Reclaiming Abandoned Space in New York's Lower East Side
Andrea McArdle, Re]Integrating Community Space: The Legal and Social Meanings of Reclaiming Abandoned Space in New York's Lower East Side, 2 Savannah Law Review 247 (2015)
Andrea L. McArdle 
CUNY School of Law 

 Is Decentralisation Always Good for Climate Change Mitigation? How Federalsim Has Complicated the Greening of Building Policies in Austria
Steurer, R. & Clar, C. (2015): Is decentralisation always good for climate change mitigation? How federalism has complicated the greening of building policies in Austria, in: Policy Sciences, 48/1, 85-107, InFER Discussion Paper 4-2015
Reinhard Steurer and Christoph Clar 
InFER - Institute of Forest, Environmental, and Natural Resource Policy; University of Natural Resources and Life Sciences (BOKU), Vienna and Universität für Bodenkultur Wien (BOKU) - Institute of Forest, Environment and Resource Policy 

 Disparate Impact and the Role of Classification and Motivation in Equal Protection Law after Inclusive Communities
Cornell Law Review, Vol. 101, Forthcoming
Samuel R. Bagenstos 
University of Michigan Law School 

 Boundary Work in Black Middle-Class Communities
2 Savannah Law Review 225 (2015)
Stephen Clowney 
University of Arkansas - School of Law 

 Walking the Talk: Are Land Evictions in Uganda in Line with Human Rights Standards?
Bako Jane Patricia 
Uganda Christian University 

 Dealing with Dirty Deeds: Matching Nemo Dat Preferences with Property Law Pragmatism
64 Kansas Law Review 1 (2015), Forthcoming
Donald J. Kochan 
Chapman University, The Dale E. Fowler School of Law 

 Land Ownership, Mineral Development and Agriculture in Nigeria: An Examination of Key Issues and Challenges
In Rhuks Ako & Damilola Olawuyi, eds, Food and Agricultural Law: Readings on Sustainable Agriculture and the Law in Nigeria (Ado-Ekiti (Nigeria): Afe Babalola University Press, 2015) 30-47
Chilenye Nwapi 
University of Calgary 

 The Owners’ Committee in China: Another Non-Owner Owned Puppet?
Tsinghua China Law Review, Forthcoming
Difan Qu 
AIIFL, The University of Hong Kong 
Date Posted: August 11, 2015
Accepted Paper Series

 Underground Environmental Regulations: Regulations Imposed as Mitigation Measures Under CEQA Violate the California Administrative Procedure Act
Jonathan Wood 
Pacific Legal Foundation 

 Re-Integrating Spaces: The Possibilities of Common Law Property
2 Savannah Law Review 1-20 (2015), UNC Legal Studies Research Paper No. 2640209
Alfred L. Brophy 
University of North Carolina (UNC) at Chapel Hill - School of Law 

 Expropriation Effects on Residential Communities
Context, Criteria & Consequences of Expropriation, 2016, Forthcoming
Shai Stern 
Bar-Ilan University - Faculty of Law 

 Resolving Intra-Reservoir Horizontal Drilling Conflicts Using a Reservoir Community Analysis
North Dakota Law Review, Vol. 90, No. 2, 2014
David E. Pierce 
Washburn University School of Law 

 Consumption Property in the Sharing Economy
Pepperdine Law Review, 2015, Forthcoming
Shelly Kreiczer-Levy 
Academic Center of Law and Business 

 A Glimpse into the Realpolitik of Federal Land Planning, in Comparative Context with the Mysterious NLUPA and the CZMA
The George Washington Journal of Energy & Environmental Law, Vol. 6, No. 2, Spring 2015, Boston College Law School Legal Studies Research Paper No. 365
Zygmunt J. B. Plater 
Boston College - Law School 

 Proposition 13: An Equilibrium Analysis
Ayse Imrohoroglu Kyle Matoba and Selale Tuzel 
University of Southern California - Marshall School of Business , University of California, Los Angeles (UCLA) - Anderson School of Management and University of Southern California - Marshall School of Business - Finance and Business Economics Department 

 Are Both Dimensions of Property Rights 'Efficient'?
Czeglédi, P. (2015), Are both dimensions of property rights “efficient”?, European Journal of Comparative Economics, 12(1), 41-69, 
Pal Czegledi 
University of Debrecen 

 Community Rights and the Municipal Police Power
55 Santa Clara Law Review 675 (2015)
Stephen R. Miller 
University of Idaho College of Law - Boise 

 Millennial Pivot: Sustainability-Purposed Performance Zoning Guidelines in Urban Commercial Development
Arizona Summit Law School Research Paper No. 2015-A-02
Michael N. Widener 
Arizona Summit Law School 

 Realigning Metrics of Economic Well-Being in Residential and Commercial Development Through Sustainable Land Use Planning
Washburn Law Journal, Vol. 54, 2015
Blake Hudson 
Louisiana State University, Baton Rouge - Paul M. Hebert Law Center 

September 3, 2015 | Permalink | Comments (0)

What is a “Great Neighborhood”? An Analysis of APA's Top-Rated Places

Emily Talen (ASU - Geography & Planning) has a nice article, What is a “Great Neighborhood”? An Analysis of APA's Top-Rated Places, in the recent edition of the Journal of the American Planning Association on neighborhoods.  Worth checking out.

DOI:  10.1080/01944363.2015.1067573

Appears it is currently available for free here.

Problem, research strategy, and findings: The American Planning Association's (APA) annual “Great Neighborhoods” program was established to define the “gold standard” of neighborhoods in America. Using census and other data covering the 80 APA-designated Great Neighborhoods to date (2007 to 2014), we quantitatively assess whether good neighborhood form may be in conflict with the social goals of affordability and social diversity. We find that APA's Great Neighborhoods represent a somewhat classic conception of the historic, gentrifying urban neighborhood: walkable, gridded, and losing social diversity. APA Great Neighborhoods are apparently not able to buck the trend that desirable physical qualities lead correspondingly to lack of affordability and social diversity.

Takeaway for practice: We argue that the APA should be sensitive to the connection between a strong sense of neighborhood identity and the potential for social exclusion in their Great Neighborhoods designation. The APA could give a special designation for neighborhoods that score well on the APA's criteria, but that also manage to retain affordability and social diversity. The APA could therefore use its Great Neighborhoods designation to recognize planning, policy, and design efforts in service of not only design excellence, but also social inclusion.

September 3, 2015 | Permalink | Comments (0)