Land Use Prof Blog

Conference to Commemorate 40th Anniversary of "The Quiet Revolution in Land Use Control"

The John Marshall Law School will be hosting a conference on its Chicago campus on September 20, 2011, to commemorate the 40^th anniversary of publication of The Quiet Revolution in Land Use Control.  The book’s two original authors, Fred Bosselman and David Callies, will speak at the event, along with Daniel Mandelker, Patricia Salkin, and other prominent scholars.  Here are some excerpts from a news release posted at the law school’s website:

The Kratovil Quiet Revolution Conference will begin with an analysis of the impact of The Quiet Revolution in Land Use Control, a book that discussed the shift from local to regional planning, has had on our nation and land use policy. National speakers representing the states involved in The Quiet Revolution in Land Use Control will analyze how The Quiet Revolution unfolded in these jurisdictions. The afternoon will then analyze the future of land use policy and how this national issue will play out around the country…

…This national debate started with two scholars in Chicago, so it is a fitting site for a reexamination of this 40-year-old national debate and the legislation it produced. In 1971, the president's Council on Environmental Quality published The Quiet Revolution in Land Use Control. The book described in detail the innovative land use laws in nine states around the nation which returned the control of land use to a state or regional level, largely at the expense of local zoning. This was the "ancient regime" being overthrown. This constituted the "quiet revolution." Immensely influential (several thousand copies were purchased and distributed) in stimulating creative thinking by planners, lawyers, and public officials to solve difficult land use planning issues, the book also quickly became a fixture of courses in many university planning and law programs, as well as a handbook and sourcebook for state and local officials. Dozens of articles have been written about it, some recently. It remains a reading source in many courses taught today.

Troy Rule

Alexander on New Regionalist Approaches to Sustainable Communities

Speaking of HUD, here's a new article from Lisa T. Alexander (Wisconsisn) called The Promise and Perils of ‘New Regionalist’ Approaches to Sustainable Communities, forthcoming in the Fordham Urban Law Journal, Vol. 38 (2011).  The abstract:

This Article argues that "new regionalism" is a form of "new governance." New regionalist approaches include collaborative efforts between cities and outlying suburbs to resolve metropolitan challenges such as affordable housing creation, transportation and sprawl. Such practices focus on regions as key sites for the resolution of public problems that transcend traditional local government and state boundaries. New regionalist praxis responds to local government law's failure to advance equity and sustainability throughout metropolitan regions. New regionalism promotes voluntary agreements and interlocal collaborations, rather than formal government or mandated regulation to resolve regional problems. New regionalism, then, is a form of new governance. The term new governance describes problem-solving processes that shift away from traditional government and regulation, towards voluntary, public/private collaborations including multiple stakeholders. New governance supporters assert that such approaches can enhance the participation of traditionally marginalized groups in reform and lead to more equitable outcomes. This Article examines the institutional design of the Obama Administration's Sustainable Communities Regional Planning Grant Program (the "Grant Program"), as well as its initial implementation in the Madison, Wisconsin/Dane County area, as a test of these claims. This Article identifies the Grant Program's promise and perils in advancing meaningful stakeholder participation and distributive justice. The Article concludes by making recommendations to improve the Grant Program and by outlining the implications of these observations for new regionalist and new governance practice.

Matt Festa

The Spillover Effects of Flood Control

While waiting for the first stack of ungraded final exams to hit my desk this week, I’ve been following developments in a dispute between Illinois and Missouri over flooding along the Mississippi River.  Rising floodwaters in the region presented federal government officials with a difficult choice.  If they took no action, severe flooding would likely destroy the small town of Cairo, Illinois.  If they intentionally broke a downstream levee, they would save Cairo from ruin but would allow floodwaters to devastate 90 homes and 200 square miles of farmland in Missouri.  I plan on discussing this simple dilemma to introduce the concept of cost-benefit analysis to my Land Use students this Fall. 

The conflict has centered on whether to activate the Birds Point-New Madrid Floodway, a 130,000-acre area in southeast Missouri.  In the 1920s and 1930s, the federal government paid private landowners an average of $17 per acre to acquire “flowage rights” throughout the floodway.  The acquisition of these rights, authorized under the 1928 Flood Control Act, entitles the federal government to purposely divert water from the main channel of the Mississippi River onto the burdened properties when necessary to prevent flooding elsewhere.

For the past week, Illinois and Missouri have been battling in court over whether the federal government should fill the floodway with water for the first time since 1937 to prevent flooding in Cairo.  Missouri’s attorney general filed a complaint in U.S. District Court last week seeking a court order to prevent intentional flooding of the floodway, arguing that it was unjustified and would cause water pollution in violation of the Clean Water Act.  The District Court denied Missouri’s request, and Missouri’s appeals to the Eight Circuit Court of Appeals and U.S. Supreme Court also failed.  With the legal obstacles cleared, the U.S. Army Corps of Engineers used explosives to blast a two-mile-wide hole in a river levee last night and began floodwaters pouring into the floodway.    

According to Bloomberg, the U.S. Government believes that flooding the floodway will cause about $314 million in damage and contamination but will avoid more than $1.7 billion in damage in Cairo and other communities along the river.  Based on those figures, landowners within the floodway were the least-cost avoiders in this context and sacrificing their land uses to protect more valuable uses upstream probably maximizes social welfare.  Not surprisingly, many of the private individuals residing or working within the 200-square-mile floodway were more focused on their own losses.  A local newspaper article suggests that some landowners intend to file a takings claim against the federal government for breaking the levee. 

Ironically, the concept of externalities or “spillover” effects takes on a double meaning in this case.  The question of whether or not to flood the floodway required government decision makers to consider both the literal and figurative spillover effects of each option!

Troy Rule

The Beach Rolls to Fort Worth: Severance Panel at Texas Wesleyan

It's Severance-palooza today on the Land Use Prof Blog, with Hannah Wiseman's great summary of the oral arguments at the recent rehearing of the Open Beaches Act case in the Texas Supreme Court, and the contribution in my previous post from Timothy Mulvaney.  Scroll down to the next two posts for that background and analysis.

But wait, there's more!  Prof. Mulvaney, who has done a lot of research on takings, including a piece on last year's Stop the Beach Renourishment, has been following Severance v. Patterson for a long time.  Last month he hosted a lively panel discussion on the case at Texas Wesleyan School of Law (ably sponsored by their Federalist Society and Environmental Law Society).  The participants were David Breemer, the attorney for plaintiff Carol Severance; Ellis Pickett, former chair of the Texas Upper Coast Chapter of the Surfrider Foundation; and yours truly.

Prof. Mulvaney spoke first and gave a helpful introduction to the case and the background of the legal issues.  Mr. Breemer, a principal with the Pacific Legal Foundation, gave his client's view of the case and argued vigorously that the state's interpretation of beach-access easement law is an unconstitutional interference with his client's property rights. 

I spoke a little bit about the Texas Supreme Court's initial opinion from November 2010, and also about the issue I focused on in my amicus curiae brief, which was (my view) that an easement must be proven up for each property through common law doctrines of dedication, prescription, or custom before we can even get to the question of whether it rolls. 

Mr. Pickett, whose Surfrider Foundation also filed an amicus brief (with which a former student of mine assisted in drafting), spoke passionately about the environmental costs of restricting the public interest in the beach.  He had lots of compelling pictures and even passed around the room a giant piece of twisted metal to make his point.  This was followed by a great Q&A session with the well-informed crowd.

What made it even more interesting is that when Prof. Mulvaney organized the panel, it was conceived as an after-action discussion of the November opinion.  It wasn't until just a couple of weeks beforehand that we all learned that the court had taken the unusual step of granting the rehearing.  By the way, you can read all of the briefs, including the amici, at the link from this post. 

It was a great event, and the other three participants have offered to give me a surfing lesson. The participants have all agreed to contribute to an upcoming issue of the Texas Wesleyan Law Review.

Here's the video!  [requires Real Player].  This video, plus Part 2, are also available at the Texas Weslayan web article on the event.

   

Matt Festa

Mulvaney on the Severance Rehearing and Location vs. Purpose

Thanks to Hannah Wiseman for the great post summarizing the recent rehearing in Severance v. Patterson.  I meant to get to it last week, but I wouldn't have done half as good a job.  But I also encourage you to do as she suggests and listen to the oral argument yourself.

But she's not the only junior land use prof with Texas ties who has some great thoughts about the rehearing.  Professor Timothy Mulvaney at Texas Wesleyan also watched the oral argument, and composed some observations on the case, particularly the interesting question of the physical location vs. the purpose of these easements.

[T]he Texas Supreme Court conducted a re-hearing in the “rolling” beach access easement case of Severance v. Patterson.  In its original 6-2 decision, the Court distinguished between (1) an easement destroyed by an avulsive event—which the majority originally held in November does not “roll” upland—and (2) an easement destroyed by imperceptible erosion—which the majority originally held does “roll” upland.  But the Court today seemed focused not on the avulsion/erosion divide but rather on this question:

Is the geographic location of an easement physically static, such that the easement holder must re-establish that easement each time a natural event (storm, sinkhole, etc.) makes the geographic location of the original easement impassable?  Or, is it the purpose of that easement that is static, whereby no re-establishment would be necessary? 

The answer may depend on a multitude of factors (e.g., the method of creation, the use of the easement, the character of the property at stake, etc.).  There do seem to be several instances where only the easement’s purpose, not its physical location, should remain static.  At oral argument, the State pointed to the natural alteration of a river’s course, which does not require a re-establishment of the navigable servitude.  Another analogy might be that of oil and gas leases, which convey an easement by implication that is not limited to a fixed location but rather allows use of the surface as reasonably necessary to fulfill the lease’s purpose.  I would be interested to hear other analogies or perspectives off-blog (tmulvaney@law.txwes.edu), or even on-blog if you are so inclined.  Thank you for your time.

Feel free to share your thoughts with Prof. Mulvaney or even better, leave a comment here!

Matt Festa

Adler on Climate, Water, Agriculture, and Drought

Robert W. Adler (Utah) has posted Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought and Agricultural Law, forthcoming in the Florida Law Review.  The abstract:

This article compares risk spreading and risk reduction approaches to climate adaptation. Because of the buildup of greenhouse gases in the atmosphere from past practices, the world is "committed" to a significant amount of global average warming. This is likely to lead to significant increases in the frequency, severity and geographic extent of drought. Adaptation to these and other problems caused by climate disruption will be essential even if steps are taken now to mitigate that disruption. Water and drought policy provide an example of the significant policy tension between compassion and risk reduction in climate adaptation, and how those tensions affect broader national economic policies. Because water is essential to lives and livelihoods, the compassionate response to drought is to provide financial and other forms of relief. Guaranteed, unconditional drought relief, however, can encourage unsustainable water uses and practices that increase vulnerability to drought in the long-term. Moreover, the agricultural sector is the largest consumptive user of water in drought-prone regions, but longstanding U.S. agricultural policy encourages excess production and water use. Effective adaptation to climate disruption will have to strike a balance between providing essential short-term relief from hardship and promoting longer-term measures to reduce vulnerability through more sustainable water use and other practices. It will also require fundamental reconsideration of laws and policies that drive key economic sectors that will be affected by climate disruption. Although water, drought and agricultural law provide one good example of this tension, the same lessons are likely to apply to other sectors of the economy vulnerable to climate disruption, such as real estate development and energy production.

A significant paper on drought and the increasingly alarming state of U.S. water resource law.

Matt Festa

Blumm & Guthrie on Internationalizing the Public Trust Doctrine

Michael C. Blumm (Lewis & Clark) and R.D. Guthrie (Lewis & Clark) have posted Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulifilling the Saxion Vision, forthcoming in University of California Davis Law Review, Vol. 44, (2012).  The abstract:

The public trust doctrine, an ancient doctrine emanating from Roman law and inherited from England by the American states, has been extended in recent years beyond its traditional role in protecting public uses of navigable waters to include new resources like groundwater and for new purposes like preserving ecological function. But those state-law developments, coming slowly and haphazardly, have failed to fulfill the vision that Professor Joseph Sax sketched in his landmark article of forty years ago. However, in the last two decades, several countries in South Asia, Africa, and the Western Hemisphere have discovered that the public trust doctrine is fundamental to their jurisprudence, due to natural law or to constitutional or statutory interpretation. In these dozen countries, the doctrine is likely to supply environmental protection for all natural resources, not just public access to navigable waters. This international public trust case law also incorporates principles of precaution, sustainable development, and intergenerational equity; accords plaintiffs liberalized public standing; and reflects a judicial willingness to oversee complex remedies. These developments make the non-U.S. public trust case law a much better reflection than U.S. case law of Professor Sax’s vision of the doctrine.

A timely article considering the recent upsurge in caselaw and commentary on the public trust doctrine.

Matt Festa

Penalver & Strahilevitz on Judicial Takings or Due Process?

Eduardo Penalver (Cornell) and Lior Strahilevitz (Chicago) have posted Judicial Takings or Due Process?  The abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court concluded that the Takings Clause of the United States Constitution prohibits the judiciary from declaring that “what was once an established right of private property no longer exists” unless the property owner in question receives just compensation. In this paper, we delineate the boundaries between a judicial taking and a violation of the Constitution’s due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach.

Our argument proceeds in two parts. The first is a conceptual section that explains what factors are relevant to determining whether a judicial action diminishing a private property interest is a judicial taking or something else. In our view, where a judicial decision intentionally seizes private property in order to achieve a legitimate public end, the Takings Clause is an appropriate framework for evaluating the constitutionality of the state’s action. Due Process is the more appropriate doctrinal pathway where the judiciary does not intend to abrogate a private owner’s property rights, or where the diminution of private property rights results from a judicial action that serves no legitimate public purpose. By clarifying the boundaries of judicial takings, we also hope to shed light on the constitutional foundation for numerous state-court doctrines concerning the retroactivity of new property rules. The second section articulates a novel functional argument, which suggests that creating liability for judicial takings may cause litigants to underinvest in high quality legal representation, which will in turn increase the likelihood of judicial mistakes and contribute to the destabilization of existing entitlements. This phenomenon prompts us to argue that cases in which the underinvestment incentives are most pronounced should be litigated under the Due Process Clause, but cases where repeat-play or the government’s involvement as a litigant mitigates the underinvestment problem represent more appropriate vehicles for judicial takings treatment. What rides on the distinction between judicial takings and due process violations? Under our approach, judicial takings cases should be (a) easier to win than due process cases, (b) more likely to result in damages remedies than injunctive remedies, and (c) may lend themselves to attractive “comparative fault” inspired solutions.

Looks like a very important paper!

Matt Festa

Brescia on State Enforcement Actions and the Robo-Sign Scandal

Raymond H. Brescia (Albany) has posted Leverage: State Enforcement Actions in the Wake of the Robo-Sign Scandal.  The abstract:

In the fall of 2010, in one of the largest scandals to ever hit the American court system, information gathered from lawsuits across the country revealed that tens of thousands of foreclosure filings were likely fraudulent - if not outright criminal. These revelations sparked a nation-wide investigation by all 50 state attorneys general to assess not only the extent of the scandal and its potential impacts but also potential legal and policy responses to such behavior. One of the tools at the state attorneys general’s disposal that might rein in this behavior includes each state's Unfair and Deceptive Acts and Practices (UDAP) laws. Such laws typically prohibit "unfair" and "deceptive" practices and often give consumers, as well as state attorneys general, the ability to bring affirmative litigation to rein in practices that violate their terms. UDAP laws serve a critical consumer protection function by filling in gaps in the law where other, more targeted statutes might not cover practices that have a harmful impact on consumers. Since their inception, UDAP laws have been used to rein in abusive practices in such areas as used car sales, telemarketing and even the sale of tobacco products. This paper explores the availability of UDAP laws and the remedies they provide to rein in the range of practices revealed in the so-called "robo-sign scandal." It concludes that such practices - the false affidavits, reckless claims and improper notarizations - all violate the essence of most state UDAP laws; accordingly, the remedies available under such laws may be wielded by state attorneys general to halt abusive foreclosure practices throughout the nation. Such remedies include civil penalties, actual and punitive damages, attorney's fees and injunctions. What's more, UDAP actions in light of robo-sign abuses could help chart a path towards a more robust mortgage modification regime, one that would result in principal reduction, which is the clearest path out of the current crisis.

Matt Festa

Rehearing--and panel discussion--on Texas Open Beaches Act

Late last week, the Texas Supreme Court granted a rehearing in Severance v. Patterson, the case decided last November holding that the Texas Open Beaches Act does not establish a public easement for dry-sand beach access without proof of dedication, prescription, or custom, and that public access easements do not "roll" inward with the vegetation line after major avulsive events such as hurricanes.  Hard to say what this portends, but it can't be good news for the plaintiff-appellant.  After the decision, lots of amicus briefs, particularly from local governments, started pouring on the motion for rehearing.  Here's a link from the Supreme Court of Texas Blog.

I blogged about the decision in a post which includes a multitude of links to the opinions; to the Texas Supreme Court's webpage for the case (great for finding the amici on the motion for rehearing); to the statute and constitutional amendment; and to various briefs including (full disclosure) my amicus and that of Surfrider Foundation.  Oral arugment on the rehearing (not very often granted, as I understand it) is set for April 19.

In the meantime, let's do what we lawyers do best, and talk about it!  The Texas Wesleyan School of Law in Fort Worth is hosting a Severance v. Patterson Panel Discussion next Friday, March 25, at 11:30.  It will be co-sponsored by the student chapters of the Federalist Society and the Environmental Law Society, and will feature Pacific Legal Foundation attorney David Breemer, lead counsel for the plaintiff; Ellis Pickett, Chairman of the Upper Texas Chapter of the Surfrider Foundation and amicus curiae for defendants; and yours truly.  The event will be moderated by Texas Wesleyan land use scholar Prof. Timothy Mulvaney.  If you can be in DFW next week to join us, please do!

Matt Festa

Salkin and Nolon on Sustainable Development and Climate Change for Planners and Attorneys

Patricia Salkin (Albany) and John Nolon (Pace) have posted Integrating Sustainable Development Planning and Climate Change Management: A Challenge to Planners and Land Use Attorneys, published in Planning and Environmental Law, Vol. 63, p. 3, March 2011.  The abstract:

This essay is based on our new book, Climate Change and Sustainable Development Law in a Nutshell (West 2011) which describes the close relationship between sustainable development and climate change management. It begins with a discussion of recent discussions and agreements at the international level and it provides a brief history of sustainable development and climate change policy. The article then explores national and local strategies to address sustainable development goals. Local planning and zoning, transit oriented development, energy efficiency and green infrastructure issues are also addressed.

The book, Climate Change and Sustainable Development Law in a Nutshell, is really helpful for lawyers, planners, and students in getting an orientation to this very hot topic.  The article provides some great examples and pushes us to think about the federal/state/local/sublocal legal divides that land users have to face. 

Matt Festa

Before Mountain Top Removal . . . Historic Designation Removal

NPR this evening featured a story about a dispute in West Virginia over the preservation of Blair Mountain, site of a 1921 miner uprising that claimed the lives of 100 men.  Massey Energy, owner of the mine in which 29 workers died nearby last April, is one of two companies that owns land adjacent to the site.  After being placed on the National Register of Historic Places, Blair Mountain's protection was removed by state officials thereby eliminating a barrier to the leveling of the site through mountain top removal of the coal within. 

Jim K.

Three Dimensional Master Plan?

 
Hello all and thanks for the welcome, Matt.

For years cities, such as Montreal (the RESO), have been developing space underground.  In what CNN reports as a "first," Helsinki has developed an Underground Master Plan.  The plan designates a diverse group of uses for the underground area, ranging from industrial to recreation uses, such as an existing swimming pool (which, fortunately, doubles as a bunker when necessary).  According to the report, Helsinki sits on bedrock strong enough to support the existing streetscape even when space is carved out for the lower levels.  The CNN report claims a host of environmental benefits from the action, many of which are disputed in the comments.

As cities such as Helsinki start to think about the relationship between the street level and the subsurface (as inhabitable space), the next step may be to craft a three dimensional master plan.  And who knows, this may be Seattle's chance to recommission its underground, although "[w]hen your dreams tire, they go underground and out of kindness that's where they stay." (Margaret Fuller).

Jon Rosenbloom

Where does Redevelopment Fit in our Priorities?

Ethan Elkind has a great post over at Legal Planet about Redevelopment and Governor Jerry Brown's budget priorities.

We have quite a quandry in front of us as states deal with budget problems and many redevelopment agencies seem poorly run. What's a poor city to? Ethan offers some suggestions. Like the unions in Wisconsin, he is also admitting that we are going to have to give some ground and agree to budget cuts.

- Jessica Owley

SCOTUS decides CSX Transportation v. Alabama Dept. of Revenue

The U.S. Supreme Court has issued its opinion in the case CSX TRANSPORTATION, INC. v. ALABAMA DEPARTMENT OF REVENUE et al., No. 09-520.  The opinion deals with issues in state & local government law, tax, commerce, and transportation policy, and it may be of interest to folks interested in land use.  From the Syllabus:

Petitioner (CSX) is an interstate rail carrier that operates, and pays taxes, in Alabama. The State imposes sales and use taxes on railroads when they purchase or consume diesel fuel, but exempts their main competitors--interstate motor and water carriers. CSX sued respondents, the Alabama Department of Revenue and its Commissioner (Alabama), claiming that this tax scheme discriminates against railroads in violation of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act or Act), which bars four forms of discriminatory taxation, 49 U. S. C. §11501(b). Three of the delineated prohibitions deal with property taxes, §§11501(b)(1)-(3), and the fourth is a catch-all provision that forbids a State to "[i]mpose another tax that discriminates against a rail carrier," §11501(b)(4). The District Court dismissed CSX's suit as not cognizable under the 4-R Act on the basis of this Court's decision in Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, and the Eleventh Circuit affirmed.

Held: CSX may challenge Alabama's sales and use taxes under §11501(b)(4).

I'm posting more from the Syllabus after the jump.  Here's the interesting voting lineup:

Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, Alito, and Sotomayor, JJ., joined. Thomas, J., filed a dissenting opinion, in which Ginsburg, J., joined.

Matt Festa

Held: CSX may challenge Alabama's sales and use taxes under §11501(b)(4). Pp. 5-19.

     (a) CSX is challenging "another tax" within subsection (b)(4)'s plain meaning. The Act does not define "tax." Thus, this Court looks to the word's ordinary definition, which is expansive. A State seeking to raise revenue may choose among multiple forms of taxation on property, income, transactions, or activities. "[A]nother tax" is thus best understood to encompass any tax a State might impose, on any asset or transaction, except the property taxes already addressed in subsections (b)(1)-(3). There is no reason to interpret subsection (b)(4) as applying only to the gross-receipts taxes that some States imposed in lieu of property taxes at the time of the Act's passage. Moreover, CSX's complaint, contrary to the Eleventh Circuit's apparent view, does protest Alabama's imposition of taxes on its fuel. The exemptions the State has given may play a central role in CSX's argument, but the complaint's essential subject remains the taxes imposed.

     The key question thus becomes whether a tax might be said to "discriminate" against a railroad under subsection (b)(4) where the State has granted exemptions from the tax to other entities (here, the railroad's competitors). Because the statute does not define "discriminates," the Court again looks to the term's ordinary meaning, which is to fail to treat all persons equally when no reasonable distinction can be found between those favored and those not favored. To charge one group of taxpayers a 2% rate and another group a 4% rate, if the groups are the same in all relevant respects, is to discriminate against the latter. That discrimination continues if the favored group's rate goes down to 0%, which is all an exemption is. To say that such a tax does not "discriminate" is to adopt a definition at odds with the word's natural meaning. This Court has repeatedly recognized that tax schemes with exemptions may be discriminatory. See, e.g., Davis v. Michigan Department of Treasury, 489 U. S. 803. And even Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, on which the Eleventh Circuit heavily relied in dismissing CSX's suit, made clear that tax exemptions "could be a variant of tax discrimination." Id., at 343. In addition, the statute's prohibition of discrimination applies regardless whether the favored entities are interstate or local. The distinctions drawn in the statute are not between interstate and local actors, as Alabama suggests, but between railroads and all other actors, whether interstate or local. Pp. 5-10.

     (b) ACF Industries does not require a different result. There, the Court held that railroads could not contest property tax exemptions under subsection (b)(4), reasoning that it would be illogical to permit such a challenge when subsections (b)(1)-(3)--the §11501 provisions specifically addressing property taxes--permitted States to grant property tax exemptions. Such a reading would "subvert the statutory plan" and "contravene the 'elementary canon of construction that a statute should be interpreted so as not to render one part inoperative.' " 510 U. S., at 340. Contrary to Alabama's argument, this structural analysis does not apply here. Subsections (b)(1)-(3) specifically allow property tax exemptions, but neither they nor any other provision of the Act speaks to non-property exemptions like those at issue here. Because Congress has expressed no intent to "allo[w] the States to grant" non-property exemptions, id., at 343, reading subsection (b)(4) to encompass them poses no danger of "nullify[ing]" a congressional policy choice or otherwise "subverting the statutory plan," id., at 340, 343. Alabama's other efforts to borrow from ACF Industries' analysis similarly fail. Also unavailing is Alabama's argument that, even if ACF Industries' reasoning is limited to property tax exemptions, its holding must extend to non-property tax exemptions in order to prevent inconsistent or anomalous results in the treatment of property and non-property taxes. Pp. 11-18.

350 Fed. Appx. 318, reversed and remanded.

Kahn, Vaughn, & Zasloff on the Housing Market Effects of Discrete Land Use Regulations

Matthew E. Kahn (UCLA, Inst. of Environment; Economics; Public Policy), Ryan Vaughn (UCLA, Economics), and Jonathan Zasloff (UCLA, Law) have posted The Housing Market Effects of Discrete Land Use Regulations: Evidence from the California Coastal Boundary Zone, Journal of Housing Economics, Vol. 19, pp. 269-279, December 2010.  The abstract:

The California coast line borders most beautiful and expensive land in the entire world. The California Coastal Commission was created in 1976 to protect the coast line and to regulate land use within the coastal boundary zone. This well defined regulatory boundary offers a unique opportunity to study the consequences of land use regulation on nearby housing located in the same political jurisdiction. Using two different geocoded data sets, we document gentrification within the boundary and discuss possible explanations for these patterns.

Matt Festa

Billions for High Speed Rail

Vice President Biden made an announcement Tuesday that's grabbing headlines - $53 billion in the Administration's proposed budget for high speed rail.  From an article on CNN.com:

The proposed new investment -- including $8 billion in the upcoming fiscal year -- would accompany a streamlined application process for cities, states, and private companies seeking federal grants and loans to develop railway capacity.

"There are key places where we cannot afford to sacrifice as a nation -- one of which is infrastructure," Biden said in a written statement. There is a pressing need "to invest in a modern rail system that will help connect communities, reduce congestion and create quality, skilled manufacturing jobs that cannot be outsourced."

It might be, though, that none of that money ends up in Georgia. Georgia has a history of being hostile or apathetic to proposals for high speed rail, something that Transportation Secretary Ray LaHood made a point of when he visited the state last year.

I think it's a shame Georgia's leadership isn't more progressive about rail.  I loved the ease and convenience of riding the train to Philly when I lived in DC (much better than being grounded on a plane by thunderstorms in the summer, or driving the insanity that is I-95 in the Northeast corridor). Rail between Athens and Atlanta, and Atlanta and Chattanooga, make a ton of sense. But then, nobody's really asking me...

Jamie Baker Roskie

Fracking Conference

We've got a lot of exciting things going on here in Buffalo these days. At the end of March, we'll be holding a symposium and community forum on fracking. I hope to see some of you there!

- Jessica Owley

 Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy

March 28-29, 2011 at University at Buffalo School of Law

Buffalo, New York

On March 28-29, 2011 the University at Buffalo Environmental Law Program and the Baldy Center for Law and Social Policy will host the conference: Hydrofracking: Exploring the Legal Issues in the Context of Politics, Science and the Economy.

Horizontal-gas drilling involving hydraulic fracturing, also known as hydrofracking or fracking, and its potential effects is an important environmental and energy concern for the nation. This conference provides an opportunity for a scholarly exchange of ideas regarding the issue as well as a forum for community discussion.

We welcome submissions on any related topic, including the following:

• Hydrofracking and Nuisance Law
• Impacts on Tribal Lands
• Administrative law and the EPA Rulemakings
• Environmental Review Processes    
• Application of federal environmental laws, including the Clean Water Act and Clean Air Act
• Energy issues, in including the Energy Policy Act and DOE policy
• Endocrine Disruption and Human Health Impacts

Authors will have an opportunity to publish their work in the Buffalo Environmental Law Journal. You are invited to submit a paper or presentation proposal for of no more than 250 words by Monday, February 21st to jol@buffalo.edu.

For more information, contact Jessica Owley [jol@buffalo.edu or 716-645-8182] or Kim Diana Connolly [kimconno@buffalo.edu or 716-645-2092]

Judith Wegner, Annexation, and the Boehl Lectures

Thanks, Matt, for the wonderfully kind introduction.  I am excited to be guest-posting on the Land Use Prof blog.  Despite the flood of emails (and steady stream of students and professors wanting an associate dean's immediate attention), I read the Land Use Prof blog every day, and find the posts both helpful and thought-provoking.  It is a real honor to be a part of the great work that y'all do!

For my first post, I want to share some insights from Judith Welch Wegner's Boehl Distinguished Lecture in Land Use Policy at the University of Louisville this past Thursday, January 27, and to highlight the value of a land-use lecture series generally.  Professor Wegner is well known in legal education for her past roles as a 10-year Dean at the University of North Carolina-Chapel Hill, President of AALS, member of the Order of the Coif Executive Committee, and Senior Scholar at the Carnegie Foundation for the Advancement of Teaching.  In the land use field, she is known as the Burton Craige Professor of Law at the University of North Carolina-Chapel Hill and for her especially influential article "Moving Toward the Bargaining Table: Contract Zoning, Development Agreements, and the Theoretical Foundations of Government Land Use Deals," 65 N.C. L. Rev. 957 (1987).  I predict that she will play a major role in reviving interest in annexation as a land use legal and planning issue.

Judith gave her Boehl Distinguished Lecture in Land Use Policy on "Annexation, Urban Boundaries, and Land Use Dilemmas: Learning from the Past and Preparing for the Future."  Her basic concern is that annexation is often disconnected from land-use planning, which results in problems of sprawl, uncoordinated growth, inadequate infrastructure, and fiscal stress.  Drawing on census data and examples from North Carolina's famous "annexation wars," Judith pointed out that there are no quick-fixes, no one-size-fits-all model solutions (a point that I particularly like and have addressed most recently in "Fourth-Generation Environmental Law: Integrationist and Multimodal").  Local culture matters.  Some of the worst conflicts do not arise from expanding large cities but from small municipalities in rural or at least non-urban areas, making it difficutl to get a handle on what exactly "smart growth" might mean in these low-density communities.  Water and wastewater dynamics play significant roles, as do municipalities' desires to improve their fiscal health by increasing their property-tax base through annexations.  When municipal annexation is difficult, though, alternatives to annexation take its place, including the proliferation of special districts, the rise of county authority over land use, and the dominance of gated communities.  All in all, according to Judith, annexation conflicts demonstrate why local governance structure is a "wicked problem" but one that is critically important to land use practices and sustainable development.  I am looking forward to the publications that will result from her research.  Annexation issues have received too little attention in the land use legal literature.

But her lecture implicitly makes another point -- the value of a land-use lecture series.  More on that tomorrow . . . .  [OK, maybe not as tantalizing as who shot J.R., but hopefully something of a hook to bring you back.]  Again, thanks for letting me come aboard!

Tony Arnold

Local Milk

From time to time on this blog we've written about local agriculture, including a post I wrote about a controversy in Fall 2009 where the Georgia agriculture department seized a large shipment of raw millk from a local purveyor.

Today's Athens Banner-Herald has an article about a local farm producing small batches of low temperature pastuerized milk.  To me this is a nice compromise - locally produced milk that is pathogen free and tasty.  Unfortunately, in my experience it doesn't seem to last as long as milk that's been pastuerized at high or ultra high temperatures, so the hubby and I sometimes have difficulty finishing a half gallon (the smallest size available) before it goes bad.  (Obviously we don't drink much milk - we use it more for tea and cereal) However, it's super popular locally and it often sells out at our daily co-op.

Another interesting aspect of the article is the farmer discussing how much agriculture officials struggled to understand that his process is perfectly legal.  It seems like there's an initial reaction against milk processing that isn't being done in the predictable way, by large dairies.  I guess it's another version of small businesses being tripped up by red tape. It's great the farmer was able to get this worked out, because my guess is that local ag is a small but growing part of Georgia's very significant agricultural economy.  (And with home building at a stand still, we need all the economic growth we can get!)

Jamie Baker Roskie