Tuesday, August 12, 2014

"Plan C" for Colorado in battle over local control of fracking

NPR has the story...

From the lede:

Colorado Gov. John Hickenlooper has announced a last-minute compromise to avert a costly political battle over oil and gas drilling. As Dan Boyce of Inside Energy reports, the deal is meant to find a solution to disputes related to fracking — but it also serves the political interests of Colorado Democrats.

The story doesn't mention last month's Colorado district court ruling finding that the city of Longmont's ban on hydraulic fracturing and the storage and disposal of hydraulic fracturing waste in the city was invalid., discussed previously on the blog here.

August 12, 2014 | Permalink | Comments (0)

National Trust for Historic Preservation conference in Savannah - Nov 11-14

I attended and spoke at this conference when it was in Spokane.  Well worth attendance for those with an interest in historic preservation.  Early bird registration details here and below...

 

 
 

Early Bird Deadline–Fri., Aug. 15

Register by Friday, August 15 and save on PastForward rates. PastForward, the National Preservation Conference, is the premier educational and networking event for those in the business of saving places. Preservationists, architects, planners, developers, environmentalists, students and scholars come together at PastForward to ask questions, challenge assumptions, debate solutions, and learn new skills and new approaches. Make sure you’re a part of this experience and register today.

Want to save more? Become a Preservation Leadership Forum member during the conference registration process for the most savings. Not only do Forum members receive discounts on PastForward registration, but they receive exclusive member benefits throughout the year. Simply select "Non-Forum Member Becoming a Forum Member" on the registration form.

Field Studies Selling Out

Three of the PastForward Field Studies have already sold out since registration went live last month. Don’t miss out on this unique opportunity to get up close and personal with preservation in Savannah. Check out the following tours offered on Friday, November 14:

Register for PastForward before Fri., Aug. 15 and SAVE!

If you haven't already done so, sign up for regular conference updates, and be sure to join our Facebook Events page and follow the conference with the Twitter hashtag #presconf.

PastForward is brought to you by the National Trust for Historic Preservation in collaboration with SCAD: The Savannah College of Art and Design and in partnership with the Historic Savannah Foundation.

 

August 12, 2014 | Permalink | Comments (0)

Michael Pappas named Pace Environmental Law Distinguished Junior Scholar

From the press release:

Michael Pappas of the University of Maryland Francis King Carey School of Law has been selected as the 2014 Pace Environmental Law Distinguished Junior Scholar.  His scholarship explores the nature of property expectations, governmental responsibilities, and private rights in managing resources such as land, energy, water, wildlife, fisheries, and food, and this year was published in the Florida State University Law Review and Arizona Law Review.  He has also worked extensively to advance interdisciplinary teaching and research collaborations throughout the University System of Maryland, and he was voted Outstanding Faculty Member of the Year in 2014.  

August 12, 2014 | Permalink | Comments (0)

ELI seeks manager for its Professional Education Program

See detailers here and below.

MANAGER, PROFESSIONAL EDUCATION PROGRAMAPPLY NOW
Location: Washington, DC - Category: Publications and Associates
Status: Full Time
Date Posted: 08/07/2014

JobDescription

The Environmental Law Institute (ELI), a non-profit organization headquartered in Washington, D.C., is the leading center of environmental law research, policy, analysis, and training in the United States. Founded in 1969, ELI plays a pivotal role in the evolution of environmental law, management, and policy both in the United States and abroad. Support for the Institute comes from a mix of law firm, corporate, government, academic, and individual members as well as grants from private foundations, companies, and government agencies.

Responsibilities

ELI seeks a person with exceptional organizational skills to take managerial and program development responsibilities for its professional education programs. These programs consist of roughly bimonthly webinars covering areas of environmental law, policy and management. The Manager collaborates with a wide variety of partners in the environmental policy and law realm to develop and execute 90 minute webinars tailored to the interests of ELI members and other environmental professionals. The Manager is responsible for helping to design programs and for recruiting faculty, managing the program itself, promoting the programs, and managing continuing legal education credits, if any are offered.

The Manager  reports to ELI’s Director of Professional Education.

Compensation and Benefits: $30,000-40,000, depending upon experience, with excellent benefits.

Qualifications

Candidates should offer significant organizational skills, creative thinking, and ability to be self-directed. Strong skills required include organization, events planning, oral presentation, a willingness to learn new skills, and personal qualities necessary for effective outreach to professionals in all sectors. A law degree and familiarity with environmental issues are strongly preferred.

APPLICATION INSTRUCTIONS:  Submit an application package via ELI’s online application system, at http://www.eli.org/About/employment.cfm. To be considered, your submission must include the completed online form, together with the following uploaded materials: (1) a cover letter; (2) a current resume; and (3) a list of references. Your cover letter should address your personal goals and interests, as well as your experience and interest in carrying out the duties outlined above.

Applications must be submitted to ELI no later than August 24, 2014. Please note: you must use ELI’s online application system. ELI is unable to consider applications submitted by email, U.S. mail, or hand delivery; nor can late applications be considered. No phone calls, please.  Please send an email to vanwyk@eli.org if you have any technical problems complying with these application instructions.

The Environmental Law Institute is strongly committed to providing equal employment opportunity and to achieving an inclusive, diverse workplace that values every individual. Minority candidates are encouraged to apply.

August 12, 2014 | Permalink | Comments (0)

Monday, August 11, 2014

Posting from New Orleans (No. 2) -- Reviving Inner-City Neighborhoods: the Challenges of Teaching and Doing Urban Revitalization Work

This is the second in a series of posts from New Orleans. The first appeared last Monday, August 4th. As I promised in that first piece, today we’re just beginning to take a walk down one of New Orleans’ historic commercial corridors, Oretha Castle Haley Boulevard (O.C. Haley Blvd.), which is named after a leading local civil rights activist. Today’s post looks at the fortuitous intersection between post-Katrina federally-funded long-term recovery programs and the extensive pre-storm efforts of O.C. Haley Boulevard activists and stakeholders to reclaim this historic corridor.

IMG_0819[1]

Photo (2014):  O.C. Haley Boulevard looking northwest toward the Central Business District (CBD)

In the decades leading up to the 1960s, O.C. Haley Boulevard (formerly known as Dryades Street) was one of the principal shopping destinations for black families and also a pre-Civil Rights Era hub for the City’s best black musicians. During the 50 years since the mid-1960s, O.C. Haley withered a little more each passing year. First, the corridor lost in increasing numbers its shoppers; then its businesses began to close; and then families in surrounding blocks began to move away. Finally, in the years leading up to Hurricane Katrina, the Boulevard started losing its architecturally distinguished commercial structures – one by one.

Blog -- Research -- Photo of Burning Myrtle Banks School
Photo (2008):  Fire destroys the interior of another of the Boulevard's important historic structures, the circa 1902 Myrtle Banks School.

Earlier this spring, in his CityLab article, The Overwhelming Persistence of Neighborhood Poverty, Richard Florida tacitly suggests that O.C. Haley’s fate has been the fate of our oldest urban neighborhoods all across the country.  Florida’s article, citing a May 2014 study by Joseph Cortright and Dillon Mahmoudi, disclosed a number of fascinating tidbits about cities, but the statistic that really jumped out is this one: since 1970 “for every single gentrified [urban] neighborhood, 12 once-stable neighborhoods have slipped into concentrated disadvantage.”

That statistic about declining inner city neighborhoods stopped me in my tracks. As long as I can remember, I’ve been fascinated by two things: old inner city neighborhoods (my dad is a preservation architect) and the Red Sox (born and raised in Boston). This is to say that I'm easily captivated by box score style statistics, such as the one Florida cites.  I'm also no stranger to extended periods of adversity for the teams I love. But I clearly did not have an accurate idea of the extent to which so many inner city neighborhoods had faced such long odds for so long a period of time.

The statistic Florida cites concerning the decline of inner city neighborhoods got me to thinking about what I taught my land use students last semester. If our land use, local government, real estate finance, and community and economic development clinic students aim to work in cities, Richard Florida is telling us that they have their work cut out for them. The data suggests there are many hundreds of O.C. Haley-like Boulevards across the country.

Of course the problem of distressed inner city communities is not new. As we all know, lawyers have for years played critical roles in representing community groups, developers, banks, philanthropic funders, and local government clients on every side of urban revitalization deals. But Florida’s article reminded me how large the challenge of neighborhood revitalization looms for cities. There’s a lot of ground to cover in a basic land use class, but I found myself asking what my students and I learned this past semester that would help them do this work better or smarter. The short answer is that we squeezed in as much time as we could to study the redevelopment ‘tool box’ a city and its neighborhood organizations can use to stabilize and revitalize neighborhoods: land trusts, land banks, eminent domain, code lien enforcement, tax credits, etc. But thinking about Florida’s article reminded me that this approach is missing a key element. After all, most of these stabilization and revitalization tools were available to young lawyers and planners and community groups for the better part of the 45-year period that Florida observes the rapid evaporation of inner-city neighborhood vitality.

In thinking about the statistics Florida discusses and about the long decline of O.C. Haley Boulevard, it struck me that the conversation that I didn’t have this spring with the land use students is about the nature of urban revitalization work. It is often a slog. Some describe the work as being as slow and painfully incremental as ‘trench warfare.’ I prefer how some describe it as caring for a patient recovering from a debilitating life-threatening injury. That is, urban revitalization work concerns much more than strategic deployment of those redevelopment “tools.” It goes far beyond helping your client close on tax credit financing for a major catalytic redevelopment project. Rather, it also depends on the patient persistence of a diverse team of ‘caregivers’ over a long period of time. Some of those ‘caregivers’ are internal to the community. They are the local merchants associations and neighborhood advocacy groups. They are also the local community development corporations, code enforcement staff, city councilpersons, assistant city attorneys, philanthropic foundation program officers, and the law school clinics with neighborhood organization clients.  Neighborhood revitalization ordinarily requires keeping at least part of these diverse teams together for years – often more than a decade. In other words, it is worth discussing with our students that while they need to know the law and understand the nuances of the ‘tools’, the work of revitalizing a neighborhood is not usually just a transactional matter, but it is much more an organic process.

Kathy Laborde, is President and CEO of Gulf Coast Housing Partnership, one of Louisiana’s leading developers of commercial and residential projects serving low and moderate income communities. Beginning in the late 1990s as a community development banker, Laborde has worked with representatives of the O.C. Haley Boulevard neighborhood on redevelopment projects. Prior to Hurricane Katrina she also moved her development firm’s offices onto the Boulevard. Like the neighborhood merchants association and local community groups, Laborde knew O.C. Haley Boulevard had enormous potential to rebound – even as most New Orleanians ignored the corridor and consciously avoided it for fear of encountering the  crime for which the Boulevard had become known. Together with a strong and cohesive band of neighborhood advocates, she has long been a steadfast proponent of revitalizing the Boulevard. In a meeting in her office earlier this month, I asked her why, in the late 1990s, she and neighborhood leaders believed that they could turn around the Boulevard’s fortunes.

In the next blog post, we look at snapshots of the Boulevard's challenging 15 year journey through and beyond Hurricane Katrina to an active neighborhood renaissance that continues to catch the attention of both the city's visitors and long-time residents.

John Travis Marshall, Georgia State University College of Law

August 11, 2014 in Community Economic Development, Development, Economic Development, Historic Preservation, Real Estate Transactions, Redevelopment, Urbanism | Permalink | Comments (0)

Everyone's favorite topic: valuing conservation easements

The tax court cases on conservation easements are just pouring in these days. The most recent case again concerns overvaluation of conservation easements in Colorado. Schmidt owned a 40-acre property in El Paso County Colorado. While he originally intended to work with an adjacent landowner to develop a subdivision, in 2003 he instead donated a conservation easement over his property to the county, retaining the right to develop a single-family residence thereon. He then claimed a $1.6 million tax deduction, which the IRS felt should have only been $195,000. The discussion over the valuation is interesting because both parties’ auditors assumed that he would get planning approval for a subdivision. In fact, the County seemed to support that contention. Schmidt’s auditors just seemed to think that a subdivision would make the property worth $2 million and IRS auditors concluded it would be $750,000. They also had differing values of the land with the conservation easement in place but these values did not vary by as wide of a margin ($400,000 by Schmidt and $270,000 by the IRS). The tax court agreed with the IRS that the after value was $270,000 but sided closer to Schmidt about the value before the conservation easement, valuing it at over $1.4 million. This still led to an underpayment of taxes by over $447,000. But fortunately for Schmidt’s sake, the court found reasonable cause for the underpayment and did not assess any penalties. If you want to see lots of details about appraising conservation easements, check out the full case. For me this case highlights another example of how we always get different numbers in these valuation cases. Not often that you see a court accepting either parties appraisal outright and very rare to get a case that did not end in a conclusion of underpayment. Obviously, underpayment cases are the ones most likely to proceed through the tax court process, but it still doesn’t give me a lot of confidence in these tax benefits… [Schmidt v. CIR, U.S. Tax Court, Aug. 6, 2014, 2014 WL 3866066]

August 11, 2014 | Permalink | Comments (0)

Friday, August 8, 2014

Commissioner's Corner: Robert's Rules of Order and deliberative decisionmaking at the planning commission

In June, I was appointed to the Boise Planning & Zoning Commission.  I know:  the real world!  Since that time, I have been to three hearings, one of which was a seven-hour marathon that lasted into the next day.  I've loved the experience, and I thought I would occasionally write blog posts on the experience.  I will caption these posts with the header "Commissioner's Corner," with the idea that these will either be posts of the sort you will want to read...or avoid.

Of course, I will not comment on specific projects, fellow commissioners, or anything that would jeopardize the integrity of the Commission's work.  Nonetheless, I have had a flood of ideas arising from the experience and life is too short to write a 60-page article about all of them, so a blog post will have to do.  

And so...here is my first reflection on being a Commissioner:

Robert's Rules of Order?!  Are you kidding me.  Yes, that's right:  Robert's Rules of Order is the procedural handbook for Boise's Planning Commission.  The last time I used Robert's Rules of Order, I realized when I heard this, was in the 11th-grade when I spent beautiful spring Saturdays locked inside at "Model-U.N." hearings, which, as I recall, were primarily an excuse to pass notes to other "countries" (read: friends) and plan how to built multi-country alliances to do something or another I cannot now recall.  What was the point of Model U.N. anyway?  Two decades later, I still don't know.

Suffice it to say that when I read the bylaws of the Planning Commission and noted that Robert's Rules of Order was the parliamentary foundation of the Commission, well, I thought of Mock-U.N. and I chuckled. But then I began to think about it more.  

Robert's Rules of Order are really complicated.  Admittedly, as a law professor, I kind of love them.  "Point of privilege," anyone?!  That said, I wondered if Boise was the only city that used Robert's Rules of Order for their parliamentary procedure.  No!  It turns out hundreds, maybe even thousands, of cities do the same thing, according to a quick Google search.  In fact, I realized that many of the jurisdictions where I had practiced prior to becoming a professor had also adopted Robert's Rules of Order...and I never knew!  Embarrassment ensued.  (I would not have publicly admitted this if I did not firmly believe that most other land use lawyers, much less land use law professors, had no idea that Robert's Rules of Order were the basis of most planning commission procedure.) 

There are several interesting issues arising from this.  First, I did a quick survey of case law and discovered only a small smattering of cases ever mentioning Robert's Rules of Order in the broadest search available (all state and federal cases, no date limit).  I think that is fascinating because, you would presume, since Robert's appears to form the background of procedure for many local government commissions across the country, planning and otherwise, there would be at least some attempts to use that procedure against a comission in a due process or equal protection claim.  It appears, however, that this has not been a popular line of attack.  I'm guessing that is primarily because (i) most attorneys have no idea that Robert's governs the local proceeding; (ii) most attorneys have no idea of the intricacies of Robert's and thus might not understand how a procedural violation might affect their client's interests; and (iii) a concern that challenging a Robert's Rules of Order violation on procedural grounds might be viewed by courts as, well, mere parliamentary doggerel not rising to a constitutional level.  But does it really end there?  I don't know.  

The second issue I thought about is whether Robert's is the appropriate parliamentary tool for Planning Commission hearings to yield the best outcome for cities and communities.  Planning typically works best when there is a give and take, but the parliamentary procedures of Robert's are not intended to provide for negotiation, much less conversation.  To wit, I wonder if there is a better way.  Might there be some other parliamentary procedure out there that might be better than Robert's for facilitating planning but that would also meet constitutional due process and equal protection minima?  

I would love to hear from others out there, especially anyone with a knowledge of other parliamentary procedures used by other cities that are not Robert's Rules of Order.  

Stephen R. Miller

August 8, 2014 | Permalink | Comments (3)

Hills & Schleicher's new article, "City Replanning"

Roderick M. Hills, Jr. (NYU) and David Schleicher (George Mason) have just posted "City Replanning" on SSRN.  Here's the abstract:

In this paper we provide a new defense for one of the most criticized ideas in land use law, that city plans should constitute settled deals about the proper uses of land that should be sticky against subsequent zoning amendments. In the middle of the last century, several prominent scholars argued that courts should find zoning amendments that were contrary to city plans ultra vires. But this idea was largely rejected by courts and scholars alike, with leading figures like Carol Rose, Robert Nelson and Bill Fischel arguing that parcel-specific zoning amendments provide space for the give-and-take of democracy and lead to the efficient amount of development by encouraging negotiations between developers and residents over externalities from new building projects. Their case against plans and in favor of deals suggested that zoning authorities act either as arbiters in land use disputes or as agents for existing residents to encourage negotiated solutions.

We argue, by contrast, that the dismissal of plans was shortsighted and has helped contribute to the excessive strictness of zoning in our richest and most productive cities and regions, which has driven up housing prices excessively and produced outcomes that are economically inefficient and distributively unattractive. In contrast with both planning’s critics and supporters, we argue that plans and comprehensive remappings are best understood as deals. Plans and remappings facilitate trades between city councilmembers who understand the need for new development but refuse to have their neighborhoods be dumping grounds for all new construction. Further, by setting forth what can be constructed as of right, plans reduce the information costs borne by purchasers of land and developers, broadening the market for new construction. We argue that land use law should embrace a version of plans as a procedural tool that packages together policies and sets of zoning changes in a number of neighborhoods simultaneously through procedures that make such packages difficult to unwind.

We conclude by arguing that modern property law scholarship has failed to recognize that real property law is now substantially a public law subject and should be studied using the tools of public law. Leading scholars, most notably Tom Merrill and Henry Smith, have developed sophisticated tools for analyzing the ways in which the common law of property is designed to reduce information costs, which we employ here. But the field has ignored the fact that the common law of property is far less important than it once was as a method for regulating real property ownership and use. Legislatures and administrative agencies at a variety of levels determine most of the rules governing how real property is used and purchased. In order to understand how today’s property law increases or reduces the information costs facing owners, users, potential purchasers and third-parties to property, the field must make an “institutional turn,” studying the likely effects on policy of different institutional arrangements and procedures.

 

August 8, 2014 | Permalink | Comments (0)

Thursday, August 7, 2014

Harvard law clinic publishes Landowner's Guide to Hydraulic Fracturing

Guide available here.  

[I'd excerpt text from the intro but the file is protected.]

 

August 7, 2014 | Permalink | Comments (0)

Idaho Law agritourism report featured in western ag newspaper

Hats off to last year's students in my Economic Development Clinic, whose report on agritourism was prominently featured in this week's edition of the Capital Press, which is one of the major western agricultural newspapers.  In the article, the report is described as "a great reference . . . for anybody working to try to move agritourism forward."  View the article here.

Stephen R. Miller

August 7, 2014 | Permalink | Comments (0)

Wednesday, August 6, 2014

Oatmeal: the ticket to an inch of paradise

My colleague Mike Satz recently introduced me to the Stuff You Missed In History Class podcast.  Among the first episodes I listened to was a land use law-rich episode based on a mid-century Quaker Oats promotion that, ostensibly, offered purchasers of the company's oats a square inch of the Klondike!  Land use law mayhem ensues.  You've got to listen to it.

Stephen R. Miller

August 6, 2014 | Permalink | Comments (0)

UC Irvine Law: Clinical Teaching Fellowship / Staff Attorney positions in environmental and land use law

The University of California, Irvine School of Law is recruiting for a joint position as (1) a Clinical Teaching Fellow/Practitioner-in-Residence in its Environmental Law Clinic, and (2) a Staff Attorney in its Center for Land, Environment, and Natural Resources (CLEANR).  Approximately a third of the position’s time will be spent on the Center’s policy activities, and about two-thirds in the Clinic.  Attached is the official job posting for reference and circulation; please distribute widely to all who may be interested.

The Clinical Teaching Fellowship is a year-round, full-time contract position designed to provide an attorney with a strong interest in clinical teaching the opportunity to develop and refine his/her teaching and advocacy skills over a two-year period. Alternatively, the Practitioner-in-Residence position is a year-round, full or part-time position that provides an experienced attorney the opportunity to work alongside the Director of the Environmental Law Clinic in the Clinic’s representation of clients in litigation and non-litigation matters. The Practitioner-in-Residence is a one-year contract position, with possibility of renewal for a second year. The Environmental Law Clinic is one of several core clinics at UC Irvine that meet the School of Law’s clinical requirement. The nature of Environmental Law Clinic’s projects varies depending on client need, appropriateness of project for clinical teaching, resource availability, and student and faculty interest, but can be expected to include a mix of advocacy and policy matters in multiple fora.

The Staff Attorney with CLEANR will help manage the Center’s programs. This includes a workshop roundtable series that convenes leading policymakers, practitioners, activists and researchers from the public and private sector to produce action-oriented policy papers, propose legislation, or complete important academic research. The staff attorney will supervise and edit fellow and student research and writing; communicate with participants and advisors; and organize and help facilitate dialogue sessions. The staff attorney will also help plan and organize the Center‘s other public and student programs, including semi-annual practitioner-focused conferences, periodic academic symposia and speakers, a literature and film series, and an international interdisciplinary summer institute for future sustainability leaders. The Center for Land, Environment, and Natural Resources (CLEANR) strives to make UC Irvine School of Law a nationally recognized site for scholarship, education, community outreach, and public engagement on environmental, natural resources, and land use law. Early in the planning of the Law School, UC Irvine identified environmental law as a core focus. The center is a key part of that vision, building on UCI Law's strong environmental faculty, its new Environmental Law Clinic, and the University's and Law School's commitment to the interdisciplinary study of environmental problems.

Desired start date is open to negotiation, but a start date on or before September 1, 2014 is preferred. The successful candidate will be provided with the standard vacation and benefits package accorded employees of the University of California. Complete details of this position and directions for on-line applications may be accessed at: https://staffing2.hr.uci.edu/CSS_External/CSSPage_Welcome.asp. Search for job number 2014-0699

August 6, 2014 | Permalink | Comments (0)

Harvard: Full-time Research Associate - Health and Places

A law-related job posting that may be interest to some of our student readers:

Full-time Research Associate - Health and Places Initiative

(http://research.gsd.harvard.edu/hapi/)

Position Title: Full-time Research Associate 

Start Date: Immediately 

Duration of Employment: Until August 30, 2015

The Graduate School of Design (GSD) at Harvard University is currently looking for a full-time Research Associate to join the research team of Health and Places Initiative (http://research.gsd.harvard.edu/hapi/). The candidate will work under the supervision of project director Ann Forsyth, Professor of Urban Planning at the GSD. 

Duties and Responsibilities:

The preferred candidate will display specialized knowledge of the connection between health and places. This position will work collaboratively with the affiliated investigators, other research associates, and other researchers related to the project. More specifically, he or she will:

Prepare various written reports, including planning and design guidelines for healthy places, web site text, and other related materials
Collaborate in adapting and testing health assessment tools including reviewing plans and designs
Investigate case studies of healthy environments
Locate, organize, and analyze quantitative, qualitative and design information
Present and summarize results at team meetings
Assist in preparing academic conferences, webinars, and other presentations
Manage, organize, and classify research information
Assist research duties of the Project Director and support activities of the program
 
Basic Qualifications:

Masters degree in urban or environmental planning, public health (environmental), or related fields
Knowledge of Microsoft Word, Excel, PowerPoint; computer search skills
Fluent in English
 
Additional Qualifications:

Interest in the connection between public health and urban environments and in evidence-based design and planning
Demonstrated experience working in a team setting
Strong analytical abilities; grasp of qualitative and quantitative methods, evaluating research quality
Excellent writing skills, especially writing concisely, and ability to address multiple audiences
Ability to work as part of a team as well as independently
Not required: Chinese language proficiency
 
Additional Information:

This is a full time, grant funded position. Salary commensurate with experience.
Please submit a letter of intent, curriculum vita, and copies of publications to: Edna Van Saun at: evansaun@gsd.harvard.edu.
 
Applicants will be reviewed starting August 15, 2014 and will continue until the position is filled.

August 6, 2014 | Permalink | Comments (0)

Tuesday, August 5, 2014

Historic Preservation Law in a Nutshell

As this is my maiden voyage into the blogosphere, I thought I’d share with you my passion for historic resources and their preservation along with an exciting recent publication. Before ever dreaming of law, or legal academia for that matter, I was studying medieval British history at Oxford University. Due to many experiences in the UK—handling and reading thousand-year-old vellum documents on a regular basis; participating in voluntary archaeological digs for Anglo-Saxon settlements; mapping the phases of urban growth in Oxford; charting extant Romanesque and Gothic survivals in old Oxford buildings and sharing these discoveries with others—I realized more fully how the past enriches the present, and how without an understanding of what has come before, our own lives are less complete.

I’ll never forget eating pizza on the second floor of an old restaurant in Oxford. While munching on a slice, I looked over at one of the walls. During renovations the owners discovered 16th century wall paintings depicting the symbiotic relationship between plants and humans and took steps to preserve these paintings, incorporating them into the ambience of a modern pizza joint. This visible connection between the past and present made me muse about all the people who had eaten (or lived) in this building before, and it made mediocre pizza taste like manna.

Laws governing the management of tangible historic resources—often referred to as Historic Preservation Law and/or Cultural Heritage Law—are rounding into maturity. Given that historic resources encompass many types of law (property law, land use law, natural resources law, environmental law, Native American law) and traverse local, state, tribal, federal and international jurisdictions, there has long been a need for a resource that speaks to those jurisdictions and varied types of law collectively, rather than in silos as the field is typically analyzed

Professor Sara Bronin (University of Connecticut School of Law) and I have recently published such a resource with West Academic: Historic Preservation Law in a Nutshell.

Historic Preservation Law in a Nutshell

Here is the publisher's blurb: “Historic Preservation Law in a Nutshell provides the first-ever in-depth summary of historic preservation law within its local, state, tribal, federal, and international contexts. Historic Preservation is a burgeoning area of law that includes aspects of property, land use, environmental, constitutional, cultural resources, international, and Native American law. This book covers the primary federal statutes, and many facets of state statutes, dealing with the protection and preservation of historic resources. It also includes key topics like the designation process, federal agency obligations, local regulation, takings and other constitutional concerns, and real estate development issues.”

Professors who would like to review a print copy of this title may request a complimentary copy by contacting their West Academic Publishing Account Manager at accountmanager@westacademic.com

Click this link to go to Amazon where hardcopy and E-book formats can be purchased.  

I hope that this book can be of use to you,  and I would welcome any feedback on how it may be improved in future editions.  

To some extent, all legal and policy decisions we make today--particularly those concerned with land--are predicated on the past.  And in knowing about and respecting the past, we learn more about ourselves.  As Shakespeare wrote in the Tempest, "What's Past is Prologue".  

Ryan Rowberry

(Ryan's Web Profile and Email)

 

 

 

August 5, 2014 in Architecture, Historic Preservation, Local Government, Planning, Property, Smart Growth, State Government, Urbanism, Zoning | Permalink | Comments (0)

Monday, August 4, 2014

Snapshots from New Orleans' Long-Term Recovery -- Katrina at 9

This August marks the ninth anniversary of Hurricane Katrina’s devastating collision with the Gulf Coast. New Orleans, of course, did not suffer the direct hit that submerged and leveled the Mississippi Gulf Coast, but the hurricane’s historic tidal surge overwhelmed a poorly maintained and engineered Orleans Parish flood protection system. Lake Pontchartrain’s brackish muddy waters poured through gaping holes in flood walls and levees and submerged 80 percent of the city.

The disaster’s immediate aftermath has been described in thousands of blogs, maps, documentaries, songs, books, articles, and deeply disturbing pictures that are seared into the collective American consciousness. The shockingly poor government agency response at every level has earned “Katrina” a place not only in the American political lexicon, but also in international discourse, alongside “Waterloo”, “Watergate”, and “9.11.” For the past nine years, however, an equally compelling but far less “photogenic” story of long-term recovery has unfolded – glacially at first, then haltingly, and over the past four years at a steadier pace. The flood waters inundated the city in just hours, but the long-term recovery has proceeded as a kind of community development ‘trench warfare’, advancing one street and one block at a time.

Nine years later there are still neighborhoods that show only a faint pulse of life amid boarded houses, car-eating potholes, and jungle-like yards. These are particularly the lower income neighborhoods with pre-storm populations that were predominantly African American. These include neighborhoods such as the Upper Ninth Ward and the Lower Ninth Ward. At the same time, the redevelopment slog that has characterized the long-term recovery has been the catalyst for instances of remarkable investment in, and revitalization of, moribund neighborhood commercial corridors.

Many of the law teachers and development practitioners reading this entry have one or more former students or protégés who have sought out opportunities over the past twenty years in New Orleans or Gulfport, Cedar Rapids or Grand Forks, Tuscaloosa or Galveston, or most recently New York City, New Jersey and Detroit to work with federal, state, and local government agencies and, perhaps even more important, with non-profit and philanthropic organizations who often spearhead long-term recovery and revitalization efforts. The next couple of New Orleans dispatches are intended to serve less as a land use travel log than as a discussion of what
happens during a community's long-term recovery as well as the key skills and proficiencies that our students must have in order to contribute to rebuilding cities. It is no coincidence that non-profit and local government executives point to legal capacity and sophistication as critical and also troublesome components of New Orleans’ long-term recovery. The refrain not infrequently heard is that ‘we lost thousands of dollars’ or ‘weeks of time’ because a developer did not challenge an informal government interpretation of a federal regulation that turned out to be incomplete or based solely on anecdotal experience from a disaster in another jurisdiction. There is no substitute for learning how to read and carefully analyze agreements, local code provisions, or federal regulations.

Over the next few weeks, there will be at least two more dispatches from New Orleans. The first dispatch will be from the Oretha Castle Haley Boulevard (“O.C. Haley”), which begins just a football field’s length from the edge of the New Orleans' Central Business District (CBD) and travels southwest towards the Central City neighborhood, which prior to Katrina reported some of the city’s highest poverty and crime rates. You can follow along by entering the intersection of Martin Luther King, Jr., Boulevard and O.C. Haley Boulevard into your favorite mapping application.

August 4, 2014 in Community Economic Development, Development, Downtown, Federal Government, Local Government, Redevelopment, State Government | Permalink | Comments (0)

Biber and Ruhl on regulating the sharing economy

Eric Biber (Berkeley) and J.B. Ruhl (Vanderbilt) have a nice blog post on RegBlog today about regulating the sharing economy and associated land use law issues.  They come out in favor of a "general permit," in there words, to replace more traditional land use permitting.

Stephen R. Miller

 

 

August 4, 2014 | Permalink | Comments (0)

Zoning in barn weddings

Today the NYT had a nice article on the nationwide "rumpus" (as they call it) arising from farmers converting old barns into wedding venues, a trend that is part of the larger agritourism craze and resultant litigation I've been writing about for awhile.  The NYT did a pretty good job addressing some of the major land use law-related issues.  Worth a read:

GRANT, Minn. — For legions of young couples, there is no wedding venue more desirable than a barn in the country, with its unfussy vibe, picturesque setting and rural authenticity.

For neighbors of the wedding barns, it is a summer-long agony.

“They blare music all night long, they have college students out there screaming, and everyone’s drinking,” said Laurie Tulchin, who lives in a rural part of Iowa City next door to a wedding barn. “Rural residents have quiet lifestyles. Sometimes I just think, ‘What the heck happened out here?’ ”

In rural areas across the country, residents have protested that some barn owners flout zoning rules requiring that they operate only as agricultural enterprises. Unlike other businesses, the barns are often not inspected to ensure that they are up to code, and many lack proper sanitation, fire doors and sprinklers, accommodations for people with disabilities and licenses to serve liquor.

In the Midwest, century-old wooden dairy barns in shades of red and chocolate brown are ubiquitous, but they typically have little purpose on a modern farm: They are expensive to maintain, and their doors are too small for 21st-century equipment. Transforming them into cavernous event spaces with banquet tables, dance floors and lofts for mingling has become a new way for their owners to make money.

Full article here.  Hat tip to my colleague, Dale Goble.

(By the way, for those in the market for a wedding barn, you could do worse than the historic barn in Roseberry, Idaho, which might have the most beautiful back drop I've ever seen.)

Stephen R. Miller

August 4, 2014 | Permalink | Comments (0)

Sunday, August 3, 2014

CWA settlement obligates East Bay communities to spend $1.5 billion to eliminate sewage discharges

Last week, several San Francisco area East Bay communities, which collectively represent 650,000 people, entered into a consent decree with the Justice Department and EPA with regard to ongoing Clean Water Act waste water violations.  In addition to $1.5 million in fines, the consent decree also obligates the communities to spend a collective $1.5 billion over the next 21 years to ensure Clean Water Act compliance.  View the consent decree here.  

Here is the EPA press release:

Seven East Bay communities and municipal utility district to repair systems and pay civil penalties


SAN FRANCISCO – The U.S. Environmental Protection Agency today announced a Clean Water Act settlement requiring the East Bay Municipal Utility District (EBMUD) and seven East Bay communities to conduct extensive system repairs aimed at eliminating millions of gallons of sewage discharges into San Francisco Bay. Under today’s agreement, EBMUD and the communities will assess and upgrade their 1,500 mile-long sewer system infrastructure over a 21-year period. 

The work is expected to cost approximately $1.5 billion. The entities will pay civil penalties of $1.5 million for past sewage discharges that violated federal environmental law.

Since 2009, EPA, state and local regulators and environmental groups have worked to reduce sewage discharges from East Bay communities. During that period, interim actions required EBMUD and the East Bay communities to improve their sewer maintenance practices and gather information to identify priorities for investment. 

The San Francisco Bay covers 1,600 square miles and is the largest Pacific estuary in the Americas, a host for millions of migratory birds and a hub of commerce and recreation for more than 7 million Bay Area residents. 

Unfortunately, the Bay is under threat from many sources of pollution, including crumbling wastewater infrastructure that allows sewage to escape from the system. During rainstorms, in particular, older sewer systems can be overwhelmed, releasing rivers of sewage before being fully treated.

In addition to polluting waterways, raw and partially treated sewage can spread disease-causing organisms, metals, and nutrients that threaten public health. Sewage can also deplete oxygen in the bay, threatening fish, seals and other wildlife.

“For many years, the health of San Francisco Bay has been imperiled by ongoing pollution, including enormous discharges of raw and partially treated sewage from communities in the East Bay,” said Jared Blumenfeld, EPA’s Regional Administrator for the Pacific Southwest. “Many of these discharges are the result of aging, deteriorated sewer infrastructure that will be fixed under the EPA order.”

Today’s settlement is the result of a Clean Water Act enforcement action brought by the EPA, U.S. Department of Justice, State Water Resources Control Board, San Francisco Bay Regional Water Board, San Francisco Baykeeper and Our Children’s Earth Foundation.

“This settlement will result in major reductions of sewage discharges into the San Francisco Bay,” said W. Benjamin Fisherow, Chief of Environmental Enforcement in the Justice Department’s Environment and Natural Resources Division. “These improvements will help reach our goal of eliminating pollution in the neighborhoods in these cities and in the Bay so that citizens may rest assured that they reside in a safe, clean environment.” 

The seven East Bay communities in the EBMUD settlement are:

City of Alameda
City of Albany
City of Berkeley
City of Emeryville
City of Oakland
City of Piedmont
Stege Sanitary District (serving El Cerrito, Kensington, and a portion of Richmond) 

“The public has been required to repair their own sewer laterals for over two years now, so it is past time that the local agencies aggressively repair their sewer systems,” said Bruce Wolfe, Executive Officer of the San Francisco Bay Regional Water Board. “This settlement spells out how the agencies will work with the public over the next 21 years to do just that and protect the Bay.”

“Baykeeper will be watching the progress of these repairs closely to ensure that pollution of San Francisco Bay is reduced and eventually eliminated, and we will take action if the repairs fall short,” said Baykeeper Executive Director Deb Self. 

On an annual basis, hundreds of millions of gallons of raw and partially treated sewage are discharged directly to San Francisco Bay. Also, as much as 600,000 gallons of raw sewage from community sewer systems is first discharged onto streets and other public areas—through outlets such as manhole covers—before it drains to the Bay.

As part of the agreement, EBMUD and the seven communities will:

repair and rehabilitate old and cracked sewer pipes;
regularly clean and inspect sewer pipes to prevent overflows of raw sewage; 
identify and eliminate illegal sewer connections;
continue to enforce private sewer lateral ordinances; and
ensure proactive renewal of existing sanitary sewer infrastructure.

EBMUD will also immediately begin work to offset the environmental harm caused by the sewage discharges, which are expected to continue until these sewer upgrades are completed, by capturing and treating urban runoff and contaminated water that currently flows to the Bay untreated during dry weather.

Keeping raw sewage and contaminated storm water out of the waters of the United States is one of EPA’s National Enforcement Initiatives.

The proposed settlement is subject to a 30-day public comment period and final court approval. 

Read the settlement at: http://www.usdoj.gov/enrd/Consent_Decrees.html

Learn more about the settlement and earlier EPA wastewater enforcement in the East Bay at:http://www.epa.gov/region9/water/npdes/compliance.html#ebmud 

EPA is working to restore San Francisco Bay, learn more at: http://epa.gov/sfbay-delta 

Learn more about EPA’s national wastewater enforcement initiative at: http://go.usa.gov/5pak 

Interestingly, I did not see anything in the consent decree that explicitly requires these new facilities to account for, or otherwise plan for, climate change adaptation.  Let's hope the implementation takes that into account.

Stephen R. Miller

August 3, 2014 | Permalink | Comments (0)

Saturday, August 2, 2014

Life after LOS: California nears a new era of transportation planning

Level of Service (LOS) determinations are a hallmark of transportation planning nationwide and, moreover, often a key reference point for discussion in highly-contested land use projects.  Now, California is contemplating giving up the LOS system, which grades roadway traffic before and after a project on a scale similar to school grades, in favor of something else.  

Rumor has it that new measure will be "vehicle miles traveled," or VMT, which will more directly align with the state's GHG-emissions reduction plans.  But the transition could be messy.  Bill Fulton, the don of California land use, has a nice blog post that explains some of the kinks that need to be worked out.

Stephen R. Miller

August 2, 2014 | Permalink | Comments (0)

Friday, August 1, 2014

Land use articles posted on SSRN in July

It is the first of the month, and that means it is time to check in on new articles posted to SSRN in July.  Because land use does not have its own specific eJournal, I continue to try to find the best way to capture all of the land use-related articles.  This month, I am posting three lists.  The first is the list I have published since the beginning of the year:  all articles that are retrieved with a search of the SSRN site with the search term "land use" and "last month" as the time frame.  I am also posting the "top 10" article lists from two related eJournals:  the Property, Land Use & Real Estate Law eJournal and the State & Local Government Law eJournal, which provide the top 10 articles by downloads in the last sixty days in each respective eJournal.  This makes for a slightly longer list of articles and some duplication, but it also gives us all a better sense of what's doing with regard to land use scholarship, and I think that is a good thing.  As always, I welcome comments. 

1 Incl. Electronic Paper Using Non-Environmental Law to Accomplish Environmental Objectives 
Journal of Land Use & Environmental Law, Vol. 30, 2015 Forthcoming
Todd S. Aagaard 
Villanova University School of Law 
Date posted: 
01 Jul 2014

Last revised: 
26 Jul 2014

Accepted Paper Series
29 Downloads

2 Incl. Electronic Paper 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 
Date posted: 
04 Jul 2014

working papers series
26 Downloads

3 Incl. Electronic Paper From Nectow to Koontz: The Supreme Court's Supervision of Land-Use Regulation 
William A. Fischel 
Dartmouth College - Department of Economics 
Date posted: 
27 Jul 2014

working papers series
18 Downloads

4 Incl. Electronic Paper China's Stealth Urban Land Revolution 
American Journal of Comparative Law, Vol. 62, No. 2, Spring 2014
Donald C. Clarke 
George Washington University Law School 
Date posted: 
26 Jul 2014

Accepted Paper Series
Downloads

5 Incl. Electronic Paper The Community Infrastructure Levy: Confining Discretionary Activity at Local Level? 
LSE Legal Studies Working Paper No. 19/2014
Tola Amodu 
Independent 
Date posted: 
16 Jul 2014

working papers series
Downloads

6 Incl. Electronic Paper 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.
Liesel Spencer 
School of Law, University of Western Sydney 
Date posted: 
25 Jul 2014

Accepted Paper Series
Downloads

7 Incl. Electronic Paper Note, A Spoonful of Sugarcane Ethanol: A Green Tax Medicine for the Cellulosic Ethanol Industry 
15 Minn. J. L. Sci. & Tech. 1117 (2014)
Ke M. Huang 
University of Minnesota - Twin Cities - School of Law 
Date posted: 
17 Jul 2014

Accepted Paper Series
Downloads

8 Incl. Electronic Paper Does the Nomination Scheme of the City Manager Matter for Urban Development Policies? 
Ruhr Economic Paper No. 476
Sebastian Garmann 
University of Dortmund - Ruhr Graduate School in Economics 
Date posted: 
24 Jul 2014

working papers series
Downloads

9 Incl. Electronic Paper Land Use Impact Fees: Does Koontz v. St. Johns River Water Management District Echo an Arkansas Philosophy of Property Rights? 
Carl J. Circo 

Date posted: 
11 Jul 2014

working papers series
Downloads

10 Incl. Electronic Paper Some Australian Examples of the Integration of, Environmental, Economic and Social Considerations into Decision Making - The Jurisprudence of Facts and Context 
McKay, Jennifer (2010) 'Some Australian examples of the integration of, environmental, economic and social considerations into decision making - the jurisprudence of facts and context', Global Justice and Sustainable Development, pp.327-340
Jennifer McKay 
University of South Australia - School of Law 
Date posted: 
31 Jul 2014

Accepted Paper Series
Downloads

11 Incl. Electronic Paper 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 
Date posted: 
22 Jul 2014

Accepted Paper Series
Downloads

12 Incl. Electronic Paper Framing Inclusionary Zoning: Exploring the Legality of Local Inclusionary Zoning and Its Potential to Meet Affordable Housing Needs 
Zoning and Planning Law Reports, Vol. 36, No. 4, April 2013
Tim Iglesias 
University of San Francisco - School of Law 
Date posted: 
23 Jul 2014

Accepted Paper Series
Downloads

13 Incl. Electronic Paper Public Interest Litigation in the Netherlands – A Multidimensional Take on the Promotion of Environmental Interests by Private Parties Through the Courts 
Utrecht Law Review, Vol. 10, No. 3, p. 77-90, June 2014
Berthy van den Broek and Liesbeth F.H. Enneking 
Utrecht University - Centre for Environmental Law and Policy and Utrecht University - Utrecht Centre for Accountability and Liability Law 
Date posted: 
15 Jul 2014

Accepted Paper Series
Downloads

14 Incl. Electronic Paper Tort Law 
14 Touro L. Rev. 459 (1998), Touro Law Center Legal Studies Research Paper Series 
Leon D. Lazer 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
22 Jul 2014

Accepted Paper Series
Downloads

15   Thermal Expansion, Melting Glaciers, and Rising Tides: The Public Trust in Mississippi, 
Ronald J. Rychlak 
University of Mississippi, School of Law 
Date posted: 
18 Jul 2014


working papers series

 

 Property, Land Use & Real Estate Law eJournal Top 10 articles:

1 193 How to Do Things with Hohfeld 
Pierre Schlag 
University of Colorado Law School 
Date posted to database: 13 Jul 2014 
Last Revised: 22 Jul 2014
2 169 O'Reilly v. Morse 
Adam Mossoff 
George Mason University School of Law 
Date posted to database: 12 Jun 2014 
Last Revised: 16 Jul 2014
3 151 Still an Issue: The Taking Issue at 40 
Patricia Salkin 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted to database: 27 Jun 2014 
Last Revised: 6 Jul 2014
4 146 Unconstitutional Perpetual Trusts 
Steven J. Horowitz and Robert H. Sitkoff 
Sidley Austin LLP and Harvard Law School 
Date posted to database: 18 Jun 2014 
Last Revised: 8 Jul 2014
5 127 Properties of Information & the Legal Implications of Same 
Tim Wu 
Columbia University - Law School 
Date posted to database: 6 Jun 2014 
Last Revised: 9 Jul 2014
6 93 The Affirmative Duties of Property Owners 
Robert C. Ellickson 
Yale Law School 
Date posted to database: 11 Jul 2014 
Last Revised: 11 Jul 2014
7 88 The Stripping of the Trust: A Study in Legal Evolution 
Adam S. Hofri-Winogradow 
Hebrew University of Jerusalem - Faculty of Law 
Date posted to database: 26 May 2014 
Last Revised: 26 May 2014
8 87 Property: A Bundle of Sticks or a Tree? 
Anna di Robilant 
Boston University School of Law 
Date posted to database: 20 Jun 2014 
Last Revised: 22 Jul 2014
9 86 The Thing about Exclusion 
Henry E. Smith 
Harvard Law School 
Date posted to database: 14 Jun 2014 
Last Revised: 20 Jun 2014
10 61

Liberalism and the Private Law of Property 
Hanoch Dagan 
Tel Aviv University - Buchmann Faculty of Law 
Date posted to database: 13 Jul 2014 
Last Revised: 13 Jul 2014

 State & Local Government Law eJournal Top 10 articles

1 327 The Failure of Mitigation? 
Robert J. SmithSophie Cull and Zoe Robinson 
University of North Carolina School of Law, Independent and DePaul University College of Law 
Date posted to database: 8 Jun 2014 
Last Revised: 17 Jul 2014
2 216 A State Tax Approach to Regulating Greenhouse Gases Under the Clean Air Act 
Samuel D. EisenbergMichael W. WaraAdele C. MorrisMarta Darby and Joel Minor 
Stanford Law School, Stanford Law School, The Brookings Institution, Stanford University and Stanford Law School 
Date posted to database: 24 May 2014 
Last Revised: 24 May 2014
3 146 Unconstitutional Perpetual Trusts 
Steven J. Horowitz and Robert H. Sitkoff 
Sidley Austin LLP and Harvard Law School 
Date posted to database: 18 Jun 2014 
Last Revised: 8 Jul 2014
4 98 Morals from the Courthouse: A Study of Recent Texas Cases Impacting the Wills, Probate, and Trust Practice 
Gerry W. Beyer 
Texas Tech University School of Law 
Date posted to database: 19 Jun 2014 
Last Revised: 19 Jun 2014
5 55 Maryland v. King: Terry v. Ohio Redux 
Tracey Maclin 
Boston University - School of Law 
Date posted to database: 25 Jun 2014 
Last Revised: 25 Jun 2014
6 51 FAA Preemption after Concepcion 
Christopher R. Drahozal 
University of Kansas School of Law 
Date posted to database: 6 Jun 2014 
Last Revised: 6 Jun 2014
7 48 The Political Safeguards of Horizontal Federalism 
Heather Gerken and Ari Holtzblatt 
Yale University - Law School and WilmerHale 
Date posted to database: 6 Jun 2014 
Last Revised: 7 Jul 2014
8 47 Child, Victim, or Prostitute? Justice Through Immunity for Prostituted Children 
Tessa L. Dysart 
Regent University School of Law 
Date posted to database: 17 Jun 2014 
Last Revised: 17 Jun 2014
9 46 Marriage of Necessity: Same-Sex Marriage and Religious Liberty Protections 
Robin Fretwell Wilson 
University of Illinois College of Law 
Date posted to database: 23 Jun 2014 
Last Revised: 23 Jun 2014
10 45 The 'Other' Missouri Model: Systemic Juvenile Injustice in the Show Me State 
Mae C. Quinn 
Washington University in Saint Louis - School of Law 
Date posted to database: 26 May 2014 
Last Revised: 2 Jun 2014

Stephen R. Miller 

August 1, 2014 | Permalink | Comments (0)