Monday, July 28, 2014

Cincinnati weighs an "icon tax" to save beleagured historic buildings

Two magisterial structures in Cincinnati--the ornate Music Hall and Union Terminal--are the subject of a proposed sales tax to raise money needed to preserve the buildings.  The Cincinnati Enquirer ran a series of op-eds today on the issue, which provide a nice collection of opinions on the merits of using arts, historic preservation, and sports as an economic development catalyst. 

Stephen R. Miller

July 28, 2014 | Permalink | Comments (0)

Friday, July 25, 2014

Colorado district court holds local government's fracking ban is preempted by state oil and gas law

Yesterday, a Colorado district (trial) court found that the city of Longmont's ban on hydraulic fracturing and the storage and disposal of hydraulic fracturing waste in the city was invalid.  The court held that the local government's ordinance was preempted by the Colorado Oil and Gas Conservation Act.  (Order here.)  The order will surely be appealed.

Stephen R. Miller


July 25, 2014 | Permalink | Comments (0)

New voices coming to Land Use Prof Blog this fall!

The editors of Land Use Prof Blog are delighted to announce that we have lined up a great group of scholars to guest blog for us this fall.  Jessie, Matt, Jim and I will continue to blog away, as usual, but there will also be a good deal of new voices and new ideas on the blog in the coming months.  New bloggers will be announced at the beginning of each month.

We are excited by these additions, and hope you will enjoy and engage with our guests over the coming months.  Our first guest bloggers of the fall will begin August 1 and, if we fulfill our larger goal, we will have 5-10 guest bloggers throuhgout the fall.

As always, we welcome comments on the blog and, in particular, ideas for making the blog a better service to the academy and the larger land use law community.

Stephen R. Miller 

July 25, 2014 | Permalink | Comments (0)

Thursday, July 24, 2014

Levity, in solidarity with bar takers everywhere...


The bar exam is just under a week away in most jurisdictions.  I saw one of my former students this morning, who shared this video with me.  Worth a chuckle... 



[Note:  the original is from the movie Downfall.  See the original version here.]

Stephen R. Miller

July 24, 2014 | Permalink | Comments (0)

Wednesday, July 23, 2014

2015 AALS Panel Call For Papers: The Law of Resilient Cities: State and Local Adaptation to Climate Change

I'm guessing blog readers are probably tired of my posts over the past year about Idaho's Resilient Cities symposium; rest assured, this post has nothing to do with the event I advised last year in Idaho!  

This is an entirely new resilient cities CFP for an event to be held at the 2015 AALS conference.  From Alice Kaswan:

            Michelle Wilde Anderson (Chair of the AALS State and Local Government Section) and Alice Kaswan (Chair of the Environmental Law Section) are seeking proposals for speakers on our sections’ joint panel on “The Law of Resilient Cities: State and Local Adaptation to Climate Change” at the January 2015 AALS meeting in Washington, D.C.  The panel session is scheduled for Saturday morning, January 3, 2015, at 10:30.

            We have anchored the panel with two confirmed speakers: Vicki Arroyo of the Georgetown Law Center and Tony Arnold of the University of Louisville.  We are soliciting proposals for the last two speaking slots.  We know that many section members have tremendous insight and expertise in this area and look forward to hearing your ideas.

            If you are interested in participating as a panelist, please submit a proposal (under 250 words) via email to and by September 1, 2015

Here is a more detailed description of the panel:

The Law of Resilient Cities: State and Local Adaptation to Climate Change: As wild storms, flooding rivers, rising seas, droughts, heat, and fire jeopardize our communities, how should the legal academy respond?  Last year, at the 2014 AALS meeting, speakers from the environmental law section field trip spoke from the trenches about the challenges facing New York and New York City’s monumental effort to plan and build a more resilient city that can withstand the changes to be wrought by climate change.  This year, we bring together scholars and clinicians of state and local government law and of environmental law to take the next step: to share perspectives on how governmental institutions at every level can evolve to create effective and equitable responses to the profound challenges posed by climate change adaptation.  

Stephen R. Miller

July 23, 2014 | Permalink | Comments (0)

Frick on the Tea Party and planning

Karen Trapenberg Frick (Berkeley - Planning) has a really interesting article I just came across in the Summer, 2013 edition of the Journal of the American Planning Association entitled The Actions of Discontent:  Tea Party and Property Rights Activists Pushing Back Against Regional Planning.  Here is the abstract:

The Tea Party’s effects on local and regional planning efforts, given the movement’s fierce support of property rights and equally fierce opposition to sustainability goals in regional planning efforts, have received little study. I wanted to understand how Tea Party and fellow property rights advocates became involved in regional planning efforts in the San Francisco Bay Area and Atlanta, GA, and how planners perceived and dealt with their objections and tactics. Interactions between the two groups were marked by philosophical differences over the role of government and the necessity and value of regional planning. However, these actors were also deeply divided on plan content and the authenticity of the public outreach process. Tea Party and property rights activists were not the only ones with substantive and procedural concerns about regional planning efforts; tactical coalitions of unexpected allies emerged, aligning on plan viability, finance methods and funding, project costs, impacts, and process. My research shows that common ground can be negotiated between opposing groups on matters of content and process. The concerns of the various stakeholders involved parallel questions often addressed by scholarly planning research, providing evidence of continuing challenges and fl aws in planning. 

Takeaway for practice: The planning community should not dismiss the opposition of Tea Party and property rights advocates; these activists could catalyze new coalitions of opponents if planners do not attend to the substantive and procedural concerns of participants.

Cite:  Karen Trapenberg Frick (2013) The Actions of Discontent: Tea Party and Property Rights Activists Pushing Back Against Regional Planning, Journal of the American Planning Association, 79:3, 190-200, DOI:  10.1080/01944363.2013.885312.

(Note:  The full text of this article is currently available online without fee for those without a subscription.)

Stephen R. Miller

July 23, 2014 | Permalink | Comments (0)

Tuesday, July 22, 2014

The rise of community owned stores in the rural Great Plains and Mountain West

In addition to this blog, I also write an occasional column for the Idaho Statesman.  I recently wrote about some work of my Economic Development Clinic for a state agency that I thought I'd share in this forum.  Here is the op-ed, also reproduced below:

Idaho's rural cities are used to having their backs against the wall. Many have already witnessed the civic death-spiral of shrinking populations and shrinking opportunities that send people packing. There is often a tipping point in a rural community, when the townspeople either rally and push on together, or pack up and head for the cities. That tipping point could be when a school closes, a big employer closes, or in many towns, when the daily needs of life can be purchased without an hour's trip to the nearest big-box store.

Over the last decade, a small but growing number of communities across the Great Plains and Mountain West no longer served by a market are taking matters into their own hand. When the chain store or general store leaves, residents are banding together and starting community-owned stores.

Last year, my Economic Development Clinic assisted several rural Idaho communities in researching some of most successful of these community entrepreneurs. The stories we heard from across the country told of years of hard work setting up such stores. But we also heard that the hard work brought these communities together in a way that might save them in the end.

What is a community-owned store? Simply put, it is a for-profit corporation where the shareholders are all members of the local community.

By most accounts, the first community-owned store was Little Muddy Dry Goods, of Plentywood, Mont. The star of the community-owned store movement, though, is the Powell Merc in Powell, Wyo.

When a national chain store closed right at the heart of the 5,000-person town's commercial strip just over a decade ago, the community wondered what the future would bring. Not content to see the town die, a group of volunteers banded together, met once a week for nearly a year, created a business plan in that time, and began selling 1,000 shares of the store at $500 a share to community members. About two years later, in 2002, the Powell Merc opened its doors. It has stayed open since. It filled a major hole in the city's commercial strip, provided a place to shop for daily needs, and proved a source of local pride.

Of course, the store's shareholders have not seen as lucrative a return on their investment as the stock of some high-flying tech company might have provided. Shareholders were told upfront not to expect dividends and that their investment was in the community. In those terms, shareholders of the Powell Merc seem to have gotten something better than a share of Apple could have provided: the town's survival and the maintenance of a rural way of life.

Starting a community-owned store is tough. The Community Store in rural Saranac Lake, N.Y., took five years to go from business plan to grand opening. The manager there told us "you need a group with tenacity" to make a store work. But a growing number of communities - places such as Ely, Nev., and Quimper, Wash., and other small towns across Wyoming - are giving it a try.

It might just work here, too. For the small Idaho town on the tipping point of survival, a community- owned store could be just the thing to keep the town livable, and keep the community together.

Stephen R. Miller 

July 22, 2014 | Permalink | Comments (2)

Monday, July 21, 2014

Regulating the sharing economy by hook or by crook (or by opinion)

Thomas Friedman had an op-ed in Sunday's NYT about the sharing economy.  Relevant to this blog was one of the closing paragraphs in the op-ed, which read:

How fast [the growth of the sharing economy] happens will depend, in part, on regulators and tax collectors in different cities — not all of whom like people turning their spare bedrooms into hotels or their kitchens into pop-up restaurants. The sharing economy can complement the existing one, and make the pie bigger. But the bigger the Ubers and Airbnbs get, the more incumbents will resist them. This will be a struggle between the 20th-century economy and the 21st’s.

Friedman is right; the future of the sharing economy is, in many ways, governed by how local governments respond to the changes.  It is not, however, entirely a division between the 20th and 21st centuries; rather, the kinds of issues cities are forced to balance in regulating the sharing economy go back to very pragmatic--some might even say 19th century--public health and safety concerns.  

For instance, in some fashionable neighborhoods, so many people are subletting on Airbnb that critics argue rents now incorporate the potential for illegal subletting into the cost of the rent.  Even if such critics are not accurate, the hyper-renting on Airbnb and similar platforms does have substantial effects on particular apartment buildings and on the character of certain neighborhoods.  

Similarly, taxi drivers have not only been subject to regulations to protect their industry; rather, regulations on taxis ensure safety and much more.  For instance, taxis often must maintain environmental standards for their vehicles that are specific for fleet vehicles.  Sharing economy upstarts, like Uber and Lyft, are not subject to those fleet standards.  

And so, I would argue it is not accurate to say that the regulatory hurdle the sharing economy faces is the 20th century against the 21st.  Instead, I would say that the issue the sharing economy faces is how to provide 21st century flexibility within the parameters of public health and safety we came to expect in our urban spaces in the late 19th century.  

This change will come, but it will come in fits and starts, and primarily through experimentation in governmental regulation.  Interestingly, that regulation may come to rely, as Friedman writes elsewhere in the piece, on the perception of "trust" that a sharing economy vendor maintains through rankings and ratings.  If it were to come to that, such a change would alter the very idea of regulation and radically decentralize it.  Would it be regulation any more?  Where would liability flow in a regulatory state of private opinion?  These are big questions, ones I am just beginning to grapple with in a new article, and ones where I think the local government and land use legal academy could offer real assistance to local governments in the coming years.

Stephen R. Miller

July 21, 2014 | Permalink | Comments (2)

Friday, July 18, 2014

USGS Climate Change Hazards Portal released

The USGS has just released its Climate Change Hazards Portal, which allows users to visualize the effects of extreme storms, shoreline change, and sea-level rise on the U.S. coastline.  Worth checking out.  

July 18, 2014 | Permalink | Comments (0)

Thursday, July 17, 2014

Federal government to assist cities with climate change resilience

From Governing:

The federal government will expand its efforts to help states and local governments prepare for natural disasters and climate change, under a series of actions announced by the White House July 16.

The measures include awarding utilities in eight states a total of $236 million to improve rural electrical grids; providing drought assistance to parched communities in the West; and expanding disaster relief to include projects that would help minimize damage from future events.

President Barack Obama announced the actions as he met for the fourth and final time with a 26-member task force of state, tribal and local officials studying resilience.

Full article here.  Hat tip to Jonathan Rosenbloom who assisted the task force.

Stephen R. Miller

July 17, 2014 | Permalink | Comments (0)

Wednesday, July 16, 2014

ANNOUNCING STUDY SPACE VIII—Warsaw, Poland (June 15-19, 2015)

Study Space VIII Theme:  Phoenix Cities: Urban Recovery and Resilience in the Wake of Conflict, Crisis, and Disaster

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 Centre 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.  

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 or 404-413-9175.

July 16, 2014 | Permalink | Comments (0)

Wednesday, July 9, 2014

Resilient Cities symposium edition essay highlights the work of a number of land use law scholars

Last spring, the Idaho Law Review hosted a symposium on urban resiliency for which I was the faculty advisor.  The accompanying symposium edition is soon to be released. 

I also wrote an introductory essay to the symposium edition, which is available here.  This symposium introduction essay reviews and highlights articles in the edition by Andrea McArdle, John Travis Marshall, Ryan Max Rowberry, Kellen Zale, Melissa M. Berry, Palma Joy Strand, Jeffrey B. Litwak, Christopher K. Odinet, and Craig Anthony (Tony) Arnold. The essay also reviews presentations made at the symposium by Jonathan Rosenbloom, Keith Hirokawa, Tom Bergin, and Tom Wuerzer. 

The essay might be of interest to those looking for a starter on urban resiliency and, in particular, for a reference to a number of excellent articles that would prove fruitful for exploration.  Several of the full length articles from the symposium edition are already on SSRN (see here and here), and I'm sure the remainder will be available on SSRN soon.

Stephen R. Miller

July 9, 2014 | Permalink | Comments (0)

Saturday, July 5, 2014

Two articles on two centuries of San Francisco boom towns

There are two nice articles out this week on land use in San Francisco.  

The first is in the New Yorker and called "California Screaming."  (A subscription is required to view the entire article.)  It's a good look at the city's land use issues in light of the tech explosion there.  Those who have practiced land use law in the city (like me) will recognize a number of familiar names in the article.  

The New Republic also has a nice article, "San Francisco Mapped Every Brothel, Opium Den, and Gambling Parlor During a Moral Panic in the 1880s," on an extraordinary effort by San Francisco to map vice in the city's booming nineteenth century Chinatown, and not exactly for the best of reasons.   See example map below:


It is a fascinating tale of the troubling uses of social mapping, which in the hands of other groups like Hull House, was equally a tool for progressive social change. 

Hat tip to Lee Dillion for the latter link.

Stephen R. Miller


July 5, 2014 | Permalink | Comments (0)

Thursday, July 3, 2014

Goodbye, Union Square Cafe. Hello, rent assessment panels?

In the late Nineties, I was fresh out of college and without a penny to my name.  I moved to New York City and found an apartment on 16th Street in an area that now passes as Chelsea, but was then a (relatively) low-rent no-man's land with no real anchors to the neighborhood save for two:  the Barney's outlet on 17th, and Union Square Cafe.  The latter was so close to me its neon sign could be seen from my front stoop.  

In today's NYT, Danny Meyer, who started Union Square Cafe in that interstitial neighborhood some 30 years ago and who will lose his lease due to soaring rents, has a nice op-ed about the importance of the neighborhood restaurant and what, if any, solace the real estate world should have for the character-defining uses of a high-rent neighborhood.

Now, let's be honest:  the Union Square Cafe is not your ordinary neighborhood restaurant.  One of my roommates in the Nineties, a recent Harvard grad, filled in for a friend at the coat check counter, made $250 in tips, and had a conversation with Charlie Rose.  Your Harvard-grad-as-coat-checker-who-chats-up-celebrities restaurant is one of those only-in-Manhattan (or maybe LA) neighborhood restaurants.  And my nostalgia for the restaurant is primarily aspirational:  it was the restaurant I walked by every day on the way home; beyond its doors was a mystery to me, merely the restaurant I'd eat at some day when times were more flush.  Of course, now that I have the money to make Union Square Cafe my neighborhood restaurant, I live in Idaho and the real estate market is having the cafe for dinner.  I think the emotion here really isn't nostalgia so much as  what my Japanese poetry teacher called "mono no aware."

But the idea of neighborhoods, and what place they have in our cities, and what the law should (or shouldn't) do to try to make neighborhood life better, remains one of my overarching concerns.  And so, I was taken by Meyer's suggestion, about halfway through his op-ed, that New York City adopt a model "like London's Rent Assessment Panel,  a government committee that resolves rent disputes and is credited with helping prevent rapid erosion of the city’s neighborhood fabric."  

I had never heard of the London Rent Assessment Panel, and so I looked it up.  From what I can glean, the London Rent Assessment Panel only arbitrates residential rent disputes.  From a Guardian article on the panels:

I arrive at the London Rent Assessment Panel near Goodge Street for a 9:30am hearing. The building is shiny and new-looking, with light created by the glass-walled offices and hearing rooms. On the wall of the waiting room is an old ward boundary map of the area around the City of London, a reminder that many more people used to live in central London until the end of the 19th century. One of five Rent Assessment Panels in England, the quasi-judicial body aims to settle disputes between private landlords and tenants in London. The hearing room itself is intimate setting with two panellists and the involved parties sitting at tables.

* * *

A recent report for Rightmove said that 30% of renters in London and the south east were paying more than 50% of their take-home pay on rent. In practice this means that renting is becoming increasingly unaffordable, and changes to housing benefit coming in next year are likely to make this work. Despite often being blamed for the decline of private renting in the 1980s, we're seeing a clamouring for rent controls again.

The tenants and landlords will receive a decision notice within 28 days. The hearings are over by lunchtime, which means the committee can carry out their visits in the afternoon, and decide what the rent should be.

Here is more on the courts from their own webpage.  It doesn't sound to me like the London Rent Assessment Panels explicitly address what Meyer is proposing, which I believe, is essentially a public law-based arbitration of private rents on certain types of commercial uses in neighborhoods with the goal of making sure that a neighborhood retains a mix of uses and local-serving character. Another approach cities have tried, to some varying success, is to limit the number of businesses in a particular use category in a neighborhood commercial strip.  And in San Francisco, some have proposed the city should offer a tax break to landlords that sign 10 year leases or longer to legacy businesses.  But Meyer's suggestion is something more:  kind of an anti-Icarus effect for real estate prices for certain types of neighborhood uses:  rent that is never too high, never too low.  It's interesting as a proposal, and might work.  But for commercial spaces, it would seem to need more nuance.  For instance, what if the "neighborhood restaurant" gets a huge break on rent in a year when rents are high, but then goes on to make tons of money and could have afforded the higher rent?  That wouldn't be fair to the landlord, but could potentially be ameliorated through something like percentage rent added to a base rent.  In any regard, I find the idea of a commercial rent assessment panel for neighborhood uses intriguing, but I think it would quickly become complicated because the rent panel would be trying to assess market risk for both the landlord and the tenant over a time-frame--10 or 15 years--that is longer than most real estate cycles.

For cities like New York and San Francisco, the question becomes at what price nostalgia or character should be purchased through policy or the intervention of law.  It is a hard balance to strike.  I'd like to believe I'll make it back to Union Square Cafe some day, but it seems the days are numbered.  In places like Manhattan, perhaps equally numbered are the days of places between places, the interstitial streets between neighborhoods booming and busting, where Union Square Cafe flourished, and a block down, I began my life in the big city.  I have a nostalgia for those places in between where opportunity begins anew, maybe because it was in those neighborhoods that I got my start, and I sense viscerally it is those places in between others need to get their start, as well.  I hope they are not gone for good, in New York, or San Francisco, or any city.

Stephen R. Miller




July 3, 2014 | Permalink | Comments (0)

Wednesday, July 2, 2014

Interesting Source from the Lincoln Institute: The Atlas of Urban Expansion

This post may fall more appropriately under one of Stephen Clowney's Maps of the Day over at Property Profs, but I thought our readers would be interested in the Atlas of Urban Expansion available from the Lincoln Institute.  More than just a couple of maps, the Atlas provides details GIS (okay so those are maps), images, and other data about urban expansion worldwide. The Institute has data for over 120 cities available for free at the click of the button. Check it out planners and researchers!

July 2, 2014 | Permalink | Comments (0)

Tuesday, July 1, 2014

Land use articles posted to SSRN in June

It is the first of the month, which means it is time to see what's new over at SSRN.  Here are all of the articles posted to SSRN within the last month returned with the search term "land use."


1 Incl. Electronic Paper Three Legal Approaches to Rural Economic Development
Kansas Journal of Law & Pubic Policy, Vol. 23, No. 3, 2014
Stephen R. Miller
University of Idaho College of Law - Boise
Date posted: 
06 Jun 2014

Last revised: 
01 Jul 2014

Accepted Paper Series

2 Incl. Electronic Paper The Perils of Regulatory Property in Land Use Regulation
Washburn Law Journal, Vol. 54, Forthcoming, George Mason Law & Economics Research Paper No. 14-23
Steven J. Eagle
George Mason University School of Law
Date posted: 
17 Jun 2014

Accepted Paper Series

3 Incl. Electronic Paper Natural and Industrial Disasters: Land Use and Insurance
Céline Grislain-Letrémy and Bertrand Villeneuve
National Institute of Statistics and Economic Studies (INSEE) - Center for Research in Economics and Statistics (CREST) and Université Paris-Dauphine
Date posted: 
08 Jun 2014

working papers series

4 Incl. Electronic Paper Confronting the Food-Energy-Environment Trilemma: Global Land Use in the Long Run
World Bank Policy Research Working Paper No. 6928
Jevgenijs Steinbuks and Thomas W. Hertel
World Bank - Development Research Group (DECRG) and Purdue University - Center for Global Trade Analysis
Date posted: 
19 Jun 2014

working papers series

5 Incl. Electronic Paper Are We Killing the Rain? Meditations on the Water Cycle and, More Particularly, on Bioprecipitation
Water International, iFirst, 2012, pp. 1–13, Energy Center Research Paper No. 2014-02,
Jane M. Cohen
University of Texas at Austin - School of Law
Date posted: 
23 Jun 2014

Accepted Paper Series

6 Incl. Electronic Paper Ch. 7: Land Use, Land Use Change, and Forestry - US
Forthcoming in Van Calster, G., Vandenberghe, W., and Reins, L. (eds), Research Handbook on Climate Mitigation Law, Cheltenham, Edward Elgar, 2014
Uma Outka
University of Kansas - School of Law
Date posted: 
06 Jun 2014

Accepted Paper Series

7 Incl. Electronic Paper Environmental Regulation of Energy Sector in India
Tabrez Ahmad
University of Petroleum and Energy Studies (UPES) - College of Legal Studies
Date posted: 
20 Jun 2014

Last revised: 
24 Jun 2014

working papers series

8 Incl. Electronic Paper Resilient Cities and Adaptive Law
Idaho Law Review, Vol. 50, pp. 245-264, 2014, University of Louisville School of Law Legal Studies Research Paper Series No. 2014-19
Craig Anthony (Tony) Arnold
University of Louisville - Brandeis School of Law
Date posted: 
20 Jun 2014

Accepted Paper Series

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

Accepted Paper Series

10 Incl. Electronic Paper Symposium Introduction: Resilient Cities: Environment | Economy | Equity
Idaho Law Review, Vol. 50, No. 3, 2014
Stephen R. Miller
University of Idaho College of Law - Boise
Date posted: 
27 Jun 2014

Accepted Paper Series

11 Incl. Electronic Paper Ensuring the Application of RFRA and RLUIPA in Pro Se Prisoner Litigation
Ohio Northern University Law Review, Vol. 41, No. 1, 2015 Forthcoming
T.W. Brown
Date posted: 
23 Jun 2014

Last revised: 
26 Jun 2014

Accepted Paper Series

12 Incl. Electronic Paper Spatially Varying Impacts of Farmers Markets on Agricultural Land Use
Tomoaki Murakami , Shinsaku Nakajima , Taro Takahashi , Yukinaga Nishihara , Asako Imai , Ryosuke Kikushima and Takeshi Sato
University of Tokyo , Meiji University , The University of Tokyo - Graduate School of Agricultural and Life Sciences , University of Tokyo , University of Tokyo , University of Tokyo and University of Tokyo
Date posted: 
16 Jun 2014

working papers series

13 Incl. Electronic Paper Chapter 7: Land Use, Land Use Change, and Forestry (c) Asia-Pacific
Forthcoming in Van Calster, G., Vandenberghe, W., and Reins, L. (eds), Research Handbook on Climate Mitigation Law, Cheltenham, Edward Elgar, 2014
Bradley John Evans
Macquarie University
Date posted: 
11 Jun 2014

Accepted Paper Series

14 Incl. Electronic Paper Linking Land Use with Climate Change and Sustainability Topped State Legislative Land Use Reform Agenda in 2008
37 Real Est. L. J. 336 (2009), Touro Law Center Legal Studies Research Paper
Patricia Salkin
Touro College - Jacob D. Fuchsberg Law Center
Date posted: 
26 Jun 2014

Accepted Paper Series

15 Incl. Electronic Paper When Does Some Federal Interest Require a Different Result?: An Essay on the Use and Misuse of Butner v. United States
University of Illinois Law Review, Forthcoming, Widener Law School Legal Studies Research Paper No. 14-16
Juliet M. Moringiello
Widener University - School of Law
Date posted: 
03 Jun 2014

Accepted Paper Series

16 Incl. Electronic Paper Constitutional Limitations on Sovereignty, 2014 Edition
U of Maryland Legal Studies Research Paper No. 2014-28
Garrett Power
University of Maryland Francis King Carey School of Law
Date posted: 
19 Jun 2014

working papers series

17 Incl. Electronic Paper The New Per Se Takings Rule: Koontz's Implicit Revolution of the Regulatory State
American University Law Review, Vol. 63, No. 3, 2014
Michael Castle Miller
American University - Washington College of Law
Date posted: 
26 Jun 2014

Accepted Paper Series

18 Incl. Electronic Paper Takings Cases in the October 2004 Term
21 Touro L. Rev. 809 (2006), Touro Law Center Legal Studies Research Paper
Leon D. Lazer
Touro College - Jacob D. Fuchsberg Law Center
Date posted: 
29 Jun 2014

Accepted Paper Series

19 Incl. Electronic Paper What Drives Deforestation and What Stops it? A Meta-Analysis of Spatially Explicit Econometric Studies
Kalifi Ferretti-Gallon and Jonah Busch
Center for Global Development and Center for Global Development
Date posted: 
25 Jun 2014

working papers series

20   Inter- and Intra-Seasonal Crop Acreage Response to International Food Prices and Implications of Volatility
Agricultural Economics, Vol. 45, 2014
Mekbib G. Haile , Matthias Kalkuhl and Joachim von Braun
University of Bonn - Center for Development Research (ZEF) , University of Bonn - Center for Development Research (ZEF) and University of Bonn - Department of Economic and Technological Change
Date posted: 
11 Jun 2014

Accepted Paper Series

21   Land Use and the Climate Bubble: The Due Diligence Defense
William & Mary Environmental Law and Policy Review, Forthcoming
John R. Nolon
Pace University School of Law
Date posted: 
28 Jun 2014

Accepted Paper Series

22   Still an Issue: The Taking Issue at 40
30 Touro L. Rev. 245 (2014), Touro Law Center Legal Studies Research Paper
Patricia Salkin
Touro College - Jacob D. Fuchsberg Law Center
Date posted: 
27 Jun 2014

Accepted Paper Series

Beginning this month, I have decided to also post the "top 10" downloads from the SSRN Property, Land Use & Real Estate Law eJournal, which chronicles those articles that have received the most downloads in the last 60 days in that eJournal.  The eJournal is broader than land use, but perhaps also of interest to readers.  And so, without further adieu, here are the "top 10" downloads in the Property, Land Use & Real Estate Law eJournal:

1 241 Stealing Fannie and Freddie
Jonathan R. Macey and Logan Beirne
Yale Law School and Yale University - Law School
Date posted to database: 29 Apr 2014
Last Revised: 29 Apr 2014
2 102 The Elements of Possession
Henry E. Smith
Harvard Law School
Date posted to database: 24 Apr 2014
Last Revised: 20 May 2014
3 102 No Sticks in My Bundle: Rethinking the Indian Land Tenure Problem
Jessica A. Shoemaker
University of Nebraska - College of Law
Date posted to database: 1 May 2014
Last Revised: 1 May 2014
4 85 Properties of Information & the Legal Implications of Same
Tim Wu
Columbia University - Law School
Date posted to database: 6 Jun 2014
Last Revised: 24 Jun 2014
5 82 Reinventing the Islamic Law of Inheritance: The Share of Orphaned Grandchild in Islam and Pakistani Legal System
Muhammad Munir
International Islamic University, Department of Law
Date posted to database: 13 May 2014
Last Revised: 13 May 2014
6 81 The Law Is Nine-Tenths of Possession: An Adage Turned on Its Head
Carol M. Rose
University of Arizona - James E. Rogers College of Law
Date posted to database: 12 May 2014
Last Revised: 12 May 2014
7 77 A Case for Simpler Gain Bifurcation for Real Estate Developers
Bradley T. Borden, Nathan Brown and John Wagner
Brooklyn Law School, Proskauer Rose LLP and Williams Parker Harrison Dietz & Getzen
Date posted to database: 24 May 2014
Last Revised: 24 May 2014
8 71 Agritourism at the Rural-Urban Interface: A National Overview of Legal Issues with 20 Proposals for Idaho
Stephen R. Miller
University of Idaho College of Law - Boise
Date posted to database: 11 May 2014
Last Revised: 20 May 2014
9 69 Confidential Information as Property?
Tanya Aplin
King's College London
Date posted to database: 16 May 2014
Last Revised: 20 May 2014
10 69 The Stripping of the Trust: A Study in Legal Evolution
Adam S. Hofri-Winogradow
Hebrew University of Jerusalem - Faculty of Law
Date posted to database: 26 May 2014
Last Revised: 26 May 2014

Stephen R. Miller


July 1, 2014 | Permalink | Comments (0)

Hobby Lobby’s “passing strange” interpretation of RLUIPA: an unlikely, but potentially dramatic, impact on land use law?

Receiving almost no coverage—scratch that, absolutely no coverage—in yesterday’s Hobby Lobby decision was that an important part of the case turns on the relationship between the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Court's opinion could, perhaps inadvertently, substantially affect not only the availability of contraception under the Affordable Care Act, but also religious land use claims by corporations.

The potential effect of Hobby Lobby on land use claims is ironic because the majority explicitly avoided discussing that RLUIPA covers land use, and yet, Hobby Lobby may turn out to be a major land use case.  Whenever referencing RLUIPA, Alito's majority opinion only mentioned institutionalized persons (see excerpts below).  What is the import of that?  I am still trying to figure that out, but I thought I would raise the issue here.

Below, I have excerpted several key parts of the Hobby Lobby case addressing RLUIPA from:  Alito’s majority opinion; Ginsberg’s dissent, in which she calls the majority’s interpretation of RLUIPA that sidesteps land use altogether “passing strange” (see Dissent Footnote 12 below); and also an excerpt from the National League of Cities’ amicus brief, cited by Ginsberg in dissent, which highlights some of the issues that we may well see soon in the land use world resulting from Hobby Lobby.  I welcome comments because, as I say, I am still working through the import of this decision, and whether the types of issues the National League of Cities outlines below may, in fact, come to pass.

 From Alito’s majority opinion:

As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work,4 but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U. S., at 516–517. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id., at 533–534. See also id., at 532.

Following our decision in City of Boerne, Congresspassed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq. That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited categoryof governmental actions. See Cutter v. Wilkinson, 544 U. S. 709, 715–716 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition ofthe “exercise of religion.” See §2000bb–2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition made reference to the First Amendment. See §2000bb–2(4) (1994 ed.) (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation fromFirst Amendment case law, Congress deleted the referenceto the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”§2000cc–5(7)(A). And Congress mandated that this concept “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by theterms of this chapter and the Constitution.” §2000cc– 3(g). FN 5

FN 5.  The principal dissent appears to contend that this rule of construction should apply only when defining the “exercise of religion” in an RLUIPA case, but not in a RFRA case. See post, at 11, n. 10. That argument is plainly wrong. Under this rule of construction, the phrase“exercise of religion,” as it appears in RLUIPA, must be interpretedbroadly, and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” 42 U. S. C. §2000bb–2(4). It necessarily follows that the “exercise of religion”under RFRA must be given the same broad meaning that applies underRLUIPA.

Slip Op. at 6-7.

* * *

Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amendment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the FirstAmendment, see 42 U. S. C. §2000bb–2(4) (2000 ed.) (incorporating §2000cc–5), and neither HHS nor the principaldissent can explain why Congress did this if it wanted totie RFRA coverage tightly to the specific holdings of our pre-Smith free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “shall be construed in favor of a broad protectionof religious exercise, to the maximum extent permitted bythe terms of this chapter and the Constitution.” §2000cc–3(g). It is simply not possible to read these provisions as restricting the concept of the “exercise of religion” to those practices specifically addressed in our pre-Smith decisions.

Slip Op. 26.

* * * 

HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. On the contrary, the scopeof RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category that consists primarily of prisoners, and by the time of RLUIPA’s enactment, the propensity of some prisoners toassert claims of dubious sincerity was well documented.29 Nevertheless, after our decision in City of Boerne, Congress enacted RLUIPA to preserve the right of prisoners to raise religious liberty claims. If Congress thought that thefederal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Congress limited RFRA’s reach out of concern for the seem- ingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wantedRFRA to apply to nonprofit corporations, see, Reply Brief in No. 13–354, at 7–8, what reason is there to think that Congress believed that spotting insincere claims would be tougher in cases involving for-profits?

Slip Op. 29-30.

* * * 

HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used torequire creation of entirely new programs.” Brief for HHS in 13–354, at 15.37 But we see nothing in RFRA thatsupports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: “[T]his chapter mayrequire a government to incur expenses in its own operations to avoid imposing a substantial burden on religiousexercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.

Slip Op. at 42-43.

From Ginsberg’s dissent:

Despite these authoritative indications, the Court sees RFRA as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence. See ante, at 6, n. 3, 7, 17, 25–27. To support its conception of RFRA as a measure detached from this Court’s decisions, one that sets a new course, the Court points first to the Religious LandUse and Institutionalized Persons Act of 2000 (RLUIPA),42 U. S. C. §2000cc et seq., which altered RFRA’s definition of the term “exercise of religion.” RFRA, as originallyenacted, defined that term to mean “the exercise of religion under the First Amendment to the Constitution.”§2000bb–2(4) (1994 ed.). See ante, at 6–7. As amended by RLUIPA, RFRA’s definition now includes “any exercise of religion, whether or not compelled by, or central to, asystem of religious belief.” §2000bb–2(4) (2012 ed.) (crossreferencing §2000cc–5). That definitional change, according to the Court, reflects “an obvious effort to effect acomplete separation from First Amendment case law.” Ante, at 7. The Court’s reading is not plausible. RLUIPA’s alteration clarifies that courts should not question the centralityof a particular religious exercise. But the amendment in no way suggests that Congress meant to expand the classof entities qualified to mount religious accommodation claims, nor does it relieve courts of the obligation to inquire whether a government action substantially burdensa religious exercise. See Rasul v. Myers, 563 F. 3d 527, 535 (CADC 2009) (Brown, J., concurring) (“There is nodoubt that RLUIPA’s drafters, in changing the definitionof ‘exercise of religion,’ wanted to broaden the scope of thekinds of practices protected by RFRA, not increase the universe of individuals protected by RFRA.”); H. R. Rep No. 106–219, p. 30 (1999). See also Gilardi v. United States Dept. of Health and Human Servs., 733 F. 3d 1208, 1211 (CADC 2013) (RFRA, as amended, “provides us withno helpful definition of ‘exercise of religion.’”); Henderson v. Kennedy, 265 F. 3d 1072, 1073 (CADC 2001) (“The[RLUIPA] amendments did not alter RFRA’s basic prohibition that the ‘[g]overnment shall not substantially burden a person’s exercise of religion.’”).10

FN 10  RLUIPA, the Court notes, includes a provision directing that “[t]hischapter [i.e., RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of[the Act] and the Constitution.” 42 U. S. C. §2000cc–3(g); see ante, at 6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of religion,” as RLUIPA does, but contains no omnibus rule of constructiongoverning the statute in its entirety.

Dissent Slip Op. 10-11.

* * *

FN 12 As earlier explained, see supra, at 10–11, RLUIPA’s amendment of the definition of “exercise of religion” does not bear the weight the Court places on it. Moreover, it is passing strange to attribute toRLUIPA any purpose to cover entities other than “religious assembl[ies] or institution[s].” 42 U. S. C. §2000cc(a)(1). But cf. ante, at 26. That law applies to land-use regulation. §2000cc(a)(1). To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would “dramatically expand the statute’s reach” and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26.

Dissent Slip Op. 13-14.

From National League of Cities, National Association of Counties, International City/County Management Association, U.S. Conference of Mayors, and International Municipal Lawyers Association's amicus brief:

B. Permitting For-Profit Corporations To Qualify As “Person[s]” Under RLUIPA Would Expand The Statute, Destabilize Markets, And Unnecessarily Burden Local Planning Departments.

Interpreting RLUIPA to protect for-profit, secular corporations would dramatically expand the statute's reach. For-profit corporations could avail themselves of RLUIPA's broad definition of religious exercise to characterize secular commercial activity as religious in nature. They would have an incentive to do so to gain a competitive advantage in the marketplace. The likely result would be a dramatic increase in the number of for-profit corporations claiming to engage in “religious exercise,” with a concomitant increased burden on local governments administering land use regulations.

RLUIPA's broad definition of religious exercise already encompasses the use of property by non-profit religious organizations for activities such as movie *27 nights, community events, the hosting of private catered functions, and the operation of overnight retreat centers and housing facilities. See Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 282 (5th Cir. 2012) (church challenged zoning ordinance that prevented it from obtaining larger space to “host certain community outreach events” like “Bible School” and movie nights); Third Church of Christ, Scientist v. City of New York, 626 F.3d 667, 668 (2d Cir. 2010) (use of church facilities for private, catered functions); Bikur Cholim, Inc. v. Vill. of Suffern, 664 F. Supp. 2d 267, 271 (S.D.N.Y. 2009) (operation of facility providing overnight accommodations to families of hospital patients).

If for-profit corporations may characterize their “pursuit of profit” as related to their “exercise of religion,” then there would be no end to the types of “religious exercise” for which corporations could seek protection under RLUIPA. Conestoga Wood Specialties Corp. v. Sebelius, No. 13-356, Pet'rs' Br. at 26 (internal quotations and citation omitted). Indeed, the Tenth Circuit's opinion, if applied to RLUIPA, would open the door to precisely such possibilities. Sebelius Pet'rs' App. 39a. A facility hosting for-profit community events could be protected under RLUIPA if the relevant entity claimed to be performing a religious obligation by so gathering the public. Mintz v. Roman Catholic Bishop of Springfield, 424 F. Supp. 2d 309, 319 (D. Mass. 2006) (involving a parish meeting center). A for-profit amusement park could invoke RLUIPA if it claimed a religious obligation to provide wholesome entertainment to children. Cf. Grace United Methodist Church, 451 F.3d at 656 (applying RLUIPA to non-profit religious group operating a day-care center); Westchester Day Sch., 504 F.3d at 347-48 (applying RLUIPA to a religious *28 private day school). Or a for-profit hotel and convention center could avoid generally applicable zoning requirements by claiming its services to be religiously motivated. Cf. World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531, 533-34 (7th Cir. 2009) (applying RLUIPA to non-profit religious group operating community center and single-room-occupancy facilities). While courts reviewing these claims could determine whether these assertions of religious belief were sincere, they could do little else to question whether these activities were religious in nature. See Thomas, 450 U.S. at 715-16.

For-profit corporations would have strong incentives to claim “religious exercise” to gain a commercial advantage over competitors, if they could qualify as “person[s]” under RLUIPA. A corporation building a factory could evade local land use regulations - and build its factory more quickly and more cheaply - by asserting that the factory related to the corporation's “exercise of religion.” This corporation would have a significant advantage over all of its competitors that remained subject to local land use requirements. At an extreme, this unequal playing field could disrupt commercial markets and hinder competition by non-religious corporations, which would be at a disadvantage in the initial stages of acquiring property and getting products or services to market. At a minimum, the consequence would be a vastly greater number of entities seeking to invoke RLUIPA to avoid land use restrictions, and the concomitant diminution of local government power to control land uses.

The result would also be a dramatically increased burden on local planning commissions, boards of appeal, and similar entities tasked with enforcing land use regulations and addressing requests for variance. *29 Allowing for-profit corporations to invoke RLUIPA would likely lead to a sharp increase in cases in which the government must make land use decisions with the possibility of RLUIPA litigation looming in the background. As an amicus brief filed with the Tenth Circuit makes clear, arguments about statutory religious protections do not surface for the first time in court, but may arise during the administrative process that precedes the government decision. Br. of Sen. Orrin G. Hatch et al. as Amici Curiae Supporting Plaintiffs-Appellants at 4-5, Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (No. 12-6294) (criticizing the federal Department of Health and Human Services for failing to address RFRA during administrative process).

Protected entities already invoke RLUIPA when seeking conditional use permits or other individualized assessments at the local administrative level. See, e.g., Trinity Assembly of God of Baltimore City, Inc., 941 A.2d at 562; Timberline Baptist Church v. Washington County, 154 P.3d 759, 760 (Or. App. 2007). Indeed, some courts have required local commissions to first determine RLUIPA's applicability to a particular action before a claimant can seek judicial relief. See, e.g., Lyster v. Woodford County Bd. of Adjustment Members, No. 2005-CA-001336-MR, 2007 WL 542719, at *4 (Ky. App. Feb. 23, 2007) (remanding to County Board of Adjustment to “consider the provisions of RLUIPA when making its determination of whether to issue a conditional use permit”); Trinity Assembly of God of Baltimore City, Inc., 941 A.2d at 561 (same). Allowing for-profit corporations to invoke RLUIPA would add to the plethora of issues that local planning commissions must already address in making zoning exceptions or granting use permits. See, e.g., *30 Cal. Gov. Code § 65906 (providing that variances may be granted “because of special circumstances applicable to the property, including size, shape, topography, location or surroundings”); see also O'Hagen v. Bd. of Zoning Adjustment, 96 Cal. Rptr. 484, 488 (Cal. Ct. App. 1971) (setting forth showing that applicant seeking use permit must make).

And expansion of RLUIPA would entangle local boards and commissions in particularly thorny matters, as they would be required to determine the sincerity of a claimant's religious belief and weigh the magnitude of any harm to the claimant's religious exercise - determinations that may be challenging and arguably inappropriate for commissions to make. See Sebelius Pet'rs' App. 124a-130a (Briscoe, C.J., concurring in part and dissenting in part); Korte v. Sebelius, 735 F.3d 654, 703-05 (7th Cir. 2013) (Rovner, J., dissenting); cf. Smith, 494 U.S. at 889 n.5 (remarking that “it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice”). Limiting RLUIPA's definition of “person” to individuals, religious assemblies, and other non-profit religious institutions both minimizes RLUIPA's sheer impact on local government agencies and relieves these agencies from having to make thorny inquiries into claimants' religious motivations.

The negative practical effects of reading RLUIPA to include for-profit corporations within its definition of covered entities counsel strongly in favor of a more narrow reading of “person” in RLUIPA. See Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034, 2041 (2012). Congress clearly intended RLUIPA to operate narrowly and to benefit a limited set of potential claimants: individuals and religious assemblies and *31 institutions. See generally 146 CONG. Rec. E1567 (daily ed. Sept. 22, 2000) (statement of Rep. Hyde). The creation of skewed market incentives, expansion of protected activity, and interference with the administration of local land use ordinances cannot be squared with Congress's intent. RLUIPA should thus be read as applying only to individuals and non-profit religious organizations.


RLUIPA uses the term “person” to include individuals, religious assemblies, churches, and similar non-profit religious institutions, but to exclude for-profit corporations. In light of RLUIPA's extraordinarily close relationship to RFRA, RFRA's parallel definition should be construed in the same way.

Sebelius v. Hobby Lobby Stores, Inc., 2014 WL 333899 (U.S.), 26-31 (U.S.,2014). 

What should we make of Hobby Lobby as a land use case?  Will Hobby Lobby lead to "a sharp increase in cases in which the government must make land use decisions with the possibility of RLUIPA litigation looming in the background" as the National League of Cities' amicus argued?  Or will Hobby Lobby have as much effect on land use law as Alito gave over to discussing it in his opinion (zilch, in other words)?

Stephen R. Miller

July 1, 2014 | Permalink | Comments (1)

Looking for a good deal on a home? Try Detroit.

Eek poor Detroit. I have a lot of affection for Detroit, which has so much in common with my current town of Buffalo and my hometown of Milwaukee. Indeed, it is like both those cities only more so. More people, more land, more art, more music, more food, more poverty, more foreclosures...

The NY Times recently used Google Maps Street View to compile the 43,000+ properties that were on the brink of forclosure this year (some have since recovered). I find this project helpful because it shows you pictures of the actual homes, putting a face on the crisis more than just dots on a map would.

July 1, 2014 | Permalink | Comments (0)

Monday, June 30, 2014

New York's highest court holds local governments have power to regulate fracking under zoning authority

Today saw a major decision by New York's highest court regarding regulation of hydraulic fracturing, or fracking.  Here is a brief summary Prof. John R. Nolon (Pace) has provided:

In one of the most anxiously awaited New York land use decisions in recent memory, the state’s highest court held today that local governments have the power to regulate hydrofracking  under their authority to enact zoning ordinances.  Both the towns of Dryden and Middlefield enacted zoning laws that entirely banned gas drilling and associated activities within their jurisdictions.  The plaintiffs, a private gas company in one case and a private property owner in the other, claimed that a supersession clause in the State Oil, Gas, and Solution Mining Law (OGSML) preempted local authority. After reviewing the plain language of the OGSML, the statutory scheme, and its legislative history, the court concluded that the legislature did not expressly or by implication preempt the power of localities in New York to regulate land use. Preempted, under the OGSML, in the court’s view, was the power to regulate the details, procedures or operations of the oil and gas industry, not matters normally associated with land use regulation.

The Court of Appeals in Dryden and Middlefield rested its decision on both the Municipal Home Rule Law (MHRL) and the Town Law.  The MHRL contains a seldom-cited provision granting authority to local governments, including towns, cities, and villages, to protect and enhance their physical and visual environments. The Town Law is New York’s version of the Standard Zoning Enabling Act, which was the model for most state statutes that delegate zoning authority to local governments. The court pointed to the breadth of municipal zoning powers to provide for the development of a balanced, cohesive community and to the notion that the regulation of land use through the adoption of zoning is one of the core powers of local governments.

This case, along with Robinson v. Township in Pennsylvania and others that support local regulation of hydrofracking are creating a demand for land use clinics to provide technical assistance to local governments regarding their regulatory options.  The Land Use Law Center and the Yale Center for Environmental Law and Policy are conducting a long-term project that will engage industry representatives, regulators, scientists, and local leaders in a process of identifying unregulated local impacts and developing sound local planning, regulatory, and non-regulatory practices that localities can adopt.  For more project information, visit

The cases, Nos. 130 and 131, are available on the Court of Appeals website, under today’s date.

Stephen R. Miller

June 30, 2014 | Permalink | Comments (0)

GOOOOOOOOOOAAAAAAAAAAAAALLLLL! But now what do we do with these stadiums?

Matt Festa is always preaching to his students (and the rest of us) that everything can be looked at as a land use issue. The World Cup is an amazingly easy example of that. A year or so ago I posted about what happens to old Olympic Villages and other facilities, and those same issues pop up with the World Cup. This year's World Cup in Brazil is such an egregious example of poor land use decisions, that no one needs much convincing that it is a land use issue. Even the New York Times has taken notice. Yet, like John Oliver, I just can't stop watching it. 



June 30, 2014 | Permalink | Comments (0)