Thursday, January 15, 2015
I recently posted a draft of a symposium essay, A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe, which is to be published by Boston University Law's American Journal of Law and Medicine. The essay is based, in part, on work condcuted by my clinic on agritourism earlier this year. Here is the abstract:
Stephen R. Miller
In a relatively well-known case from Colorado, Alan DeAtley faced criminal charges for his claiming grossly overvalued deductions for conservation easements on his land. Unsurprisingly, DeAtley brought suit against the various professionals who worked on the conservation easements including appraisers and tax professionals. His complaint asserts that these professionals misrepresented the conservation easement values and their conduct was not just negligent but rose to the level of fraudulent. (Note, this case had been transfered from federal district court in Colorado to the Western District of Washington)
DeAtley's complaint has now been dismissed. I was interested in this case because without having a lot of details it sounded like DeAtley had gotten some bad legal and accounting advice. DeAtley, however, started out by filing a shoddy complaint (lacking details regarding the necessary elements of the causes of action) and then failed to respond to the motions to dismiss. The motion was granted without prejudice (but not specifically with leave to amend), so we might see the case reopened. DeAtley was represented by counsel here. Makes you wonder... is he bad at choosing counsel? is he just a poor client who does not listen to or pay counsel? will we see another case for negligence against this attorney? Of course, none of those things are really helpful to the rest of us. We will have to look to other cases to assess what types of repercussions land use attorneys might face for poor conservation easement advice.
This order and the complaint are available on Westlaw (2015 WL 134271) and likely someone more saavy with Pacer than I am can find the information there.
Wednesday, January 14, 2015
Last chance to apply to Study Space VIII, Phoenix Cities: Urban Recover and Resilience in the Wake of Conflict, Crisis and Disaster, from June 15-19, 2015 in Warsaw, Poland. Deadline to apply is February 2nd, but only a few spaces remain!
Apply online at: https://insidelaw.gsu.edu/study-space/
The Center for the Comparative Study for Metropolitan Growth at the Georgia State University College of Law is again offering a unique opportunity for travel and learning in June 2015. The eighth iteration of Study Space—a weeklong intensive workshop in which scholars, government and private sector professionals develop solutions to legal, social and policy challenges in urban areas—will take place in Warsaw, Poland at the University of Warsaw’s Foundation Center of Disputes and Conflicts Resolution at the Faculty of Law.
Study Space Poland will feature the incredible reconstruction of Warsaw, Poland in the post-war era. The program will provide historical and political context to the reconstruction of the city, and use the past as a guide to understanding today’s planning goals from a socio-economic perspective.
Study Space Poland will feature a number of lectures and site visits. For example, participants will visit the Old Town and learn about how paintings by Canaletto aided in the reconstruction of the city to its near original form. Tours outside the Old City will demonstrate to participants how areas were redesigned during reconstruction to accommodate the growing city’s needs. Whereas lectures about housing issues and squatters and reprivitization will demonstrate the challenges of reconstruction. The cost of the program is $900 plus airfare, hotel, and miscellaneous expenses.
Participants are sure to leave the experience with a new perspective on creating resilient cities informed by the past and present while looking towards the future.
This program is open to professionals and scholars around the world. Space is limited so early application is encouraged.
Please feel free to share this announcement with your colleagues or others who may be interested.
Want more info? Contact Karen Johnston at firstname.lastname@example.org or 404-413-9175.
Visit our website for more information: http://law.gsu.edu/centers/metro-growth/programs/study-space/
Apply online at: https://insidelaw.gsu.edu/study-space/
You are cordially invited to participate in a conversation about tools, programs, and possible funding sources to help Florida communities prepare for the future and strengthen their resilience to disasters, sea level rise, and climate change on Wednesday, January 28, from 1:00 to 2:30 pm ET.
Presenters will include:
- The Hon. Kristin Jacobs, Florida House of Representatives
- Josh Sawislak, White House Council on Environmental Quality (invited)
- Margo Moehring, Northeast Florida Regional Council
Recent activities at both the state and federal level may make more resources available to local communities seeking to enhance their resilience to natural hazards and climate change. This webinar will explain some of these potential opportunities and the outlook for future resources.
Rep. Jacobs is the Ranking Member of the Agriculture and Natural Resources Appropriation Subcommittee of the Florida House of Representatives and recently served on the White House’s State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience, which developed a series of Recommendations on how the federal government could better assist states and local governments in preparing for and recovering from disasters and the impacts of climate change.
The webinar is sponsored by the Southeast Florida Regional Climate Change Compact.
REGISTER HERE: https://attendee.gotowebinar.com/register/2952086829704883201
After registering, you will receive a confirmation email containing information about joining the webinar.
Tuesday, January 13, 2015
[My colleague here at the University of Idaho College of Law, Barbara Cosens, is currently visiting in Australia and doing some really interesting water law work there. She plans to occasionally blog about the experience. She has agreed to let me re-post some of her blog posts on Land Use Prof Blog where they relate to the themes of this blog. Many of you know Barb, and I'm sure she'd love to hear from you and your response to her posts.]
Here is more about the program:
Professor Cosens has been selected as a Visiting Professor with the ANZSOG—Goyder Institute Visiting Professors Program in association with Flinders University in Adelaide, South Australia, for a portion of the spring 2015 semester. Professor Cosens is currently co-chair of a project made possible through the NSF funded National Socio-Environmental Synthesis Center to understand the role of law in presenting both barriers and opportunities for adaptive water governance as we enter the era of climate change. Professor Cosens will bring this research to bear on the Lake Eyre Basin, an internally drained basin covering a large portion of South Australia, Queensland, Northern Territories, and a portion of New South Wales, and linked to the Great Artesian Basin.
And here is Barb's first post:
Adelaide, South Australia water supply: Diversification enhances resilience
My husband and I arrived in Adelaide South Australia at 8 pm on January 3, after leaving the west coast of the United States on the evening of January 1. As with any traveler arriving in the Adelaide airport after 30 hours of flights and airports, my thoughts turned to water. But as a water geek, I wanted to know more than where the nearest drinking fountain could be found. Here is what I learned. The provision of drinking water and sanitation is considered an essential service in Australia as it is in the United States. There is limited privatization of drinking water supply in South Australia and the primary water provider is the state owned South Australian Water Corporation (SA Water) established in 1994. In a tribute to globalization, United Water, the U.S. subsidiary of the French corporation Suez Environnement, once provided some of the operation and maintenance services for water supply in South Australia. And yes, this is the same United Water that provides drinking water to Boise, Idaho, USA. The water supply for Adelaide, until recently, came primarily from the Murray-Darling basin (85%), local catchment reservoirs (8%) and groundwater (7%). South Australia entered what would be its worst drought on record in 1995, a drought that would not ease until 2010. With record low flows on the Murray River and predictions of an overall decline in precipitation of 15-30% by 2050 as the result of climate change, South Australia sought to diversify its water sources with its 2009 Water for Good plan (diversification of source is an important move for enhancing general resilience for you resilience thinkers out there). In 2011, as part of the plan and just as the drought broke, Adelaide began receiving a portion of its water from a desalination plant located south of the city, and plans are underway to recycle treated waste water for use in irrigation. With this being my first opportunity to possibly be drinking desalinated water, my thoughts also turned to water quality. Reading a textbook on Australian Water published in 2012, I learned that South Australia stood alone among Australian states in its absence of drinking water quality regulation. I immediately vowed to only drink bottled water (something I generally avoid). Apparently SA Water had voluntarily undertaken the goal of meeting the federal Australia Drinking Water Guideline (ADWG) including self-imposed requirements for monitoring and reporting, but this did not ease my concern until I learned that things had changed since my law book went to press. In 2011, the legislature of SA passed the Safe Drinking Water Act to meet the federal ADWG. The Safe Drinking Water Regulations 2012, promulgated to implement the Act, apply to all public and private purveyors of drinking water in South Australia. The regulations commenced in March 2013. I now happily sip tap water as I write from my balcony overlooking the lovely beach at Glenelg, South Australia.
Look for more posts in this series with the "Water Down Under" title header.
Earlier this week, the Supreme Court heard arguments in Reed v. Town of Gilbert. SCOTUSblog has the docs here. The case boils down to regulation of temporary directional signs for a church. An amicus brief from some law profs argues that the petitioners' argument would "sharply deviate from this Court’s precedents and risk eroding the critical distinction between content-based speech restrictions and content-neutral ones." NPR had a story here.
While any Supreme Court case is important, I have to say that I am personally underwhelmed at the Court's decision to grant cert to this case. Of all the sign cases the Court has had the opportunity to grant cert on in the last five years or so, this seems the least relevant to the major issues the sign world faces. To my mind, the big issues are: (i) creating a more coherent regulatory structure than Metromedia and its progeny, which all sides in the sign world would seemingly desire; and (ii) addressing situations where cities ban general advertising signs (also called off-site signs) on private property and then bid out advertising on public property in a winner-take-all RFP. Gilbert won't address either.
Perhaps even the Court recognizes that Metromedia is a mess; perhaps the Court doesn't have anything better than Metromedia in the offing. And so, what clarity can be derived in the sign world this term will have to come from Gilbert. Whatever Gilbert does for sign law, I can't help but believe the Court granted cert to the wrong case if it wanted to clarify what is murky in sign law right now.
Stephen R. Miller
Maybe right for a student out there...
NEW! Certificate in Creative Cities and Economic Development
One of humanity's greatest innovations, cities have always been centers of human creativity. Today, however, they also have become the basic platform for economic and business growth. More than half of the world's population lives in cities—over 3.5 billion people—and an estimated 60 million are moving to them every year. By 2050, more than 75 percent of the world's population will be city dwellers, and the economic output of the 60-largest global cities will grow by $30 trillion. As the world's economy has become more global, its geography has become more focused; talent, innovation, and economic output are concentrating in a relative handful of cities.
Guided by Richard Florida, NYU global research professor and author of The Rise of the Creative Class, the NYU School of Professional Studies Certificate in Creative Cities and Economic Development will provide city and state officials, economic development professionals, nonprofit leaders, and city builders with the skills, expertise, and insights they need to create, implement, and measure asset-driven strategies and plans that move beyond real estate to build upon the creativity, innovation, and human capability of their local communities.
Spring Course Highlights Include:
Monday, January 12, 2015
The Land Use and Sustainable Development (LUSD) Law Clinic at West Virginia University's College of Law has been at full strength for a little over two years. One of only a handful of land use law clinics in the country, the LUSD Clinic staff includes five attorneys (one of whom is an AICP land use planner), and an additional AICP land use planner. We are also fortunate to have our first LLM Fellow this year, Ann Eisenberg, a Cornell Law School graduate. West Virginia University College of Law established a LLM degree program in Energy and Sustainable Development Law in the Fall of 2014. The LUSD Law Clinic class includes 6-12 J.D. students each year, and the students work with the staff and clients across the state.
Three main areas form of the focus of the clinic. The clinic director, Katherine Garvey, formerly with the Environmental Law Clinic at Vermont Law School, heads up the wastewater portion of the clinic. Nathan Fetty, the Managing Attorney, and Jason Walls, Land Conservation Attorney, spearhead the land conservation work conducted by the clinic. Last, and certainly not least, Jared Anderson, J.D., AICP, Supporting Land Use Attorney, Christy DeMuth, AICP, and I, as the Lead Land Use Attorney, guide the land use law activities of the clinic. The land use mission of the clinic includes, in addition to representing local governments across the state, education of local land use leaders in West Virginia. Although this education takes many forms, the clinic's Mountain State Land Use Academy holds two major educational workshops each semester. Although the clinic staff includes these three teams, the clinic as a whole operates as one team, working together to address these interrelated issues.
The clinic was established, in part, to aid in putting West Virginia on equal footing with surrounding states in terms of the land use and land conservation issues. West Virginia has lacked such a resource for a very long time. The LUSD Law Clinic seeks to remedy that long-standing lack of resources and has already helped many communities in the state make incredible progress.
During the 2013-2014 academic year, the clinic worked with with 18 local government clients, helping develop comprehensive plans and zoning ordinances, and facilitating over 50 public meetings. For example, the City of Wellsburg successfully adopted a comprehensive plan written by Clinic planners, attorneys and students. The next step is for the LUSD Law Clinic to assist the Wellsburg Urban Redevelopment Authority with redevelopment plans for identified slum and blighted areas in the community.
In the area of land conservation, the LUSD Law Clinic worked with non-profits and government agencies on land transactions aimed at protecting over 25 different properties. For example, the Clinic helped permanently protect 665 acres of land which fronts six miles of the Gauley River. Working in five counties, legal services included title examinations, contract drafting, drafting of title opinions and negotiations.
In partnership with the Northern Brownfields Assistance Center, the LUSD Law Clinic started a program to provide legal resources to local governments to address abandoned and neglected properties. The Clinic interviewed stakeholders such as building inspectors and municipal attorneys throughout the state to identify local concerns. A future blog post will provide more information on this exciting and transformative initiative.
I look forward to continuing to work with my wonderful colleagues, professionals across the country and the wonderful citizens of the great state of West Virginia for many years to come. West Virginia is a beautiful state with a committed and dedicated citizenry. I am very priviledged indeed to have the opportunity to work here.
Last week, Richard Florida published an op-ed in the NYT asking, Is Life Better in America's Red States?. The gist of the excellent article is that income inequality is greater in blue states than red states, and red states in the Mountain West and South are seeing an economic boom based around what I call "regulation refugees." Texas in the king of this: it deregulates everything from labor to land use, then goes to California and offers up massive tax breaks and uses taxpayer dollars to fund corporate infrastructure. Companies, as you might imagine, love it, and have come running for the freebies.
As a result, this "steal the blue state industry through deregulation" approach is the general playbook of most fast-growth red states. This creates short-term economic prosperity in red states; ironically, because the growth is based upon tax breaks that cripple social services, education, and public infrastructure, red states following this economic model will ultimately have a reckoning. Florida concludes:
The allure of cheap growth has handed the red states a distinct political advantage. Their economic system may be outmoded and obsolete, but it is strong enough to blight the future.
I would add one caveat to Florida's claims. In most "red" states, the cities very often remain blue. And in those blue cities in red states, there is often a middle class life that is not subject to the insanely high cost of living of the blue-state coasts, and where access to services like good schools, museums, and culture remain.
These small redoubts of blue cities in seas of red may well be the best places to live in America: they may be our country's true opportunity zones. They are places where rent is still cheap enough that artists and creative types can live, where entrepreneurs can take risks, and where there is a culture liberal enough that those voices and new technologies can find an open reception.
I have seen this here in Boise, a blue town in a very red state. The NYT took notice when a famous Brooklyn dance troupe, the Trey McIntyre Project, moved its operations to this Mountain West town several years ago. But it makes total sense: if you want to be a dancer, New York is where you want to perform, not where you want to raise a family. It has also not escaped notice that the hot literary talent of the year, Anthony Doerr, is also from Boise. Boise is the kind of place where a novelist can actually make a living writing instead of, say, being a waiter. Boise also has a remarkable degree of entrpreneurial activity for a city its size, no doubt due to its burgeoning tech sector and easy access by plane to San Francisco. My wife and I often remark that, even with a small child and another on the way, we still manage to do more culturally in Boise than we did in a decade in San Francisco. Education, in our neighborhood school, is pretty good and every year, several kids from the local school go to Ivy Leagues. People who could not afford a 1,500 sf home in an outer district of San Francisco in Boise have 3,000 sf homes in historic districts and mountain cabins, to boot.
But that is Boise and, a 10-minute drive will take you to places--the red places in this red state--where school levies always fail, there are no land use controls and traffic is out of control, where cities rent services from the county because they can't afford them. Those are the red places Florida was talking about; however, for those that live in the "blue Boise bubble," those red places might as well be a different planet. I would venture that most red states out there have similar cities to Boise: blue cities that have much to offer. Perhaps Austin and Denver are similar examples. Such blue cities in red states remain peculiar institutions that may, ultimately, be the best locations for middle-class prosperity left.
Stephen R. Miller
Friday, January 9, 2015
The 6th Annual Meeting of the Association of Law, Property and Society will take place in Athens, Ga at the University of Georgia School of Law from Thursday, April 30th through Saturday, May 2nd. Jim Smith (Georgia), the conference host, sent out an email earlier today announing an extension of the deadline for proposals:
I hope to see you in Athens!
I and many of my fellow LUP blog contributors have enjoyed the previous ALPS conferences, especially last year's get-together in Vancouver. We look forward to seeing you in Athens at the end of the semester!
First, I'm delighted to be a guest blogger on the Land Use Prof Blog. Since I am getting a late start (and that's totally my fault), I may blog into February as well. As Steve's introduction stated, I am the Lead Land Use Attorney at the Land Use and Sustainable Development Law Clinic at West Virginia University College of Law. Future blog posts will describe what the clinic does in greater detail. I am also and Associate Professor and teach Land Use and Reslience Law, as well as Water Law.
Although this post is tardy in many ways, the date is appropriate. One year ago today the Elk River chemical spill occurred in Charleston, West Virginia. In the past year, much in the state has focused on the impacts of the spill and possible ways to prevent future spills. Most notably, the West Virginia legislature quickly passed new above ground storage tank statute. January 1 was the deadline for registration and reporting of many of these tanks. Yesterday, the West Virginia Attorney General released a report on his investigation of the spill http://www.statejournal.com/story/27795961/wv-attorney-general-morrisey-releases-chemical-spill-investigation-report
If you are still reading, you may be asking yourself "What does this have to do with land use law?". As I say about almost anything, it has everything to do with land use law! Below is an essay that I wrote that appeared in the WVU Law Magazine that was published early in the Fall Semester. Thanks in part to the wonderful work being done at the Land Use and Sustainable Development Law Clinic, the vision that I described in the last paragraph is beginning to become reality.
Although much of the focus in the aftermath of the spill has been on Freedom Industries, and rightfully so, I am equally concerned about the lack of planning and foresight by West Virginia American Water. I have asked "which was there first, Freedom Industries, or West Virginia American Water?" and few, if anyone seems to really know or to have even asked the question. Although both entities failed to take due care, the one the located on the river last should, in my mind, bear the bigger burden. If, for example, West Virginia American Water (WVAW) "came to the nuisance" and located shortly downstream of a company that stores chemicals along the river, what were they thinking?
Even if WVAW was there first, how could they not have back-up plan if the river is contaminated? Accidents happen and WVAW should have a contingency plan to assure that clean water can be delivered to customers in emergency situations.
These reactions doubtless arise due to the land use law lens through which I view the world. Does WVAW have a valid nuisance claim against Freedom Industries? Does Freedom Industries have a valid nuisance claim against WVAW? The situation brings to mind my favorite United States Supreme Court case, Miller v. Schoene, 276 U.S. 272 (1928). In that case, the Virginia state entomologist ordered ornamental cedar trees near apple orchards be destroyed to prevent the spread of cedar rust to the apple trees. But cedar trees with cedar rust do no harm unless they are close to apple trees and apple trees are no threat to surrounding landowners unless that landowner has infected cedar trees (cedar rust does not prove fatal to cedar trees, but it is fatal to apple trees). Both the chemical company and the water provider, standing alone, are valid land uses, but like oil and water, the two do not do well together.
Another issue that comes to mind is the lack of planning by the county (and Freedom Industries for that matter). Companies should not store hazardous substances along a waterway. The location of the storage facilities and the plant meant that the impact of any accident would be magnified many fold. The locations of both parties are doubtless artifacts of history, but the county should have drawn the community together to discuss the potential implications and plan to minimize the hazards. That's called land use planning.
The chemical spill in the Elk River is a horrible incident that has caused damage to the environment and to many citizens of West Virginia. The implications cannot and should not be minimized, and I do not intend to do so. However, some good may come from this horrible incident. My hope is that the spill will prompt the community to engage in a public land use planning process that will prevent some future incidents from occurring and will prepare the community in the case that an accident occurs in the future. Planning for disasters can both minimize the chance of the disasters from occurring and minimize the damages from future accidents that occur. I see signs of citizens mobilizing for such an effort. Although we should never forget the horrors of the chemical spill, planning efforts can ensure a brighter, and safer, future for the citizens of West Virginia.
From the LAT:
California leaders including Gov. Jerry Brown on Tuesday launched the state’s high-speed rail project at a ceremony in downtown Fresno, declaring the city the nation’s high-speed rail capital and the “central cog” of a new transportation system..
At a historic and carefully choreographed groundbreaking staged in a decaying industrial section of the Central Valley city, near vacant lots where homeless gather at night, Brown sought to reset the public debate on the controversial $68-billion project, stressing the benefits the completed project could bring the state.
Thursday, January 8, 2015
The ABA Journal had an interesting article about a Brooklyn bar owner who is challenging NYC's cabaret law, which essentially requires a license to permit dancing in a commercial establishment, arguing that it violates 1st and 14th Amendments. (WSJ had the story a couple months back, too).
To my surprise, none of the stories provided a link to the Complaint. I dug it up. It is a really fun read, especially the section that details the history of the cabaret law. Apparently the cabaret law began at the height of the Harlem Renaissance requiring that musicians be "of good character," a standard used to deny musicians like Chet Baker, Charlie Parker, Billie Holiday and Thelonious Monk their right to perform. (Paragraph 14). Apparently the law was largely unenforced for decades until the Giuliani administration brought it back. (Paragraph 18).
Here is the Complaint:
Should the Cabaret Law be struck down, surely people would finally be able to "dance if they want to," as Men Without Hats once implored.
Stephen R. Miller
P.S.: They love this post in Texas...
Wednesday, January 7, 2015
10th Circuit Disallows Conservation Easement Deduction Where Mortgage Not Subordinated at Time of Donation
Yesterday, the Tenth Circuit issued its opinion in Mitchell v. CIR, 2015 WL 64927 (10th Cir. 2015).
The background: The Mitchells purchased a 105-acre ranch in Colorado in 1998 and an additional 351 acres in 2001. They bought both parcels from the same seller and entered into a multi-year payment plan with the seller (making the seller a mortgagee). They called their 456 acre parcel the Lone Canyon Ranch and formed a LLP. The partnership donated a conservation easement over 180 acres of the Ranch to the Montezuma Land Conservancy. The use of the property was restricted to open space, wildlife use, and agricultural purposes. When entering into this perpetual conservation easement, the Mitchells neglected to subordinate the mortgage.
In 2004, the Mitchells claimed a $504,000 tax deduction based on the donation. We have seen cases like this before. The IRS does not like conservation easements subject to unsubordinated mortgages because the IRS sees them as not meeting the perpetuity requirement. If the property can be foreclosed upon and the conservation easement theoretically terminate, then it isn’t perpetual.
In 2005, the mortgagee agreed to subordinate his interest. In 2010, the IRS told Mrs. Mitchell (Mr. M had passed away) that it hadn’t met the conservation easement donation requirements because the interest was unsubordinated at the time of the donation. Mrs. M appealed. The Tax Court sided with the IRS. Mrs. M appealed again.
While the Tax Code requires donations of conservation easements to be perpetual, it does not further explain what it means by perpetual. The IRS did so, however, in its implementing regulations. In 26 C.F.R. § 1.170A-14(g)(2), the regulations explain that no deduction will be permitted for property “which is subject to a mortgage unless the mortgagee subordinates its rights in the property.” The regulations further explain that a deduction will not be disallowed based on remote possible future events if the possibility of it occurring is “so remote as to be negligible.” Deferring to the agency’s interpretation of perpetuity, the Tenth Circuit did not examine the validity of the regulations but instead discussed whether Mrs. M could get the deduction despite the delay in the subordination. She based her argument on both the lack of a specific statement regarding when subordination needed to occur and the argument that the possibility of termination of the conservation easement was so remote as to be negligible. The IRS argued that the subordination requirement was a bright line rule and must occur by the time of the donation.
The Tenth Circuit agreed with the IRS Commissioner, stating that while the regulations didn’t expressly say when the subordination was to occur, the language of the provision made it clear because it said that “no deduction will be permitted … unless the mortgagee subordinates its rights.” The timing here indicates that the subordination must occur before one takes the deduction. I was quite excited to see the 10th Circuit citing and quoting friend of the blog Nancy McLaughlin.
Note, this doesn’t actually mean that Mrs. M can’t take a tax deduction here, but she couldn’t have taken it in 2003. It would have to wait until she got subordination in 2005. The court here doesn’t address what level of penalties she may face.
[This series of posts is based upon my experience as a commissioner on the Boise Planning and Zoning Commission.]
On Monday night, our planning commission faced a battle that, as best I can tell, is being waged across the country thousands of times a year in a slog of utter banality. The issue before us: 76-foot cell towers, or, in the industry parlance, "monopoles." Let's be honest: yawn. I did not sign up to spend my Monday nights at planning commission hearings and away from my family because of a deep-seated interest in monopoles; further, my interest in land use law, probably like most readers of this blog, is about as far away from cell towers as possible.
But here is why I am writing about this; monopoles almost became interesting last Monday for several reasons. Approximately 50 people showed up to oppose a single monopole, and they were fired up most about aesthetic issues--people in Boise take their views of the mountains seriously, and this would have been right in the viewshed--and environmental health issues. On the other hand, staff recommended approval. The fight was on.
That left us as commissioners in a weird spot. If we wanted to oppose the project, we needed to do several things. First, we needed to clearly state why we opposed the conditional use permit and the rezone. That isn't unusual; we have to do that any time that we disagree with a staff recommendation. In this case, though, there was an extra wrinkle: meeting the mandates of the Federal Telecommunications Act of 1996 (TCA). That is no easy task. Here are several reasons why the FTA matters from a treatise:
While generally preserving the authority of local zoning boards, the TCA explicitly limits their ability to regulate the provision of personal wireless services by prohibiting any "unreasonable discrimina[tion] among providers of functionally equivalent service," and by requiring that regulations "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C.A. § 332(c)(7)(B)(i)(I to II). The statute requires state and local governments to act "within a reasonable period of time" on requests to construct wireless facilities. 47 U.S.C.A. § 332(c)(7)(B)(ii). Moreover, the statute specifically requires that any denial of such request be "in writing and supported by substantial evidence in a written record." 47 U.S.C.A. § 332(c)(7)(B)(iii) (emphasis added). It also prohibits state and local governments from making the denial "on the basis of the environmental effects of radio frequency." 47 U.S.C.A. § 332(c)(7)(B)(iv).
. . .
Tuesday, January 6, 2015
Land Use Prof Blog is excited to welcome Jesse Richardson (WVU Law) as our January (and maybe into February, seeing as we are getting started a little late) guest blogger. Here is a bio:
Jess J. Richardson, Jr. .is the Lead Land Use Attorney at the Land Use and Sustainable Development Law Clinic and Associate Professor of Law at the West Virginia University College of Law. Before coming to WVU, Jesse was an Associate Professor in Urban Affairs and Planning at Virginia Tech, teaching land use law, environmental law, urban growth management and real estate. His research and experience focuses on land use law and water law. Prior to his academic endeavors, Jesse was in private practice in his home town of Winchester, Virginia, first with a large law firm, then as a solo practitioner. He presently serves on the Board of Directors of the American Agricultural Law Association, the Universities Council on Water Resources and the National Cave and Karst Research Institute. He previously served on the Virginia Farmland Protection Task Force and the Virginia Water Policy Technical Advisory Committee. Jesse was honored with the 1999 Professional Scholarship Award from the American Agricultural Law Association, the 2004 William E. Wine Award for a history of teaching Excellence from Virginia Tech (the highest teaching award granted by the university), and the 2009 University Certificate of Excellence in Outreach. He has worked with communities in West Virginia and Virginia on land use planning issues, including issues related to karst and water resources. He holds a B.S. and M.S. in Agricultural and Applied Economics from Virginia Tech and a J.D. from the University of Virginia School of Law.
Monday, January 5, 2015
Thursday, January 1, 2015
Happy new year! After a few weeks off, we are back at the blogging.
We start the year with a look back at 2014's top 50 downloaded land use law articles on SSRN (search term "land use," time period "one year"). As always, I'd note that there are likely other popular land use law-related articles out there not caught by the search I conduct. Perhaps some day land use law will get its own category at SSRN; till then, this seems the best we can do as a way to keep up, in summary fashion, with the best of the year's land use law literature.
Stephen R. Miller
|1||It's a 'Criming Shame': Moving from Land Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts
46 Urb. Law. 249 (2014), Touro Law Center Legal Studies Research Paper Series
Patricia Salkin and Bailey Ince
Touro College - Jacob D. Fuchsberg Law Center and Touro College - Jacob D. Fuchsberg Law Center
George Mason Law & Economics Research Paper No. 14-32
Roderick M. Hills, Jr. and David Schleicher
New York University School of Law and George Mason University School of Law
|3||Still an Issue: The Taking Issue at 40
30 Touro L. Rev. 245 (2014), Touro Law Center Legal Studies Research Paper
Touro College - Jacob D. Fuchsberg Law Center
|4||Agritourism at the Rural-Urban Interface: A National Overview of Legal Issues with 20 Proposals for Idaho
Stephen R. Miller
University of Idaho College of Law - Boise
|5||No Price Like Home: Global House Prices, 1870-2012
CESifo Working Paper Series No. 5006
Katharina Knoll , Moritz Schularick and Thomas Michael Steger
Free University of Berlin (FUB) - Division of Economics , Free University of Berlin (FUB) and University of Leipzig/Institute for Theoretical Economics/Macroeconomics
|6||Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms, and the Local Food Movement
Wisconsin Law Review, Vol. 2014, No. 2, pp. 369-396 (2014)
University of Maine - School of Law
|7||Property Rights and Climate Change
Daniel A. Farber
University of California, Berkeley - School of Law
|8||Planning for Fracking on the Barnett Shale: Urban Air Pollution, Improving Health Based Regulation, and the Role of Local Governments
Rachael Anne Rawlins
University of Texas at Austin
|9||The Struggle Over the Columbia River Gorge: Establishing and Governing the Country’s Largest National Scenic Area
4 Washington Journal of Environmental Law and Policy no. 2 (2014, Forthcoming), Lewis & Clark Law School Legal Studies Research Paper No. 2014-7
Michael C. Blumm and Nathan J Baker
Lewis & Clark Law School and Friends of the Columbia Gorge
|10||Transferable Sharing Rights: A Theoretical Model for Regulating Airbnb and the Short-Term Rental Market
Stephen R. Miller
University of Idaho College of Law - Boise
|11||Compulsory Acquisition Without Compensation and the Land Use Act
Akintunde Kabir Otubu
University of Lagos - Faculty of Law
|12||The Rebirth of the Neighborhood
Fordham Urban Law Journal, Vol. 40, pp. 1595-1609, 2013
J. Peter Byrne
Georgetown University - Law Center
|13||Storm Surges, Disaster Planning, and Vulnerable Populations at the Urban Periphery: Imagining a Resilient New York after Superstorm Sandy
Idaho Law Review, Vol. 50, pp. 19-47, 2014
Andrea L. McArdle
CUNY School of Law
|14||Progressive Property Moving Forward
Cal. L. Rev. Cir., Forthcoming
Timothy M. Mulvaney
Texas A&M University (TAMU) - School of Law
|15||Making 'Smart Growth' Smarter
George Washington Law Review, Forthcoming, University of Washington School of Law Research Paper 2014-12
Steve Calandrillo , Chryssa V. Deliganis and Andrea Woods
University of Washington - School of Law , Principal, Calandrillo & Deliganis, A.B. and University of Washington - School of Law
|16||Homelessness at the Cathedral
Missouri Law Review, Vol. 80, No. 1, 2014
Marc Lane Roark
The Savannah Law School
|17||Land and Farm Production: Availability, Use, and Productivity of Agricultural Land in the World
Hector E. Maletta
Universidad del Pacífico
|18||Local Government Financing Platforms in China: A Fortune or Misfortune?
IMF Working Paper No. 13/243
Yinqiu Lu and Tao Sun
International Monetary Fund and International Monetary Fund (IMF)
|19||Fractured Markets and Legal Institutions
Iowa Law Review, Vol. 100, 2014, U Iowa Legal Studies Research Paper No. 14-08
Herbert J. Hovenkamp
University of Iowa - College of Law
Brigham Young University Law Review, Forthcoming, University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 710, U of Chicago, Public Law Working Paper No. 496, Kreisman Working Papers Series in Housing Law and Policy No. 17
Lee Anne Fennell
University of Chicago Law School
|21||Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government
Florida Law Review, Forthcoming, Vermont Law School Research Paper No. 1-14
Sean F. Nolon
Vermont Law School
|22||From Nectow to Koontz: The Supreme Court's Supervision of Land-Use Regulation
William A. Fischel
Dartmouth College - Department of Economics
|23||The Energy Implications of City Size and Density
William D. Larson and Anthony M. Yezer
Government of the United States of America - Bureau of Economic Analysis (BEA) and George Washington
|24||Resilient Cities and Adaptive Law
Idaho Law Review, Vol. 50, pp. 245-264, 2014, University of Louisville School of Law Legal Studies Research Paper Series No. 2014-19
Craig Anthony (Tony) Arnold
University of Louisville - Brandeis School of Law
|25||Adapting Conservation Easements to Climate Change
Conservation Letters, 2014, SUNY Buffalo Legal Studies Research Paper No. 2014-022
Adena R. Rissman , Jessica Owley , Barton H. Thompson Jr. and M. Rebecca Shaw
University of Wisconsin-Madison , State University of New York (SUNY) at Buffalo - Law School , Stanford Law School and Environmental Defense Fund
|26||Sustainability in the Three Dimensions of Society - Urbanization, Food Insecurity and Agriculture
OIDA International Journal of Sustainable Development, Vol. 07, No. 02, pp. 79-90, 2014
Maninder Singh Saini and Rishav Jain
Panjab University - University Institute of Legal Studies and Panjab University - University Institute of
|27||The Mortgage Interest Deduction and Its Impact on Homeownership Decisions
Review of Economics and Statistics, Forthcoming
Christian A. L. Hilber and Tracy M. Turner
London School of Economics (LSE) - Department of Geography and Environment and Kansas State University - Department of Economics
|28||Dumping the 'Anti-Dumping' Law: Why EMTALA Is (Largely) Unconstitutional and Why It Matters
Minnesota Journal of Law, Science & Technology, Vol. 15, No. 1, 2014
E. H. Morreim
University of Tennessee Health Science Center- College of Medicine, Department of Internal Medicine
|29||Climate Adaptation Law
Climate Adaptation Law, in Global Climate Change and Law 677 (ABA Press, Michael B. Gerrard & Jody Freeman eds., 2nd ed. 2014)., Vanderbilt Public Law Research Paper No. 14-36
J. B. Ruhl
Vanderbilt University - Law School
|30||Looking Through the Lens of Size: Land Use Regulations and Micro-Apartments in San Francisco
Charles Joshua Gabbe
UCLA Luskin School of Public Affairs
|31||Using Non-Environmental Law to Accomplish Environmental Objectives
Journal of Land Use & Environmental Law, Vol. 30, 2015 Forthcoming, Villanova Law/Public Policy Research Paper No. 2014-1012
Todd S. Aagaard
Villanova University School of Law
|32||Property and Republicanism in the Northwest Ordinance
Arizona State Law Journal, Vol. 45, p. 409, 2014
Matthew J. Festa
South Texas College of Law
|33||Partition and Revelation
81 University of Chicago Law Review 27 (2014), University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 681, University of Chicago Kreisman Working Papers Series in Housing Law and Policy No. 15
Yun-chien Chang and Lee Anne Fennell
Academia Sinica - Institutum Iurisprudentiae (IIAS) and University of Chicago Law School
|34||The Perils of Regulatory Property in Land Use Regulation
Washburn Law Journal, Vol. 54, Forthcoming, George Mason Law & Economics Research Paper No. 14-23
Steven J. Eagle
George Mason University School of Law
|35||Careful What You Wish For: Positive Freehold Covenants
(3) The Conveyancer and Property Lawyer 191-207, 2011
Monash University - Faculty of Law
|36||China's Stealth Urban Land Revolution
American Journal of Comparative Law, Vol. 62, No. 2, Spring 2014, GWU Law School Public Law Research Paper No. 2014-44, GWU Legal Studies Research Paper No. 2014-44
Donald C. Clarke
George Washington University Law School
|37||Land Use Regulation: It Just Gets Worse
2 U. Balt. J. Land & Dev. 1 (2012), Touro Law Center Legal Studies Research Paper Series
Touro College - Jacob D. Fuchsberg Law Center
|38||Zoned for Injustice: Moving Beyond Zoning and Market-Based Land Preservation to Address Rural Poverty
Liz Clark Rinehart
University of Maryland Francis King Carey School of Law
|39||Zoning and Land Use Planning: Plans are Not Enough
42 Real Estate L.J. 240 (2013), Touro Law Center Legal Studies Research Paper Series No. 14-37
Touro College - Jacob D. Fuchsberg Law Center
|40||Farming the City: Urban Agriculture, Planning Law and Food Consumption Choices
Liesel Spencer, 'Farming the City: Urban Agriculture, Planning Law and Food Consumption Choices' 39(2) Alternative Law Journal 120-124.
School of Law, University of Western Sydney
|41||Sue to Adapt?
Minnesota Law Review, Forthcoming 2015, Minnesota Legal Studies Research Paper No. 14-50
Jacqueline Peel and Hari M. Osofsky
Melbourne Law School and University of Minnesota - Twin Cities - School of Law
|42||Environmental Regulation of Energy Sector in India
University of Petroleum and Energy Studies (UPES) - College of Legal Studies
|43||Missing the Connection: How SRLU Policy Fragments Landscapes and Communities in NSW
Sherval, Meg and Graham, Nicole 'Missing the Connection: how the strategic regional land use policy fragments landscapes and communities in NSW' (2013) 38 (3) Alternative Law Journal 176-180., UTS: Law Research Paper No. 2014/1
Meg Sherval and Nicole G. Graham
University of Newcastle (Australia) and University of Technology Sydney, Faculty of Law
|44||Climate Change Adaptation and Mitigation: A Local Solution to a Global Problem
Municipal Lawyer, Winter 2014, Vol. 28, No. 1, Touro Law Center Legal Studies Research Paper
Touro College - Jacob D. Fuchsberg Law Center
|45||Of Sea-Level Rise and Superstorms: The Public Health Police Power as a Means of Defending Against 'Takings' Challenges to Coastal Regulation
NYU Environmental Law Journal, 2014, Forthcoming, University of Utah College of Law Research Paper No. 51
Robin Kundis Craig
University of Utah S.J. Quinney College of Law
|46||Slum Redevelopment by Linking Social Conditions with Spatial Fabric Through Morphological Study
OIDA International Journal of Sustainable Development, Vol. 06, No. 09, pp. 37-46, 2013
Dinesh Singh , Preeti Singh and Krishna Kumar Dhote
Maulana Azad National Institute of Technology - Department of Architecture and Planning , Maulana Azad National Institute of Technology - Department of Architecture and Planning and Maulana Azad National Institute of Technology - Department of Architecture and Planning
|47||Political Reform in China: Elections, Public Goods and Income Distribution
Monica Martinez-Bravo , Gerard Padro I. Miquel , Nancy Qian and Yang Yao
Centre for Monetary and Financial Studies (CEMFI) , London School of Economics & Political Science (LSE) , Yale University - Department of Economics and Peking University - China Center for Economic Research (CCER)
|48||Environmental Interventions and Air Pollution (Re)distribution in Delhi, India
Naresh Kumar , Marc Linderman , Allen Chu , Sachidnand Tripathi , Andrew D. Foster and Dong Liang
University of Iowa , Government of the United States of America - National Aeronautics and Space Administration (NASA) , Indian Institute of Technology (IIT), Kanpur , Brown University - Department of Economics and University of Iowa
|49||Symposium Introduction: Resilient Cities: Environment | Economy | Equity
Idaho Law Review, Vol. 50, No. 3, 2014
Stephen R. Miller
University of Idaho College of Law - Boise
|50||What the Public Trust Doctrine Can Teach Us About the Police Power, Penn Central, and the Public Interest in Natural Resources: A Tribute to Joe Sax
Environmental Law, 2015, Forthcoming
Robin Kundis Craig
University of Utah S.J. Quinney College of Law
Wednesday, December 31, 2014
An article earlier this week in the NYT focused on how a small Kansas town was trying to start a grocery store for itsself. I have been interested in community-owned stores for rural communities since my clinic was asked to research them by a state agency here in Idaho. I will write more about that some day after I get the report together; however, for now, I wanted to note a discussion in the NYT article of Kanstarter.com, a Kansas-specific Kickstarter-like site with the goal of getting people to contribute to specific community projects.
These are all small projects, but it looks like it is getting some use. It is an interesting model and goes to the question of why people will contribute to a specific project in a manner of Kickstarter but don't want to pay taxes or fees. This is doubly curious because people receive federal tax breaks on their local taxes, but many of these Kickstarter-style gifts do not appear to be tax-preferred because they are not to charitable organizations. On the other hand, knowing exactly where one's money is going goes a long way. Does the movement speak to the future of public finance?
Tuesday, December 30, 2014
Those interested in the intersection of zoning and sustainability will want to check out Edward J. Jepson Jr. and Anna L. Haines' Zoning for Sustainability: A Review and Analysis of the Zoning Ordinances of 32 Cities in the United States, which was just released online in the Journal of the American Planning Association. The article is freely available here.
Problem, research strategy, and findings: To understand how communities use zoning ordinances to achieve sustainability goals, we identify nine sustainability principles and 53 associated regulatory items that might be included in a zoning ordinance to achieve sustainable development and then examine the zoning ordinances of 32 randomly selected communities to determine if they included these principles and their associated items. We fi nd both wide variation and some consistency in how zoning ordinances address sustainability goals, independent of city size or location in the country. Some of the identifi ed principles and regulatory items are found in many ordinances others appear in only a few. However, there is an inverse relationship between the age of the ordinance and the extent to which it includes sustainability principles. As ordinances are updated, it is likely that they will address more topical sustainability concerns. We study only ordinance content, not implementation; moreover, sustainability can be achieved in ways other than zoning. However, zoning ordinances that directly address sustainability in many dimensions are more likely to achieve these goals. We conclude that planners can more effectively use zoning ordinances to achieve sustainable development.
Takeaway for practice: This review of zoning ordinances can alert local planners to the many ways in which zoning ordinances could be used to achieve sustainability goals and suggest how planners can assess the contribution of their zoning ordinance to the sustainable development of their communities.
Stephen R. Miller
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