Wednesday, February 11, 2015

Why are building inspectors so often on the take?

Here we go again.  Another line-up of building inspectors smiling for the camera...taking their mug shots.  New York City just raided its building department, charging 16 with taking bribes, as well as 31 others in the construction trades.  The NYT has the story here.  

Having practiced land use law in San Francisco in an era when the building department there was raided multiple times by the FBI, I can't help but be dismayed by this latest turn in NYC.  I wonder:  What is it about building departments that makes bribery happen so often?  Is it too naive to believe that complex building codes can exist, and be enforced, without expediters, graft, and kick-backs?

Stephen R. Miller

February 11, 2015 | Permalink | Comments (2)

Tuesday, February 10, 2015

What makes people leave rural areas, and what makes them stay

Earlier this week, Joshua Hightree, a graduate student in the University of Idaho's Bioregional Planning Program, presented a really interesting work-in-progress to the Idaho Legislature.  The work is based upon a somewhat remarkable data-set:  7,000 rural individuals answered 212 survey questions in 26 community surveys taken between 2000 and 2014 in rural communities across the State.  The research paints a vivid picture of what is wrong, and what is right, with rural life in Idaho, and may be applicable more broadly.  

The studies found that there were three major trends in dissatisfaction with rural life:  the quality of K-12 education; housing availability; and housing condition. 





The study also found that the greatest areas of dissatisfaction with rural life focused around recreational opportunities, job variety and quality, and the lack of vocational- and post-secondary training opportunities. 



Areas of satisfaction with rural life included a number of aspects of social capital:


Mr. Hightree is still working on the final report and analysis, but was willing to share this information now. This data set and its analysis seems a potentially valuable contribution not only to understanding rural life in Idaho but perhaps would be applicable to understanding other areas, as well.

Stephen R. Miller





February 10, 2015 | Permalink | Comments (4)

Monday, February 9, 2015

Citi, Wells Fargo, JPM defeat mortgage discrimination lawsuits

From Reuters:

A federal judge in California has dismissed lawsuits brought by the Los Angeles Unified School District alleging mortgage discrimination by three of the nation's biggest banks, ruling the district has not shown how it was harmed.
In three separate orders on Tuesday, U.S. District Judge Otis Wright rejected the school district's argument that it lost property tax revenue because of discriminatory lending by Citigroup Inc, Wells Fargo & Co and JPMorgan Chase & Co.
Local property taxes do not determine the school district's level of funding because state and local revenue are commingled in a single fund under state control, Wright said, agreeing with the banks' arguments.
Full article only on Westlaw link here right now.

The cases:  The school district's cases, all in U.S. District Court in California's Central District, are Los Angeles Unified School District v. Wells Fargo & Co et al, No. 14-cv-7370; Los Angeles School District v. Citigroup Inc et al, No. 14-cv-7368; and Los Angeles Unified School District v. JPMorgan Chase & Co et al, No. 14-7369.

Hat tip to Jonathan Rosenbloom...

February 9, 2015 | Permalink | Comments (0)

Feb 26 - Trading High in the Sky: Transfer of Development Rights

of the Zicklin School of Business in association with the 
New York City Department of City Planning presents

A critical understanding of TDRs with a look toward change.

Carl Weisbrod, Chairman, NYC Planning Commission 

There will be no charge for this event. 

This important and timely forum will convene an influential group of national and local experts from government, the real estate industry, academia and the legal and planning professions, to survey existing TDR mechanisms, analyze their success, and explore various alternatives to reform their use. 

Opening presentations will include a Keynote Address by Carl Weisbrod, Director of the New York City Department of City Planning and Chairman of the New York City Planning Commission. Panelists will include David Brown, Director of Real Estate, Archdiocese of New York; Kenneth K. Fisher, Partner, Cozen O’Conner; David Karnovsky, Partner, Fried, Frank, Harris, Shriver & Jacobson LLP; Jerold S. Kayden, Frank Backus Williams Professor of Urban Planning and Design, Harvard University Graduate School of Design; Michael Kwartler, President, Environmental Simulation Center; Margaret Newman, Executive Director, Municipal Art Society of New York; Rick Pruetz, Principal, Planning & Implementation Strategies; Richard J. Roddewig, President & Co-Founder, Clarion Associates, Inc.; David Schleicher, Associate Professor of Law, George Mason University School of Law; Robert I. Shapiro, Founder and President, City Center Real Estate; Dan Sider, Senior Advisor for Special Projects, San Francisco Planning Department; Robert Von Ancken, Executive Managing Director, NGKF, Capital Markets, and other industry leaders.

Since the city enacted legislation more than 40 years ago to allow landmarks to transfer their unused development rights to adjacent sites, only a handful of properties have taken advantage of these provisions. While the City of New York has been a pioneer in TDRs with the creation of the Theater District, Grand Central Sub district, the South Street Seaport, and the West Chelsea Highline District to allow wider transfer of development rights to achieve specific policy objectives, individual landmarks have little flexibility to sell their unused development rights in order to fund maintenance and maximize value. Without debating the merits of landmarking, the conference will importantly explore new ideas for loosening the current regulatory controls to facilitate the transfer of development rights from landmarks. 

Discussions will examine the legal and land use basis for the current regulations; issues related to the current regulatory framework, and proposals for wider transfers. The examination would cover issues related to public review, conflicts with other public policy priorities, and potential benefits to landmarks and the city. Critical questions considered will include: how far should development rights be allowed to transfer; what obligations, if any, should be imposed on the sellers and buyers of these rights; and how might these development rights be accommodated while ensuring that the physical character of the receiving neighborhoods is not undermined. 

While much of the focus would be on the transfer of development rights from landmarks, potential areas of discussion will include wider transfers for significant sites under private and public ownership, as well as an exploration of how such transfers (along with bonus mechanisms) impact the City’s land use planning generally.

Photo: CIM Group & Maclowe Properties
Location Information:
Baruch College - Information & Technology Building (Library Building)
151 E. 25th St.
Room: Atrium, Rackow Room and Lounge - Rooms 750 and 760
Contact Information:
Name: Sara Hilska Taylor
Phone: 646-660-6950

Hat tip to David Schleicher for the heads up...



February 9, 2015 | Permalink | Comments (0)

Thursday, February 5, 2015

Homsy & Warner: Cities and Sustainability: Polycentric Action and Multilevel Governance

A very interesting article in the January, 2015 edition of Urban Affairs Review by George C. Homsy (Binghamton)  and Mildred E. Warner (Cornell) called "Cities and Sustainability: Polycentric Action and Multilevel Governance."  Here is the abstract:

Polycentric theory, as applied to sustainability policy adoption, contends that municipalities will act independently to provide public services that protect the environment. Our multilevel regression analysis of survey responses from 1,497 municipalities across the United States challenges that notion. We find that internal drivers of municipal action are insufficient. Lower policy adoption is explained by capacity constraints. More policy making occurs in states with a multilevel governance framework supportive of local sustainability action. Contrary to Fischel’s homevoter hypothesis, we find large cities and rural areas show higher levels of adoption than suburbs (possibly due to free riding within a metropolitan region).

Important empirical research for those of us (myself included) who advocate for "bottom up" planning processes.

Here is the cite:  Urban Affairs Review 2015, Vol. 51(1) 46–73; DOI: 10.1177/1078087414530545.

February 5, 2015 | Permalink | Comments (0)

Fordham Urban Law Journal Symposium on Law, Urban Space, and the Future of Artistic Expression

I just got word of this conference announcement so it hasn't yet made it to the official list, but I am so bummed that I can't make it to NYC for this upcoming symposium. It features one of my favorite artists.


Law, Urban Space, and The Future of Artistic Expression



Thursday, February 26, 2015
9 a.m.—5 p.m.



The symposium will examine legal issues surrounding street art, such as intellectual property and private and public spaces. It will also explore different perspectives of urban artistic expression, like large scale metropolitan art, the role of street art in shaping and changing communities, and the role of performance art generally in an urban space.

Continue reading

February 5, 2015 | Permalink | Comments (0)

Environmental Law and Land Use Conferences

As some of you may be aware, I maintain a list of environmental law, land use, and energy conferences that get sent my way. I just updated it and like to periodically remind people about its existence. It is a great place to learn about upcoming events in one place. It can also be helpful to people out their organizing their own events and trying to avoid conflicts. If your event isn't listed (and is an academic conference), send me the info and I will add it.

 The list is available here.

February 5, 2015 | Permalink | Comments (0)

Wednesday, February 4, 2015

U Florida Law hosts conference on "Kelo's First Decade" (Feb 5-6) and Robert Ellickson on open space in urban areas (Feb 26)

Michael Allan Wolf sends word of two outstanding events (and 70-degree weather) at Florida Law.  Video will be available a few days after each respective event.


When the U.S. Supreme Court issued its controversial 5-4 ruling in Kelo v. City of New London (2005) declaring economic redevelopment a valid “public use” under the Fifth Amendment it set off a stridently negative reaction in the media, in statehouses and in the courts. These reactions were certainly unanticipated after the near silence. The stridently negative reaction to Kelo in the media, in statehouses, and in the courts was certainly unanticipated after the near silence that followed earlier high court public use rulings in 1954 (Berman v. Parker, concerning urban renewal and 1984 (Hawaii Housing Authority v. Midkiff, concerning a land redistribution scheme). What exactly has happened since the smoke cleared on June 23, 2005, is a matter of interest and serious concern not only to those who practice state and local government, eminent domain, real property, land use, economic development, and constitutional law, but also to elected and appointed officials and the public at large.

For the Fourteenth Annual Richard E. Nelson Symposium, an outstanding group of national and state experts will join us in Gainesville to consider the changing landscape of public and eminent domain ten years after the jurisprudential tremors first registered by the Kelo Court. Florida is the perfect setting for this program, as the changes to statutory and constitutional law in the wake of Kelo have perhaps been the most extensive among the more than forty states to modify their laws since 2005. Scheduled presenters include Scott B. Bullock, Senior Attorney, Institute for Justice; David R. Carpenter, Partner, Sidley Austin LLP, Los Angeles; Marc Edelman, Associate Professor of Law, Zicklin School of Business, Baruch College; Bruce M. Harris, Partner, Harris Harris Bauerle Sharma, Orlando; Robert C. Hockett, Edward Cornell Professor of Law, Cornell University Law School; Alexandra B. Klass, Professor of Law, University of Minnesota Law School; Ilya Somin, Professor of Law, George Mason University School of Law; Amanda L. Hudson and Bradley S. Tennant, J.D. candidates, University of Florida Levin College of Law; and Michael Allan Wolf, Richard E. Nelson Chair in Local Government Law, University of Florida Levin College of Law. Symposium topics include the legal responses to Kelo, the perspective from Susette Kelo’s counsel, and the use of eminent domain to take sports stadiums and arenas, underwater mortgages, and energy transmission lines.

Download Nelson Symposium



UF Law Martin H. Levin Advocacy Center

This year’s Wolf Family Lecture guest speaker will be Robert C. Ellickson, the Walter E. Meyer Professor of Property and Urban Law at Yale Law School. The title of his talk is, “Open Space in Urban Areas: Might There Be Too Much of a Good Thing?”

The Wolf Family Lecture Series was endowed by a gift from UF Law Professor Michael Allan Wolf, who holds the Richard E. Nelson Chair in Local Government Law, and his wife, Betty.

Past scholars who have delivered the Wolf Family Lecture in the American Law of Real Property include Thomas W. Merrill, Charles Evans Hughes Professor of Law at Columbia Law School; Gregory S. Alexander, A. Robert Noll Professor of Law at Cornell Law School; Lee Fennell, Max Pam Professor of Law at the University of Chicago; Joseph William Singer, Bussey Professor of Law at the Harvard Law School; Vicki L. Been, Boxer Family Professor of Law at New York University School of Law; Carol M. Rose, Gordon Bradford Tweedy Professor Emeritus of Law at Yale Law School, and Lohse Chair in Water and Natural Resources at the James E. Rogers College of Law, University of Arizona; and Daniel A. Farber, Sho Sato Professor of Law at the University of California at Berkeley Law School.

February 4, 2015 | Permalink | Comments (0)

Tuesday, February 3, 2015

Land use law-related articles posted to SSRN in January

A couple days late (sorry, I was busy watching Punxsutawney Phil's webcam all day yesterday), here are the month's new land use law-related articles posted to SSRN.  If you posted an article January 1-2 and I missed it on this list, let me know and I'll find a way to make it up to you.  Search terms are "land use" within "last month."


1 Incl. Electronic Paper The Property-Tort Divide, Human Flourishing and a New Case Study of Surface Water Liability 
Washington & Lee Legal Studies Paper No. 2015-23
Jill Fraley 
Washington and Lee University - School of Law 
Date posted: 
01 Feb 2015

working papers series

2 Incl. Electronic Paper The Politics and Economics of Metropolitan Sprawl 
Zoning Rules! The Economics of Land Use Regulation. Cambridge, Mass: Lincoln Institute of Land Policy, 2015, Forthcoming
William A. Fischel 
Dartmouth College - Department of Economics 
Date posted: 
23 Jan 2015

Last revised: 
24 Jan 2015

Accepted Paper Series

3 Incl. Electronic Paper The Failure of America's First City Plan 
Urban Lawyer, Vol. 46, p. 507, 2014
Maureen E. Brady 
Yale University, Law School, Students 
Date posted: 
01 Feb 2015

Accepted Paper Series

4 Incl. Electronic Paper This is Adaptation: The Elimination of Subsidies Under the National Flood Insurance Program 
Columbia Journal of Environmental Law, Vol. 39, No. 2, 2014
Sarah Fox 
Jones Day 
Date posted: 
08 Jan 2015

Accepted Paper Series

5 Incl. Electronic Paper The Historical Context of Land Reform in South Africa and Early Policies 
Potchefstroom Electronic Law Journal, Vol. 17, No. 2, 2014
Henk Kloppers and Gerrit Pienaar 
North-West University - Faculty of Law and North-West University 
Date posted: 
24 Jan 2015

Accepted Paper Series

6 Incl. Electronic Paper Determinants of Land Use Change in South-West Region of Bangladesh 
Jahangir Alam 
Khulna University 
Date posted: 
14 Jan 2015

working papers series

7 Incl. Electronic Paper Quantifying Causal Mechanisms to Determine How Protected Areas Affect Poverty Through Changes in Ecosystem Services and Infrastructure 
PNAS, Vol. 111, No. 11, 2014
Paul J. Ferraro and Merlin Mack Hanauer 
Georgia State University - Department of Economics and Sonoma State University - School of Business and Economics 
Date posted: 
22 Jan 2015

Accepted Paper Series

8 Incl. Electronic Paper The Effects of Land Use Policies on Modular Home Construction: A Comparative Case Study of Three Counties in Massachusetts 
Charlene Geary 
Wellesley Real Estate Group 
Date posted: 
11 Jan 2015

working papers series

9 Incl. Electronic Paper The Greener, the Happier? The Effects of Urban Green and Abandoned Areas on Residential Well-Being 
SOEPpaper No. 728
Christian Krekel Jens Kolbe and Henry Wüstemann 
German Institute for Economic Research (DIW Berlin) , German Institute for Economic Research (DIW Berlin) and Technische Universität Berlin (TU Berlin) 
Date posted: 
24 Jan 2015

working papers series

10 Incl. Electronic Paper The Changing Landscape of Agriculture in Ghana: Drivers of Farm Mechanization and its Impacts on Cropland Expansion and Intensification 
IFPRI Discussion Paper 01392
Nazaire Houssou and Antony Chapoto 
International Food Policy Research Institute (IFPRI) and International Food Policy Research Institute (IFPRI) 
Date posted: 
06 Jan 2015

Accepted Paper Series

11 Incl. Electronic Paper Barriers to Migration in a System of Cities 
Nathan Seegert 
University of Utah - Department of Finance 
Date posted: 
30 Jan 2015

working papers series

12 Incl. Electronic Paper A Comparative Analysis of Small Area Population Estimation Methods 
Cartography and Geographic Information Science, Vol. 37, No. 4, 2010, pp. 273-284
Sarah Brinegar and Stephen Popick 
Government of the United States of America - Civil Rights Division and George Washington University 
Date posted: 
01 Feb 2015

Accepted Paper Series

13 Incl. Electronic Paper Landfills as Anthropogenic Landforms in Urban Environment from Neamţ County. 
Mihai F.C, Apostol L., Ursu A., Ichim P., 2013 Landfills as anthropogenic landforms in urban environment from Neamţ county. AES Bioflux 5 (2):100-108,
Florin Constantin Mihai Liviu Apostol A. Ursu and Pavel Ichim 
Alexandru Ioan Cuza University - Department of Geography , Alexandru Ioan Cuza University - Department of Geography , Alexandru Ioan Cuza University - Department of Geography and Alexandru Ioan Cuza University - Department of Geography 
Date posted: 
15 Jan 2015

Last revised: 
17 Jan 2015

Accepted Paper Series

14 Incl. Fee Electronic Paper A Modified Production Possibility Frontier for Efficient Forestry Management Under the New Zealand Emissions Trading Scheme 
Australian Journal of Agricultural and Resource Economics, Vol. 59, Issue 1, pp. 116-132, 2015
Todd Hale Viktoria Kahui and Daniel Farhat 
University of Otago - School of Business - Department of Economics , University of Otago - School of Business - Department of Economics and University of Otago - School of Business - Department of Economics 
Date posted: 
09 Jan 2015

Accepted Paper Series

15   Assessing Cleanup Costs and Strategies 
Pauline M. Barrieu Nadine Bellamy and Bernard Sinclair-Desgagne 
London School of Economics , Université d'Évry - Equipe d'Analyse et Probabilites and HEC Montréal 
Date posted: 
17 Jan 2015

working papers series

February 3, 2015 | Permalink | Comments (0)

Monday, February 2, 2015

Water Down Under: A Report from Australia by Barb Cosens: Post 3: Resilience and the Lake Eyre Basin, Australia

[The Water Down Under series of posts is by Barbara Cosens, who is in Australia this semester working on water law issues there.  See more about this series, and previous posts here and here.]

One of the primary goals of my time in Australia is to apply the lessons from theAdaptive Water Governance Project that looks at six North American Water Basins to a water basin in Australia. That basin will be the Lake Eyre Basin (LEB) and will include its connections to the Great Artesian Basin, and I am assisted in that by substantial research by Australian scientists including a new colleague who has provided a wealth of information, Angela Arthington at Griffith University.  The LEB covers roughly 16% of Australia including much of what we think of as the outback.  It contains two Ramsar wetlands, has been considered for World Heritage listing, and is currently a free flowing river system with 97% of the basin aquatic species thought to be indigenous. The LEB is one of those places in the world uniquely defined by both water and its absence.  Like the basins of the Great Salt, Pyramid, Walker and Mono Lakes in the western United States, the LEB is an internally drained basin.  While these North American internally drained basins are fed by spring runoff from snowmelt, the LEB receives water during major flood events in the wet season of Northern Queensland where rainfall of 400-500 mm (15-20 inches) not only exceeds the less than 100 mm (4 inches) at Lake Eyre, but tends to come in short duration high intensity storms.  In short, the rainforest feeds the desert of Australia.  Major floods, as occurred this year shortly after my arrival, are necessary to get water all the way to Lake Eyre, yet do not occur every year. (see current status of Lake Eyre).  When they do, they can bring up to 35% of the basin together in one mighty river, reconnecting isolated waterholes and providing habitat and breeding grounds for many species of birds.  High variability and extreme flood events drive the biological system of the LEB.  Floods bring an influx of nutrients from channel banks and floodplains resulting in boom in the basin fishery.  Sequential floods over a short time period may have the greatest impact because they fill wetlands first allowing later even moderate floods to reach farther into the basin.  Because groundwater plays a role in contributing to waterholes only within a few locations in the basin, evaporative loss (estimated at greater than 3 m/year (10 feet)) and increasing salinity dominates waterhole hydrology and water quality between flood events.  As floods subside, the larger persistent waterholes serve as refugia for fish and those lucky enough to end up in a waterhole that persists until the next flood serve to re-colonize other areas when the water returns.  An interesting trait of species that are resilient and, in fact, thrive in this variable habitat is to be somewhat indifferent about what they eat.  Like the common Australian phrase no worries -- no access to the floodplain, no worries, I can eat the algal bathtub ring around the waterhole.  Blea -- clearly takes a unique form of life to like this habitat.  Human alteration of the LEB hydrology is currently minimal, but loss of wetlands in neighboring basins such as the Murray-Darling, increase dependence on the LEB by water birds.  Pastoral use of arid lands for livestock, small homesteads and towns use limited amounts of water.  Dams have not yet been built to store flood runoff.  The major tributaries from Queensland were declared wild, however, the Liberal Party in power since 2012 considered eliminating this status to develop the rivers for irrigation.  The basin’s critical natural hydrograph may have received a temporary reprieve in the recent landslide win of the Labor Party in Queensland.  In addition to Queensland, the LEB crosses into the Northern Territories, New South Wales, and has its terminus in South Australia.  An intergovernmental agreement among the four governments agrees to prevent cross-border harm, but leaves internal management and allocation to the states and territories.  The greatest challenge facing the basin is whether to develop or to decide collectively to prioritize protection of this unique habitat and thus make permanent the maintenance of the natural hydrograph.  In addition, basin managers have just begun to consider the connections (or lack thereof) between the Great Artesian Basin and the LEB.  This and the potential threats to groundwater from mining will be the subject of a future blog.  And, as everywhere, climate change may be the ultimate game changer.    

February 2, 2015 | Permalink | Comments (0)

Obama executive order provides new regulations for federal projects in flood areas

The WSJ has the story here.  The executive order, in its entirety, is here, and below:

- - - - - - -

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve the Nation's resilience to current and future flood risk, I hereby direct the following:

Section 1Policy. It is the policy of the United States to improve the resilience of communities and Federal assets against the impacts of flooding. These impacts are anticipated to increase over time due to the effects of climate change and other threats. Losses caused by flooding affect the environment, our economic prosperity, and public health and safety, each of which affects our national security.

The Federal Government must take action, informed by the best-available and actionable science, to improve the Nation's preparedness and resilience against flooding. Executive Order 11988 of May 24, 1977 (Floodplain Management), requires executive departments and agencies (agencies) to avoid, to the extent possible, the long- and short-term adverse impacts associated with the occupancy and modification of floodplains and to avoid direct or indirect support of floodplain development wherever there is a practicable alternative. The Federal Government has developed processes for evaluating the impacts of Federal actions in or affecting floodplains to implement Executive Order 11988.

As part of a national policy on resilience and risk reduction consistent with my Climate Action Plan, the National Security Council staff coordinated an interagency effort to create a new flood risk reduction standard for federally funded projects. The views of Governors, mayors, and other stakeholders were solicited and considered as efforts were made to establish a new flood risk reduction standard for federally funded projects. The result of these efforts is the Federal Flood Risk Management Standard (Standard), a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains. Incorporating this Standard will ensure that agencies expand management from the current base flood level to a higher vertical elevation and corresponding horizontal floodplain to address current and future flood risk and ensure that projects funded with taxpayer dollars last as long as intended.

This order establishes the Standard and sets forth a process for further solicitation and consideration of public input, including from Governors, mayors, and other stakeholders, prior to implementation of the Standard.

Sec2Amendments to Executive Order 11988. Executive Order 11988 is amended as follows:

(a) Section 2 is amended by inserting ", to the extent permitted by law" after "as follows".

(b) Section 2(a)(1) is amended by striking "This Determination shall be made according to a Department of Housing and Urban Development (HUD) floodplain map or a more detailed map of an area, if available. If such maps are not available, the agency shall make a determination of the location of the floodplain based on the best-available information. The Water Resources Council shall issue guidance on this information not later than October 1, 1977" and inserting in lieu thereof "To determine whether the action is located in a floodplain, the agency shall use one of the approaches in Section 6(c) of this Order based on the best-available information and the Federal Emergency Management Agency's effective Flood Insurance Rate Map".

(c) Section 2(a)(2) is amended by inserting the following sentence after the first sentence:

"Where possible, an agency shall use natural systems, ecosystem processes, and nature-based approaches when developing alternatives for consideration.".

(d) Section 2(d) is amended by striking "Director" and inserting "Administrator" in lieu thereof.

(e) Section 3(a) is amended by inserting the following sentence after the first sentence:

"The regulations and procedures must also be consistent with the Federal Flood Risk Management Standard (FFRMS).".

(f) Section 3(a) is further amended by inserting "and FFRMS" after "Flood Insurance Program".

(g) Section 3(b) is amended by striking "base flood level" and inserting "elevation of the floodplain as defined in Section 6(c) of this Order" in lieu thereof.

(h) Section 4 is revised to read as follows:

"In addition to any responsibilities under this Order and Sections 102, 202, and 205 of the Flood Disaster Protection Act of 1973, as amended (42 U.S.C. 4012a, 4106, and 4128), agencies which guarantee, approve, regulate, or insure any financial transaction which is related to an area located in an area subject to the base flood shall, prior to completing action on such transaction, inform any private parties participating in the transaction of the hazards of locating structures in the area subject to the base flood.".

(i) Section 6(c) is amended by striking ", including at a minimum, that area subject to a one percent or greater chance of flooding in any given year" and inserting in lieu thereof:

". The floodplain shall be established using one of the following approaches:

"(1) Unless an exception is made under paragraph (2), the floodplain shall be:

"(i) the elevation and flood hazard area that result from using a climate-informed science approach that uses the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science. This approach will also include an emphasis on whether the action is a critical action as one of the factors to be considered when conducting the analysis;

"(ii) the elevation and flood hazard area that result from using the freeboard value, reached by adding an additional 2 feet to the base flood elevation for non-critical actions and by adding an additional 3 feet to the base flood elevation for critical actions;

"(iii) the area subject to flooding by the 0.2 percent annual chance flood; or

"(iv) the elevation and flood hazard area that result from using any other method identified in an update to the FFRMS.

"(2) The head of an agency may except an agency action from paragraph (1) where it is in the interest of national security, where the agency action is an emergency action, where application to a Federal facility or structure is demonstrably inappropriate, or where the agency action is a mission-critical requirement related to a national security interest or an emergency action. When an agency action is excepted from paragraph (1) because it is in the interest of national security, it is an emergency action, or it is a mission-critical requirement related to a national security interest or an emergency action, the agency head shall rely on the area of land subject to the base flood".

(j) Section 6 is further amended by adding the following new subsection (d) at the end:

"(d) The term 'critical action' shall mean any activity for which even a slight chance of flooding would be too great.".

(k) Section 8 is revised to read as follows:

"Nothing in this Order shall apply to assistance provided for emergency work essential to save lives and protect property and public health and safety, performed pursuant to Sections 403 and 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (42 U.S.C. 5170b and 5192).".

Sec. 3Agency Action. (a) Prior to any action to implement the Standard, additional input from stakeholders shall be solicited and considered. To carry out this process:

(i) the Federal Emergency Management Agency, on behalf of the Mitigation Framework Leadership Group, shall publish for public comment draft amended Floodplain Management Guidelines for Implementing Executive Order 11988 (Guidelines) to provide guidance to agencies on the implementation of Executive Order 11988, as amended, consistent with the Standard;

(ii) during the comment period, the Mitigation Framework Leadership Group shall host public meetings with stakeholders to solicit input; and

(iii) after the comment period closes, and based on the comments received on the draft Guidelines during the comment period, in accordance with subsections (a)(i) and (ii) of this section, the Mitigation Framework Leadership Group shall provide recommendations to the Water Resources Council.

(b) After additional input from stakeholders has been solicited and considered as set forth in subsections (a)(i) and (ii) of this section and after consideration of the recommendations made by the Mitigation Framework Leadership Group pursuant to subsection (a)(iii) of this section, the Water Resources Council shall issue amended Guidelines to provide guidance to agencies on the implementation of Executive Order 11988, as amended, consistent with the Standard.

(c) To the extent permitted by law, each agency shall, in consultation with the Water Resources Council, Federal Interagency Floodplain Management Task Force, Federal Emergency Management Agency, and Council on Environmental Quality, issue or amend existing regulations and procedures to comply with this order, and update those regulations and procedures as warranted. Within 30 days of the closing of the public comment period for the draft amendments to the Guidelines as described in subsection (a) of this section, each agency shall submit an implementation plan to the National Security Council staff that contains milestones and a timeline for implementation of this order and the Standard, by the agency as it applies to the agency's processes and mission. Agencies shall not issue or amend existing regulations and procedures pursuant to this subsection until after the Water Resources Council has issued amended Guidelines pursuant to subsection (b) of this order.

Sec4Reassessment. (a) The Water Resources Council shall issue any further amendments to the Guidelines as warranted.

(b) The Mitigation Framework Leadership Group in consultation with the Federal Interagency Floodplain Management Task Force shall reassess the Standard annually, after seeking stakeholder input, and provide recommendations to the Water Resources Council to update the Standard if warranted based on accurate and actionable science that takes into account changes to climate and other changes in flood risk. The Water Resources Council shall issue an update to the Standard at least every 5 years.

Sec5General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The Water Resources Council shall carry out its responsibilities under this order in consultation with the Mitigation Framework Leadership Group.


January 30, 2015.

February 2, 2015 | Permalink | Comments (0)

Sunday, February 1, 2015

United States District Court Strikes Down Mora County's Fracking Ban

As expected, the United States District Court for the District of New Mexico, struck down Mora County, New Mexico's ban on hydraulic fracturing. In the case styled SWEPI, LP v. Mora County, New Mexico, the court's 199-page opinion on SWEPI's Motion for Partial Judgement on the Pleadings did not rule in SWEPI's favor on all matters, but comprehensively and completely rejected the notion, advanced by the defendants, that local governments could supersede state and federal law, as well as the attack on the established principle that corporations do not hold rights in the United States. Although I have not been able to digest the entire opinion, for obvious reasons, the court delivered a well-reasoned opinion that strikes another blow to the Community Environmental Legal Defense Fund's (CELDF) effort to advance "novel" legal arguments to block a variety of Locally Undesirable Land Uses (LULUs).

CELDF advances "Rights-Based" ordinances that assert the rights of local governments to override state and federal law. The group also opposes Dillon's Rule by advancing an incorrect understanding of Home Rule. For a more thorough and nuanced understanding of Dillon's Rule and Home Rule, see my monograph, written for the Brookings Institute.

In brief, the court granted the Motion in part and denied it in part, and invalidated the Ordinance.  SWEPI, LP has standing to bring each of its claims, because it has suffered an injury in fact. Because the Mora County has already enacted the Ordinance, andbecause SWEPI, LP would suffer harm if the Court delayed considering its claims, each of SWEPI, LP‟s claims are ripe, except for its claim under the Takings Clause. Because SWEPI, LP has not sought just compensation through a state inverse condemnation action, its takings claim is not ripe. SWEPI, LP may bring its claim under the Supremacy Clause, because it could bring independent claims, through 42 U.S.C. § 1983, under the constitutional provisions that it asserts trumps the Ordinance. Additionally, the Ordinance violates the Supremacy Clause, because it conflicts with federal law. The Ordinance does not, however, violate SWEPI, LP‟s substantive due-process rights or the Equal Protection Clause, because the Defendants had a legitimate state interest for enacting the Ordinance. The Ordinance violates the First Amendment by chilling protected First Amendment conduct. Because the Defendants lack the authority to enforce zoning laws on New Mexico state lands, they may not enforce the Ordinance on state lands. Also, because there is room for concurrent jurisdiction between state and local law, New Mexico state law does not preempt the entire oil-and-gas production field. The Ordinance conflicts, however,with state law by prohibiting activities that state law permits: the production and extraction of oil and gas. Finally, the invalid provisions are not severable from the valid provisions, making the Ordinance, in its entirety, invalid.

The court, therefore, concurred with my assertion, in "Local Regulation of Hydraulic Fracturing",  117 W.Va. L. Rev 593 (2014), that a ban is distinguishable from regulation of an activity. New York remains the outlier in this regard. Also, as argued in that article, the court reaffirms that local governments hold concurrent jurisdiction with states to regulate hydraulic fracturing, but that local regulatory authority falls short of a ban. My article lists other tools, such as impact fees and reasonable setbacks, that are appropriate for local government land use regulation.

The court's rejection of a provision in CELDF's ordinance that purports to prohibit challenges to the ordinance, and which the court repeated from an earlier ruling in the SWEPI case, bears repeating hear as well:

The Ordinance, thus, appears to state that no one can challenge it, or any other
Mora County ordinance, as long as the ordinance concerns the health, safety, or
welfare of its residents. See Ordinance § 5.6. The Intervenor-Applicants‟
argument is that SWEPI, LP, cannot challenge the Ordinance‟s constitutionality,
because the Ordinance deprives SWEPI, LP, of its constitutional rights. If this
argument has validity, it would signal the end of all civil rights that the Constitution
protects. A county could pass an unconstitutional ordinance, but then say that
anyone who challenged the ordinance lacks constitutional rights to support the
challenge. The county could enforce its unconstitutional ordinance free of
constitutional restrictions, because no one could challenge the validity of the
ordinance. The consequences of such an outcome could be devastating to the
Union as the Nation has known it since the Civil War. Some counties could
prohibit speech on certain viewpoints. Others could deny basic rights to members
of certain racial ethnicities. Still others could prohibit religious practices; others
could require participation in religious services. The Constitution would be
applied in a cookie-cutter fashion across the United States with such inconsistency
from place-to-place that it would cease to be a Constitution of the United States at

SWEPI, LP v. Mora County (page 133), citing SWEPI, LP v. Mora Cnty., 2014 WL 6983288, at *48.

Rights-based ordinances are being passed across the country to attempt to ban land application of biosolids, hydraulic fracturing and other LULUs. In addition, some communities are using rights-based ordinances to promote "food sovereignty". The latest ruling in SWEPI, LP v. Mora County provides more evidence that this approach is not only wrong, but can prove to be devastating to the enacting localities. The fact that many of these localities are poor, meaning that they must turn to CELDF instead of costly, but well-qualified, consultants, exacerbates environmental justice concerns. 

Meanwhile, Conestoga Township, PA recently rejected a rights-based ordinance. One supervisor offered an eloquent rationale for his rejection of the ordinance. More local governments should follow the Conestoga example.


February 1, 2015 in Environmental Justice, Impact Fees, NIMBY, Oil & Gas, Zoning | Permalink | Comments (0)

WV LEAP Implemented in West Virginia

The Land Use and Sustainable Development Law Clinic at the West Virginia University College of Law is pleased to announce its new program, West Virginia Legal Education to Address Abandoned/Neglected Properties (“WV LEAP”). WV LEAP involves a multi-pronged effort to identify common legal challenges related to neglected properties in West Virginia, and to research and disseminate information on effective legal solutions. Abandoned and neglected properties often become complicated burdens for counties and municipalities to address because of lack of clarity on applicable laws, impediments to locating problem property owners, and legal complexities related to property titles. Many communities are also not aware of effective tools and strategies available to them for addressing blight.

WV LEAP was started in collaboration with the Northern WV Brownfields Assistance Center (NBAC), through a generous grant from the Benedum Foundation. To date, the Clinic has conducted “listening sessions” with eight participating West Virginia communities in order to gather data from local stakeholders, such as building inspectors, city attorneys, developers, bankers, and concerned citizens, on the common legal challenges communities face in attempting to address abandoned and neglected buildings.

Clinic staff and law students will spend the first half of 2015 continuing to gather data and conduct legal research, in addition to the Clinic’s activities facilitating community planning and land conservation initiatives. The WV LEAP research will ultimately be incorporated into a “legal toolkit,” which will be made available to municipal attorneys and other stakeholders as a resource on specific steps communities can utilize to combat blight. The toolkit will include guidance such as model ordinances, case studies on effective approaches, and accessible summaries of relevant legal authorities.

The Clinic will also engage in education and outreach on abandoned buildings in the spring and summer of 2015. In particular, the WV LEAP team will conduct a Continuing Legal Education session From Liability to Viability for West Virginia attorneys on May 14 in Charleston, and will also collaborate with the West Virginia Chapter of the American Planning Association,  to conduct educational sessions for planners to earn Certification Maintenance credits.

The efforts of West Virginia’s Abandoned Properties Coalition (APC) are another important initiative formed to combat the problem of blight in West Virginia, complementing the Clinic’s work through WV LEAP. The Clinic is a member of the APC, alongside the WV Community Development Hub, NBAC, the Coalfield Development Corporation, the WV Municipal League, the Preservation Alliance of WV, and multiple individual communities. While WV LEAP is geared toward identifying legal tools and strategies currently available in West Virginia, the APC is tasked with advocating statewide policy solutions for streamlining blight redemption. The Clinic’s ongoing research provides important insights into gaps in West Virginia law, highlighting areas requiring reform and legislative advocacy.

Blight—i.e., the prevalence of buildings that are falling into decay, abandoned, or uninhabitable—is a problem nationwide, hampering economic development for many regions. But the problem is particularly egregious in West Virginia, where there are hundreds of neglected properties across the state. The Clinic is pleased to continue to provide technical legal assistance to West Virginia communities, many of which have expressed that neglected properties are their number one concern.

WV LEAP is also central to pushing this matter into the mainstream discourse of WV stakeholders. Blight redemption, in turn, will help community beautification initiatives, redevelopment programs, and economic revitalization throughout the state.

Jesse Richardson

February 1, 2015 in Community Economic Development, Economic Development, Redevelopment | Permalink | Comments (0)

Wednesday, January 28, 2015

Water Down Under: A Report from Australia by Barb Cosens: Post 2: Comparative Water Law: Australia and the western United States or Conversations with Claire

[The Water Down Under series of posts is by my colleague, Barbara Cosens, who is in Australia this semester working on water law issues there.  See more about this series, and Barb's first post, here.]

Barb's second post:

University of Idaho 3L student Claire Freund is doing an internship this semester with the Environmental Defender's Office of New South Wales (EDO NSW) in Sydney Australia.  To allow her to complete the requirements for the Natural Resources and Environmental Law emphasis, we are doing a directed study via Skype on comparison between Australian and western U.S. water law.  Three of my upcoming blogs will reflect our dialogue on areas of water law that may play a major role in the readiness of our respective water basins to adapt to the intersection of climate change and population growth.  For those of you wondering whether to follow this dialogue, here is a brief introduction to the three areas they will cover and why they may play such a large role in adaptation.  The first of these areas is the nature of the right to use water.  Clearly defined rights are essential to keeping conflict in the face of scarcity in check and to facilitating transferability.  At the same time, the certainty provided by clear definition of rights must be balanced against the ability of government to manage an essential and increasingly variable common pool resource.  The second area of comparison is the management and conjunctive management of groundwater.  Like the U.S. the advancement of technology for drilling and producing large water wells in the mid-twentieth century allowed farmers to supplement variable surface water supplies.  Yet, in both countries the development outpaced the understanding of the behavior of aquifers and the adjustment of water law accordingly.  As a result, over pumping of aquifers for agriculture in response to drought has caught water managers in both countries by surprise.  Similar to our own Palouse Basin in Idaho, Australia has aquifers with very limited recharge and has not yet developed the policy and legal framework to manage aquifer mining at a level that does not have irreversible consequences.  Finally, the colonial and frontier history of both countries had devastating impacts on indigenous populations.  Meeting the needs of formerly marginalized and therefore vulnerable populations is critical to the adaptability and resilience of water dependent communities.  Furthermore, increased diversity in the voices and values playing a role in water management may be a factor in enhancing our collective ability to respond to change.  Thus, the definition of indigenous rights to water and the role of indigenous communities at the water management table must be understood to assess adaptability.  I will explore how the western U.S. and Australia are handling these issues in three blogs which I will refer to as Conversations with Claire.  I will continue to intersperse other reflections on Water Down Under with the Conversations posts.  Until next time – G-day.

January 28, 2015 | Permalink | Comments (0)

APA Planning & Law Division's Smith-Babcock-Williams Student Writing Competition now accepting entries

From Alan Weinstein, here's the announcement:

The Planning & Law Division of the American Planning Association announces its 32nd
Annual Smith-Babcock-Williams Student Writing Competition. The Competition,
which honors the memory of three leading figures in American city planning law (R.
Marlin Smith, Richard Babcock, and Norman Williams) is open to law students and
planning students writing on a question of significance in planning, planning law, land
use law, local government law or environmental law.

The winning entry will be awarded a prize of $2,000 and submitted for publication in The
Urban Lawyer, the law journal of the American Bar Association's Section of State &
Local Government Law. The Second Place paper will receive a prize of $400 and one
Honorable Mention prize of $100 will also be awarded.

The deadline for submission of entries is June 5, 2015 and winners will be announced by
August 28, 2015. Please refer to the enclosed official rules for further details.
Our past experience has shown that teachers in planning, planning law, land use law,
local government law or environmental law are in an ideal position to stimulate student
interest in research and writing and to encourage participation in the Competition. Each
year, many of the entries appear to have been prepared initially for various courses or
seminars. We hope you will add your support to the Smith-Babcock-Williams Student
Writing Competition by encouraging your current and past students to submit entries.

Download APA-PLD Student Writing Competition 2015 Rules

Download APA-PLD Student Writing Competition 2015 ANNOUNCEMENT & RULES

January 28, 2015 | Permalink | Comments (0)

Monday, January 26, 2015

Jan 30 - Boston U Law - The Iron Triangle of Food Policy - AJLM Symposium

I'm delighted to be speaking at this conference.  Should be a great group.  If you're in the Boston area, stop on by...

The Iron Triangle of Food Policy
The American Journal of Law & Medicine Symposium


January 30, 2015
9:00 AM - 5:00 PM

Room 410
Sumner M. Redstone Building
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215

President Obama signed the FDA Food Safety Modernization Act into law on January 4, 2011. This law aimed to ensure the safety of the U.S. food supply by preventing contamination. This symposium will examine this law, and others, to consider how policy can impact access to food and food quality. Panels will discuss food insecurity, obesity, GMO’s and food purity, and issues with local sourcing and the access to and costs of organic food.


Kathryn BoysAssistant Professor, Virginia Tech

Paul A. Diller, Professor of Law, Willamette University College of Law

Andrea FreemanAssistant Professor of Law, University of Hawaii School of Law

Christine FrySenior Policy Analyst and Program Director, ChangeLab Solutions

Jacob Gersen, Professor of Law at Harvard Law School, Founder and Director of the Food Law Lab at the Petrie-Flom Center at Harvard Law School (Moderator)

Saby GhoshrayPresident, Institute of Interdisciplinary Studies,
Director, Research, and Compliance WorldCompliance Company

Sam F. HalabiAssociate Professor of Law, The University of Tulsa
College of Law

Emily Broad Leib, Lecturer on Law and Deputy Director of the Harvard Law School Center for Health Law and Policy Innovation (Moderator)

Stephen Miller, Associate Professor, University of Idaho College of Law

Abigail MoncrieffPeter Paul Career Development Professor and Associate Professor of Law, Boston University School of Law

Kevin Outterson, Professor, Boston University School of Law (Moderator)

Efthimios ParasidisAssociate Professor of Law, The Ohio State University Moritz College of Law

Joanna K. Sax, Associate Dean for Research and Faculty Development,
Associate Professor of Law, and Co-Director, Institute of Health Law
Studies, California Western School of Law

Stephanie Tai, Associate Professor of Law, University of Wisconsin Law School

Lindsay Wiley, Associate Professor of Law and Director, Health Law
and Justice Program, American University Washington College of Law

Diana Winters, Associate Professor of Law and Dean's Fellow, Indiana
University Robert H. McKinney School of Law

Samuel R. Wiseman, Professor, Florida State University College of Law

Kathy Zeiler, Professor of Law, Georgetown Law; Visiting Professor, Boston University School of Law (Moderator)

Please click here to register.

More information to follow. To learn more about the American Journal of Law & Medicine, please click here.

January 26, 2015 | Permalink | Comments (0)

Thursday, January 22, 2015

"Basic Human Right" to Farm Your Lawn?

A bill has been introduced into the Michigan legislature to allow urban dwellers to keep a "reasonable" number of livestock on their property. This article refers to the bill as guaranteeing the "basic human right" to farm your lawn. Really?

As many of you are probably aware, many cities across the country are confronting the dilemma of what to about allowing "urban agriculture" (an oxymoron in my mind- perhaps "urban gardening" is more appropriate) in light of state right to farm laws. Each of the 50 states have right to farm laws, prompted by the decision by the Supreme Court of Arizona in Spur v. Del Webb, 108 Ariz. 178, 494 P.2d 700 (1972). These laws were enacted to address housing developments leapfrogging, or even slowly growing, out into rural areas and basically makes "coming to the nuisance" a true defense, in certain circumstances.

There are many health and planning reasons to bar livestock in urban areas. However, there are also many very passionate fans of keeping livestock in urban areas. I come down on the side of banning livestock in urban areas, but allowing vegetable gardens. I hope I don't receive any threats. Should I mention raw milk to evoke more emotional responses?

Right to Farm laws, already heavily criticized and having been found to be a taking of private property for private use by at least two courts (Iowa and Washington) need to be amended to exclude urban agriculture from the protections of the act. The acts were passed to address a totally different context.

Jesse Richardson

January 22, 2015 in Agriculture, Food, Urbanism, Zoning | Permalink | Comments (0)

CFP: Fordham Law: Sharing Economy, Sharing City: Urban Law and the New Economy

This is going to be a great event on a major emerging area of land use law, and local government law, inquiry.  If it weren't for a personal schedule conflict, I would be there!  You should go!

Conference Announcement and Call for Participation

Sharing Economy, Sharing City: Urban Law and the New Economy

Friday, April 24, 2015, Fordham Law School, New York, NY

Abstract Submission Deadline: February 6, 2015

The Fordham Urban Law Center is pleased to announce plans for its annual conference, "Sharing Economy, Sharing City: Urban Law and the New Economy," which will be held on Friday, April 24, 2015 at Fordham Law School in New York City.

CONFERENCE DESCRIPTION: Trends in the sharing economy have spurred complex legal and regulatory issues that have moved to the center of urban policy debates, from Berlin to Seoul to New York City. As web-based, peer-to-peer companies challenge traditional regulatory paradigms, state and local governments are trying to respond creatively to rapidly changing digital and economic landscapes. This interdisciplinary conference will explore the relationship between the sharing (or "peer-to-peer") economy and economic and community development, consumption, ownership, mobility, and a shifting urban workforce. It will investigate diverse approaches to legal and regulatory issues facing city governments, entrepreneurs, workers, consumers, and residents in today's dynamic technological and built environments. The goal of the event, and anticipated edited volume following the conference, is to advance new possibilities for problem solving in this transforming area of urban law, technology and entrepreneurship.

TOPICS: Submissions that explore one or more of the following themes/areas are strongly encouraged:
- Regulatory and urban policy trends (as well as industry responses) in the transportation/ridesharing, homesharing and/or coworking sectors
- Ownership, property, urban space, real estate, fair housing
- Privacy, liability, fair business practices, consumer protection
- Labor, employment, workplace conditions (including immigrant labor and contracting)
- Global or comparative perspectives on the role of urban law or policy in the sharing economy

PROPOSAL CRITERIA AND SUBMISSION PROCEDURE: Prospective participants should submit a topic proposal (maximum length: 350 words) to (Subject: Conference Abstract/Paper Submission from [NAME]). The deadline for proposals is Friday, February 6, 2015. Selected participants will be notified of final decisions in early March.

We are accepting scholarly submissions from the legal field and related disciplines. Participants do not need to have prepared a formal paper to join the conversation. However, if you are interested in submitting a piece for a forthcoming edited volume, please include a draft paper with your proposal submission or, at the latest, by the conference date. Where proposals are co-authored, for purposes of conference presentations, we encourage the selection of a single presenter; we will consider requests for joint presentations by selected co-authors on a case-by-case basis.

HOW TO REGISTER: Please visit or email for registration details. Space is limited. The final conference agenda is forthcoming and will be available on the Urban Law Center website and conference webpage. The Center can assist panel participants with travel costs; the extent of support will depend on a participant's anticipated needs.

ABOUT THE URBAN LAW CENTER: The Urban Law Center at Fordham Law School in New York City is committed to understanding and affecting the role of law and legal systems in contemporary urbanism. The Center is a partner of the Fordham Urban Law Journal, Fordham Law School's second-oldest publication, and co-sponsors the State & Local Government eJournal on SSRN's Legal Scholarship Network.

For more information about the Fordham Urban Law Center, please contact Nisha Mistry, Director, Fordham Urban Law Center, at (212) 636-7241.


January 22, 2015 | Permalink | Comments (0)

Fennell and Peñalver on Exactions Creep

For those of you who have not already figured out exactly how land use planning officials are expected to proceed in the wake of the U.S. Supreme Court's 2011 decision in Koontz v. St. Johns River Water Management District, Lee Fennell (Chicago) and Eduardo Peñalver (Cornell) have posted Exactions Creep, __ Sup. Ct. Rev. ___ (forthcoming).   Rather than deny that the Court has aggravated the uncertainty faced by local governments, Lee and Eduardo explore the nature of the confusion in the Court's exactions jurisprudence and call for a significant revision.  Here's the abstract:

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.

Jim K.

January 22, 2015 in Affordable Housing, Conservation Easements, Constitutional Law, Development, Impact Fees, Local Government, Planning, Property, Property Rights, Property Theory, Scholarship, Subdivision Regulations, Takings, Zoning | Permalink | Comments (0)

March 11-13: Rocky Mountain Land Use Institute's annual conference: Western Places/Western Spaces: Building Fair & Resilient Communities

Western Places/Western Spaces: Building Fair & Resilient Communities

Denver, CO 

March 11 – 13, 2015

The Rocky Mountain Land Use Institute’s annual land use conference presents a forum for land use academics, professionals, planners, lawyers and real estate developers to share their knowledge, network, and learn about cutting-edge issues.

Western Places/Western Spaces looks at how we can meet the many challenges of the future while better addressing issues of social and environmental justice. We will also explore the innovative tools, business models, and technologies that are helping planners, developers, and communities move forward in a smarter way.

Early Bird rates expire on February 13. Register now to take advantage of lower rates, and be sure to use the promo code WEST to receive a $25 discount.

If you have any questions about the event, please contact us at or 303-871-6319.

January 22, 2015 | Permalink | Comments (0)

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