Friday, February 10, 2012
The Pennsylvania legislature approved a bill that limits municipalities zoning
power with respect to gas drilling. The issue of municipal authority to zone for hydraulic fracturing and related operations has been a significant issue in Pennsylvania as it has in New York
(see February 2, 2012 post). Pennsylvania courts had determined the contours of municipal power but Governor Tom Corbett and industry representatives pushed a through bill that requires municipalities
to permit nearly all types of oil and gas operations in all zoning districts including residential neighborhoods and sensitive natural and cultural resource protection areas. The bill does not offer any increased protection to environmental resources although it does include some bonding requirements. Called a “compromise” the bill does include impact fees payable to the counties
and municipalities but concerns have been raised that the fees are insufficient to offset any costs. Governor Corbett is expected to sign the legislation this week.
Thursday, January 26, 2012
Jessica Owley (Buffalo) has posted Exacted Conservation Easements: Emerging Concerns with Enforcement, Probate & Property, Vol. 26, No. 1, p. 51, 2012. The abstract:
Enforceability of exacted conservation easements is uncertain. Legislators, activists, and academics did not contemplate the proliferation of exacted conservation easements when enacting, advocating for, and writing about state conservation easement statutes. Despite this early oversight, exaction has become one of the most common ways that conservation easements come into being. Enforceability of exacted conservation easements is a threshold question of analysis for the continued use of the tool. Assessing the validity, and thus legal enforceability, of the exacted conservation easements involves examining the state’s conservation-easement statutes and state servitude law as well as the underlying permit scheme.
This article presents a roadmap for investigating the enforceability of exacted conservation easements and makes three suggestions for improvement. First, states should address exaction in their state conservation-easement acts. Second, drafters should increase the precision and detail of the agreements, acknowledging and explaining the nature of the exaction and the underlying permitting law. Third, to clarify the elements and uses of exacted conservation easements to both agencies and citizens, government agencies that use exacted conservation easements should promulgate regulations related to their use. Such regulations should include ensuring that permit issuers retain third-party right of enforcements. This will keep the permitting agency involved even if it is not the holder of the exacted conservation easement.
Uncertainty in enforceability of exacted conservation easements calls into question their use as a method of land conservation. Furthermore, the questionable validity of exacted conservation easements indicates that the permits relying upon such exactions could be ill advised and potentially in jeopardy.
This accessible piece builds on some of the concerns outlined in her recent Vermont Law Review piece, The Enforceability of Exacted Conservation Easements.
Saturday, January 14, 2012
From an email sent by Rick Su (Buffalo), the Chair of the AALS Section on State & Local Government Law, here is something that may be of interest to land users. The Section is already planning for the 2013 AALS meeting in New Orleans:
The tentative title is Cities in Recession. The program will look into the many ways that cities have not only been affected by, but are also responding to, the current economic downturn. This should provide a timely lens for exploring a wide range of local government issues, from municipal finance to education to economic development. In addition, it offers an opportunity to look at both distressed and resilient cities. The planning for this panel is in its early stages; I eagerly welcome any comments or suggestions that you might have (firstname.lastname@example.org).
Thursday, January 5, 2012
I've been enjoying the outstanding posts on last week's landmark California Supreme Court ruling by Ken Stahl (here and here) and guest-blogger Stephen Miller (here and here) (I smell a great panel or symposium topic in the making). Just now I came a cross an early analysis by Stephen Greenhut at City Journal, the always-interesting center-right urban affairs journal. Greenhut has a strongly positive take on the decision in Crony Capitalism Rebuked California’s supreme court strikes a blow for property rights and fiscal sanity:
On December 29, the California Supreme Court handed down what the state’s urban redevelopment agencies (RDAs) and their supporters called a “worst of all worlds” ruling—first upholding a law that eliminates the agencies, then striking down a second law that would have allowed them to buy their way back into power. This was great news for critics who had spent years calling attention to the ways modern urban-renewal projects distorted city land-use decisions, abused eminent-domain policies, and diverted about 12 percent of the state budget from traditional public services to subsidies for developers, who would build tax-producing shopping centers and other projects sought by city bureaucrats. As of now, the agencies are history, though the redevelopment industry is working to craft new legislation that would resurrect them in some limited form.
January 5, 2012 in California, Caselaw, Constitutional Law, Development, Economic Development, Eminent Domain, Judicial Review, Local Government, Politics, Property Rights, Real Estate Transactions, Redevelopment, State Government | Permalink | Comments (1) | TrackBack (0)
Saturday, December 31, 2011
Happy Holidays to all and best wishes for a great new year! I've been on blog hiatus (blogatus? blogcation?) but simply had to report this piece of news. Two days ago the California Supreme Court put a huge lump of coal in the Christmas stocking of California's very naughty redevelopment agencies, issuing an epochal (or perhaps apocalyptic) but not entirely surprising decision that puts an end to redevelopment in the state of California, probably the state where redevelopment has hitherto been most popular. As of 2008, there were 395 redevelopment agencies in California, holding $12.9 billion in assets in 759 redevelopment zones. Now, after the court's ruling, they are all history. The court upheld a state law abolishing all California redevelopment agencies, and struck down a compromise bill that would have permitted redevelopment agencies to stay in business if they shared some of their tax revenue with other local government agencies, mostly school districts. Forlorn city leaders are already predicting all sorts of doomsday scenarios for cash-strapped California cities. Critics of redevelopment such as the Institute for Justice, are, as you can imagine, more pleased with the result. They must take especial delight in knowing, as I explain below, that redevelopment agencies basically brought this plight on themselves. Critics will be less pleased to learn that redevelopment is almost certainly not really dead, and will likely be back in a form hardly less objectionable to its critics than the original. According to this great recap from California Planning & Development Report (an excellent resource, by the way), this lawsuit was never about the merits of redevelopment itself, but was just the beginning of a complex negotiation over who is going to control the prized redevelopment money.
Much more below...
Thursday, December 8, 2011
Last month I posted a rant on Election Day and State Constitutions based on the referendum for new Texas constitutional amendments; Ken Stahl posted a thoughtful response with a qualified defense of direct democracy in ballot-box zoning, which set forth some thoughts that he more fully elaborates in his excellent article The Artifice of Local Growth Politics: At-Large Elections, Ballot-Box Zoning, and Judicial Review.
My complaints--prompted by my frustration with a slate of ten poorly-articulated and confusing process amendments for which the State Legislature required a nominal thumbs-up from the people-- were more focused on (1) statewide (more than with local) lawmaking through referenda; and (2) the over-constitutionalization of public policy in fundamental state law. Troy Senik has written an article for City Journal that articulates some of the points of this (hardly original) critique: Direct Dysfunctionality: California celebrates 100 years of the initiative, referendum, and recall.
Golden State voters can approve or reject public-policy changes at the ballot box through the use of the initiative and referendum. They can also remove unpopular elected officials with the less frequently employed recall, made famous when it chased out Governor Gray Davis in 2003. While nearly half of U.S. states have an initiative process of some kind, nowhere is it as central to the political process as in California, where, in 2010 alone, 14 issues appeared on the ballot. As a result, voters constitute a de facto fourth branch of government. . . .
These measures were introduced in the salad days of the early Progressive movement, when California Governor Hiram Johnson (who would eventually serve as Theodore Roosevelt’s running mate on the Bull Moose presidential ticket of 1912) pressed for their implementation as a firewall against political domination by special interests—particularly those of the well-heeled railroads. . . .
But statewide direct constitution-making has its problems:
Expediting policy shifts, however, is a relatively modest benefit in exchange for the dramatic cost of the initiative process: inducing widespread public-sector sclerosis. Rather than simply providing an outlet for popular grievances, direct democracy actually annexes huge swaths of policymaking from the legislature. When voters mandate a policy directive from the ballot box, the legislature has no way to override the decision, even by supermajority. As a result, any issue that voters weigh in on directly becomes their exclusive purview in perpetuity—amendable or repealable only by another popular vote. This also has the ironic effect of slowing down the democratic process that the initiative system is supposed to make more responsive, ensuring that policy shifts can only come on election days spread years apart. And many of the ballot measures take the form of constitutional amendments, a trend that has given California the unenviable distinction of having the third-longest constitution in the world, after India and (believe it or not) Alabama. Because altering the state’s foundational political charter only requires a simple majority, California ends up inhabiting a bizarro world where it’s relatively easy to amend the constitution but can be nearly impossible to alter basic public policy.
So as with any political process tool, it's a mixed bag with some good things that can be contorted into bad results; my tentative thesis is that direct democracy is less effective the broader the polity (i.e. state vs. local) that engages in it. I know, James Madison and others had something to say about this too.
Soon I'll blog about an interesting local-government direct democracy land use requirement that is a little different from the ones that Ken has written about.
Monday, December 5, 2011
On Wednesday, the U.S. Supreme Court will hear one of the only cases that touches on property rights scheduled for this Term, PPL Montana, Inc., v. Montana. Professor Thomas Merrill has posted an excellent preview of the case on SCOTUS blog:
On December 7, the Court will hear argument in PPL Montana, LLC v. Montana. The case is one for history buffs. The question is whether the state of Montana holds title to portions of three riverbeds in the state. The parties agree that the relevant legal test is historical: were the river segments in question part of a waterway that was “navigable in fact” when Montana became a state in 1889? Prominent among the many bits of historical evidence cited are the journals of Meriwether Lewis and William Clark, who explored the rivers in 1805 on their famous expedition.
That's enough to get me excited (seriously). Go read the rest of Prof. Merrill's informative analysis. (h/t to our friends at Property Prof Blog for the link).
And don't forget that we had our own pre-preview here at the Land Use Prof Blog, back on the day after the Court granted cert. From guest-blogger Tim Mulvaney's take on SCOTUS cert grant for PPL Montana v. Montana:
In finding that all three rivers at issue met this “navigability for title” test when Montana entered statehood in 1889, the Montana Supreme Court cited to a litany of historical evidence, including the centuries-old journals of Lewis and Clark. As today’s brief AP story notes, PPL Montana disagreed, pointing “to accounts of the [Lewis and Clark] expedition’s arduous portages of canoes and supplies around waterfalls to argue that the contested stretches of water were not navigable.” The Montana Supreme Court’s opinion also drew PPL Montana’s ire by considering what the company alleges are flawed contemporary studies, as well as recent recreational uses of certain stretches of the rivers, to support the finding that the rivers are held in total by the state in trust for present and future generations.
One of the foremost experts in natural resources and water law, Professor Rick Frank, notes on Legal Planet that the U.S. Supreme Court has not addressed navigability in the context of state public trust claims for several decades. How the Supreme Court interprets its time-honored test and identifies what evidence is relevant in its application could have major ramifications for thousands of miles of inland lakes and waterways nationwide.
Should be very interesting. Stay tuned.
December 5, 2011 in Caselaw, Constitutional Law, Federal Government, History, Property Rights, Scholarship, State Government, Supreme Court, Takings, Transportation, Water | Permalink | Comments (0) | TrackBack (0)
Thursday, November 10, 2011
Ilya Somin (George Mason) has an op-ed in Daily Caller about the passage of Mississippi Measure 31, a post-Kelo eminent domain reform measure: Referendum Initiatives Prevent Eminent Domain Abuse. The intro:
The Supreme Court’s 2005 decision in Kelo v. City of New London generated a record political backlash. Kelo upheld the condemnation of private property for transfer to other private owners in order to promote “economic development.” The case inspired widespread outrage. Polls show that over 80% of the public opposes economic development takings. As a result, 44 states have enacted eminent domain reform laws that restrict the condemnation of property for the benefit of private interests.
The most recent state to react to Kelo is Mississippi. On Tuesday, Mississippi voters adopted Measure 31 by a decisive 73% to 27% margin. The new law will make taking property for economic development unprofitable by forbidding most transfers of condemned land to a private party for 10 years after condemnation. The measure is a major victory for both property owners and the state’s economy.
Somin has also blogged on the measure at the Volokh Conspiracy here and here. And from the former post, here's a nugget that's relevant to the discussion Ken and I have been having on direct democracy in land use:
As I explain in this article, referendum initiatives like Measure 31 tend to be stronger than reforms adopted by state legislatures because many of them are drafted by activists rather than by politicians. Measure 31 was submitted drafted by the Mississippi Farm Bureau Federation (small farmers are often victims of eminent domain in the state). The vast majority of post–Kelo referenda adopted by voters impose tough restrictions on takings.
More on that to come soon!
Tuesday, November 8, 2011
So I sat down to write a post noting some of the land-use related issues that are before Texas voters today as proposed amendments to the state constitution, and then I went off on a rant about why I don't like voting on state constitutional amendments--generally, because they're already too bloated with non-fundamental policy; and specifically, because of the informational problems that make it a terrible democratic mechanism. But anyway, there are ten proposed amendments to the Texas constitution today, so let's see if any involve land use . . .
None of them seem to be that radical this year, and hence haven't gotten any publicity to speak of (unlike last time around (2009), when eminent domain reform and constitutionalizing the Texas Open Beach Act were on the ballot). But as always, a few of them will affect land use--politically, structurally, and fiscally. The 2011 Analysis of Proposed Constitutional Amendments by the Texas Legislative Council is probably the best source out there. So let's take a look at a few. I'll paraphase the ballot language, which in turn only paraphrases the actual text of the amendments that will be come law!
1. Authorizing the legislature to provide a property tax exemption on the residential homestead of a surviving spouse of a 100% disabled veteran;
2. Authorizing the Texas Water Board to issue general obligation bonds up to $6 billion for water projects;
4. Authorize the legislature to allow a county to incur debt "to finance the development or redevelopment of an unproductive, underdeveloped, or blighted area within the county," and to pay for it with increased tax revenues from that area.
Now this one really strikes me as a great example of what I was talking about in my last post. What this is about is tax-increment financing, e.g. TIFs. On the one hand, if you read the background of this proposal, it's not radical; it's simply giving county governments the same power that municipal governments already have. On the other hand, the uses and abuses of TIFs are a big deal, and if it took this land use professor a few minutes of closely reading the ballot language to figure out that that's what were voting on, I can't have much confidence that this vote is in any way informed.
5. Authorize the legislature to allow city and county governments to enter contracts with each other (for, e.g., consolidation or regional projects) without the imposition of a tax or a sinking fund).
6. Allow the General Land Office to distribute revenue from certain dedicated lands for educational purposes.
7. Allow El Paso County to create conservation and reclamation districts to develop parklands.
8. Require the legislature to tax open space land devoted to water stewardship based on its productive capacity rather than its (usually higher) market value.
So there you have it, out of ten proposed state constitutional amendments put before the people of Texas today by the biennial session of the legislature, seven of them by my count have at least something to do with land use, even though they're more about structure and finance than use regulations per se. But of course, some of my students accuse me of "turning everything into a land use issue." But we all know it's true, right?
Anyway, I've got to run out now and go vote!
UPDATE 11/9/11: Seven amendments passed; the three that failed were #4 (county TIFs); #7 (El Paso parks); and #8 (tax assessment for water stewardship). The Secretary of State has the results. But hey, over 5% of the registered voters turned out!
Even though the media is obsessed with the 2012 elections, it is the first Tuesday after the first Monday in November, and as land use folks well know, a lot of important law is made at the state and local level during off-year elections. Today in Texas there are ten state constitutional amendments on the ballot for voter approval, generated by the 2011 legislative session (Texas' legislature still meets only bienially--one of four remaining states to do so, and the only major state).
I'm generally not a fan of constant new constitutional amendments, for two reasons, one structural and one democratic. First, many state constitutions--like Texas'--are already bloated. I printed it out once--all 80,806 words of it (sorry environmental profs)--and I make the point in class by comparing the massive document to a pocket U.S. Constitution. In general, I don't think that most mundane policy issues should be entrenched in fundamental law. On the other hand, this structural critique can be countered somewhat by the argument that while the federal constitution enables the Congress to do a certain range of things, state legislatures already have plenary power, so state constitutions largely exist to limit the legislature--and then they need to be amended often to adjust those limits. But still . . . 80,806 words?
My second beef with the practice of placing a slew of state constitutional amendments is has more to do with the theory of state and local elections, and I don't like it for the same reason I'm skeptical of the overuse of initiative and referendum. What could be more democratic than letting the people vote, you ask? The problem is informational. I usually ask my upper-level state & local government students--a sample of pretty well educated and informed voters--which way they voted on certain amendments or referenda from prior years. Almost universally I get two responses; either (a) no recollection whatsoever; or, occasionally, (b) they voted with their gut based on a cursory reading of the ballot text in the voting booth. And if they remember which way they voted, it was usually "yes" because the text sounded like "good things," or "no" because the text sounded like "spending more money."
There in turn at least two reasons why even smart voters end up voting with their gut on these important measures. First, the ballot language is usually vague and fuzzy, and often is quite different from the actual text of the law that will go on the books. I don't think this is usually done to confuse the voters, I think it's the opposite intent--but regardless, the ballot language in my experience is usually so general that it fails to communicate what the proposal is really about. Another major reason, of course, is that with a few exceptions, these items don't get very much media exposure. So most Texans probably know a lot more about, e.g., the latest in sexual harrassment allegations against national candidates, than they do about the 10 items they are probably going to add to the state constitution today. The info is out there, but it's up to the individual voter to burn some calories and go find and read information such as the analysis by the Texas Legislative Council.
Now in class, we talk about whatever amendments and referenda are on the ballot, and it's a lot of fun. Students do class presentations, we have guest speakers, and so on. And it often turns out that a lot of these state constitutional amendments (and local referenda) are substantively about land use--from eminent domain to land sales, zoning, conservation, and more (which was going to be the original point of this post, before I got off on my rant). So I do my part to create a group of 40 or 50 educated voters.
But if that's what it takes, is democracy really served by putting all this stuff on the ballot, and in such a vague manner? I find more and more that people in general really do care about land use in their communities and their region. A lot. Yet in the cases where they actually have a say in the matter, it gets translated so poorly that most votes actually cast are probably not informed ones. So it's the people behind the scenes in and around legislative bodies that end up making all the rules.
November 8, 2011 in Constitutional Law, Eminent Domain, Environmentalism, History, Local Government, Politics, Property Rights, State Government, Texas, Zoning | Permalink | Comments (0) | TrackBack (0)
Monday, November 7, 2011
John R. Nolon (Pace) has posted Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation. The abstract:
Land use tools and techniques have impressive potential to reduce energy consumption, improve the economy, and mitigate climate change. This article explores the little understood influence of local land use decision-making on energy conservation and sustainable development and how it can mitigate climate change if properly assisted by the federal and state governments. The construction and use of buildings combined with extensive vehicular travel throughout the nation’s human settlements consume large amounts of energy, and much of that consumption is highly inefficient. By enforcing and enhancing energy codes, encouraging the use of combined heat and power and district energy systems, properly orienting and commissioning buildings, incorporating renewable energy resources, and promoting transit and other methods of reducing vehicle miles travelled, local land use law’s potential to achieve energy conservation and sustainable development can be unlocked. These techniques can be organized at the neighborhood level and aggregated by adopting local Energy Conservation Zoning Districts in neighborhoods where significant energy conservation can be achieved. The article proposes federal and state policies, combining features of both the Coastal Zone Management Act and the Enterprise Zone initiative, that can facilitate local land use initiatives that will shape human settlements and control the built environment as a new path toward energy efficiency and climate change mitigation.
In the footnotes, Prof. Nolon notes that this is part of a trilogy:
FN.1. This article is one of three that examine how local land use law that can be used as an effective strategy to mitigate climate change. See John R. Nolon, The Land Use Stabilization Wedge Strategy: Shifting Gound to Mitigate Climate Change, 34 WM. & MARY ENVTL. L. & POL’Y REV. 1 (2009) [hereinafter Land Use Stablization Wedge] and John R. Nolon, Mitigating Climate Change through Biological Sequestration: Open Space Law Redux, 31 STAN. ENVTL. L.J. (forthcoming Winter 2011) [hereinafter Open Space Law Redux].
This is a great set of articles for anyone interested in the subject from one of the leaders in land use and local environmental law.
November 7, 2011 in Climate, Coastal Regulation, Environmental Law, Environmentalism, Federal Government, Green Building, Local Government, Planning, Scholarship, State Government, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 4, 2011
Jessica Owley (Buffalo), one of our excellent erstwhile guest bloggers, has posted The Enforceability of Exacted Conservation Easements, forthcoming in 36 Vermont Law Review (2011). The abstract:
The use of exacted conservation easements is widespread. Yet, the study of the implications of their use has been minimal. Conservation easements are nonpossessory interests in land restricting a landowner’s ability to use her land in an otherwise permissible way, with the goal of yielding a conservation benefit. Exacted conservation easements arise in permitting contexts where, in exchange for a government benefit, landowners either create conservation easements on their own property or arrange for conservation easements on other land.
To explore the concern associated with the enforceability of exacted conservation easements in a concrete way, this article examines exacted conservation easements in California, demonstrating that despite their frequent use in the state, their enforceability is uncertain. The three California statutes governing conservation easements limit the ability to exact conservation easements. California caselaw, although thin, indicates that courts may be willing to uphold exacted conservation easements even when they conflict with the state statutes. This examination of the California situation highlights California-specific concerns while providing a framework for examining exacted conservation easements in other states.
This article illustrates not only challenges of enforceability that arise with exacted conservation easements, but uncertainty in their fundamental validity and concerns about public accountability. This exploration illustrates that enforceability is not straightforward. This raises significant concerns about using exacted conservation easements to promote conservation goals, calling into question specifically the use of conservation easements as exactions.
October 4, 2011 in Conservation Easements, Environmental Law, Environmentalism, Local Government, Property Rights, Scholarship, Servitudes, State Government, Sustainability | Permalink | Comments (0) | TrackBack (0)
Monday, October 3, 2011
Michael Lewis, the author of popular financial nonfiction books such as Liar's Poker, Moneyball, and The Big Short, has published an interesting Vanity Fair article on the looming municipal debt crisis called California and Bust. The intro:
The smart money says the U.S. economy will splinter, with some states thriving, some states not, and all eyes are on California as the nightmare scenario. After a hair-raising visit with former governor Arnold Schwarzenegger, who explains why the Golden State has cratered, Michael Lewis goes where the buck literally stops—the local level, where the likes of San Jose mayor Chuck Reed and Vallejo ﬁre chief Paige Meyer are trying to avert even worse catastrophes and rethink what it means to be a society.
While the piece isn't directly about land use, most of us know that land use is fundamentally intertwined with local government finance. The muni debt crisis flows from the real estate bubble, and future land use and development will be driven by the fiscal health of local governments. Also, just about anything by Michael Lewis is worth a read . . . no one else can spin a yarn about the financial world quite like him.
Ilya Somin (George Mason) has posted Let there be Blight: Blight Condemnations in New York after Goldstein and Kaur, part of a February 2011 symposium “Taking New York: The Opportunities, Challenges, and Dangers posed by the Use of Eminent Domain in New York”, and published at 38 Fordham Urban Law Journal 1193 (2011). The abstract:
The New York Court of Appeals’ two recent blight condemnation decisions are the most widely publicized and controversial property rights rulings since the Supreme Court decided Kelo v. City of New London. In Kaur v. New York State Urban Development Corp., and Goldstein v. New York State Urban Development Corp., the Court of Appeals set new lows in allowing extremely dubious “blight” condemnations. This Article argues that the New York Court of Appeals erred badly, by allowing highly abusive blight condemnations and defining pretextual takings so narrowly as to essentially read the concept out of existence.
Part I briefly describes the background of the two cases. Goldstein arose as a result of an effort by influential developer Bruce Ratner to acquire land in Brooklyn for his Atlantic Yards development project, which includes a stadium for the New Jersey Nets basketball franchise and mostly market rate and high-income housing. Kaur resulted from Columbia University’s attempts to expand into the Manhattanville neighborhood of West Harlem. When some of the landowners refused to sell, Ratner and the University successfully lobbied the government to declare the land they sought to be blighted and use eminent domain to transfer it to them.
Part II addresses the issue of blight condemnation. Goldstein and Kaur both applied an extraordinarily broad definition of “blight” that included any area where there is “economic underdevelopment” or “stagnation.” In addition, the court opened the door for future abuses in three other, more novel, respects. First, it chose to uphold the condemnations despite evidence suggesting that the studies the government relied on to prove the presence of “blight” were deliberately rigged to produce a predetermined result. Second, it dismissed as unimportant the fact that the firm which conducted the blight studies had previously been on the payroll of the private parties that stood to benefit from the blight condemnations. Finally, the court refused to give any weight to extensive evidence indicating that Ratner and Columbia had themselves created or allowed to develop most of the “blight” used to justify the condemnations. The court’s approach opens the door to future abusive condemnations and violates the text and original meaning of the New York State Constitution.
Part III discusses Goldstein and Kaur’s treatment of the federal constitutional standard for “pretextual” takings. In Kelo and earlier decisions, federal courts made clear that “pretextual” takings remain unconstitutional despite the Supreme Court’s otherwise highly deferential posture on “public use.” Unfortunately, the Supreme Court has been extremely unclear as to what constitutes a pretextual taking. As a result, courts have taken widely differing approaches to the issue. Nevertheless, Kaur and Goldstein are outliers in this area, deferring to the government more than almost any other court that has addressed the question since Kelo. They virtually read the concept of pretext out of existence.
Looks like another insightful piece on this still-controversial subject.
October 3, 2011 in Caselaw, Conferences, Constitutional Law, Development, Eminent Domain, New York, Property Rights, Redevelopment, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)
Sunday, October 2, 2011
This month begins a term at the U.S. Supreme Court in which the Court will hear two important cases concerning land use. The cases turn on very different doctrinal issues. One concerns rights and remedies under the Administrative Procedure Act. The other involves an actual property issue, namely whether a state has title to a river bed arising out of application of the navigable waterway doctrine. In most ways, the cases could not be more different. Yet they are connected by one common theme. Both cases demonstrate the dangers—to landowners and governments alike—when a government entity is both a party interested in the outcome of a land use dispute and the authority charged with adjudicating the dispute.
The first case is Sackett v. EPA. According to their counsel, the Sacketts planned to build their dream home near (but not adjacent to) a lake in Idaho. They acquired the necessary local permits and received the assurance of the U.S. Army Corps of Engineers that no federal permits were required. They had begun preparations to build when EPA showed up, insisting that the lot was situated on wetlands (the putative wetland area is separated from the lake itself).
As commentators on both the Left and the Right have observed, the factual question whether the Sacketts’ land is part of nearby wetlands is contestable. But the Sacketts have no way of contesting EPA’s contention unless and until EPA seeks enforcement of an order against them in federal court; two lower federal courts ruled that federal law provides no mechanism for a pre-enforcement challenge. As the Sacketts’ counsel pointed out, this situation left the Sacketts with an “unenviable choice.” They could apply for a permit that they believe they are not required to obtain and pay the associated costs. Or they could expose themselves to an enforcement action and the associated fines, which could run over $30,000 per day. Either way, they would incur inordinate expense to build on a lot that they purchased for $23,000.
This Hobson’s choice for the Sacketts rendered EPA the de facto adjudicator of their rights. And had a public interest litigation group not come to their aid, the Sacketts would have been at the mercy of a federal administrative agency that served as investigator, prosecutor, judge, and jury. Because the Court has agreed to hear the Sacketts’ claim not under the Clean Water Act but under the broader Administrative Procedure Act, the implications of the Court’s ruling could reach far. Jonathan Adler has speculated, “While this case focuses on the Clean Water Act’s ACO regime, the cert grant makes clear that it will have broader application to laws that employ similar enforcement mechanisms, including the Clean Air Act and Superfund.”
Does the constitutional test for determining whether a section of a river is navigable for title purposes require a trial court to determine, based on evidence, whether the relevant stretch of the river was navigable at the time the State joined the Union as directed by United States v. Utah, 283 U.S. 64 (1931), or may the court simply deem the river as a whole generally navigable based on evidence of present day recreational use, with the question “very liberally construed” in the State’s favor?
According to the pleadings, the case arose when the State of Montana decided to claim title in riverbeds that had long been used by a private landowner, namely a power company using the river to generate hydroelectricity. Montana became a state in 1889. Two years later, in 1891, a predecessor-in-title to the power company built a dam near Fort Benton, Montana on the Missouri River, apparently believing that this stretch of the river was not navigable, and that the State of Montana therefore had no title in it. More dams were built on the Missouri and Madison Rivers, and the State, no doubt benefiting from this land use, did not object. Indeed, the State participated in the licensing proceedings for some of the dams.
Then, in 2004, the State of Montana, piggybacking on a lawsuit filed by parents of Montana school children, claimed that it had owned title to the riverbeds all along because the contested stretches of river are navigable. The Montana Supreme Court ruled for the State and upheld a judgment of $41 million in back rent.
In this case, the government actor advocating on behalf of the state—the Montana Attorney General—is distinct from the state courts that adjudicated the claim. But the central issue in the case turns on a disputed, mixed question of fact and law. And about this question the Montana state courts showed strikingly little curiosity. Despite 500 pages of expert testimony and exhibits disputing the State’s assertion of navigability, the Montana Supreme Court affirmed the trial court’s entry of summary judgment for the State. The Montana courts appear to have simply accepted the Montana Attorney General’s proposed findings.
It is now increasingly common for states and federal agencies to advocate for particular outcomes of private land use proposals. I intend to explore some of the implications of this trend at length in later posts. But in short, whatever its benefits, this advocacy entails significant costs. And these costs are not borne only by landowners. I will argue that the governmental authorities themselves pay a price, because they risk damaging their reputations as impartial ministers of law.
Update: David Breemer of the Pacific Legal Foundation (PLF) comments below. As I should have noted, PLF is the public interest firm representing the Sacketts.
Thursday, September 1, 2011
Since Justice Stevens told the states in Kelo v. City of New London (2005) that they were free to provide additional eminent domain restrictions through state law, policy groups and lawmakers in Texas have been trying to take him up. There were a few small measures to come through the past three (biennial) legislative sessions, but nothing too meaty. Governor Rick Perry even vetoed an eminent domain reform bill in 2007. But this spring after an "emergency" session, Gov. Perry signed Senate Bill 18--"An act relating to the use of eminent domain authority." And today, eminent domain reform became law in Texas.
September 1, 2001 is the day that dozens of laws passed in the spring 2011 legislative session take effect. The eminent domain reform--which is now codified in the Property Code, the Local Government Code, and various other statutes--basically makes it harder for entities to exercise eminent domain, and gives landowners more procedural protections:
- It requires that eminent domain can only be exercised for "public use," and replaces all statutory references (apparently there were many!) to "public purpose." "Public use" is still undefined, so while the legislature's intent is to restrict economic development and other types of takings, this one will probably end up in the courts.
- It adds public hearing and notice requirements and voting mandates to any use of eminent domain authority; it also adds certain requirements for bona fide written offers to purchase.
- It requires all public or private entities who think they have eminent domain power to submit a letter to the state comptroller for review by the legislature.
- It gives landowners additional statutory rights to repurchase property not actually used for the "public use."
We'll have to see if this law has substantive effects on the use of eminent domain, but at minimum it seems to provide some procedural protections. Yesterday at my daughter's soccer practice--i.e., the last day before the new law took effect--one of the other parents told me that his firm filed hundreds of lawsuits that day, related to ongoing projects. So at least there will be a lot of work for the lawyers!
Tuesday, August 30, 2011
Boston College Third World Law Journal Notes Editor Asher Alavi has written KELO SIX YEARS LATER: STATE RESPONSES, RAMIFICATIONS, AND SOLUTIONS FOR THE FUTURE. Here's the abstract:
In 2005, the U.S. Supreme Court upheld the constitutionality of eminent domain takings that benefit private developers in Kelo v. City of New London. The case led to public outcry on both the right and the left and the revision of many state eminent domain laws to curtail such takings. However, most of the new laws have been ineffective. In many states, the burden of the takings falls largely onto poor, minority communities while, in others, revitalization projects by private developers are prohibited entirely. This Note examines the negative implications of current approaches to takings on inner-city, minority communities and concludes that states should adopt an approach that allows revitalization of blighted areas by private developers but also provides effective limits such as a narrow definition of blight, enhanced compensation for the displaced, and procedural provisions such as Community Benefits Agreements.
Jamie Baker Roskie
August 30, 2011 in Community Economic Development, Development, Eminent Domain, Local Government, Property Rights, Race, Redevelopment, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)
Monday, August 15, 2011
Sean Nolon (Vermont) has posted Negotiating the Wind: A Framework to Engage Citizens in Siting Wind Turbines, Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011. The abstract:
Electricity generated from wind turbines must be a central part of any renewable energy regime. The build out of any wind energy infrastructure policy relies on facility siting decisions at the local and state level. Local opposition in some areas has created an implementation impasse that is best addressed from a systematic perspective, recognizing that citizens play a central role in making significant land use decisions. Through this article, the author explores the nature of citizen opposition to locally unwanted land uses like wind turbines and proposes a suite of collaborative mechanisms to address concerns through effective citizen engagement in policy development and during local siting decisions. The author proposes a federal structure that provides incentives to encourage collaborative governance at the state and local level. The framework leaves state siting structures in place and provides resources to improve decision-making processes and the outcomes. By involving citizens effectively at the policy and siting level, the hope is that wind turbine siting decisions will be more effective. Instead of encouraging divisions among the levels of government, this model builds on their strengths and supports their weaknesses.
August 15, 2011 in Clean Energy, Environmental Law, Federal Government, Local Government, Planning, Scholarship, State Government, Sustainability, Wind Energy | Permalink | Comments (1) | TrackBack (0)
Thursday, August 11, 2011
Ilya Somin (George Mason) has posted Federalism and Property Rights, University of Chicago Legal Forum (2010 Symposium on Governance and Power), p. 1, 2011. The abstract:
Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property rights. Defenders of the federalism rationale for judicial deference on property rights issues make two key arguments. One holds that abuses of property rights by state or local governments will be curbed by interjurisdictional competition, rendering judicial intervention unnecessary. The second is the superior knowledge and expertise of state and local governments relative to federal judges.
This article criticizes both claims. Part I explains why competitive federalism is unlikely to provide effective protection for property rights in land because property is an immobile asset. People who “vote with their feet” by leaving a jurisdiction cannot take their land with them. For this crucial reason, interjurisdictional competition will often fail to effectively protect property rights in land, though it may be more useful in the case of rights to mobile property.
Part II takes up the issue of diversity and expertise. While state and local governments may indeed have greater expertise than federal courts in assessing local conditions, federal judicial protection of property rights ultimately empowers not judges but property owners. It is the latter who will actually get to decide the uses of the land in question in cases where federal courts prevent state or local governments from condemning their property or restricting its use. Owners generally have greater knowledge of their land than local government officials do. Moreover, the local expertise rationale for judicial deference on property rights would, if applied consistently, justify judicial deference to state and local governments with respect to numerous other constitutional rights, including those protected by the First and Fourth Amendments.
Questions about federalism with respect to property and land use have been getting a lot of attention recently. This article looks like it will really contribute to those discussions. While other land use scholars are focusing on questions of federal vs. state vs. local regulation of property and land (i.e., legislative and administrative acts), Somin's article focuses on asking which level of government is appropriate to exercise judicial review of those acts. It will be interesting to compare.
August 11, 2011 in Constitutional Law, Economic Development, Eminent Domain, Federal Government, Judicial Review, Local Government, Property Rights, Property Theory, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)
Thursday, August 4, 2011
I was on the road for about a month with very little internet access (more on that to come). Fortunately, my land use students keep me up to date on things. Late last week I learned from my student Sonny Eckhart that the Texas Supreme Court issued its latest, and perhaps last, ruling in the Severance v. Patterson case that we've been following here on the blog, "abating" the case until the Fifth Circuit rules on the issue of mootness. I asked him to write it up for our readers, and here's what he has to say:
For those who have been following the Open Beach Act Litigation in Severance v. Patterson: warning, you might be a little disappointed. The Severance case is a challenge to the Texas Open Beaches Act, where Galveston Island homeowner Carol Severance brought suit against the Texas Attorney General and other state officials over the central issue of whether private beachfront properties on Galveston Island have redress when a public beach access easement is “rolled” onto private property when the vegetation line migrates landward. Needless to say, this has caused a stir in the courts and among legal scholars. During this process, the Land Use Prof Blog has provided several discussions and updates on the long-running dispute. See here, here, here, here, here, and here.
On November 5, 2010, the Texas Supreme Court issued their opinion concluding public easements do not always “roll” with the beachfront. Most notably, the court distinguished between a change or avulsion caused by a natural event, such as a hurricane, and a “gradual change.”It would appear that Carol Severance had won a substantial victory. To combat this, the State filed a motion for rehearing—a motion that held the support of several amicus groups. The court granted rehearing in Severance and heard arguments four months ago, in April.
The facts of the case took an unexpected turn a few weeks ago when Carol Severance sold her property in Galveston, and thus may have rendered the legal action moot. The State acted quickly and filed a motion to vacate the November 2010 opinion before sending this matter back to the Fifth Circuit. Both parties submitted briefs on the issue of mootness. See State’s brief on mootness; Severance’s brief on mootness. Last Friday, July 29, the court issued an order that abated the case until the Fifth Circuit first reviewed the issue of mootness. The order in this case abates the Texas Supreme Court appeal until the jurisdictional issues can be decided.
Is This The End?
Find out after the jump!
August 4, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Judicial Review, Property, Property Rights, Property Theory, State Government, Takings, Texas | Permalink | Comments (1) | TrackBack (0)