Monday, October 6, 2014
In case you missed it, I am cross-posting something I initially posted to Concurring Opinions, that may be of interest to our readers here. Parts II and III to follow:
Many professors who study land use and local government law, myself included, consider ourselves leftists rather than libertarians. That is, we have some confidence in the ability of government to solve social problems. Nevertheless, were you to pick up a randomly selected piece of left-leaning land use or local government scholarship (including my own) you would likely witness a searing indictment of the way local governments operate. You would read that the land use decisionmaking process is usually a conflict between deep-pocketed developers who use campaign contributions to elect pro-growth politicians and affluent homeowners who use their ample resources to resist change that might negatively affect their property values. Land use “planning” – never a great success to begin with – has largely been displaced by the “fiscalization” of land use, in which land use decisions are based primarily on a proposed land use’s anticipated contribution to (or drain upon) a municipality’s revenues. Public schools in suburban areas have essentially been privatized due to exclusionary zoning practices, and thus placed off limits to the urban poor, whereas public schools in cities have been plundered by ravenous teachers’ unions.
Tuesday, June 17, 2014
If you are like me, you have a humongous pile short stack of articles that you hope to one day find time to read. Summer is when I get my chance to make a dent in this continuously replenishing tower of fun.
Today, I delved into some 2013 articles by geographer Erle Ellis and was struck by how helpful they are for thinking about land use, particularly in the context of land conservation, working landscapes, and a changing world.
In Sustaining Biodiversity and People in the World's Anthropogenic Biomes, 5 Current Opinion in Env't Sustainability 368 (2013), Ellis introduces me to a new term: anthrome. A foreshortening of anthropogenic biome, anthromes are ecosystems characterized by human involvement. That is, these are landscapes shaped by humans. Building off of Crutzen's idea of the Anthropocene, Ellis explains that 3/4 of the terrestrial biosphere can now be described as anthromes. What is the implication of this? Well that is perhaps harder to pin down. If we are are shaping ecosystems, maybe we have a bigger role to play in ensuring the viability of the systems and protecting biodiversity. When anthromes replace wildlands, perhaps we need to shift some of our conservation efforts to such lands. Ellis' research suggests a promising message: that anthromes may actually still sustain native species and we can increase the benefits of these lands to humans while protecting for biodiversity. Sounds good to me, but sounds like a tough road ahead. This work ties into scholarly discussions of novel ecosystems, something I am finding increasingly helpful for think about land conservation. Novel ecosystems are new types of biomes that have no real precedent or previous corollary and therefore our approach to land conservation (and resiliency) must confront this concept when thinking about what is the world that we want to protect.
In Used Planet: A Global History, 110 PNAS 7978 (2013), Erle joins with a crew of folks from the Global Land Project to discuss patterns of land use change and land use intensification over time. Those land use history buffs among us might find this piece particularly intriguing as the authors describe land-use intensification as "adaptive processes by which human populations systematically adopt increasingly productive land-use technologies." Under this lens, the authors track two different models for global land-use history. Ending with a hopeful note, the authors suggest that the next stage of land use may be one where we become more efficient and may succeed in reversing environmental impacts of prior land use. Thus, both projects end with optimistic thoughts about the future (but calling on us to make tough decisions and do hard work). I look forward to continuing projects from this group.
Friday, May 2, 2014
So many interesting sessions here making it hard to choose which panel to attend, but I had to give some more co-blogger love and check out Ken Stahl's paper and the panel on local government law.
Nestor Davidson (Fordham Law School) started the panel off with a talk on administrative law at the local level. fascinating stuff and unquestionably important for us land-usey types. Many land use decisions are made or carried out by local agencies and I had never given much thought to how really different admin law is at the local stage. I was particularly taken aback by the lack of separation of powers and the increased blurring of public and private lines.
Ken Stahl presented a paper/essay/book review building off "The Great American City" by Sampson. Here is the official abstract:
Urban policymakers have long debated whether to focus on people or on places. Give poor people the means to leave deteriorated neighborhoods, or attempt to bolster such neighborhoods by reinforcing the social norms of the community? Direct the police to crack down on low-level crime, or foster informal connections between the police and local institutions? Definitive answers to these questions have been elusive, but Robert Sampson’s new book GREAT AMERICAN CITY provides some needed insight. Sampson demonstrates that people are ineluctable products of their local environments, and he concludes that “place-based” policies that focus on building community are more likely to be successful than policies premised on the assumption of individual mobility and choice. This essay revisits the “people v. places” debate in light of GREAT AMERICAN CITY. Though the book is sure to have a tremendous impact on that debate, Sampson devotes relatively little attention to the policy implications of his work, and thus I attempt to articulate and probe what I see as the book’s major policy implications. Principally, I interpret Sampson’s work as an implicit challenge to the predominant public choice model of local government, which conceptualizes urban residents as mobile individuals who make locational choices regardless of social context. Seen in this light, GREAT AMERICAN CITY raises important questions about the wisdom of policymakers’ longstanding reliance on the public choice model, but also leaves much to speculation. I further argue that in light of Sampson’s findings, efforts to aid disadvantaged communities might be most effective if they undertook to induce people to stay in such communities.
I have not yet read this book and really enjoyed hearing Ken's description and the concerns it raised for him with regard to neighborhood structure and power.
Ashira Ostrow (Hofstra) rounded out the panel with a talk on the strange weighted voting system used in Hudson, NY. Not clear to me (or Ashira) whether the system is constitutional (based on the one person - one vote requirement) but if so it could present an interesting structure for local governments where representative's vote are based on their number of constituents.
Well it is that time of the year again and most of the Land Use Profs' crew is attending the Annual Meeting of the Association of Law, Property, and Society. This year, the conference is in Vancouver, B.C. and I have to say this is the prettiest location for ALPS so far.
I spoke on a riveting panel on conservation easements this morning (shocker I know) and now get to sit back and listen to co-blogger Jim Kelly's talk: “‘That Side was made for you and me’: Unauthorized Use of Vacant Property in Inner City Neighbourhoods.” In this packed room, I enjoy the fact that Jim started with a song. His presentation discussed what might be categorized as a type of self-help improvement. Here is the official abstract:
This essay explores the social function of unauthorized uses of vacant properties, both houses and lots, in inner-city neighborhoods. Underutilized properties, particularly those abandoned by their owners, present obvious opportunities for non-owners to engage in uses that may not benefit them personally and/or may (or may not) confer social benefits. From squatters and scrappers to guerilla gardeners and anti-foreclosure activists, acquisitive and expressive “property outlaws” challenge the formality and durability of land ownership claims. By looking at contemporary phenomena such as Philadelphia Green, Take Back the Land, and Indiana’s Good Samaritan Law, the essay will sort out the constructive possibilities for supporting, ignoring and actively opposing unauthorized use of vacant inner-city properties.
The panel, which focused on violence and authorized/unauthorized uses of property. I particularly enjoyed Robin Hickey's paper about whether you can take back property that others have taken from you (in fancy terms: the right to recapture). I think my property law students would be most intrigued by Abraham Bell's talk about possession (they always want to talk about the phrase "possession is nine-tenths of the law").
Monday, April 21, 2014
Sharing is an indispensable part of American property law, often mediating the harsh implications of ownership rights. Yet sharing is also a hidden component of this legal structure. In both theory and doctrinal manifestations, sharing is overshadowed by the iconic property right of exclusion. This Article argues that property law suffers a critical loss from its under-recognition of sharing because it fails to use sharing to correct distributional failures in a world of increasingly scarce resources. Sharing could be the basis for developing a rich range of outcomes in common property disputes. Instead, as described by Calabresi and Melamed in their famed article on remedies, outcomes are tagged to exclusion in the form of blanket property rules and “keep out” signs. As a result, sharing currently functions merely to create very narrow exceptions to broad rights of ownership. To correct this failure, this Article presents a model for sharing as a preferred outcome in property disputes. Sharing as an outcome is a powerful means of addressing property inequalities, limiting harmful externalities, preserving efficiency, and harnessing the extraordinary potential of outcomes in property law.
Friday, April 18, 2014
Greg Alexander (Cornell) has posted Property's Ends: The Publicness of Private Law Values, 99 Iowa L. Rev. 1257 (2014). Here's the abstract:
Property theorists commonly suppose that property has as its ends certain private values, such as individual autonomy and personal security. This Article contends that property’s real end is human flourishing, that is, living a life that is as fulfilling as possible. Human flourishing, although property’s ultimate end, is neither monistic or simple. Rather, it is inclusive and comprises multiple values. Those values, the content of human flourishing, derives, at least in part, from an understanding of the sorts of beings we are ― social and political. A consequence of this conception of the human condition is that the values of which human flourishing is constitutive ― property’s ends― are public as well as private. Further, the public and private values that serve as property’s ends are mutually dependent for their realization. Hence, any account of property that assigns it solely to the private sphere, categorically removed from public values, is incoherent.
Wednesday, April 16, 2014
Adena Rissman (Ecology-Wisconsin), (our very own) Jessie Owley (SUNY-Buffalo), Buzz Thompson (Stanford) and Rebecca Shaw (Env. Defense Fund) have posted Adapting Conservation Easements to Climate Change, Conservation Letters (2014). Here's the abstract:
Perpetual conservation easements (CEs) are popular for restricting development and land use, but their fixed terms create challenges for adaptation to climate change. The increasing pace of environmental and social change demands adaptive conservation instruments. To examine the adaptive potential of CEs, we surveyed 269 CEs and interviewed 73 conservation organization employees. While only 2% of CEs mentioned climate change, the majority of employees were concerned about climate change impacts. CEs share the fixed-boundary limits typical of protected areas with additional adaptation constraints due to permanent, partial property rights. CEs often have multiple, potentially conflicting purposes that protect against termination but complicate decisions about principled, conservation-oriented adaptation. Monitoring is critical for shaping adaptive responses, but only 35% of CEs allowed organizations to conduct ecological monitoring. Additionally, CEs provided few requirements or incentives for active stewardship of private lands. We found four primary options for changing land use restrictions: CE amendment, management plan revisions, approval of changes through discretionary consent, and updating laws or policies codified in the CE. Conservation organizations, funders, and the IRS should promote processes for principled adaptation in CE terms, provide more active stewardship of CE lands, and consider alternatives to the CE tool.
Tuesday, April 8, 2014
Nancy McLaughlin (Utah) has posted Perpetual Conservation Easements in the 21st Century: What Have We Learned and Where Should We Go from Here?, 2013 Utah L. Rev. 687. Here's the abstract:
April 8, 2014 in Agriculture, Conservation Easements, Environmental Law, Environmentalism, Federal Government, Historic Preservation, Scholarship, Servitudes | Permalink | Comments (0) | TrackBack (0)
Monday, April 7, 2014
Sarah Schindler (Maine) has posted Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms and the Local Food Movement, 2014 Wisc. L. Rev __ (forthcoming). Just in time for the finalizing of my presentation on unauthorized vacant property use for next month's ALPS conference (in Vancouver!). Here's the abstract:
It is becoming more common in many urban and suburban areas to see chickens in backyards, vegetable gardens growing on vacant, forclosed-upon, bank-owned property, and pop-up restaurants operating out of retail or industrial spaces. The common thread tying all of these actions together is that they are unauthorized; they are being undertaken in violation of existing laws, and often norms. In this essay, I explore ideas surrounding the overlap between food policy and land use law, and specifically the transgressive actions that people living in urban and suburban communities are undertaking in order to further their local food-related goals. I assert that while governmental and societal acceptance and normalization of currently illegal local food actions is likely needed for the broader goals of the local food movement to succeed, there are some limited benefits to the currently unauthorized nature of these activities. These include transgression serving as a catalyst for change and as an enticement to participate.
Tuesday, January 28, 2014
Like many nerds tech-savvy people, I have an alert set up with WestLaw to send me any new law review article or case that even mentions the phrase "conservation easement." It sends me a lot of fluff, but every now and then I find a gem that seems to have eluded the 5,000 SSRN lists I get. When I saw an article entitled "Environmental Preservation and the Fifth Amendment: The Use and Limits of Conservation Easements by Regulatory Takings and Eminent Domain," I just couldn't resist dropping everything and reading it immediately.
I was surprised that I didn't know the author (Beckett Cantley of Atlanta's John Marshall Law School) because well the conservation easement crew is a small one. Turns out that Cantley is an interesting combination of a tax law prof who also teaches property. As the title suggests, the article focus on standard 5th Amendment takings analysis. Unsurprisingly, this involves a large focus on exacted conservation easements. As I am sure all none of you know, my 2005 dissertation was entitled Exacted Conservation Easements, and I have a small obsession with the phenomenon.
Cantley has an interesting take on the issue.
First, he asks whether there is a market for conservation easements. He contends that a landowner's ability to voluntarily sell a conservation easement constitutes an "economic use for regulated land that could help avoid a regulatory taking by lessening the economic impact of environmental and land use regulations." I assume the argument goes this way: The government entity enacts a land-use law that restricts development. The landowner argues that this violates the 5th amendment under a Lucas-style total deprivation of value argument. The government entity says no we haven't totally deprived you of value because you could still donate or sell a conservation easement on your land. Of course, it would be pretty tricky to find a willing buyer for such a conservation easement but probably not impossible to find someone willing to accept the donation (depending on the features of that parcel). But what would be the value of the donation? Would it be zero? Well the current regulations do not allow development, but conservation easements can extend regulations (making them more stringent, giving them certainty, extending the restriction in perpetuity). So the value of the conservation easement while low, is probably not zero. Cantley suggests that such a conservation easement market would be so speculative that it would not be enough to defeat a Lucas-style takings claim.
Second, Cantley analyzes the ability of a government agency to create a conservation easement with eminent domain. This is a tricky issue. As a threshold, it would only work where the government entity had eminent domain power. Some states prohibit creation of CEs via eminent domain explicitly. In other places, it is just politically sensitive (not to mention potentially hard to calculate). The best example of this phenomenon was when the Highway Commission in Wisconsin exercised eminent domain over holdouts for scenic easements along the Great River Road. One of the confusing points for me here has to do with the fact that when a parcel encumbered by CE is condemned, most jurisdictions acknowledge the CE is compensable and they pay the CE holder for their lost property interest when they pay the underlying landowner just compensation for her property interest. Do such payment policies mean that the jurisdictions recognize CEs as something one could take via eminent domain without taking the fee title? Just an interesting way to do parcel by parcel regulation? Spot zoning with compensation? Something several folks have speculated about but few governments seem interested in pursuing just to amuse us academics.
Now, on the exacted CE front, Cantley notes that generally Nollan and Dolan analysis apply but in some places there is a bit of trickiness with what constitutes an "exaction" meriting Nollan/Dolan analysis (i.e., nexus + rough proportionality) versus just a regulatory act with the less demanding Penn Central balancing test. I have written about this weirdness before in New York where the case of Smith v. Town of Mendon held that conservation easements are not actually "exactions" even where they are er... exacted. As I speculated in a recent piece for the Environmental Section of the New York Bar Association, I think the broad definition of exaction in Koontz overrules Smith v. Town of Mendon and makes it pretty hard to argue that you can't exact conservation easements. One bone I have to pick with Cantley is his description of exacted conservation easements as being required donations. I think we really need to remove the donation language from our talk about such CEs. Landowners are sometime surprised that they can't (or well at least they shouldn't) get tax benefits from these exactions because they associate all CEs with tax breaks. It also looks to me like Cantley must have written his article pre-Koontz (unsurprising considering the pace of law review publication). I think that case may change his assessment that failed exactions are not cognizable takings... or maybe it depends on how/when we assess failure.
Interesting stuff! The artcle doesn't appear to be available for free on SSRN or elsewhere, but those of you with access to various legal databases can find it at
Beckett G. Cantley, Environmental Preservation and the Fifth Amendment: The Use and Limits of Conservation Easmeents by Regulatory Taking and Eminent Domain, 20 Hastings W.-N.W. J. Envtl. L. & Pol'y 215 (2014).
Monday, January 27, 2014
Here's an interesting sounding one!
Call For Participation : Comparative Urban Law Conference
June 30, 2014, London, England
The Fordham Urban Law Center is pleased to announce a call for participation for the Comparative Urban Law Conference, which will be held on Monday, June 30, 2014 at Loyola Hall, University of London. The Conference will gather legal and other scholars for a provocative, engaging conversation about the field of "urban law" from an international, comparative, and interdisciplinary perspective. The Conference will focus on the nature and boundaries of urban law as a discipline, which participants will explore through overlapping themes such as the structure of local authority and autonomy and the role of law in urban policy areas such as environmental sustainability, consumer protection, public health, housing, and criminal justice, among others. The goal is to facilitate an in-depth exploration across sub-specialties within the legal academy to help develop an understanding of urban law in the twenty-first century.
PAPER SUBMISSION PROCEDURE: Potential participants in panels and workshops throughout the day should submit a one-page proposal to Professor Nestor Davidson at email@example.com. If you are already working on a draft paper, please include that draft with your submission, but participants do not need to have prepared a formal paper to join the conversation. The deadline for topic proposal submissions is Thursday, February 13. We will discuss potential publishing options available as a result of conference participation. Please contact Annie Decker at firstname.lastname@example.org with any questions.
ABOUT THE URBAN LAW CENTER: The Urban Law Center at Fordham Law School in New York City is committed to understanding and affecting the legal system's place in contemporary urbanism. See: http://law.fordham.edu/urbanlawcenter.htm for more information about our activities.
Friday, January 24, 2014
I just finished reading a new article by Jess Phelps in the latest issue of Environmental Law. In Preserving Perpetuity?: Exploring the Challenges of Perpetual Preservation in an Ever-Changing World, Phelps tackles some issues closely related to questions I research: what do we do about perpetual permanent restrictions in a world of constant change? Phelps takes a narrower tack than my articles though, looking just at historic preservation easements. If you think that perpetual land conservation sound challenging, try fooling yourself into thinking that buildings are going to last forever. Well, okay we all know that perpetual restrictions have their usefulness even when we know that a perpetual building is not possible. What I like about Phelps' piece is that he cites me he takes a practical approach, providing specific plans for how to respond when natural disasters damage or destroy structures protected by historic preservation easements. It is a helpful read for land trusts or drafters of conservation easements thinking proactively about climate change impacts.
Wednesday, December 18, 2013
Zachary Bray (University of Houston) has posted The New Progressive Property and the Low-Income Housing Conflict, BYU Law Review, Volume 2012, Issue 4, p. 1109 (2012). The abstract:
I then turn to examine a deep conflict at the intersection of Section 8 and rent control, which presents an important opportunity to further test and refine the new progressive property. In particular, I argue that this underexamined low-income housing conflict provides good reasons to abandon rent control, even from a progressive-property perspective. In addition, the low-income housing conflict between Section 8 and rent control sheds light on the ambiguous relationship between law-and-economics analysis and the progressive-property framework. More specifically, I argue that the conflict between rent control and Section 8 demonstrates that even the most basic law-and-economics tools must be incorporated into a progressive-property framework to achieve the ends of the new progressive property.
Tuesday, December 10, 2013
Chris Serkin (Vanderbilt) and Leslie Wellington have posted Putting Exclusionary Zoning in its Place: Affordable Housing and Geographical Scale, 40 Fordham Urb. L. J. 1667 (2013). Here's the abstract:
The term “exclusionary zoning” typically describes a particular phenomenon: suburban large-lot zoning that reduces the supply of developable land and drives up housing prices. But exclusionary zoning in its modern form also occurs both within the urban core and region-wide. Exclusionary zoning at the sub-local and regional scales results in property values that fully capitalize the benefits of living in higher-wage regions, and the value of local public goods (like high-quality schools). Lower-income households then cannot meaningfully access those advantages, even if every municipality accommodates its fair share of regional need. The long-standing focus of exclusionary zoning on the content of local ordinances, instead of on these broader exclusionary dynamics, has defined the problem of exclusionary zoning too narrowly. We remedy that deficiency in our contribution to the Fordham Urban Law Journal’s Fortieth Anniversary issue.
Thursday, November 21, 2013
In the discourse of local government law, the idea that a mobile populace can “vote with its feet” has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout’s seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden.
This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. People today move between — and not just within — metropolitan regions, domestically and even internationally. This is particularly so for a subset of residents — high human-capital knowledge workers and the so-called “creative class” — that is prominently coveted in this interregional competition. These modern mobile residents tend to evaluate the policy bundles that drive their locational decisions on a regional scale, weighing the comparative merits of metropolitan areas against each other. And local governments are increasingly recognizing that they need to work together at a regional scale to compete for these residents.
This Article argues that this intermetropolitan mobility provides a novel justification for regionalism that counterbalances the strong localist tendency of the traditional Tieboutian view of local governance. Contrary to the predominant assumption in the legal literature, competition for mobile residents is as much an argument for regionalism as it has been for devolution and decentralization. In an era of global cities vying for talent, the mobility case for regionalism has significant doctrinal consequences for debates in local government law and public finance, including the scope of local authority, the nature of regional equity, and the structure of metropolitan collaboration.
Thursday, November 14, 2013
Sheila Foster (Fordham) has posted Breaking Up Payday: Anti-Agglomeration Zoning and Consumer Welfare, 75 Ohio St. L.J. ___ (forthcoming 2014). Here's the abstract:
In the last decade, dozens of local governments have enacted zoning ordinances designed to limit the concentration of payday lenders and other alternative financial services providers (AFSPs), such as check-cashing businesses and auto title loan shops, in their communities. The main impetus for these ordinances is to shield economically vulnerable residents from the industry’s lending practices in the absence of sufficiently aggressive federal and state consumer protection regulation. This Essay casts considerable doubt on whether zoning is the appropriate regulatory tool to achieve the consumer protection and welfare goals animating these ordinances. The author’s analysis of the aftermath of payday lending zoning restrictions in one state demonstrates that while such laws may play a role in reducing the number of payday lenders in the immediate urban area, they do not shield consumers from these lenders altogether. Further, the economic literature on agglomeration economies suggests that there are costs to consumer welfare from limiting or breaking up retail agglomerations. Such “anti-agglomeration” zoning restrictions can prevent consumers from capturing the benefits of the price and product competition that result from retail agglomerations. This Essay concludes that if the main impetus behind anti-agglomeration zoning measures is to protect local residents from the high interest rates and loan terms associated with the payday industry, it might be that these measures are working against their intended purpose and actually harming consumers who lack viable financial services alternatives. As such, in weighing the costs and benefits of payday lender agglomeration, lawmakers should consider more carefully the effects of anti-agglomeration zoning measures on consumer welfare.
Sheila has written terrific articles on social capital and urban geography. I'm glad to see her confront, as a land use regulation problem, activities identified as detrimental to social capital and explore some of the same strategies used by communities to respond to the marketing of pornography.
Wednesday, November 13, 2013
Hanoch Dagan (Tel Aviv) has posted his anthology entry entitled Expropriatory Compensation, Distributive Justice and the Rule of Law in Rethinking Public Interest in Expropriation Law (Mostert & Verstaapen eds., forthcoming 2014). Here's the abstract:
This Essay examines the possible justification for providing less than full (fair market value) compensation for expropriation. One obvious justification applies in cases of public measures, where the burden is deliberately distributed progressively, namely, where redistribution is the desired goal of the public action or, at least, one of its primary objectives. Beside this relatively uncontroversial category, two other explanations are often raised: that partial compensation is justified by reference to the significance of the public interest, even if it is not redistributive, and that it can serve as a means for adjusting the amount of the compensation to the specific circumstances of the case. This Essay criticizes both justifications, arguing that the former is normatively impoverished while the latter affronts the rule of law. The notion of partial and differential compensation, however, can serve as a powerful tool for developing a nuanced expropriation doctrine that serves important property values, and also targets the potentially regressive effects of a uniform rule of full market value. The proposed doctrine draws careful, rule-based distinctions between types of injured property (fungible vs. constitutive) and types of benefited groups (local communities vs. the broader society).
One of the wonderful benefits of participating in the annual gatherings of the Association of Law, Property and Society is the opportunity to emgage with scholars from other countries. A 2011 panel focusing on his book Property: Values and Institutions (Oxford Univ. Press, 2011), which Dean Dagan participated in personally, was one of the best discussions of property theory that I've ever had the chance to hear.
Monday, November 11, 2013
How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.
Friday, November 1, 2013
Marie Boyd (South Carolina) has posted Zoning for Apartments: A Study of the Role of Law in the Control of Apartment Houses in New Haven, Connecticut 1912-1932, 33 Pace L. Rev. 600 (2013). In it, she reviews building records and Sanborn maps to give her reader a complete picture of the restrictions placed on apartment development before and after New Haven's first zoning ordinance in 1926. Here's the abstract:
This article seeks to contribute to the legal and policy debates over zoning by providing a more detailed examination of the impact of apartments on both pre-zoning land use patterns and the zoning process during the formative initial stages of zoning in the United States than has been provided in the literature to date. Specifically, this Article analyzes the impact of apartments on both pre-zoning land use patterns and the zoning process in New Haven, Connecticut. It focuses on the period beginning with the selection of New Haven’s first Zoning Commission in 1922, and concluding with the passage of New Haven’s first zoning ordinance in 1926. Through this detailed historical account of the realities of zoning, this Article demonstrates how — due to delays in the enactment of zoning — New Haven’s first zoning ordinance, rather than shaping the future growth of the regulated area, was instead shaped by existing land use patterns and political considerations.
Sunday, September 22, 2013
Nicholas Fromherz (Lewis & Clark) has posted From Consultation to Consent: Community Approval as a Prerequisite to Environmentally Significant Projects, 116 W. Va. L. Rev ___ (2013). Here's the abstract:
Since the United States enacted the National Environmental Policy Act (NEPA) in 1969, nations all around the world have adopted similar statutes. What started as a unique response to the American environmental movement grew to become a nearly global standard. Although the details of the regimes vary from country to country, there are two constants: (1) the regimes force the government to consider environmental impacts before conducting or authorizing projects, and (2) they allow some degree of public participation. This article focuses on the latter of these two features.
Public participation in NEPA-style regimes generally means public consultation: information is disseminated and civil society is allowed to comment. Depending on a range of factors — some political and some legal — comments may influence the circumstances under which a project takes place or whether it occurs at all. Though the public’s influence is often limited in practice, the mere fact of public participation at the project level — as opposed to participation at the candidate level through elections or at the issue level through referenda — is exceptional. In the U.S. and many other countries, NEPA and its counterparts represent a break from the normal rule of executive decision-making by encouraging public involvement and deliberative, participatory democracy.
Despite the progress, critics have accused these regimes of falling short. In practice, public consultation under NEPA-style frameworks is severely limited in terms of who participates, how many participate, and the extent to which this participation impacts the decision-making process. This is not surprising. By its very nature, consultation implies limited influence.
In this article, I argue that policy-makers, both domestic and foreign, should replace consultation with consent as the public-participation requirement in certain cases. Although the concerns leading to the inclusion of public consultation in NEPA and its foreign counterparts were many, one of the more important ideas was that those persons affected by environmentally significant projects should have a say in the matter. Unfortunately, the consultation approach has proven increasingly ineffective. If the goal is to match influence with stake, consultation is the wrong mechanism.
Requiring consent, even in a limited number of cases, may seem like an extreme remedy. Not so. It is an attractive way to respond to a situation inherent in many major public works (especially infrastructure and energy projects) and in large-scale private endeavors on public land (especially extractive projects). While the benefits of these projects are often spread around an entire nation or large region, the environmental costs are frequently concentrated within a small, local community (the site community). Requiring the consent of the local site community insures that its interest is adequately accounted for in the decision-making process.
I am always glad to see authors taking on the question of strengthening community control of land resources especially as a response to a particular impact, as Rachel Godsil and I have each written about in the urban context. Fromherz dedicates some important discussion to defining the affected community, a problem made even more interesting in his piece by the overlay of the rights of indigenous inhabitants.