Monday, January 19, 2015
NYU Furman Center's "The Dream Revisited" project tackles causes and consequences of racial and economic segregation in schools and neighborhoods
See more at the link here.
About the project:
This fall, NYU’s Furman Center launched the Integration Research Initiative (IRI), a new project focused on racial and economic inequality and integration. Its goal is to develop a body of research addressing issues of inequality in neighborhoods and schools. Through this initiative, and in partnership with the NYU School of Law’s Straus Institute for the Advanced Study of Law and Justice, the Furman Center is hosting an interdisciplinary group of distinguished scholars from around the world to focus their scholarship and intellectual energies on economic inequality and integration.
The Department of Society and Conservation in the College of Forestry and Conservation at the University of Montana seeks applications for a tenure track position as Assistant Professor of Water Policy to begin Fall semester of 2015. We are interested in PhD or JD candidates with expertise in Western American water policy and the ability to integrate and apply this expertise to a range of contemporary real-world challenges in environmental management and governance.
The position will teach classes, advise students, and contribute academic leadership within the College’s Resource Conservation Program, an interdisciplinary undergraduate academic program that integrates faculty across all three Departments within the College. The successful candidate will help meet an increasing demand for policy-related coursework in the College and University and will have opportunities to work with a growing number of faculty across campus with expertise in environmental and natural resources policy, law and planning. The successful candidate will also have the opportunity to collaborate with a growing interdisciplinary faculty cohort focused on water resources and aquatic ecology in the College and University. The University of Montana is highly committed to building a culturally diverse environment. Women and minorities are encouraged to apply.
For more information, and to apply, go to http://bit.ly/1143CFCwater.
Sunday, January 18, 2015
As I wrote in another forum, I don't find the Court's requirement that a planning commission's decision be in writing to be onerous; in my experience, most jurisdictions give written decisions of denial. It is a best practice and should be done for all denials, in my opinion.
The trick to this case will be timing. Many P&Z boards do not meet every week; in many cases, the P&Z board approves the written denial at the meeting after the denial, but that second meeting could be three weeks, or even a month, later. As a result, it seems to me that P&Z boards will need to schedule the initial hearing on cell towers in anticipation of a denial, and thus ensuring that P&Z approval of the denial at a subsequent meeting would fit within the TCA deadlines. City attorneys out there, is that right?
Stephen R. Miller
Saturday, January 17, 2015
I just stumbled across an interesting case from New Jersey. A church wanted to sell off some lots but need a variance to do so from the local planning department. In part of its proposal, the Church suggested placing a conservation easement over the steep slopes on the property to "protect them." The Church suggested that this slope protection was providing a public benefit and should help justify a variance. As one planning board member noted, it is hard to see the public benefit here particularly because local laws already prevented building on steep slopes. (The local development ordinance instructs on calculating developable areas taking into account features like steep slopes.) This case is interesting because it demonstrates the odd (often overly broad) view of conservation easements that many people have a trend toward folks using (or as here, trying to use) conservation easements to duplicate restrictions already embodied in other laws. Although the court did not sude with the Church, there could arguably still be some public benefit to using conservation easement here because as a perpetual restriction it will remain in place even as local ordinances change or variances are granted. That does not mean, however, that they should necessarily qualify as a public benefit in meeting standards for determining when to grant a variance. Perhaps some of you see this differently?
RECTOR, WARDENS & VESTRYMEN OF ST. BERNARD’S PROTESTANT EPISCOPAL CHURCH v. BERNARDS TOWNSHIP PLANNING BOARD, (Superior Court of New Jersey, Appellate Division, April 30, 2014 -- 2014 WL 7596809)
Friday, January 16, 2015
David Schleicher (George Mason) and Daniel E. Rauch (Yale) have just posted Like Uber, But for Local Governmental Policy: The Future of Local Regulation of the “Sharing Economy.” Here is the abstract:
In the past five years, “sharing economy” firms like Uber, ZipCar, AirBnB and TaskRabbit have generated both huge market valuations and fierce regulatory contests in America’s cities. Incumbent firms in the taxi, hotel and other industries, as well consumer protection, labor and neighborhood activists, have pushed for regulations stifling or banning new sharing economy entrants. Sharing firms have fought back, using their popularity with consumers and novel political strategies, lobbying for freedom to operate as broadly as possible without government interference. But to date, both participants and observers of these “sharing wars” have relied on an unstated assumption: if the sharing firms win these fights, their future will be largely free from government regulation. Local governments will either shut sharing down, or they will leave it alone.
But this assumption is almost surely wrong. If sharing firms prevail in the current fights over the right to operate (and indications suggest they will), it is unlikely that cities and states ignore them. Instead, as sharing economy firms move from being upstarts to important and permanent players in key urban industries like transportation, hospitality and dining, local and state governments are likely to adopt the type of mixed regulatory strategies they apply to types of firms with whom sharing firms share important traits, from property developers to incumbent taxi operators. Using tools of agglomeration economics and public choice, this Article sketches the future of such policy regimes.
Specifically, local and state governments will adopt some combination of the following policies in addition to insisting on consumer/incumbent protections: (1) subsidizing sharing firms to encourage expansion of services that produce public goods, generate substantial consumer surplus and/or minimize the need for excessive regulation of the property market; (2) harnessing sharing firms as a tool for redistribution; and/or (3) contracting with sharing firms to provide traditional government services. The future of sharing economy regulation will be very different from its present, and the changes will pose profound legal, political and ethical questions for our cities.
Looks like a great piece on an area in need of much work. I know several other profs working on sharing economy articles, so hopefully there will be a bevy of new ideas emerging in the coming months.
Stephen R. Miller
The only thing raising more ire than finding a parking space in a big city may be someone trying to sell you a parking space in a big city
LAT has the story:
Bay Area TV station KRON explains how the app works: "If you launch the free MonkeyParking app on your phone and click request a spot, monkey faces pop up. Those are street parking spots near you that other MonkeyParking app users currently have their car parked in but they are willing to sell. You can offer them $5, $10, $15 or $20 for that spot. If they accept, the two of you switch out your cars in the parking spot."
Not since Los Angeles and other cities announced that they would install sensors in on-street parking spaces that would reset the meter to zero when a car pulls out -- depriving the next motorist of the occasional extra few minutes left, and transferring the "extra" cash into city coffers -- has a parking story made my blood boil more.
A screenshot of the MonkeyChimp app at the heart of the controversy:
Hat tip to Lee Dillion.
Stephen R. Miller
On January 24, 2015, I will be speaking at a conference on regulating the sharing economy organized by the Federalist Society at the Ronald Reagan Presidential Library just north of Los Angeles. I'm looking forward to what I think will be a good discussion. Come and join us (CLEs will be available).
40 Presidential Drive
(In the Presidential Learning Center)
Simi Valley, CA 93065
Government Regulation in the Sharing Economy
2:15 p.m. – 4:00 p.m.
In the innovation economy, entrants often confront increased regulatory hurdles, particularly on a state level, as they enter the marketplace and disrupt previously tightly regulated industries, such as hospitality and transportation. In California, for example, legislators have proposed rigorous insurance requirements, drug testing, and new background checks on Uber and Lyft drivers that traditional taxicab drivers do not face. Airbnb faces scrutiny in New York, with critics accusing it of violating rent control laws by creating an underground rental market, threatening public safety and driving up rental prices. In New Jersey, Tesla sales have been shut down after licensing restrictions prevented direct-to-consumer sales of electric vehicles, bypassing franchised dealers. While the entrants contend that these restrictions only serve to restrain competition and protect special entrenched interests, the critics maintain that consumer protection and maintaining a level playing field are the true goals in their regulatory policies. What’s the proper balance between innovation and regulation? Will these new entrants incentivize innovation or will existing regulatory capture only succeed in maintaining the status quo? Are state regulations the greatest impediment to innovation, or do federal regulations also impede progress?
- Evan Baehr, Co-founder, Outbox and Co-founder, Able Lending
- Katie Biber Chen, Senior Counsel, Airbnb
- Andrea Ambrose Lobato, Policy Counsel, Lyft
- Prof. Stephen Miller, University of Idaho School of Law
- Prof. Jordan Barry, University of San Diego Law School
- Moderator: Hon. Carlos Bea, U.S. Court of Appeals, 9th Circuit
4:00 p.m. - 5:00 p.m.
Cost for Pre-registration:
- Non-Students: $50 ($60 on-site)
- Students: Free ($10 on-site)
3.5 Credits of California CLE are available.
Thursday, January 15, 2015
From the press release:
Leadership Counsel for Justice and Accountability, a Project of the Tides Center
Leadership Counsel for Justice and Accountability (LCJA) is a new organization created to fundamentally shift the dynamics that have created stark inequalities in California’s low income, rural regions. Based in the agriculturally rich San Joaquin and East Coachella Valley’s we work alongside the most impacted communities to advocate for sound policy and eradicate injustice to secure equal access to opportunity regardless of wealth, race, income, and place.
Our experience in rural regions of California has taught us that as long as the most vulnerable populations remain silent and silenced environmental degradation will continue, infrastructure will crumble, and the most basic of services and amenities will remain beyond the reach for those in need. And, state policies will continue to further disadvantage low income, rural communities through funding formulas and eligibility criteria that favor wealthier regions.
More details in the job descriptions here:
Sounds like some interesting CED and EJ work for a recent law grad.
Stephen R. Miller
I recently posted a draft of a symposium essay, A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe, which is to be published by Boston University Law's American Journal of Law and Medicine. The essay is based, in part, on work condcuted by my clinic on agritourism earlier this year. Here is the abstract:
Stephen R. Miller
In a relatively well-known case from Colorado, Alan DeAtley faced criminal charges for his claiming grossly overvalued deductions for conservation easements on his land. Unsurprisingly, DeAtley brought suit against the various professionals who worked on the conservation easements including appraisers and tax professionals. His complaint asserts that these professionals misrepresented the conservation easement values and their conduct was not just negligent but rose to the level of fraudulent. (Note, this case had been transfered from federal district court in Colorado to the Western District of Washington)
DeAtley's complaint has now been dismissed. I was interested in this case because without having a lot of details it sounded like DeAtley had gotten some bad legal and accounting advice. DeAtley, however, started out by filing a shoddy complaint (lacking details regarding the necessary elements of the causes of action) and then failed to respond to the motions to dismiss. The motion was granted without prejudice (but not specifically with leave to amend), so we might see the case reopened. DeAtley was represented by counsel here. Makes you wonder... is he bad at choosing counsel? is he just a poor client who does not listen to or pay counsel? will we see another case for negligence against this attorney? Of course, none of those things are really helpful to the rest of us. We will have to look to other cases to assess what types of repercussions land use attorneys might face for poor conservation easement advice.
This order and the complaint are available on Westlaw (2015 WL 134271) and likely someone more saavy with Pacer than I am can find the information there.
Wednesday, January 14, 2015
Last chance to apply to Study Space VIII, Phoenix Cities: Urban Recover and Resilience in the Wake of Conflict, Crisis and Disaster, from June 15-19, 2015 in Warsaw, Poland. Deadline to apply is February 2nd, but only a few spaces remain!
Apply online at: https://insidelaw.gsu.edu/study-space/
The Center for the Comparative Study for Metropolitan Growth at the Georgia State University College of Law is again offering a unique opportunity for travel and learning in June 2015. The eighth iteration of Study Space—a weeklong intensive workshop in which scholars, government and private sector professionals develop solutions to legal, social and policy challenges in urban areas—will take place in Warsaw, Poland at the University of Warsaw’s Foundation Center of Disputes and Conflicts Resolution at the Faculty of Law.
Study Space Poland will feature the incredible reconstruction of Warsaw, Poland in the post-war era. The program will provide historical and political context to the reconstruction of the city, and use the past as a guide to understanding today’s planning goals from a socio-economic perspective.
Study Space Poland will feature a number of lectures and site visits. For example, participants will visit the Old Town and learn about how paintings by Canaletto aided in the reconstruction of the city to its near original form. Tours outside the Old City will demonstrate to participants how areas were redesigned during reconstruction to accommodate the growing city’s needs. Whereas lectures about housing issues and squatters and reprivitization will demonstrate the challenges of reconstruction. The cost of the program is $900 plus airfare, hotel, and miscellaneous expenses.
Participants are sure to leave the experience with a new perspective on creating resilient cities informed by the past and present while looking towards the future.
This program is open to professionals and scholars around the world. Space is limited so early application is encouraged.
Please feel free to share this announcement with your colleagues or others who may be interested.
Want more info? Contact Karen Johnston at email@example.com or 404-413-9175.
Visit our website for more information: http://law.gsu.edu/centers/metro-growth/programs/study-space/
Apply online at: https://insidelaw.gsu.edu/study-space/
You are cordially invited to participate in a conversation about tools, programs, and possible funding sources to help Florida communities prepare for the future and strengthen their resilience to disasters, sea level rise, and climate change on Wednesday, January 28, from 1:00 to 2:30 pm ET.
Presenters will include:
- The Hon. Kristin Jacobs, Florida House of Representatives
- Josh Sawislak, White House Council on Environmental Quality (invited)
- Margo Moehring, Northeast Florida Regional Council
Recent activities at both the state and federal level may make more resources available to local communities seeking to enhance their resilience to natural hazards and climate change. This webinar will explain some of these potential opportunities and the outlook for future resources.
Rep. Jacobs is the Ranking Member of the Agriculture and Natural Resources Appropriation Subcommittee of the Florida House of Representatives and recently served on the White House’s State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience, which developed a series of Recommendations on how the federal government could better assist states and local governments in preparing for and recovering from disasters and the impacts of climate change.
The webinar is sponsored by the Southeast Florida Regional Climate Change Compact.
REGISTER HERE: https://attendee.gotowebinar.com/register/2952086829704883201
After registering, you will receive a confirmation email containing information about joining the webinar.
Tuesday, January 13, 2015
[My colleague here at the University of Idaho College of Law, Barbara Cosens, is currently visiting in Australia and doing some really interesting water law work there. She plans to occasionally blog about the experience. She has agreed to let me re-post some of her blog posts on Land Use Prof Blog where they relate to the themes of this blog. Many of you know Barb, and I'm sure she'd love to hear from you and your response to her posts.]
Here is more about the program:
Professor Cosens has been selected as a Visiting Professor with the ANZSOG—Goyder Institute Visiting Professors Program in association with Flinders University in Adelaide, South Australia, for a portion of the spring 2015 semester. Professor Cosens is currently co-chair of a project made possible through the NSF funded National Socio-Environmental Synthesis Center to understand the role of law in presenting both barriers and opportunities for adaptive water governance as we enter the era of climate change. Professor Cosens will bring this research to bear on the Lake Eyre Basin, an internally drained basin covering a large portion of South Australia, Queensland, Northern Territories, and a portion of New South Wales, and linked to the Great Artesian Basin.
And here is Barb's first post:
Adelaide, South Australia water supply: Diversification enhances resilience
My husband and I arrived in Adelaide South Australia at 8 pm on January 3, after leaving the west coast of the United States on the evening of January 1. As with any traveler arriving in the Adelaide airport after 30 hours of flights and airports, my thoughts turned to water. But as a water geek, I wanted to know more than where the nearest drinking fountain could be found. Here is what I learned. The provision of drinking water and sanitation is considered an essential service in Australia as it is in the United States. There is limited privatization of drinking water supply in South Australia and the primary water provider is the state owned South Australian Water Corporation (SA Water) established in 1994. In a tribute to globalization, United Water, the U.S. subsidiary of the French corporation Suez Environnement, once provided some of the operation and maintenance services for water supply in South Australia. And yes, this is the same United Water that provides drinking water to Boise, Idaho, USA. The water supply for Adelaide, until recently, came primarily from the Murray-Darling basin (85%), local catchment reservoirs (8%) and groundwater (7%). South Australia entered what would be its worst drought on record in 1995, a drought that would not ease until 2010. With record low flows on the Murray River and predictions of an overall decline in precipitation of 15-30% by 2050 as the result of climate change, South Australia sought to diversify its water sources with its 2009 Water for Good plan (diversification of source is an important move for enhancing general resilience for you resilience thinkers out there). In 2011, as part of the plan and just as the drought broke, Adelaide began receiving a portion of its water from a desalination plant located south of the city, and plans are underway to recycle treated waste water for use in irrigation. With this being my first opportunity to possibly be drinking desalinated water, my thoughts also turned to water quality. Reading a textbook on Australian Water published in 2012, I learned that South Australia stood alone among Australian states in its absence of drinking water quality regulation. I immediately vowed to only drink bottled water (something I generally avoid). Apparently SA Water had voluntarily undertaken the goal of meeting the federal Australia Drinking Water Guideline (ADWG) including self-imposed requirements for monitoring and reporting, but this did not ease my concern until I learned that things had changed since my law book went to press. In 2011, the legislature of SA passed the Safe Drinking Water Act to meet the federal ADWG. The Safe Drinking Water Regulations 2012, promulgated to implement the Act, apply to all public and private purveyors of drinking water in South Australia. The regulations commenced in March 2013. I now happily sip tap water as I write from my balcony overlooking the lovely beach at Glenelg, South Australia.
Look for more posts in this series with the "Water Down Under" title header.
Earlier this week, the Supreme Court heard arguments in Reed v. Town of Gilbert. SCOTUSblog has the docs here. The case boils down to regulation of temporary directional signs for a church. An amicus brief from some law profs argues that the petitioners' argument would "sharply deviate from this Court’s precedents and risk eroding the critical distinction between content-based speech restrictions and content-neutral ones." NPR had a story here.
While any Supreme Court case is important, I have to say that I am personally underwhelmed at the Court's decision to grant cert to this case. Of all the sign cases the Court has had the opportunity to grant cert on in the last five years or so, this seems the least relevant to the major issues the sign world faces. To my mind, the big issues are: (i) creating a more coherent regulatory structure than Metromedia and its progeny, which all sides in the sign world would seemingly desire; and (ii) addressing situations where cities ban general advertising signs (also called off-site signs) on private property and then bid out advertising on public property in a winner-take-all RFP. Gilbert won't address either.
Perhaps even the Court recognizes that Metromedia is a mess; perhaps the Court doesn't have anything better than Metromedia in the offing. And so, what clarity can be derived in the sign world this term will have to come from Gilbert. Whatever Gilbert does for sign law, I can't help but believe the Court granted cert to the wrong case if it wanted to clarify what is murky in sign law right now.
Stephen R. Miller
Maybe right for a student out there...
NEW! Certificate in Creative Cities and Economic Development
One of humanity's greatest innovations, cities have always been centers of human creativity. Today, however, they also have become the basic platform for economic and business growth. More than half of the world's population lives in cities—over 3.5 billion people—and an estimated 60 million are moving to them every year. By 2050, more than 75 percent of the world's population will be city dwellers, and the economic output of the 60-largest global cities will grow by $30 trillion. As the world's economy has become more global, its geography has become more focused; talent, innovation, and economic output are concentrating in a relative handful of cities.
Guided by Richard Florida, NYU global research professor and author of The Rise of the Creative Class, the NYU School of Professional Studies Certificate in Creative Cities and Economic Development will provide city and state officials, economic development professionals, nonprofit leaders, and city builders with the skills, expertise, and insights they need to create, implement, and measure asset-driven strategies and plans that move beyond real estate to build upon the creativity, innovation, and human capability of their local communities.
Spring Course Highlights Include:
Monday, January 12, 2015
The Land Use and Sustainable Development (LUSD) Law Clinic at West Virginia University's College of Law has been at full strength for a little over two years. One of only a handful of land use law clinics in the country, the LUSD Clinic staff includes five attorneys (one of whom is an AICP land use planner), and an additional AICP land use planner. We are also fortunate to have our first LLM Fellow this year, Ann Eisenberg, a Cornell Law School graduate. West Virginia University College of Law established a LLM degree program in Energy and Sustainable Development Law in the Fall of 2014. The LUSD Law Clinic class includes 6-12 J.D. students each year, and the students work with the staff and clients across the state.
Three main areas form of the focus of the clinic. The clinic director, Katherine Garvey, formerly with the Environmental Law Clinic at Vermont Law School, heads up the wastewater portion of the clinic. Nathan Fetty, the Managing Attorney, and Jason Walls, Land Conservation Attorney, spearhead the land conservation work conducted by the clinic. Last, and certainly not least, Jared Anderson, J.D., AICP, Supporting Land Use Attorney, Christy DeMuth, AICP, and I, as the Lead Land Use Attorney, guide the land use law activities of the clinic. The land use mission of the clinic includes, in addition to representing local governments across the state, education of local land use leaders in West Virginia. Although this education takes many forms, the clinic's Mountain State Land Use Academy holds two major educational workshops each semester. Although the clinic staff includes these three teams, the clinic as a whole operates as one team, working together to address these interrelated issues.
The clinic was established, in part, to aid in putting West Virginia on equal footing with surrounding states in terms of the land use and land conservation issues. West Virginia has lacked such a resource for a very long time. The LUSD Law Clinic seeks to remedy that long-standing lack of resources and has already helped many communities in the state make incredible progress.
During the 2013-2014 academic year, the clinic worked with with 18 local government clients, helping develop comprehensive plans and zoning ordinances, and facilitating over 50 public meetings. For example, the City of Wellsburg successfully adopted a comprehensive plan written by Clinic planners, attorneys and students. The next step is for the LUSD Law Clinic to assist the Wellsburg Urban Redevelopment Authority with redevelopment plans for identified slum and blighted areas in the community.
In the area of land conservation, the LUSD Law Clinic worked with non-profits and government agencies on land transactions aimed at protecting over 25 different properties. For example, the Clinic helped permanently protect 665 acres of land which fronts six miles of the Gauley River. Working in five counties, legal services included title examinations, contract drafting, drafting of title opinions and negotiations.
In partnership with the Northern Brownfields Assistance Center, the LUSD Law Clinic started a program to provide legal resources to local governments to address abandoned and neglected properties. The Clinic interviewed stakeholders such as building inspectors and municipal attorneys throughout the state to identify local concerns. A future blog post will provide more information on this exciting and transformative initiative.
I look forward to continuing to work with my wonderful colleagues, professionals across the country and the wonderful citizens of the great state of West Virginia for many years to come. West Virginia is a beautiful state with a committed and dedicated citizenry. I am very priviledged indeed to have the opportunity to work here.
Last week, Richard Florida published an op-ed in the NYT asking, Is Life Better in America's Red States?. The gist of the excellent article is that income inequality is greater in blue states than red states, and red states in the Mountain West and South are seeing an economic boom based around what I call "regulation refugees." Texas in the king of this: it deregulates everything from labor to land use, then goes to California and offers up massive tax breaks and uses taxpayer dollars to fund corporate infrastructure. Companies, as you might imagine, love it, and have come running for the freebies.
As a result, this "steal the blue state industry through deregulation" approach is the general playbook of most fast-growth red states. This creates short-term economic prosperity in red states; ironically, because the growth is based upon tax breaks that cripple social services, education, and public infrastructure, red states following this economic model will ultimately have a reckoning. Florida concludes:
The allure of cheap growth has handed the red states a distinct political advantage. Their economic system may be outmoded and obsolete, but it is strong enough to blight the future.
I would add one caveat to Florida's claims. In most "red" states, the cities very often remain blue. And in those blue cities in red states, there is often a middle class life that is not subject to the insanely high cost of living of the blue-state coasts, and where access to services like good schools, museums, and culture remain.
These small redoubts of blue cities in seas of red may well be the best places to live in America: they may be our country's true opportunity zones. They are places where rent is still cheap enough that artists and creative types can live, where entrepreneurs can take risks, and where there is a culture liberal enough that those voices and new technologies can find an open reception.
I have seen this here in Boise, a blue town in a very red state. The NYT took notice when a famous Brooklyn dance troupe, the Trey McIntyre Project, moved its operations to this Mountain West town several years ago. But it makes total sense: if you want to be a dancer, New York is where you want to perform, not where you want to raise a family. It has also not escaped notice that the hot literary talent of the year, Anthony Doerr, is also from Boise. Boise is the kind of place where a novelist can actually make a living writing instead of, say, being a waiter. Boise also has a remarkable degree of entrpreneurial activity for a city its size, no doubt due to its burgeoning tech sector and easy access by plane to San Francisco. My wife and I often remark that, even with a small child and another on the way, we still manage to do more culturally in Boise than we did in a decade in San Francisco. Education, in our neighborhood school, is pretty good and every year, several kids from the local school go to Ivy Leagues. People who could not afford a 1,500 sf home in an outer district of San Francisco in Boise have 3,000 sf homes in historic districts and mountain cabins, to boot.
But that is Boise and, a 10-minute drive will take you to places--the red places in this red state--where school levies always fail, there are no land use controls and traffic is out of control, where cities rent services from the county because they can't afford them. Those are the red places Florida was talking about; however, for those that live in the "blue Boise bubble," those red places might as well be a different planet. I would venture that most red states out there have similar cities to Boise: blue cities that have much to offer. Perhaps Austin and Denver are similar examples. Such blue cities in red states remain peculiar institutions that may, ultimately, be the best locations for middle-class prosperity left.
Stephen R. Miller
Friday, January 9, 2015
The 6th Annual Meeting of the Association of Law, Property and Society will take place in Athens, Ga at the University of Georgia School of Law from Thursday, April 30th through Saturday, May 2nd. Jim Smith (Georgia), the conference host, sent out an email earlier today announing an extension of the deadline for proposals:
I hope to see you in Athens!
I and many of my fellow LUP blog contributors have enjoyed the previous ALPS conferences, especially last year's get-together in Vancouver. We look forward to seeing you in Athens at the end of the semester!
First, I'm delighted to be a guest blogger on the Land Use Prof Blog. Since I am getting a late start (and that's totally my fault), I may blog into February as well. As Steve's introduction stated, I am the Lead Land Use Attorney at the Land Use and Sustainable Development Law Clinic at West Virginia University College of Law. Future blog posts will describe what the clinic does in greater detail. I am also and Associate Professor and teach Land Use and Reslience Law, as well as Water Law.
Although this post is tardy in many ways, the date is appropriate. One year ago today the Elk River chemical spill occurred in Charleston, West Virginia. In the past year, much in the state has focused on the impacts of the spill and possible ways to prevent future spills. Most notably, the West Virginia legislature quickly passed new above ground storage tank statute. January 1 was the deadline for registration and reporting of many of these tanks. Yesterday, the West Virginia Attorney General released a report on his investigation of the spill http://www.statejournal.com/story/27795961/wv-attorney-general-morrisey-releases-chemical-spill-investigation-report
If you are still reading, you may be asking yourself "What does this have to do with land use law?". As I say about almost anything, it has everything to do with land use law! Below is an essay that I wrote that appeared in the WVU Law Magazine that was published early in the Fall Semester. Thanks in part to the wonderful work being done at the Land Use and Sustainable Development Law Clinic, the vision that I described in the last paragraph is beginning to become reality.
Although much of the focus in the aftermath of the spill has been on Freedom Industries, and rightfully so, I am equally concerned about the lack of planning and foresight by West Virginia American Water. I have asked "which was there first, Freedom Industries, or West Virginia American Water?" and few, if anyone seems to really know or to have even asked the question. Although both entities failed to take due care, the one the located on the river last should, in my mind, bear the bigger burden. If, for example, West Virginia American Water (WVAW) "came to the nuisance" and located shortly downstream of a company that stores chemicals along the river, what were they thinking?
Even if WVAW was there first, how could they not have back-up plan if the river is contaminated? Accidents happen and WVAW should have a contingency plan to assure that clean water can be delivered to customers in emergency situations.
These reactions doubtless arise due to the land use law lens through which I view the world. Does WVAW have a valid nuisance claim against Freedom Industries? Does Freedom Industries have a valid nuisance claim against WVAW? The situation brings to mind my favorite United States Supreme Court case, Miller v. Schoene, 276 U.S. 272 (1928). In that case, the Virginia state entomologist ordered ornamental cedar trees near apple orchards be destroyed to prevent the spread of cedar rust to the apple trees. But cedar trees with cedar rust do no harm unless they are close to apple trees and apple trees are no threat to surrounding landowners unless that landowner has infected cedar trees (cedar rust does not prove fatal to cedar trees, but it is fatal to apple trees). Both the chemical company and the water provider, standing alone, are valid land uses, but like oil and water, the two do not do well together.
Another issue that comes to mind is the lack of planning by the county (and Freedom Industries for that matter). Companies should not store hazardous substances along a waterway. The location of the storage facilities and the plant meant that the impact of any accident would be magnified many fold. The locations of both parties are doubtless artifacts of history, but the county should have drawn the community together to discuss the potential implications and plan to minimize the hazards. That's called land use planning.
The chemical spill in the Elk River is a horrible incident that has caused damage to the environment and to many citizens of West Virginia. The implications cannot and should not be minimized, and I do not intend to do so. However, some good may come from this horrible incident. My hope is that the spill will prompt the community to engage in a public land use planning process that will prevent some future incidents from occurring and will prepare the community in the case that an accident occurs in the future. Planning for disasters can both minimize the chance of the disasters from occurring and minimize the damages from future accidents that occur. I see signs of citizens mobilizing for such an effort. Although we should never forget the horrors of the chemical spill, planning efforts can ensure a brighter, and safer, future for the citizens of West Virginia.
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- Stephen R. Miller on Why are building inspectors so often on the take?
- Josh Hightree on What makes people leave rural areas, and what makes them stay
- Jessica Shoemaker on What makes people leave rural areas, and what makes them stay
- Jamie Baker Roskie on Why are building inspectors so often on the take?
- Stephen R. Miller on What makes people leave rural areas, and what makes them stay
- Water Down Under: A Report from Australia by Barbara Cosens: Post 5: Indigenous Rights to Water and Capacity Building
- Land Use Law-Related Articles Posted on SSRN in February
- March 4-6: Stanford 2015 Rural West Conference: Preservation and Transformation: The Future of the Rural West
- March 3 - J.B. Ruhl to deliver Boehl Distinguished Lecture in Land Use Policy at U Louisville Law
- Is this blog post "advertising"? California's bar proposes bright-line rule for regulating attorney blogs