Monday, September 24, 2012

Klass on Takings and Transmission

Alexandra B. Klass (Minnesota) has posted Takings and Transmission, forthcoming in the North Carolina Law Review.  The abstract:

Ever since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in the Kelo case itself, where government takes private property for a redevelopment project that will benefit another private party as well as increase the tax base, create new jobs, assist in urban renewal, or otherwise provide economic or social benefits to the public. By contrast, until recently, there has been little change in law or public opinion with regard to takings involving publicly-owned projects such as hospitals or post offices or “use by the public” takings that involve condemnation for railroad lines, electric transmission lines, or other infrastructure projects. However, recent changes in electricity markets and the development of the country’s electric transmission system have raised new questions about the validity of “use by the public” takings in the context of electric transmission lines. With some transmission lines now being built by private, “merchant” companies rather than by publicly-regulated utilities, and with the push to build more interstate transmission lines to transport renewable energy to meet state renewable portfolio standards, what was once a classic public use is now subject to new statutory and constitutional challenges. This Article explores the potential impact of these developments on the use of eminent domain for electric transmission lines. Ultimately, it suggests that states should ensure that their eminent domain laws governing transmission lines are consistent with their policy preferences surrounding energy development in the state, and it outlines some ways for states to accomplish this goal.

I think you could make some analogous analysis about the newly-hot issue of eminent domain and pipelines, for example the controversy over the acquisition of rights of way for the Keystone Pipeline.  Interesting issues.

Matt Festa

September 24, 2012 in Caselaw, Constitutional Law, Economic Development, Eminent Domain, Oil & Gas, Property Rights, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 19, 2012

Weinstein on Development Impact Fees

Alan Weinstein (Cleveland-Marshall) has posted The Ohio Supreme Court’s Perverse Stance on
Development Impact Fees and What to Do About It
.  The abstract:

Ohio is among the twenty-two states that have no enabling legislation for development impact fees. But in a 2000 ruling, Homebuilders Association of Dayton and the Miami Valley, et. al. v. City of Beavercreek, a divided Ohio Supreme Court ruled that municipalities could lawfully enact impact fees under their police and “home rule” powers, provided that the fees could pass constitutional muster under a “dual rational nexus test.” On May 31, 2012, however, the Court ruled in Drees Company, et. al. v. Hamilton Township, that a development impact fee enacted by an Ohio township with “limited home rule” powers was an unconstitutional tax. The Court’s unanimous opinion in Hamilton Township was authored by Justice Paul Pfeiffer, who, twelve years before, had authored the main dissenting opinion in the Beavercreek case. This article faults the Court’s opinion invalidating the impact fees in Hamilton Township, arguing that the Court, rather than engaging in a fair-handed analysis, chose instead to rely on very limited authority to support a conclusion that appears to have been pre-determined. In particular, the article demonstrates that the Court failed even to acknowledge, let alone distinguish: (1) its earlier ruling upholding impact fees in Beavercreek and (2) the state supreme court decisions that had rejected the reasoning of the Iowa and Mississippi courts upon which the Court relied in part. The article notes that the Court’s ruling leaves Ohio with a bifurcated approach to impact fees that is perverse because it makes impact fees most defensible in municipalities, in many of which there is little new development, and thus the need for impact fees is less, and effectively prohibits their use in rapidly-developing
townships where they are needed most. The article concludes that the time is long-past for the legislature to examine the policy debate on impact fees and make a decision about adopting enabling legislation for impact fees, and that the decision should be to join the majority of states that have enacted such legislation.

This is a big deal given the increasing resort to impact fees by local governments, while nearly half the states don't have clear rules governing their application.

Matt Festa

September 19, 2012 in Local Government, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 5, 2012

Pomeroy on the Case for Standardized Vesting Documents

Chad Pomeroy (St. Mary's) has posted A Theoretical Case for Standardized Vesting Documents.  The abstract:

Practitioners, real estate professionals, and lay people throughout the country rely on the recording system to provide critical information regarding ownership rights and claims. Indeed, the recording system acts as a virtually mandatory repository and disseminator of all potential parties’ claims. This system, in turn, relies on these claimants and their agents to publicize their claims: property purchasers, lenders, lien-claimants, title companies, attorneys - these parties interact, make deals, make claims, order their affairs, and then record. The information system available to us, then, is only as good as what we make of it and what we put into it.

As such, it is surprising how little thought has been put into exactly what it is that we record. Should the mortgage of a lender in Ohio look like that of a lender in Florida? Should a deed from an individual in Texas differ from that of a corporation in Nevada? As it stands now, no one familiar with real estate law or commerce would expect different parties in different jurisdictions to record identical, or even similar, instruments. In an immediate sense, this heterogeneity of the recorded documents (“vesting heterogeneity”) does not seem a good thing: parties utilizing the recording system generally seek to make known, or to discern, the same generic type of information – that is, evidence of claims upon property – so why are different forms and types of documents utilized all over the country?

This article analyzes this vesting heterogeneity from a new perspective and concludes that it is, in fact, cause for significant concern. Vesting heterogeneity has arisen organically, growing with the recording system as they both evolved over time. This historical explanation does not, however, excuse the cost associated with such a lack of uniformity. Anyone seeking information with respect to any piece of property must navigate the complexities and uncertainties that arise because all such information is heterogeneous and, as a consequence, difficult to understand and utilize. This represents both a immediate transactional cost and an increased risk of ill-informed behavior.

This is particularly troublesome because this sort of cost-based concern arising from variability has a well-established analogue in property law that the law clearly desires to avoid. That analogue is the cost that would arise if property law were to permit unlimited property forms and gives rise to what is known as the numerus clausus theory. This theory explains the law’s hostility toward new, or different, types of property and holds that such heterogeneity is not generally permitted because of the extremely high informational costs associated with such creativity.

This article suggests that this common law concept can, and should, inform our analysis of vesting heterogeneity and that it precipitates strongly against such lack of uniformity. This is because the costs that drive the numerus clausus to hold that variability should be limited are strikingly similar to those created by variability of vesting documents. As such, this theory is relevant here such that the same analysis should be applied to vesting heterogeneity by asking whether a different (or “new”) document is helpful enough to outweigh the informational costs inherent therein.

Based on this reasoning, this article concludes that the law is wrong to systematically ignore heterogeneity in vesting documents. Instead, a numerus clausus type of analysis should be applied to new or different vesting documents to determine whether any inherent lack of uniformity is defensible. Where it is not, uniformity should be imposed.

Matt Festa

September 5, 2012 in Contracts, Finance, History, Mortgages, Property, Property Theory, Real Estate Transactions, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 28, 2012

Gage Lecture: Garnett on School Closures in Urban Neighborhoods

Gage lectureUMKC Law and the ABA Section on State & Local Government are hosting an education law symposium with The Urban Lawyer, preceded by the 2012 Gage Lecture, featuring Nicole Stelle Garnett (Notre Dame) on "School Closures in Urban Neighborhoods: Lesson's from Chicago's Catholic Schools."

Thursday, Oct. 4, 2012 | 6:30 p.m.
UMKC School of Law's Thompson Courtroom

What Happens When You Close Urban Schools

America’s educational landscape is changing with the rapid disappearance of Catholic schools from the urban core. Yet, studies show negative effects on neighborhoods when schools close. Scholar Nicole Garnett will discuss what this means for urban and educational policy.

Professor Garnett's lecture is free and open to the public; the program and registration for the Oct. 5 symposium are available at the website

Matt Festa

August 28, 2012 in Chicago, Conferences, Lectures, Local Government, Scholarship, State Government, Urbanism | Permalink | Comments (0) | TrackBack (0)

Friday, August 24, 2012

Man Fights to Keep Wife's Remains Buried in Front Yard

If you've been reading the work of some of our colleagues at Property Prof like Tanya Marsh and Al Brophy, you know that cemeteries, memorials, and burial rules can be important issues in law and historical memory.  Here's a more quotidian case in point, from the Huffington Post: James Davis, Alabama Man, Fights To Keep Remains Of Wife Buried In Front Yard.  From the article:

Davis said he was only abiding by Patsy Ruth Davis' wishes when he buried her outside their log home in 2009, yet the city sued to move the body elsewhere. A county judge ordered Davis to disinter his wife, but the ruling is on hold as the Alabama Civil Court of Appeals considers his challenge.

While state health officials say family burial plots aren't uncommon in Alabama, city officials worry about the precedent set by allowing a grave on a residential lot on one of the main streets through town. They say state law gives the city some control over where people bury their loved ones and have cited concerns about long-term care, appearance, property values and the complaints of some neighbors.

But even some of the objecting neighbors are still concerned with the individual property-rights aspect of this situation:

A strong libertarian streak runs through northeast Alabama, which has relatively few zoning laws to govern what people do with their property. Even a neighbor who got into a fight with Davis over the gravesite – Davis said he punched the man – isn't comfortable with limiting what a homeowner can do with his property.

"I don't think it's right, but it's not my place to tell him he can't do it," said George W. Westmoreland, 79, who served three tours of duty in Vietnam. "I laid my life on the line so he would have the right to do this. This is what freedom is about."

The article profits from the analysis of Samford law prof Joseph Snoe (invoking Mahon (which I just taught) and other important precedents):

A law professor who is familiar with the case said it's squarely at the intersection of personal rights and government's power to regulate private property. While disputes over graves in peoples' yards might be rare, lawsuits over the use of eminent domain actions and zoning restrictions are becoming more common as the U.S. population grows, said Joseph Snoe, who teaches property law at Samford University in suburban Birmingham.

While it's a quirky fact pattern, this sort of case is intensely personal, and goes to show the broad range of issues that can end up in disputes over land use law.  Thanks to Troy Covington for the pointer.

Matt Festa

August 24, 2012 in Caselaw, History, Humorous, Property Rights, State Government, Sun Belt, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 22, 2012

Who Owns Land Created by a Volcanic Eruption?

During my just-completed trip to Hawaii, I spent some time in the wonderful Hawaii Volcanoes National Park.  The volcanic eruptions in the park continue to add new land to Hawaii’s youngest and largest island.  In fact, over 500 acres of new land have been added since 1983 alone.

This led me to wonder who owned this new land.  It turns out that the US Geological Survey’s Hawaiian Volcano Observatory provided a helpful answer to this question a while back.  The Hawaii Supreme Court, in the 1977 case State by Kobayashi v. Zimring, 566 P.2d 725, decided the issue.  Granted this is not an issue of broad relevance, but I found their resolution of the question interesting.

In Zimring, the State of Hawaii sought to quiet title over 7.9 acres of new land added after a 1955 eruption extended the shoreline.  This new land, which was termed a “lava extension,” was adjacent to land purchased by the Zimrings in 1960, after the eruption.  The lava flowed over the purchased land and into the ocean, forming the new 7.9 acres of land.  After purchasing the adjacent land the Zimrings entered onto the new land, bulldozing it and planting trees.  The State even assessed the land and collected taxes from the Zimrings on it.  Nonetheless, the court found in favor of the State of Hawaii and in doing so distinguished lava flows from the common law doctrine regarding accretion of land.

The court first reviewed the history of Hawaiian law regarding private property ownership, concluding that it made clear that “land in its original state is public land and if not awarded or granted, such land remains in the public domain.”  It then considered whether there was a relevant doctrine from the common law or traditional Hawaiian usage that applied in the case.  It concluded that there were too few similar lava flows over private land to have established a usage. 

It then considered the common law, first declaring that “[n]o court sitting at common law has had occasion to deal with the question of lava extensions.”  The court distinguished the common law regarding accretion, the gradual increase of land through the deposit of soil.  Under the common law, owners of contiguous land take title to land formed by accretion.  In contrast, the court declared, “in cases where there have been rapid, easily perceived and sometimes violent shifts of land (avulsion) incident to floods, storms or channel breakthroughs, preexisting legal boundaries are retained notwithstanding the fact that former riparian owners may have lost their access to the water.”  Similarly, it noted that under California law if an accretion is caused by artificial means, the newly created land does not belong to the upland property owner.  The court concluded that “[r]ather than allowing only a few of the many lava victims the windfall of lava extensions, this court believes that equity and sound public policy demand that such land inure to the benefit of all the people of Hawaii, in whose behalf the government acts as trustee.”

It can be expected that the Loihi Seamount, which is being formed by volcanoes southeast of the Big Island, will similarly fall under control of the state when and if it emerges some thousands of years into the future.

John Infranca

August 22, 2012 in Beaches, History, Property, Property Rights, State Government | Permalink | Comments (1) | TrackBack (0)

Monday, August 6, 2012

New Jersey Seeks to Take Back Affordable Housing Funds

An article in this Sunday's Philadelphia Inquirer discusses New Jersey Governor Chris Christie's demand that towns in New Jersey turn over to the state money that has been in their affordable-housing trust funds for more than four years, a total of $141.2 million.  A state law (N.J.S.A. 52:27D-329.2) requires that this money, which towns receive from fees paid by developers, be committed within four years. The state recently sent letters to 372 town outlining how much each one is being asked to transfer to the state's Affordable Housing Trust Fund.  (NJ's Fair Share Housing Center posted a copy of one of these letters.)

Christie's effort, as the Inquirer article notes, is just the latest episode in New Jersey's battles over zoning and affordable housing regulation, battles made famous by the Mount Laurel decision.  Christie previously sought to eliminate the state's Council on Affordable Housing (COAH), which enforces the judicial requirements regarding how much housing must be built in each town.  However, NJ's Supreme Court rejected his attempt.  (For an interesting perspective on Christie's "War Against the Mount Laurel Doctrine," see this piece by Rick Hills from a while back on PrawfsBlawg).

Now, critics claim Christie is seeking the money to fill holes in the state budget, while the Governor's camp responds that the money will be used for housing programs at the state level.  Local officials assert their failure to spend the money is largely due to the state's confusing guidelines, particularly regarding what it means to have, as the law requires, "committed" funds to fulfill their affordable housing obligations.

When Christie first announced his plans to seize the funds, the Fair Share Housing Center filed a motion seeking to enjoin the state's actions, arguing that COAH failed to promulgate standards outlining what municipalities must do to "commit" the funds.  The Appellate Division of the NJ Superior Court refused to issue an injunction, but did require that municipalities receive written notice of the amount they owed and how it was calculated.  This notice came in the form of the subsequent letters stating the amount due and demanding that towns transfer the funds - or dispute the amount calculated - by August 13, 2012.  The Fair Share Housing Center, joined by the NJ State League of Municipalities, now contend that the letter sent to municipalities fails to comply with the requirement that municipalities be informed regarding how the amount was calculated.  

To my mind, it seems the challenge to the state's actions will be an uphill battle for the municipalities. The statute the state is relying upon in seizing the funds states:

"The council shall establish a time by which all development fees collected within a calendar year shall be expended; provided, however, that all fees shall be committed for expenditure within four years from the date of collection. A municipality that fails to commit to expend the balance required in the development fee trust fund by the time set forth in this section shall be required by the council to transfer the remaining unspent balance at the end of the four-year period to the “New Jersey Affordable Housing Trust Fund" . . . to be used in the housing region of the transferring municipality for the authorized purposes of that fund."

In its Order denying the request for an injunction, the court declared that "[t]he ambiguity, if any, concerning the term commit has not precluded municipalities from seeking COAH's approval of particular housing projects on a case-by-case basis."  The court's chief concern, as noted, was that the municipalities receive notice and an opportunity to contest the transfer.  It is likely this battle will continue to drag out, largely focused on the process through which the state is seeking to take back the funds, but it seems difficult to envision a strong legal basis for the municipalities ultimately stopping the seizure of the funds.  It may be more likely that political pressure, from local municipalities and residents who will still need to fulfill their affordable housing obligations, but will be forced to find new sources of funding, may stop the state's efforts.

John Infranca  

August 6, 2012 in Affordable Housing, Local Government, State Government, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, July 30, 2012

Salkin on the Quiet Revolution and Federalism

Patricia Salkin (Touro Law Center) has posted The Quiet Revolution and Federalism: Into the Future, 45 John Marshall Law Review (2012).  The abstract:

This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local land use across three time periods: first, that which existed before the publication of THE QUIET REVOLUTION; second, legislation that emerged a quarter century after the publication of THE QUIET REVOLUTION; and third, more recent federal programmatic and legislative approaches. Part IV provides analysis of the future of federalism in land use regulation, noting the increasing trend of the federal programmatic influence and the potential future influence on local land use controls. The Article concludes with a warning to local governments to be vigilant and to rethink the paradigm of land use regulation to regain control in certain areas to prevent further encroachment by the federal government into matters of local concern.

This article comes from last year's excellent Kratovil Conference retrospective on The Quiet Revolution in Land Use Control (David Callies & Fred Bosselman (Council on Environmental Quality, 1971)), hosted by John Marshall Law School in Chicago.

Matt Festa

July 30, 2012 in Federal Government, History, Local Government, RLUIPA, Scholarship, State Government, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, July 26, 2012

DeGennaro & Li on Business Formation in the Wake of State Responses to Kelo

Ramon P. DeGennaro (Tennessee--Finance) and Tianning Li (Hood College) have posted Business Formation in the Wake of States' Responses to Kelo.  The abstract:

On June 23, 2005, the U.S. Supreme Court ruled in Kelo v. City of New London, 505 U.S. 469 (2005) that the Public Use Clause allows governments to take private property for transfer to new private owners for the purpose of promoting “economic development.” Our theoretical model identifies the circumstances under which Kelo and subsequent state laws affect business formation. We show that business creation can be encouraged, unaffected, or discouraged as the probability of takings increases, depending on the level of compensation for the takings and the magnitude of the owners’ public use benefits. We also show that utility-maximizing entrepreneurs’ choices of investment depend on the probability of takings and the level of government compensation for the taking. Our empirical results yield three insights. First, states and municipalities can pass laws protecting property rights without fear of retarding business formation. Second, we identify explanations why Kelo and these laws do not measurably affect business formation in our empirical work. Specifically, we believe that either government entities correctly compensate entrepreneurs for the disruption in their businesses through eminent domain legislation, or that the change in the probability of such takings is very small, so that any effect on business formation is too small to measure. Third, takings open the possibility for political corruption and distortions in the economy by encouraging overpayment or underpayment for takings. Under this interpretation, local laws against takings are not pro-business laws or anti-business laws. Rather, they are anti-corruption laws.

Matt Festa

July 26, 2012 in Eminent Domain, Local Government, Property Rights, Scholarship, State Government, Takings | Permalink | Comments (2) | TrackBack (0)

Friday, July 13, 2012

Korngold on Governmental Conservation Easements

Gerald Korngold has posted a new article on SSRN. Governmental Conservation Easements: A Means to Advance Efficiency, Freedom from Coercion, Flexibility, and Democracy. It already looks to be an important piece for conservation easement junkies like me. Korngold explores conservation easements held by government entities. Depending on the jurisdiction, (1) government entities, (2) land trusts, and (3) tribes can hold conservation easements. I agree with Korngold that the character of the agreements and the concerns surrounding them vary by holder. Most writing on conservation easement has focused on holder (2) – and largely considering donated conservation easements. I have been working this summer on a project examining holder (3) and this article examining holder (1) provides lots of food for thought in framing that work and in considering where and when conservation easements are a good idea. Korngold’s abstract is below:

Over the past twenty-five years, courts and commentators have recognized and upheld conservation easements as an important vehicle to preserve natural and ecologically sensitive land, focusing primarily on easements held by nonprofit organizations (NPOs). During the same period, courts and commentators have supported property rights of owners against governmental land use regulation. This paper maintains that these two independent developments militate for the increased use of consensual conservation easements by governmental entities to achieve public land preservation goals. Governmental conservation easements can realize the benefits of efficiency, consent and free choice, and conservation, while avoiding the coercion implicit in public land use regulation. Moreover, governmental conservation easements have advantages over private easements in some situations: governmental easements may be more easily modified or even terminated to address future changes in conservation values and community needs; as with public land use regulation, governmental easements must be transparent and are subject to democratic, participatory processes that NPOs do not have to follow; and properly functioning governmental ownership may be best able to discern and represent the public interest when making acquisition, modification, and termination decisions about conservation easements. I suggest that both NPO-held conservation easement activities and legitimate public land use regulation are valuable and should continue, but argue that increased use of governmental conservation easements can bring significant benefits as well.

Jessie Owley

July 13, 2012 in Conservation Easements, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 3, 2012

Dwyer on Urban Blight and its Impact on Children

James G. Dwyer (William & Mary) has posted No Place for Children: Addressing Urban Blight and Its Impact on Children Through Child Protection Law, Domestic Relations Law, and 'Adult-Only' Residential Zoning, Alabama Law Review, vol. 62 (2011).  The abstract:

For any child, residential location is a large determinant of well-being. At the negative extreme, a neighborhood can pose threats to children's well-being far exceeding those present within the home in typical cases of child protection removal. The worst neighborhoods pose direct threats to children's physical and psychological well-being, and they also adversely affect children indirectly by creating stressors that undermine parents' abilities to care for children. Pervasive crime and substance abuse, in particular, substantially elevate risks to children beyond those created just by less capable or less motivated parents. Given that a relatively high percentage of adults who live in the worst neighborhoods are marginal to begin with, in terms of their inherent capacities for giving care and maintaining safe and healthy homes, the additional threats present in the larger residential environment push the experience of most children in such neighborhoods below what most people -- including those who live in the neighborhoods -- would regard as a minimally acceptable quality of life. Because such neighborhoods are also likely to have inadequate -- even dangerous -- schools and few legal employment opportunities, living in them severely diminishes the life prospects of children forced to grow up in them.

To date, government efforts to improve the lives of these children, and scholarly writing on the topic, have focused on urban renewal and criminal law enforcement in these neighborhoods. These have mostly been unsuccessful, where they do succeed they typically do so by simply relocating the dysfunction to another neighborhood, and even if renewal efforts undertaken today might ultimately be successful that is of no help to a child born today into dangerous urban blight. The only way to ensure that children do not suffer the effects of growing up in deeply dysfunctional communities is to get them out now. Policy should shift to a strategy of separating children as early as possible from the adults who are creating toxic social environments in impoverished areas. In fact, programs that have assisted parents who wished to relocate with their children from high-poverty, inner-city neighborhoods to low-poverty areas have greatly improved the children's well-being and longterm life prospects. This Article presents a novel argument for expanding such relocation programs, an argument founded upon basic rights of children -- not rights against private actors who might harm them, though children certainly possess such rights, but rather rights against the state. I argue that the state violates basic rights of children by making certain decisions about children's lives that effectively consign many of them to living in hellish conditions. To remedy this violation of children's rights, the state should now institute reforms such as giving children first priority in distribution of housing vouchers and in provision of relocation assistance and, most controversially, making relocation out of the most dangerous neighborhoods mandatory rather than voluntary for parents who have and wish to retain custody of children. The state should no more permit parents to house children in apartments where stray bullets come through windows and drug addicts clutter the hallways outside than permit parents to take children into casinos and nightclubs. This Article argues that the state is legally free, and in fact morally and legally obligated, to adopt new legal rules and policies aimed at ensuring that no children live in the horrible neighborhoods that exist, and likely will always exist, in our society. It also presents a constitutional lever for overcoming political and community resistance to taking the necessary measures. These measures would entail changes to the law in three broad areas -- child maltreatment, domestic relations, and zoning.

Matt Festa

July 3, 2012 in Affordable Housing, Crime, Density, Economic Development, Housing, Politics, Property Rights, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 26, 2012

Ryan on Obamacare, Federalism, and . . . Land Use

No, this is not a lame attempt by me at expanding the bounds of the "what can't Festa turn into a land use issue" parlor game that I play in class, in order to reach the hot issue du jour.  Erin Ryan (Lewis & Clark) recently posted a fascinating essay on the Environmental Law Prof Blog about the potential effects of the ACA decision on federalism and, in turn, on land use and environmental issues.  From Obamacare and Federalism's Tug of War Within:

In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions.  And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal.  For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.

. . . .

In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms.

Read the whole thing for a good legal analysis that goes well beyond the immediate politics of the decision.  Professor Ryan has a new book on the subject called Federalism and the Tug of War Within

And, so yes, there is a land use angle to the Obamacare decisions.  But you already know that there's a land use angle to everything

Matt Festa

June 26, 2012 in Constitutional Law, Environmental Law, Federal Government, Local Government, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 13, 2012

Kearney & Merrill on Private Rights in Public Lands

Joseph D. Kearney (Marquette) and Thomas W. Merrill (Columbia) have posted Private Rights in Public Lands: The Chicago Lakefront, Montgomery Ward, and the Public Dedication Doctrine, 105 Northwestern University Law Review (2011).  The abstract:

The Chicago Lakefront, along Grant Park, is internationally regarded as an urban gem. Its development - or, perhaps more accurately, lack of development - has been the result of a series of legal challenges and court rulings, most famously involving the landmark U.S. Supreme Court decision, Illinois Central R.R. v. Illinois (1892), and four decisions of the Illinois Supreme Court, from 1897 to 1910, involving Aaron Montgomery Ward. The former invented the modern public trust doctrine, which continues as much the favorite of environmental groups; the latter involved the now largely forgotten public dedication doctrine.

This article begins with a description of the evolution of what is now known as Grant Park. After tracing the origins of the public dedication doctrine in the nineteenth century, the article describes how the doctrine was invoked in controversies over the use of the Chicago lakefront before Montgomery Ward came on the scene. The article then details Ward’s remarkable crusade to save Grant Park as an unencumbered open space, which created a powerful body of precedent having a lasting impact on the use of the park. Next, the article describes the limits of the public dedication doctrine that was recognized in the Ward precedents. The article concludes with some brief observations about why the public trust doctrine eclipsed the public dedication doctrine, a comparison of the efficacy of the two doctrines in the context of the Chicago lakefront, and by offering general reflections about what this history tells us about the promises and pitfalls of recognizing 'antiproperty' rights to contest development of public spaces.

A terrific example of how legal history and land use case studies can illuminate important issues of legal doctrine.

Matt Festa

June 13, 2012 in Chicago, Constitutional Law, Development, Environmentalism, History, Planning, Property Rights, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 12, 2012

Fracking, Academic Freedom, and University Research

"Speaking of frac'ing fraking fracking, the University at Buffalo recently created a new Institute to study the issue. The Shale Resources and Society Institute (SRSI) was created back in April and has already been quite busy. It recently issued its first report on the Environmental Impacts of fracking Shale Gas Drilling.

My first reaction to this report was "Wow, I can't believe they put this together in just one month." Others actually spent more time carefully reading the document, however. Generally, the reaction has been a negative one.I think there are many reasons to criticize the fracking report and to question its findings and others have done so admirably. Environmentalists are concerned about the legitimacy of the study, which concluded that "state oversight of oil and gas regulation has been effective" and that there is "a low risk of an environmental event occuring in shale development, and the risks continue to dimish year after year."

There was some small kerfuffles regarding peer review (peers offered feedback but did not do a formal peer review) and folks disputed the data and the conclusions. I have been quite intrigued by the discussions that have popped up about the funding of the study. While people quickly jumped to the conclusion that the study was funded by oil and gas companies, that turned out not to be true. However, many criticize the publishing of what is a "pro-fracking' report from a public institution. Particularly rankling appears to be the report authors' ties to industry and a earlier report some of them had written for a conservative think tank. This is an issue we rarely face in legal academia as so few of us receive extensive outside funding (and I personally don't know anyone who has received industry funding), but I wonder how much we should have to disclose when publishing articles. Should we include a footnote explaining who our former clients are? what organizations we support? Do these requirements change if we work for public institutions?

Jessie Owley

 

June 12, 2012 in Oil & Gas, Politics, Scholarship, State Government | Permalink | Comments (1) | TrackBack (0)

Sunday, June 3, 2012

Lefcoe on California Redevelopment Decision

George Lefcoe (USC) has posted CRA v. Matosantos: The Demise of Redevelopment in California and a Proposal for a Fresh Start.  The abstract:

This paper describes how redevelopment in California came to an end with the California Supreme Court’s decision in California Redevelopment Association v. Matosantos and how redevelopment could be resuscitated. The first part of the paper highlights the precipitating events leading up to the case: California’s unique property tax history, the successes and drawbacks of redevelopment, how redevelopment is financed, and the text and politics of Proposition 22, the state constitutional predicate for the Court’s opinion. The second section describes the arguments and outcome of the case in which the Court upheld a statute dissolving redevelopment agencies (RDAs) and simultaneously struck down a companion bill — a “pay-to-stay” law — that would have enabled cities and counties to preserve their RDAs by pledging local funds to the state. A concluding section proposes that California legislators consider a new redevelopment enabling law, modeled along the lines of Texas’s tax increment reinvestment zones (TIRZs). Such a statute would conform to the guidelines for constitutionality from the concluding paragraph of the Court’s opinion in Matosantos, and it would be fiscally responsible because it limits the use of tax increment financing.

Matt Festa

June 3, 2012 in California, Caselaw, Constitutional Law, Local Government, Politics, Redevelopment, Scholarship, State Government, Texas | Permalink | Comments (0) | TrackBack (0)

Monday, May 28, 2012

Memorial Day

Memorial Day Houston National CemeteryToday was Memorial Day in the US.  There are lots of land use issues that we can associate with Memorial Day, which, stripped to its essence, is designed as a day to remember the military members who died in service to the nation.  There is the obvious land use issue of cemeteries, and the related legal and cultural norms governing how we memorialize the dead (check out any of the interesting blog posts or scholarship by Al Brophy and Tanya Marsh on cemeteries).  It gets even more relevant when we start talking about government-owned national or veterans' cemeteries, and the attendant controversies about First Amendment and other issues.  [The photo is from last year's Memorial Day ceremony at Houston National Cemetery, which my daughter attended to honor fallen Marine Lance Corporal Matthew Sauer Medlicott.]  Of course, there are always land use and local government issues involved with things like parades and public ceremonies, and in many communities there are specific rules that govern the "summer season" informally commenced on Memorial Day weekend.

For this post, though, I'll go back to the origins of the holiday.  Interestingly, it started as a private or quasi-public endeavor (perhaps like most civic affairs in the nineteenth century).  In the immediate aftermath of the American Civil War--and for much of the rest of the lives of the generations that fought it--Americans on both sides focused a great deal of attention on preserving its history and creating/controlling its public memory.  In 1868 General John Logan, head of the Union veterans' organization the Grand Army of the Republic (a private society with a great deal of government involvement), issued General Order No. 11, creating what became known as Decoration Day:

The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.

Even though this Decoration Day was only adopted in Union states until after World War I (when it was renamed Memorial Day and formally associated with all American wars), the former Confederate states had their own versions to remember the war dead at cemeteries and public venues.  And according to eminent Yale historian David Blight, the first Memorial Day celebration was performed in Charleston, SC, by newly-liberated blacks:

Thousands of black Charlestonians, most former slaves, remained in the city and conducted a series of commemorations to declare their sense of the meaning of the war. The largest of these events, and unknown until some extraordinary luck in my recent research, took place on May 1, 1865. During the final year of the war, the Confederates had converted the planters' horse track, the Washington Race Course and Jockey Club, into an outdoor prison. Union soldiers were kept in horrible conditions in the interior of the track; at least 257 died of exposure and disease and were hastily buried in a mass grave behind the grandstand. Some twenty-eight black workmen went to the site, re-buried the Union dead properly, and built a high fence around the cemetery. They whitewashed the fence and built an archway over an entrance on which they inscribed the words, "Martyrs of the Race Course" . . . . Then, black Charlestonians in cooperation with white missionaries and teachers, staged an unforgettable parade of 10,000 people on the slaveholders' race course. The symbolic power of the low-country planter aristocracy's horse track (where they had displayed their wealth, leisure, and influence) was not lost on the freedpeople.

Anyone interested in the contested history of these issues--with full attention to the negative aspects as well--should read the magnificent book by Prof. Blight (with a name like that, it's a shame he didn't go into land use!), Race and Reunion: The Civil War in American Memory.  And a related part of this history, along with the Decoration/Memorial Day commemorations, was the incipient historic preservation movement.  This confluence of impulses, as well as the also-new movement for environmental conservation, led to the novel idea of having the federal government acquire and administer large tracts of land for the purpose of preserving Civil War history.  As noted in the fascinating monograph by the late National Park Service Historian Ronald F. Lee, The Origin & Evolution of the National Military Park Idea, this was a new and not-uncontroversial exercise of government power over land use:

The idea of the Nation acquiring an entire battlefield and preserving it for historical purposes was new in 1890. It is therefore not surprising that it soon engendered a serious controversy, which arose, fittingly enough, at Gettysburg. The controversy involved two questions of fundamental importance to the future of historic preservation by the Federal Government. Is preserving and marking the site of an historic battlefield a public purpose and use? If so, is it a purpose for which Congress may authorize acquisition of the necessary land by power of eminent domain? The circumstances of this dispute, which had to be settled by the Supreme Court of the United States, are of unusual interest and provide an appropriate introduction to our story.

Lee describes the case, United States v. Gettysburg Electric Ry. Co., 160 U.S. 668 (1896), in the on-line version of the book provided by the NPS.  The case was brought by a railway which objected to the federal government's use of eminent domain to condemn their right of way for construction of a railway to take tourists to the significant "Devil's Den" area of the battlefield, "claiming that establishment of Gettysburg National Park was not a public purpose within the meaning of earlier legislation and that 'preserving lines of battle' and 'properly marking with tablets the positions occupied' were not public uses which permitted the condemnation of private property by the United States."  [What a long way from Kelo that was!]  Justice Rufus Peckham wrote for the unanimous majority in upholding the taking for preservation purposes (and not simply because members of the public could visit the park):

Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the constitution for the purpose of protecting and preserving the whole country.

The Court thus established the constitutionality of taking land by the federal government for national parks, and struck an important legal blow for historic preservation generally.

So from cemeteries to public memory to national parks and historic preservation and much more, Memorial Day is tied to land use law in many ways.  I hope that our US readers have had a good one, and with remembrance for those whom the holiday commends.

Matt Festa

May 28, 2012 in Caselaw, Constitutional Law, Eminent Domain, Environmentalism, Federal Government, First Amendment, Historic Preservation, History, Houston, Politics, Property Rights, Race, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Saturday, May 26, 2012

Stevenson & Eckhart on Standing as Channeling in the Administrative State

My colleague Drury D. Stevenson (South Texas) and Sonny Eckhart (JD, South Texas) have posted Standing as Channeling in the Administrative State, forthcoming in the Boston College Law Review, Vol. 53 (2012).  The abstract:

For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing.

This Article takes the suggestion a step further, and argues that Congress has implicitly delegated the matter to the administrative agencies with primary enforcement authority over the subject matter. Courts regularly allow agencies to fill gaps in their respective statutes, meaning congressional silence on a point often constitutes discretionary leeway for the agency charged with implementation of the statute. Agencies already have explicit statutory authority to preempt citizen suits or define violations for which parties may sue. The existing statutory framework therefore suggests agencies could promulgate rules for the injury-in-fact and causation prongs of standing in citizen suits. Moreover, agencies have an advantage over courts in terms of expertise about the harms involved and which suits best represent the public interest. On the more delicate question of citizen suits against agencies themselves, agencies could default to the “special solicitude for states” rule illustrated in Massachusetts v. EPA. Finally, this Article explains how standing can function as a beneficial channeling tool rather than an awkward screening device, by allowing agencies to align citizen suits more closely with the larger public interest and established policy goals.

The article's administrative-law approach would have special significance for environmental and land use issues, as evidenced by its discussions of American Electric Power v. Connecticut and Massachusetts v. EPA, and the fact that environmental issues are an important subject-matter source of citizen suits. 

You should really check out Dru Stevenson's excellent Privatization Blog, which follows a lot of important land use issues in state & local government, including the privatization of schools, prisons, and other local services.  And some of you may remember Sonny Eckhart's guest-post here last year on a development in the Severance case. 

Matt Festa

May 26, 2012 in Constitutional Law, Environmental Law, Environmentalism, Federal Government, Local Government, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Thursday, May 24, 2012

Nolon on Regulatory Takings, Property Rights, and Sea Level Rise

John R. Nolon (Pace) has posted Regulatory Takings and Property Rights Confront Sea Level Rise: How Do They Roll.  The abstract:

Under the Beach and Shore Preservation Act, the State of Florida is authorized to conduct extraordinarily expensive beach renourishment projects to restore damaged coastal properties. The statute advances the State’s interest in repairing the damage to the coastal ecosystem and economy caused by hurricanes, high winds, and storm surges. The effect of a renourishment project conducted under the statute is to fix the legal boundary of the littoral property owner at an Erosion Control Line. Plaintiffs in Walton County v. Stop the Beach Renourishment, Inc. claimed that the statute took their common law property rights to their boundary, which would, but for the Act, move gradually landward or seaward, maintaining contact with the water. The Florida Supreme Court disagreed and the U.S. Supreme Court granted certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection to determine whether the state court reinterpreted Florida’s common law as a pretext for upholding the statute against the plaintiffs’ taking claim and, if so, whether that reinterpretation constituted a “judicial taking.” The Court ultimately decided that the Florida court’s interpretation was correct and that there was no regulatory taking. A majority of the Court could not agree as to whether a state court’s interpretation of state common law could constitute a “judicial taking.”

This article discusses greenhouse gas emissions, global warming, sea level rise, and the ferocity of coastal storms associated with climate change. It explores the tension between these movements in nature and the policy of the State of Florida to fix property boundaries, which under common law would move landward as sea level rises. The property rights and title to land of littoral landowners are described and the effect of the Beach and Shore Preservation Act on them discussed. The article contrasts the Florida coastal policy regarding beach and shore protection with the policies and programs of federal, state, and local governments that use other approaches such as accommodating rolling easements, prohibiting shoreline armoring, requiring removal of buildings, purchasing development rights or the land itself, and imposing moratoria on rebuilding after storm events. These may be less expensive and more realistic approaches to long-term coastal erosion and avulsive events and the inevitability of sea level rise as the climate warms and worsens. The article concludes with a recommendation that the framework for federal, state, and local cooperation in coastal management be revisited and strengthened so that the critical resources and knowledge are brought to bear on this critical issue. It suggests that strengthening those ties, rather than radically restructuring the relationship between state and federal courts, is a more productive method of meeting the needs of a changing society.

This is the latest in a series of articles by Prof. Nolon addressing how local land use law can be used to manage climate change, including  The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change; Land Use for Energy Conservation: A Local Strategy for Climate Change Mitigation; and Managing Climate Change through Biological Sequestration: Open Space Law Redux.  The article also discusses Stop the Beach and our favorite Texas Open Beaches Act "rolling easement" case Severance v. Patterson, and offers some solutions toward an integrated federal-state-local framework for coastal management.

Matt Festa

May 24, 2012 in Beaches, Caselaw, Climate, Coastal Regulation, Conservation Easements, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Local Government, Property Rights, Scholarship, State Government, Supreme Court, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)

Friday, May 18, 2012

Eagle on Judicial Takings and State Takings

Steven J. Eagle (George Mason) has posted Judicial Takings and State Takings, forthcoming in the Widener Law Journal.  The abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a Supreme Court plurality asserted that takings liability could arise from judicial acts, as well as from state or local legislation and executive agency decisions. The Plurality’s rationale supporting “judicial takings” was that the Just Compensation Clause of the Fifth Amendment applies to State acts, not to particular State actors.

This article starts by reviewing the doctrinal bases for the Stop the Beach plurality opinion. It provides prudential reasons why rulings affecting property rights might be legitimate under state law, but nevertheless constitute compensable takings under the federal constitution. It then analyzes the implications of the “state acts and not state actors” doctrine to existing regulatory takings law. Viewed through the lens of “state acts,” the rationales of the Supreme Court’s Williamson County “state litigation” prong and its Dolan “legislative vs. adjudicative” bifurcation are undermined. Similarly, takings distinctions pertaining to whether small-scale rezonings are “legislative” or “quasi-judicial” acts are drawn into question.

Matt Festa

May 18, 2012 in Beaches, Caselaw, Constitutional Law, History, Judicial Review, Property Rights, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 16, 2012

Pipelines, Eminent Domain, and Property Rights

Up until now the Keystone Pipeline issue has been cast mainly as a contest between an economic development imperative and environmental conservation.  Legal commentators have analyzed it as an environmental issue.  As most people can infer, though, the notion of building an "infrastructure" project from Canada to the Gulf of Mexico will require some land rights.  Perhaps only in Texas can we see the underlying tension between two principles that are very often in direct conflict: the exploitation of oil and gas resources, and the property owner's rights to her land.  The New York Times last week did a fascinating story on one Texas landowner's fight against the eminent domain authority of the Keystone Pipeline, An Old Texas Tale Retold: The Farmer versus the Oil Company.

Ms. Crawford is worried about the possible contamination of her creek. She pointed out that the Keystone 1, TransCanada’s first pipeline, had a dozen spills in its first year of operation.

“I called my farm insurance agent and asked what happens if there’s a spill, I can’t water my crops, and my corn dies,” she said. “He said my insurance won’t cover that. I’d have to sue TransCanada for damages.”

The Crawfords are the last holdouts in Lamar County. (It is unclear how many are left in Texas; the company says it has 99 percent of the rights of way secured.) TransCanada asserts that it has used eminent domain only as “an absolute last resort” in an estimated 19 out of 1,452 land tracts in Texas. Critics dispute this number. . . .

Asked if she would take TransCanada’s offer now — if it meant the full $21,000, with all of her conditions met — she did not hesitate. “No,” she said. “There’s a $20,000 check sitting in the courthouse waiting for us,” she said. “But if we touch it, game over. We lose the use of our land, and we admit what they’re doing is right.”

This is a longstanding issue, both historically and today, but it often gets overlooked when people conflate Texas stereotypes about both property rights and solicitude for oil and gas.  Ilya Somin commented on the article at the Volokh Conspiracy, noting correctly that despite its pro-property rights reputation and cosmetic legislation, Texas law still empowers quite a bit of eminent domain for economic development purposes:

Such efforts are unlikely to succeed in Texas. As I described in this article, Texas is one of many states that have passed post-Kelo reform laws that pretend to constrain economic development takings without actually doing so. They might have a better chance in one of the other states through which the pipeline must pass.

The larger question that he poses is whether and how environmental concerns will play a part in future discussions about eminent domain and the never-ending debate over the essentially contested concepts of property rights and the common good.  In the real world of land use, the alignment of stakeholders, interests, policy preferences, and legal interpretations isn't always as easy to predict as the cartoon versions might imply.

Matt Festa

May 16, 2012 in Agriculture, Economic Development, Eminent Domain, Environmental Law, Environmentalism, History, Houston, Judicial Review, Oil & Gas, Property Rights, Scholarship, State Government, Takings, Texas | Permalink | Comments (1) | TrackBack (0)