Wednesday, December 31, 2014

Paying for community services: taxes, fees, and Kickstarter?

An article earlier this week in the NYT focused on how a small Kansas town was trying to start a grocery store for itsself.  I have been interested in community-owned stores for rural communities since my clinic was asked to research them by a state agency here in Idaho.  I will write more about that some day after I get the report together; however, for now, I wanted to note a discussion in the NYT article of, a Kansas-specific Kickstarter-like site with the goal of getting people to contribute to specific community projects.    

These are all small projects, but it looks like it is getting some use.  It is an interesting model and goes to the question of why people will contribute to a specific project in a manner of Kickstarter but don't want to pay taxes or fees.  This is doubly curious because people receive federal tax breaks on their local taxes, but many of these Kickstarter-style gifts do not appear to be tax-preferred because they are not to charitable organizations.  On the other hand, knowing exactly where one's money is going goes a long way.  Does the movement speak to the future of public finance? 


December 31, 2014 | Permalink | Comments (0)

Tuesday, December 30, 2014

Zoning for Sustainability

Those interested in the intersection of zoning and sustainability will want to check out Edward J. Jepson Jr. and Anna L. Haines'  Zoning for Sustainability: A Review and Analysis of the Zoning Ordinances of 32 Cities in the United States, which was just released online in the Journal of the American Planning Association.  The article is freely available here.

The abstract: 

Problem, research strategy, and findings: To understand how communities use zoning ordinances to achieve sustainability goals, we identify nine sustainability principles and 53 associated regulatory items that might be included in a zoning ordinance to achieve sustainable development and then examine the zoning ordinances of 32 randomly selected communities to determine if they included these principles and their associated items. We fi nd both wide variation and some consistency in how zoning ordinances address sustainability goals, independent of city size or location in the country. Some of the identifi ed principles and regulatory items are found in many ordinances others appear in only a few. However, there is an inverse relationship between the age of the ordinance and the extent to which it includes sustainability principles. As ordinances are updated, it is likely that they will address more topical sustainability concerns. We study only ordinance content, not implementation; moreover, sustainability can be achieved in ways other than zoning. However, zoning ordinances that directly address sustainability in many dimensions are more likely to achieve these goals. We conclude that planners can more effectively use zoning ordinances to achieve sustainable development. 

Takeaway for practice: This review of zoning ordinances can alert local planners to the many ways in which zoning ordinances could be used to achieve sustainability goals and suggest how planners can assess the contribution of their zoning ordinance to the sustainable development of their communities. 

Stephen R. Miller


December 30, 2014 | Permalink | Comments (0)

Monday, December 29, 2014

Fellowship applications open for New Cities Foundation's Urban Finance Project

New Cities Foundation is seeking a fellow for its new Urban Finance Project.  Details on the project and application process in the link below:

Download Urban Finance Project Fellowship

Stephen R. Miller

December 29, 2014 | Permalink | Comments (0)

Sunday, December 28, 2014

May 8 - CFP - 1st Annual Sustainability Conference of American Legal Educators (SCALE) at ASU Law

News of an exciting new conference from Troy Rule:

Sustainability Conference of American Legal Educators (SCALE)

May 8, 2015

Sandra Day O’Connor College of Law – Arizona State University


The Law and Sustainability Program at the Sandra Day O’Connor College of Law is pleased to announce its First Annual Sustainability Conference of American Legal Educators (SCALE) Conference to be held on May 8, 2015 at the Sandra Day O’Connor College of Law in Armstrong Hall on the Arizona State University Campus in Tempe, Arizona.

This new conference will be an annual, national event for legal academics researching in sustainability-related areas. The conference will offer a unique forum for panels and presentations falling within one or more broad subject matter areas pertaining to sustainability, including but not limited to:

  • Climate Change Law
  • Energy Law
  • Water Law
  • Environmental Law
  • Natural Resources Law
  • Land Use and Zoning Law
  • Agricultural and Food Law
  • Disaster Law

The conference’s inaugural keynote speaker will be Professor Daniel Esty, Director of the Yale Center for Environmental Law & Policy at Yale Law School.

Presenters who are interested will also have an opportunity to join in an organized hike of a nearby mountain on the morning of Saturday, May 9, 2015.

For information on how to submit panel or presentation proposals, please click here.

Download Sustainability Conference of American Legal Educators brochure.


December 28, 2014 | Permalink | Comments (0)

Thursday, December 18, 2014

“Zoning In” Water Conservation -- by John R. Nolon

As we approach zoning’s centennial in 2016, the Land Use Law Center at Pace Law School is examining what is durable and what is deficient in land use regulation today. As times change, zoning must renew itself by adjusting to changing conditions. Among the many challenges it faces at the dawn of its second century, is the alarming water scarcity experienced by arid Western states with fast-growing economies.

The Center is working with Western Resource Advocates (WRA) to train local land and water planners in the front range of the Rocky Mountains how to coordinate water and land planning, particularly how “zone in,” that is to permit and encourage, water conserving land use patterns, buildings, and landscapes.  

Learn more about this project here:

John R. Nolon

December 18, 2014 | Permalink | Comments (0)

Wednesday, December 17, 2014

NY to Ban Fracking

In an announcement that frankly took me by surprise, Gov. Cuomo has announced a plan to ban all hydraulic fracking in the state.

from the NYT


December 17, 2014 | Permalink | Comments (0)

Furman Fellowship Opportunity at NYU

NYU Furman Center
Legal Research Fellowship

The Furman Center for Real Estate and Urban Policy at New York University invites applications for a post-graduate legal fellowship. The Furman Center, jointly housed at NYU’s School of Law and its Wagner Graduate School of Public Service, is a leading academic research center devoted to the public policy aspects of land use, real estate development, and housing. The Furman Center’s law fellowships are designed for promising legal scholars with a strong interest in housing, local government, real estate, or land use law. The Fellow’s time is shared equally between independent research on topics of his or her choice and preparation to enter the academic job market, and Furman Center research projects, conducted jointly with faculty members, graduate students, and staff. Recent projects have addressed such topics as the consequences of mortgage foreclosures, the effects of inclusionary zoning, and the impact of housing vouchers on crime. The Fellow also helps produce the Center’s annual State of New York City’s Housing and Neighborhoods report. The Law Fellow is invited to participate in faculty workshops, colloquia, and other scholarly forums at the NYU School of Law, and will have the opportunity to work with NYU law school professors and particularly with those who serve on the Center’s Advisory Committee. The fellowship typically begins summer/fall.

A J.D. degree, superior academic achievement, excellent writing skills, initiative, and a demonstrated interest in and commitment to scholarship are required.

Applicants should submit a cover letter, curriculum vitae, scholarly writing sample, and the names and contact information of 3 references. Applications are preferred by 1/1/2015 but will be given consideration until the position is filled. Review of applications will begin immediately and will be evaluated on a rolling basis. Only candidates of interest will be contacted.

To apply: Application materials and questions should be sent to Please include “Legal Research Fellowship” in the subject line.

New York University is an Equal Opportunity/Affirmative Action Employer.

December 17, 2014 | Permalink | Comments (0)

Friday, December 12, 2014

Agglomerama--Fennell on Cities' Participant Assembly Problem

Lee Fennell (Chicago) has posted Agglomerama, __ BYU L. Rev __ (forthcoming).  In it, she examines how cities attract the right mix of residents and businesses to maximize social value.  She takes a look at a number of possible ways in which cities might incentivize and manage positive spillover effects, including a proposal by Gideon Parchomovsky and Peter Sieglman to emulate shopping mall developer coordination between anchor and satellite tenants, which proposal can be found in their Cities, Property and Positive Externalities, 54 Wm.  & Mary L.Rev. 211 (2012).  Here's the abstract for the Fennell piece:

Urbanization presents students of commons dilemmas with a pressing challenge: how to achieve the benefits of proximity among people and land uses while curbing the negative effects of that same proximity. This piece, written for the 2014 BYU Law Review Symposium on the Global Commons, focuses on the role of location decisions. It casts urban interaction space as a commons that presents the threat of overgrazing but that also poses the risk of undercultivation if it fails to attract the right mix of economic actors. Because heterogeneous households and firms asymmetrically generate and absorb agglomeration benefits and congestion costs, cities embed an interesting collective action problem — that of assembling complementary firms and households into groupings that will maximize social value. After examining the nature of this participant assembly problem, I consider a range of approaches to resolving it, from minor modifications of existing approaches to larger revisions of property rights.

Jim K. 

December 12, 2014 in Community Design, Community Economic Development, Downtown, Economic Development, Property Theory, Urbanism | Permalink | Comments (0)

Thursday, December 11, 2014

Urban Decay Theory v. Broken Windows Theory

Brent White (Arizona) , Simone Sepe (Arizona) and Saura Masconale (AZ-Gov't & PP) have published Urban Decay, Austerity, and the Rule of Law, 64. Emory L.J. 1 (2014).  In the article, the authors offer a "make 'gov', not war" alternative to the Broken Windows Theory (BWT) and its support for order-maintenance policing.  Building upon an intuitively compelling social contract theory insight, the article sets out the theoretical and empirical cases for the authors’ contention that sustained investment in highly visible, essential local public goods provides crucial support for rule of law. Focusing on the refusals of the U.S. and Michigan governments to bail out Detroit and avoid the need for it to file for bankruptcy, the authors use their Urban Decay Theory (UDT) to support their proposal that all municipal governments receive at least some level of fiscal insurance to sustain continuous investment in urban infrastructure, which, according to the UDT is predictive of citizen commitment to rule of law.

At the invitation of the editors of the Emory Law Journal, I wrote a response to Urban Decay for the Emory Law Journal Online.  In "All Good Things Flow . . .":  Rule of Law, Public Goods, and the Divided American Metropolis , 64 Emory L. J. Online 2017 (2014),  I welcome the article’s introduction of the rule of law paradigm to domestic urban policy, find fault with its selection of public goods that purportedly influence rule of law, and contend that the UDT has far greater potential than the poor support it can offer the authors’ flawed policy proposal. By conceptualizing the domestic urban policy goal as rule of law rather than order, the authors open measurements of success to go beyond crime rates and majoritarian perceptions of personal safety. Without losing the groundedness necessary for empirical investigation, rule of law can incorporate ideal aspects of lawful order that address sustainability and inclusion of minority perceptions of legitimacy. While the White/Sepe/Masconale article does not succeed in constructing as compelling an understanding of the most salient public goods, an improved analysis of the root causes of the fiscal degradation of America’s legacy cities can unlock a potentially valuable reframing of urban, metropolitan, and regional policy debates.

In focusing their policy proposal on fiscal guarantees for municipal creditors, the authors, from my perspective, have missed the role that the urban-suburban divide has played in the inability of city governments to provide basic public goods.  But, their expansion of the public policy goal to rule of law allows us to get a more holistic picture of the foundation of a truly inclusive, flourishing community. All in all, I think that, by altering the paradigm from order maintenance to rule of law, the authors have, in formulating the Urban Decay Theory, offered a useful complement to the Broken Windows Theory rather than a truly competitive alternative to it.  


Jim K.

December 11, 2014 in Community Economic Development, Crime, Detroit, Federal Government, Financial Crisis, Local Government, Race, Scholarship, Smart Growth, State Government, Urbanism, Zoning | Permalink | Comments (0)

Tuesday, December 9, 2014

"Nuisance" Ordinances Burden Domestic Violence Victims

Today I stumbled across a troubling article about how a type of nuisance ordinance I've never heard of - the so called "crime free housing" ordinance - creates some terrible unintended consequences for domestic violence victims.  From the article, on the Aljazeera America website:

When Lakisha Briggs’ ex-boyfriend forced his way into her home in June 2012, she faced an impossible dilemma. Although the man had physically assaulted her on several occasions, Briggs knew that if she called the police for help, she and her 3-year-old daughter would likely be thrown out of their subsidized apartment.

Briggs, a 34-year-old mother residing in Norristown, Pennsylvania, found herself in this situation as the result of a city ordinance aimed at reducing “disorderly behavior” in rental housing. The ordinance stipulated that tenants who made three 911 calls in four months could be evicted. Briggs had already received three strikes as the result of emergency calls made during previous attacks by her ex, and the month before the incident, city officials had notified her that further calls would result in her removal from her apartment.

The article details how Briggs suffered a further brutal attack from her ex without calling the police, due to her fear of being evicted.  Because a neighbor called 911, ultimately the city of Norristown began eviction proceedings against her.   Only the intervention of the ACLU prevented her from losing her home.

The ACLU and the Shriver Center now have the I Am Not a Nuisance campaign to educate local governments about the dangers of these ordinances.  And, as a result of Briggs' case, these ordinances are now illegal in Pennsylvania.

Jamie Baker Roskie

December 9, 2014 in Crime, Housing, Local Government | Permalink | Comments (1)

Sunday, December 7, 2014

Dissertation Fellowship in Planning and Urban Form

Recent news from the Lincoln Institute:

The annual C. Lowell Harriss Dissertation Fellowship Program of the Lincoln Institute of Land Policy invites applications from doctoral students who are writing dissertations in fields that address these areas of interest:

  • Valuation and Taxation
  • Planning and Urban Form

This fellowship program provides an important link between the Lincoln Institute’s educational mission and its research objectives by supporting scholars early in their careers. Please distribute or post this information in your academic department. Applications are due by email on or before 6:00 p.m. (EST) February 1, 2015.

The full Dissertation Fellowship Program Application Guidelines are available for download.  If after reviewing this material you have further questions, please contact


December 7, 2014 | Permalink | Comments (0)

Thursday, December 4, 2014

Final Assemblage of IPCC Essays

You have gotten all the links to the responses to the IPCC reports over the past few weeks, now you can find all your favorite hits together in one great place: SSRN. The essays will be published together in ELR in just a few months, but up on SSRN you can view the near final version. Please let us know if you have any comments/questions on the project or on the Environmental Law Collaborative in general.

December 4, 2014 | Permalink | Comments (0)

Tuesday, December 2, 2014

A “New” Strategy for Climate Change Mitigation and Adaption: Sustainable Human Settlements -- by John R. Nolon

As climate negotiators prepare for their discussions in Lima, they must focus on one of the most neglected strategies for mitigating and adapting to climate change: creating sustainable human settlements. My work for a land use law center embedded in a law school with a prominent environmental law program makes the lack of awareness and embrace of a land use law policy for climate change mitigation and adaptation baffling, at best, and, at worst, inexcusable. Despite decades of research, development, and successful implementation, this strategy is “new” in the eyes of the IPCC. For an explanation, click here.

John R. Nolon

December 2, 2014 | Permalink | Comments (0)

ELC Responses to the IPCC Report Weeks Two and Three

Oh my goodness! I have fallen quite a bit behind on my posting. After 10 days in Australia (more to follow) 1 day stuck at JFK, 5 snow days, Thanksgiving, serving on a crazy intensive strategic planning committee, and strep throat I am finally emerging and trying to figure out what happened to November. Suddenly dawns on me that I better write my exam too! (anyone with old federal indian law exams lying around?)

So let's jump back into the meat of the matter and catch up on what has been going on with the Environmental Law Collaborative. Earlier in November, I posted a summary of the essays the Collaborative pulled together in the first week of November. These were posted on the Environmental Law Profs blog and final versions will appear in ELR (the Environmental Law Reporter) in January.

Deepa Badrinarayana examines climate change and national security.

Keith Hirokawa approaches climate change through systems thinking.

Alex Klass looks at climate change and cities.

Jonathan Rosenbloom proposes greater urban community collaboration.

Sarah Adams-Schoen takes on the suburbs.

Our own Stephen Miller discusses the bottom-up approach to climate change policy.

I look at the challenge of protecting habitat in a changing world.

David Takacs looks specifically at species extinction threats and REDD+.

Inara Scott argues that national security can be a hook for talking about climate change.

Katy Kuh contemplates agnostic adaptation policies.



December 2, 2014 | Permalink | Comments (1)

Monday, December 1, 2014

Thank you to all of our Fall, 2014 guest bloggers!

It has been a tremendous fall for the blog with a lot of new voices added to the mix.  We are hoping to have more guest bloggers this spring, so stay tuned.

In the meantime, one last big thank you to our honor roll of Fall, 2014 guest bloggers:

August:  John Travis Marshall and Ryan Rowberry

September:  Celeste Pagano and Sarah Adams-Schoen

October:  John R. Nolon and Jessica A. Bacher

November:  Deborah Curran and Jessica A. Shoemaker

All are welcome back any time!

Jessica Owley & Stephen R. Miller

December 1, 2014 | Permalink | Comments (0)

Future of Toll Roads in the U.S.

On Friday, The Diane Rehm Show spent a whole hour discussing the future of toll roads in the U.S.  Here is the link.  Here is the blurb:

Toll road mileage is increasing nationwide as cash-strapped states try to relieve traffic congestion without raising taxes. But some transportation officials are facing a political backlash. Diane and her guests discuss the future of toll roads in the U.S.

A nice post on toll roads also over at Property Law Prof Blog.

Stephen R. Miller


December 1, 2014 | Permalink | Comments (0)

What's new and what's hot on SSRN

Here are links to all of the new land use-related articles posted on SSRN in November (search term "land use," time frame "one month").


Incl. Electronic Paper Can Shale Gas Help Accelerate the Transition to Sustainability? Widener Law School Legal Studies Research Paper No. 14-24 John C. Dernbach  and  James May  Widener University - School of Law  and Widener University - School of Law 
Date posted: 
01 Nov 2014
Last revised: 
17 Nov 2014
Accepted Paper Series 21 Downloads
2 Incl. Electronic Paper Infrastructure's Long-Lived Impact on Urban Development: Theory and Empirics Motu Working Paper No. 14-11 Arthur Grimes  , Eyal Apatov  , Larissa Lutchman  and Anna Robinson  Motu Economic and Public Policy Research Trust  , Motu Economic and Public Policy Research Trust  , Motu Economic and Public Policy Research Trust  and Motu Economic and Public Policy Research Trust 
Date posted: 
01 Nov 2014
Last revised: 
12 Nov 2014
working papers series 18 Downloads
3 Incl. Electronic Paper Sue to Adapt? Minnesota Law Review, Forthcoming 2015 Jacqueline Peel  and Hari M. Osofsky  Melbourne Law School  and University of Minnesota - Twin Cities - School of Law 
Date posted: 
14 Nov 2014
Accepted Paper Series 18 Downloads
4 Incl. Electronic Paper Temporary Takings, More or Less in CLIMATE CHANGE IMPACTS ON OCEAN AND COASTAL LAW: U.S. AND INTERNATIONAL PERSPECTIVES (Oxford University Press) (2014 Forthcoming) Timothy M. Mulvaney  Texas A&M University (TAMU) - School of Law 
Date posted: 
08 Nov 2014
Accepted Paper Series 16 Downloads
5 Incl. Electronic Paper Requiem for Regulation Environmental Law Reporter, Vol. 44, p. 10923, 2014, U of Maryland Legal Studies Research Paper No. 2014-42 Garrett Power  University of Maryland Francis King Carey School of Law 
Date posted: 
06 Nov 2014
Accepted Paper Series 15 Downloads
6 Incl. Electronic Paper Housing Consumption and Urbanization World Bank Policy Research Working Paper No. 7112 Nancy Lozano-Gracia  and Cheryl Young  World Bank  and World Bank 
Date posted: 
16 Nov 2014
working papers series 8 Downloads
7 Incl. Electronic Paper Modelling Changing Rural Land Use in New Zealand 1997 to 2008 Using a Multinomial Logit Approach Motu Working Paper No. 14-12 Zachary Dorner  and Dean Hyslop  Monash University  and Victoria University of Wellington 
Date posted: 
13 Nov 2014
working papers series 6 Downloads
8 Incl. Electronic Paper AEP v. Connecticut's Implications for the Future of Climate Change Litigation Yale Law Journal Online, Vol. 121, 2011 Hari M. Osofsky  University of Minnesota - Twin Cities - School of Law 
Date posted: 
05 Nov 2014
Accepted Paper Series 5 Downloads
9 Incl. Electronic Paper What the Public Trust Doctrine Can Teach Us About the Police Power, Penn Central, and the Public Interest in Natural Resources: A Tribute to Joe Sax Environmental Law, 2015, Forthcoming Robin Kundis Craig  University of Utah S.J. Quinney College of Law 
Date posted: 
29 Nov 2014
Accepted Paper Series 3 Downloads
10 Incl. Electronic Paper 중국 토지공급체계의변화와 개혁과제 (China's Land Supply System and its Reform) KIEP Research Paper No. Policy References-13-02 Pil Soo Choi  and Sungchan Cho  Korea Institute for International Economic Policy  and Independent 
Date posted: 
31 Oct 2014
working papers series 3 Downloads
11 Incl. Electronic Paper Monocentric City Redux Federal Reserve Bank of Kansas City Working Paper No. 14-09 Jordan Rappaport  Federal Reserve Bank of Kansas City 
Date posted: 
22 Nov 2014
working papers series 1 Downloads

Here are links to the Top 10 downloads in the Property, Land Use & Real Estate eJournal and the State and Local Government eJournal.  Happy reading!

Stephen R. Miller







December 1, 2014 | Permalink | Comments (0)

Sunday, November 30, 2014

Addressing American Indian Land Tenure – by Jessica A. Shoemaker

For my last guest post this month, I want to return to my primary area of research to date: American Indian land tenure. As I’ve written about here already, one of my primary interests is in thinking broadly about the many varied factors that influence landowners’ decision-making about how they use their lands. Our essential land tenure institutions are foundational in this sense and directly impact land use decision-making before anything like zoning or other direct regulation of land use even has a chance to take effect. Nowhere is the influence of the design of foundational property rights more apparent than in the land tenure relationships in the modern American Indian reservation, where significant swaths of Indian-owned lands are currently not used by Indian landowners themselves but instead sit idle or are leased to non-Indian users. In fact, I have a hard time imagining a property system better designed to discourage Indian prosperity on Indian land than the top-down system of property imposed on indigenous people in this country today. 

In this post, I want to give at least an overview of some of what I think are the most important and influential aspects of American Indian land tenure and then talk just a bit about why I think further scholarly engagement in this arena would be incredibly valuable in a range of settings.

    I.    The Indian Land Tenure Challenge

To start, I appreciate that there is a wide spectrum of knowledge regarding the nuances of modern American Indian land tenure. For some of us, it’s just a mystery how land is owned and held within reservation boundaries. For others, the system is so complex that once we start to study it at all, conversations and work regarding indigenous land rights devolve into a level of generality that isn’t as productive as it could be. Thus, a significant part of my current research agenda is trying to do the deep work required to develop a really rigorous understanding of the modern property rights framework within this very complex reservation setting. This post won’t be able to do all of this work justice.  Nonetheless, here is a brief overview.

Two of the biggest and most widely recognized challenges for Indian landowners are the federal trust status on many Indian-owned lands and the fractionation (or extreme co-ownership) conditions within many of those same properties.

Many, but not all, Indian-owned lands within federal Indian reservations are held in a special trust status over which the federal government acts as trustee for the benefit of the individual or tribal landowner. This trust status’s history is complex, but the important point for this purpose is that the trust status has been extended indefinitely and, to many eyes, appears to be perpetual.

This federal trust status certainly has some legal advantages—as evidenced, for example, by ongoing efforts by many Indian tribes to have additional lands taken into trust. The primary benefits include cementing a stronger case for exclusive federal/tribal (as opposed to state) jurisdiction over the space and also clarifying that state property taxes may not be imposed on that trust land. (The property tax issue is not quite that black and white. Many tribes still make special payments in lieu of taxes to state and local government in exchange for services and to help eliminate conflicts over fee-to-trust conversions.)

The trust status, however, also has significant disadvantages for Indian landowners. It is restrictive and extremely bureaucratic. The federal government exercises significant land management control, and most Indian-owned trust lands cannot be sold, mortgaged, leased, or otherwise developed or used without a formal approval from the Department of Interior after a cumbersome process of appraisals, oversight, and multi-level review. This trust system very dramatically increases the transaction costs for any land use and is often inefficient and even demoralizing for Indian landowners (not to mention extremely expensive for the federal government to maintain).

The second problem, fractionation, is closely related to the trust status issues. Fractionation refers to the fact that many individually owned Indian trust lands (often called allotments) are now jointly owned by many, many co-owners—sometimes as many as several hundred or more. Fractionation makes any kind of coordinated decision-making among all of these co-owners practically difficult and, as an individual co-owner’s interest size diminishes, reduces the likelihood that the co-owners will so cooperate. This then increases co-owners’ reliance on the federal government’s ongoing trust management role over these lands.  All of these tiny interests, in turn, overwhelm the federal trust system, as evidenced by the recent Cobell class action litigation which uncovered the federal government’s gross inability even to account accurately for all of these small interests. 

The federal government has explicitly acknowledged that this fractionation problem is a direct consequence of its own failed federal policies on Indian lands. For example, historic prohibitions on will writing for Indian landowners and the modern alienation restraints on Indian trust land have all exacerbated fractionation. Implementing any kind of solution to consolidate these small interests has been exceedingly difficult. This is true both because of the general idea that it’s much harder to reassemble property than it is to disassemble it and because of a host of other political, legal, economic, and even moral issues. Possible solutions do exist, and part of the Cobell settlement funds are currently going to fund a limited buy-back program that will purchase some individual small interests from willing sellers and re-consolidate them in tribal ownership. However, the general trend has been that any such effort at a solution moves so slowly and addresses such a small proportion of the problem that new tiers of fractionation outpace any improvements, with exponentially more small interests continually being created through further subdivision of already small interests over new generations of heirs. 

While these two issues—the federal trust status and the fractionated ownership patterns—are complex enough, I don’t think they give a complete picture of all of the issues going on in American Indian land tenure. For example, in a piece called No Sticks in My Bundle: Rethinking the American Indian Land Tenure Problem that I’m currently wrapping up edits on for the Kansas Law Review, I argue that a third significant problem for Indian land use is the gradual elimination over time of any informal use and possession right for co-owners of Indian trust land. Although co-owners in any non-Indian tenancy in common would have a default right to use and possess their own jointly owned land presumptively and informally and without any prior permission from their other co-owners, that is not the case in fractionated Indian lands. Modern federal regulations have recently evolved to require Indian co-owners to get permission or a formal lease from co-owners before taking possession of their own land and also to pay those co-owners rent. I think preserving some route for direct owner’s use of jointly owned land is important and valuable, even in highly fractionated properties, and as noted, I am writing about this more here

In addition, in another piece I’m currently writing and calling Emulsified Property, I am exploring the problem of uncertain and sometimes overlapping jurisdictional authorities within Indian Country as it relates to land use. This piece explores new dimensions of these property-related jurisdictional issues, but at a high level, the fact is that modern Indian reservation are uniquely plagued by a mind boggling array of unsettled, case-specific, or otherwise unresolved jurisdictional questions. Part of this stems from the fact that most reservations include not only Indian-owned trust lands but also fee lands, which might be owned by non-Indians, Indians of another tribe, tribal citizens, or the governing tribe itself. The state or local government is likely to assert jurisdiction at least over the non-Indian fee properties, but where that state and local jurisdiction ends, and when and if it overlaps with tribal or federal jurisdiction as well, turns on a complex balancing of multiple factors, depending on the type of jurisdiction being asserted. It continually shocks me (and my research assistants) how many unresolved questions there are in terms of who governs what in Indian Country.  In my property law class, we often talk about the importance of certainty in property rules. So many of our social and economic institutions rely on having clearly established, easily communicated entitlements and responsibilities with respect to a given thing. In Indian law, there is often very, very little of that certainty.

This just scratches the surface of the American Indian land tenure paradigm, but it is already easy to see why land use is such a challenge in Indian Country. Despite significant reserved lands and natural resources, Indian people suffer some of the worst poverty in the United States.

    II.    Why It Matters

Now for my plug for why I think more of us should be engaging in this important work around Indian property and land use. Of course, immediately and most importantly, there is the compelling problem of justice and fairness for indigenous people, who suffer the consequences of these failed property systems most directly. The Harvard Project on American Indian Economic Development has found repeatedly that Indian people having the power and the liberty to make their own decisions with respect to their resources and their futures is the best and most effective solution to the persistent problems, including persistent poverty, in Indian Country. In many respects, it is the law that stands most in the way of this, and it will take legal minds to dismantle the current ineffective system. And legal minds who are uniquely interested in the transformative potential of property institutions are especially well suited to begin this task. 

On another practical note, the problem of American Indian land tenure also matters economically for all of us. The federal government has acknowledged again and again that it using (wasting) incredible resources continuing to maintain this broken property system.

However, as land use legal scholars, there are other important reasons to work in this rich area. I believe a sustained and careful understanding of these unique Indian property institutions, and the evolution of these property relationships through various federal land reforms over time, can help us address property and land use challenges not only in Indian Country but in other venues as well. Other scholars have sometimes analogized to Indian land tenure issues for this kind of purpose, but that work has sometimes lacked a real detailed and deep understanding of how complex Indian land tenure issues actually are. However, with more careful analysis, there could be very fruitful comparative work.  Let me give just two immediate examples, both of which I'm just beginning to work on.  

First, the co-ownership institutions in Indian Country are unique, but the fractionation (or heir property) issues are not. Paying attention to the default co-ownership rules for individually owned Indian lands can help us learn about and address co-ownership challenges in other settings—such as the role of default co-tenancy rules in balancing flexible use arrangements with land preservation strategies for at-risk communities. It can also inform property theory and practice on how co-ownership institutions can best be designed to promote coowner cooperation and efficient use of resources more generally, how anticommons properties actually work, and what methods are most useful to re-aggregate overly fractionated property rights.

Second, I am also excited about how learning from indigenous land planning practices across multiple potential stakeholder jurisdictions within a given reservation (i.e., local municipalities and county governments, state governments, federal governments, and the tribe itself) may translate to inform other work on moving land use planning more generally to more regional, cross-jurisdictional models. Cooperation among multiple levels of government is a persistent challenge in efforts to plan more broadly on a regional, resource-based, or ecosystem level, and yet almost any natural resources or planning person would tell us that this is the kind of decision-making we must do. These kinds of jurisdictional conflicts are being addressed at the reservation level on an ongoing basis, and work on indigenous planning may teach us a lot about how we can plan across jurisdictional boundaries in wider settings. (This is not to suggest that there is a broad literature on indigenous planning or land use issues within reservation legal settings that already exists. There is not. However, for anyone looking to start to review the literature, I recently read an interesting dissertation on comprehensive planning on American Indian reservations and on the Oneida reservation in Wisconsin specifically by Dr. Rebecca Webster, a former law school classmate of mine, that provides a nice place to start and can be found here.) The challenges of planning within a reservation are different and, in some ways, arguably even more complex than the challenges of regional planning generally. Notably, within reservation boundaries, jurisdictional uncertainty may increase concerns about any decision that would jeopardize a future case for asserting jurisdiction, and there are long conflicted histories between neighboring sovereigns. Still, it is a comparison I hope to continue to explore.

This long post only barely skims the surface of all the rich and fascinating land use issues at play in American Indian land tenure. Please consider this an invitation to reach out any time for further discussions on this subject. I would love to continue to engage with more colleagues in this critical subject area and to build more critical learning connections across subject areas and disciplines.

Thanks again for the opportunity to discuss this and other issues here this month.

-          Jessica A. Shoemaker

November 30, 2014 in Community Economic Development, Comparative Land Use, Comprehensive Plans, Economic Development, Federal Government, History, Local Government, Planning, Property, Property Rights, Property Theory, Race, State Government, Zoning | Permalink | Comments (0)

Tuesday, November 25, 2014

California appellate court strikes down EIR for San Diego's land use-transportation plan under SB 375

In 2008, California enacted the Sustainable Communities and Climate Protection Act, typically referred to as SB 375.  SB 375 required regional planning agencies to draft plans that would, in effect, reduce GHG emissions by linking land use and transportation planning.  At the time of passage, many wondered whether SB 375 would have any real effect on land use patterns because there was no legal hook in SB 375 to mandate compliance for regions that didn't meet the strictures of the law.  The question remained, though, whether California's environmental review statute, the California Environmental Quality Act, might still prove a means of enforcement for SB 375 through its mandated environmental impact report (EIR) process. 

Yesterday, in Cleveland Nat'l Forest Found. v. San Diego Ass'n of Governments, No. D063288, 2014 WL 6614394 (Cal. Ct. App. Nov. 24, 2014), the California Court of Appeal held that the EIR for the San Diego region's SB 375 plan was inadequate under CEQA.  Although the case will almost certainly head to the California Supreme Court, the decision is huge for the future of SB 375.  If the case is appealed and the California Supreme Court upholds the Court of Appeal's decision, CEQA will seemingly provide a legal remedy for failure to comply with SB 375.  If that is the case, the country may have its first, enforceable land use law that links land use and transportation planning to reduce GHG emissions.  Ultimately, we will have to wait for the inevitable appeal to the California Supreme Court.  In the meantime, here is a link to the decision and the court's summary of its decision is below:

After the San Diego Association of Governments (SANDAG) certified an environmental impact report (EIR) for its 2050 Regional Transportation Plan/Sustainable Communities Strategy (transportation plan), CREED–21 and Affordable Housing Coalition of San Diego filed a petition for writ of mandate challenging the EIR's adequacy under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). Cleveland National Forest Foundation and the Center for Biological Diversity filed a similar petition, in which Sierra Club and the People later joined.
The superior court granted the petitions in part, finding the EIR failed to carry out its role as an informational document because it did not analyze the inconsistency between the state's policy goals reflected in Executive Order S–3–05 (Executive Order) and the transportation plan's greenhouse gas emissions impacts after 2020. The court also found the EIR failed to adequately address mitigation measures for the transportation plan's greenhouse gas emissions impacts. Given these findings, the court declined to decide any of the other challenges raised in the petitions.
SANDAG appeals, contending the EIR complied with CEQA in both respects. Cleveland National Forest Foundation and Sierra Club (collectively, Cleveland) cross-appeal, contending the EIR further violated CEQA by failing to analyze a reasonable range of project alternatives, failing to adequately analyze and mitigate the transportation plan's air quality impacts, and understating the transportation plan's impacts on agricultural lands. The People separately cross-appeal, contending the EIR further violated CEQA by failing to adequately analyze and mitigate the transportation plan's impacts from particulate matter pollution. We conclude the EIR failed to comply with CEQA in all identified respects. We, therefore, modify the judgment to incorporate our decision on the cross-appeals and affirm. In doing so, we are upholding the right of the public and our public officials to be well informed about the potential environmental consequences of their planning decisions, which CEQA requires and the public deserves, before approving long-term plans that may have irreversible environmental impacts.
Cleveland Nat'l Forest Found. v. San Diego Ass'n of Governments, No. D063288, 2014 WL 6614394, at *1 (Cal. Ct. App. Nov. 24, 2014).
Stephen R. Miller



November 25, 2014 | Permalink | Comments (0)

AirBnB Regulation: New Technologies, Once Again, Challenge Traditional Land Use Law

The following is a guest post from John R. Nolon, Pace Distinguished Professor and Counsel to the Land Use Law Center at Pace Law School.

One of the clinical activities of the Land Use Law Center at Pace Law School is hosting a bimonthly meeting of the corporation counsel of twelve cities, whose mayors we gather quarterly to discuss and resolve issues pertaining to urban redevelopment. We call the latter the Mayors’ Redevelopment Roundtable and the former the Corporation Counsels’ Roundtable and we serve both as adjunct counsel, along with our students. 

At a recent meeting of the Corporation Counsels’ Roundtable, the municipal attorneys asked us to help them think through whether and how to regulate AirBnB rentals. Some of their mayors think it is a good initiative and others were worried about the adverse effect that AirBnB might have on buildings and neighborhoods.  The lawyers wanted some guidance, so we wrote the following draft memorandum. It is a work in progress, submitted to the Land Use Law Profs Blog with the hope of generating some additional advice on the options local governments can consider as they encounter problems with AirBnB. I am happy to take such suggestions off-line at

Draft Memorandum

AirBnB, part of the sharing economy, describes itself as a pioneering home rental service that allows homeowners to list their residences for short-term occupancy by visitors who stay for typically short durations. Owners of apartments and condos, even commercial buildings, are allowed to list their space as well. Occupancy is arranged through the internet, fees paid, and the parties connected. So far, AirBnB occupancies have largely escaped local land use regulation.

The occupancy of space for short-term rentals is a land use that is contemplated in bed and breakfast, transitory housing, and hotel and lodging regulations under traditional zoning codes. Such occupancy in single-family homes, condos, apartments, and commercial building raise legal issues.  Are they illegal? Should violations be enforced? How? Should they be legalized? If so, how?

Single-family and multi-family dwellings, under zoning, are regulated as permanent housing where each unit is occupied by a single family. Such dwelling units may be rented, but for permanent occupancy by individual households. Zoning, generally, does not concern itself with whether units are occupied by fee owners or renters for a term.  It does, however, concern itself with whether occupancy is permanent, and hence more stable, or temporary, which can create adverse impacts in single-family neighborhoods and apartment buildings.

In the definition section of a typical zoning code, a dwelling unit will be defined, setting the stage for regulating occupancy. One code that we work with regularly defines a dwelling unit as a unit “containing complete housekeeping facilities for only one family (emphasis added).” That same definition states, “The rental units/rooms in a boardinghouse, dormitory, motel, inn, nursing home or other similar building shall not be deemed to constitute ‘dwelling units’”. Separately, a “family” is defined “as any number of persons related by blood, marriage or adoption, or any number of persons who are not so related living together as a single nonprofit housekeeping unit, using all rooms and housekeeping facilities in common and having such meals together as they may eat at home….” These definitions point toward permanent occupancy of a dwelling unit by a single family, not the rental of rooms to unrelated persons who come and go over short periods. 

In New York, the Multiple Residence Law, which applies to cities under 325,000 in population, makes clear that residential occupancy is divided between permanent and transient occupancy; it divides dwellings between Class A, for permanent residence, and Class B for temporary or transient residence and regulates them accordingly. A recent report from the Attorney General in New York indicates that over 70% of recent AirBnB rentals in New York City involved the rental of an entire home or apartment for less than 30 days in Class A multiple dwellings or in non-residential buildings. These are deemed by the Attorney General as illegal under the Multiple Dwelling Law, applicable to cities over 325,000 in size, and the New York City Administrative Code.

One likely analogue for regulating short-term, transient rentals of the type fostered by AirBnB is how zoning treats bed and breakfast operations.  Bed and breakfast lodgings are a land use often permitted by local zoning codes as a conditional use, subject to various standards and fees, which vary greatly depending on the type of community or neighborhood involved. Zoning may require a certain lot size, limit the number of guest rooms allowed, subject operations to periodic inspections, and require that only a certain percentage of a building be used for the B&B operations, among other requirements.

The New Rochelle zoning code defines bed and breakfast operations as follows: “The renting of not more than three rooms in an owner-occupied dwelling for lodging and serving of breakfast to not more than six casual and transient roomers, provided that the renting of such rooms for such purpose is clearly incidental and subordinate to the principal use of the dwelling.”

Since the AirBnB model does not fit easily into this type of definition, municipalities are struggling to figure out new types of regulations that fit.  Under proposed rules in Portland, residents who wish to rent one or two rooms of their primary, single-family residences would be required to obtain a two-year permit, pay a fee of $180 and undergo a home inspection and notify adjacent property owners.  Short term rentals of apartments, condos, and commercial spaces are not included in this proposal.

San Francisco’s Board of Supervisors recently voted to adopt regulations that require permanent residents to secure a business license from the city, to show that they have occupied their homes for 275 days out of the last year, with a limit of 90 days of occupancy permitted by AirBnB customers. Landlords are prevented from evicting current tenants to create makeshift hotels. The regulations are being challenged in court and do not take effect until February.

The regulation of AirBnB rentals joins wind turbines, various types of solar energy facilities, geothermal heating and cooling, distributed energy systems, urban farming, xeriscaping, and a host of other new technologies that raise zoning issues. Since, in most cases, they were not contemplated when municipal zoning ordinances were adopted, municipal attorneys and those who represent affected stakeholders are being challenged to reconsider, rethink, and redraft the rules that regulate these emerging technologies. Zoning, now nearing its 100th year, while showing its age, is being rejuvenated as these matters are taken up and resolved.

In each case, it is strategic to figure out how to define the innovative land use involved and then to decide how to regulate it as a principal, accessory, specially permitted, secondary, or prohibited use under the code.  How should AirBnB rentals be defined? Is an AirBnB rental a single use, subject to a single definition, or does its insinuation into commercial, multifamily, hotel, and other spaces call for multiple definitions and multiple treatments under zoning regulations?

November 25, 2014 | Permalink | Comments (0)

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