Thursday, July 7, 2016
Seemingly overnight, companies like Uber, Lyft, Airbnb, WeWork, Taskrabbit, Shyp, and many others have transformed transportation, accommodations, personal services, and other sectors. The evolving regulatory response to this “sharing economy” presents an intriguing puzzle. Where telephone, broadband, early Internet companies, and similar previous technologies were shaped by battles with federal regulators, the fate of sharing enterprises is playing out in front of taxi and limousine commissions, zoning boards, and city councils.
The reason for this atypical dynamic, this Article argues, is that — unlike prior technological disruptions — the sharing economy is fundamentally an urban phenomenon. The platforms that enable sharing leverage or confront conditions of density, proximity, specialization, and even anonymity that mark city life. And many sharing companies flourish through a kind of regulatory arbitrage that finds value in frictions and barriers generated by urban regulatory regimes.
A fascinating experimentalist dialectic is emerging from the resulting decentralized regulatory landscape. Local economic, political, legal, and social conditions are generating regulatory responses that range from full embrace to open hostility. And sharing enterprises are responding by adjusting their business models and reconciling in various ways to these regulatory constraints. These compromises are generating creative solutions to balancing innovation and public welfare.
The interaction between urban governance and the sharing economy, however, flows both ways. Local governments are being pushed to be more transparent about their policy interests, creating spillover effects in regulatory regimes beyond the sharing economy. And the sharing economy is transforming cities themselves. The shift from ownership to access is altering development and mobility patterns as traditional links between transportation, housing, and labor markets and the shape of metropolitan space morph.
By framing the sharing economy as an urban phenomenon, this Article sheds important new light on a rapidly emerging scholarly discourse. To date, scholars have failed to recognize the sharing economy’s deep reliance on the urban fabric and its potential to mold that fabric. Understanding this relationship will also lead to better calibrated regulatory responses that reflect the sharing economy’s holistic impact on cities. Equally important, it will firmly ground our understanding of the sharing economy in its urban birthplace as it matures.
Edward W. De Barbieri (Brooklyn Law School) has posted Do Community Benefits Agreements Benefit Communities? (Cardozo Law Review) on SSRN. Here's the abstract:
Community Benefits Agreement (CBA) campaigns and public discussions about community benefits are becoming the norm in deciding how large urban projects are built outside of formal public land use approvals. CBAs have revolutionized land use approvals for large, public-private economic development projects: now developers and coalitions representing low-income communities can settle their disputes before formal project approval. As a result, CBAs are now commonplace nationwide.
Legal scholarship, however, has failed to keep up with these important developments. This Article aims to do just that by examining how CBAs, when properly negotiated, lower transaction costs, enhance civic participation, and protect taxpayers. It argues that CBAs achieve all these outcomes well, and more efficiently than existing government processes. Indeed, this Article’s central argument is that to the extent that scholars have analyzed CBAs, their analyses have gone astray by either dismissing CBAs as harmful to communities or by focusing on the role of the state in negotiating what really should be a private contract between a coalition of community groups and a developer. It is a mistake to give the state’s role in CBAs primacy over the community coalition because the inclusion of government in the CBA bargaining process creates a host of constitutional protections for developers — namely that the community benefits must be connected to and proportional with the instant government approval.
This Article places focus back on CBAs as private contracts enforceable by inclusive and representative community coalitions. It presents a case study of a successful CBA negotiated for the development of the Kingsbridge National Ice Center in the Bronx. This Article proposes a framework for assessing the impact of CBAs in economic development — one that recognizes the nuanced role that states and municipalities play in the formation and enforcement of CBAs. The framework focuses on the extent to which CBAs (1) lower transaction costs by effectively resolving disputes among developers and community groups, (2) increase civic participation in public processes, (3) protect taxpayers, and (4) avoid government intervention and constitutional protections for developers. This Article concludes with recommendations for the appropriate, limited role of government in CBA negotiations.
Wednesday, May 18, 2016
Last week Conservation Partners released a report titled "The Disappearing West," which maps the amount of land developed across the eleven states of the American West from 2001-2011. According to the report, natural lands are developed at a rate of one acre every 2.5 minutes, or 432 square miles per year. California is unsurprisingly developing the fastest. More surprising is that Wyoming -- the least populated of the eleven western states -- is not far behind, due to rapidly expanding energy development in the state.
The map is worth exploring, if only to see how your favorite places might have changed during the first decade of the 21st Century.
Monday, May 9, 2016
Professors’ Corner's FREE monthly webinar featuring a panel of law professors, addressing topics of interest to practitioners of real estate and trusts/estates.
Sponsored by the ABA Real Property, Trust and Estate Law Section Legal Education and Uniform Laws Group
Tuesday, May 10, 2016
12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific
A Lawyer’s Guide to the Law of Public Art
Tyler T. Ochoa, Professor of Law, High Tech Law Institute, Santa Clara University School of Law
Anthony L. François, Senior Staff Attorney, Pacific Legal Foundation, Sacramento, CA
Moderator: Christopher K. Odinet, Assistant Professor of Law, Southern University Law Center
The use of art in public spaces has captivated the minds of federal, state, and local policymakers in recent years, with some cities even requiring that private developers include public art in all new projects. Moreover, ownership of public art has drawn the attention of lawyers and advocates, particularly when it comes to competing property and management rights between the public, the artist, landowners, and interested third parties. This program begins with an overview of the intellectual property rights in connection with public art, explaining the differences between the rights in the intangible work and the rights in the physical object itself. The program continues with a case study of the City of Oakland's art requirement for private real estate developers, exploring the property and related legal issues that surround such regimes.
Register for this FREE webinar by clicking here.
Wednesday, April 13, 2016
The map above shows one year of wanderings for a famous grizzly bear known as "The Boss." The majority of his travels occurred in busy transportation corridors, including the famous Bow River Valley between Banff and Lake Louise, which contains a railroad, the two-lane Bow Valley Parkway, and the four-lane Trans-Canada Highway (his story is available here). He has managed his travels rather well, managing to avoid accident save for one encounter with a train. Which he survived, of course, because he's the Boss.
Because most of my students will end up working in small towns (and I include Boise as a "small town"), I like to spend time on those aspects of land use and property law that are relevant to life on the wildland-urban interface. In the western United States, these conversations generally focus on wildfire, but there are also significant effects on wildlife. Unfortunately, I have found that while people (including both law students and land owners) generally understand the significance of fire in the wildland-urban interface, they don't react with the same openness to land-use regulations designed to protect wildlife. I like to use the land-use regime of Teton County, Wyoming in my land use class, both because it is a beautiful place many of my students are familiar with, and because it has an impressive array of provisions designed to protect wildlife, from the obvious grizzly bears and bald eagles to cutthroat trout and mule deer. Among other things, the regulations contain standards for wildlife-friendly fencing, define ten different vegetative cover types with different levels of protection, protect migration corridors, and contain requirements for bird feeder placement so as to avoid unwanted interactions with bears.
But it is surprising that in a place where many of my students hunt, fish, hike, and spend a lot of time outdoors, there are often some rather negative reactions to these requirements. These are students who love wild places--I once had a student from a very small town in eastern Oregon describe to me an experience out hunting when he was briefly surrounded by a howling wolf pack; he unashamedly said it was one of the most beautiful experiences of his life. But many of these students (reflecting the broader public) still find regulating the bird feeder, or protecting presently unoccupied migration routes, to be questionable legally, and a violation of their property rights. Apparently, loving wild places and understanding wild places, at least how the law might interact with those places, are two different things.
It is one of the contradictions of the legal (or any) profession that we are proud to claim, and are jealous of, a specialized expertise, while we simultaneously complain about the layperson's lack of legal knowledge. But the greatest failing of the law is not that the layperson doesn't understand it, but rather that the judge, lawyer, and law professor don't understand the rest of the world. We just covered Rapanos v. United States in Environmental Law. While it is likely easy to find lawyers and law professors who will commend the legal reasoning of the plurality opinion, it would be difficult to find the same level of respect among hydrologists or ecologists. Those people who know and study the "waters of the United States" likely would tell you that the plurality opinion demonstrates a fundamental lack of understanding about how the world works.
The Boss's wanderings around Canada's highways reminded me of my own neighborhood. A few weeks ago, just as I was about to turn the corner to walk down my street, my wife called with a warning to be careful. It wasn't that she had heard reports of a prowler in the neighborhood, at least not the typical kind. As we were talking, I turned the corner to see two moose happily browsing on the tree in my neighbor's front yard. Although we live in the middle of suburbia--at least the Moscow, Idaho form of suburbia--this is not a rare occurrence. We have had moose in our yard several times, including one young moose who spent a couple of days sitting under a tree in our front yard happily snacking on our bird feeder. Once a year or so, the University sends out the always humorous "Moose on Campus!" alert. We're at the point where we almost don't take notice--a few years ago we asked my son if anything exciting had happened at school. "Not really" he responded. Didn't a moose walk right through your playground, while you where there? "Oh.... Yeah." Those moose are part of our neighborhood, our place, and thus our law, whether we recognize it or not.
Assessing the appropriateness of law, whether it be wetland regulation or bird feeder placement, requires moving beyond the canons of construction, IRAC, and the "thinking like a lawyer" that so stresses 1Ls each fall. It requires thinking about how moose might travel across a landscape, connecting wetland function to downstream water quality, and understanding the interactions of bears, highways, and bird feeders. Lawyers who work in property, land use, and natural resources law should look at that map of The Boss's wanderings and immediately think about how law and the bear might interact, and how the law we craft for the future should understand, intricately, the lands and places it emerges from.
Wednesday, March 2, 2016
(University of Idaho students discussing a culvert on a Boulder Creek tributary scheduled to be replaced to improve salmonid habitat.)
A common complaint about legal education is a perceived lack of “practical” experience. Law schools across the country, including at the University of Idaho, have addressed this need by increasing opportunities for students to participate in live-client experiences through clinics or internships, and by incorporating practical exercises throughout the substantive curriculum. But although students now have the opportunity to draft real legal documents, appear in court, and communicate with clients, many students are still missing exposure to the “things” of law—the people and places that law affects and effects.
The study of law is, of course, notoriously dense and difficult, with much in the way of words and little in the way of images, places, or dirt under the fingernails. This is a serious problem, as should be particularly obvious when we are studying the law of natural resources, land use, environmental protection, and real places and real people. We cannot understand conflict, and cannot propose useful solutions, until we know—intimately—the people and landscapes where those conflicts arise.
In August 2014, during my first attempt at offering a field course in natural resources law at the University of Idaho’s McCall Field Campus, we spent all of one afternoon driving gravel roads around what would become the Lost Creek-Boulder Creek Landscape Restoration Project on the Payette National Forest. We were looking at places that would be burned, roads that would be closed, and culverts that would be replaced to allow for steelhead and bull trout passage. I also tried to take advantage of our time in the forest to teach my students to identify all of the trees in the area, and perhaps more important—to me at least—to care about what those trees are. This is something of a Long-family tradition that I have taken from my father and am trying to impose on my own sons. My sons seem to enjoy it, but on the Payette, I got the sense that while a few of the students seemed to want to know the trees, most were bored—or worse, annoyed—by my constant pestering.
I finally felt compelled to pull our van over in a large clearing, at the high point of that day’s drive. The spot is known as Railroad Saddle, and is the hydrologic divide between Boulder Creek to the north and Lost Creek to the south. It is a broad, open, and relatively flat divide, offering few clues as to its legal and ecological significance.
But it is significant. Boulder Creek flows north and east about twenty miles to the Little Salmon River, which continues north until it meets the main stem of the Salmon River at the small town of Riggins, Idaho. At this point, the Salmon has mostly completed its unencumbered journey across Idaho. From Riggins, it continues north and then west before finally joining with the Snake River on the Idaho-Oregon border.
Precipitation falling south of Railroad Saddle follows a different path, flowing into the East Fork of Lost Creek. The East Fork flows about eight miles before joining with Lost Creek itself, a mile or so upstream of the Lost Valley Reservoir. After pausing a bit in the reservoir—filled with algae, surrounded by cows and overgrazed riparian areas, off-road vehicle trails, and paradoxically, a colony of the threatened Northern Idaho Ground Squirrel—Lost Creek continues on another ten miles to the West Fork of the Weiser River. This becomes the Weiser River, and then after flowing southwest for quite a while, eventually also meets the Snake River at the town of Weiser, Idaho, also on the Idaho-Oregon border.
Although both Boulder Creek and Lost Creek are part of the larger Snake River watershed, they differ in meaningful ways. The divide is open and flat enough that you can look each direction and see how the vegetative communities change, from the thicker, wetter, Douglas fir dominated forests in the mostly north-facing Boulder Creek drainage to the more open, drier, Ponderosa Pine forests on Lost Creek. Because we had spent the morning with the New Meadows District Ranger, we also knew that as we traveled from Boulder Creek into Lost Creek, we’d start seeing more cows and more evidence of unauthorized off-road vehicle use.
But it is what we cannot see that might matter more, particularly from a legal perspective. Boulder Creek is part of the Salmon River watershed, famous for containing the largest area of contiguous wilderness in the continental United States—the Frank Church River of No Return Wilderness. Although the Frank Church gets the most press, the Salmon River watershed is also home to the Gospel Hump Wilderness and millions of acres of National Forest. It is a fairly pristine watershed, as they go in the contemporary West, and between Railroad Saddle and the confluence of the Salmon and Snake Rivers, there are no dams, just as there are no dams on the entire Salmon River itself.
The Weiser River, and thus Lost Creek that flows into it, are farther upstream in the Snake River watershed. Lost Creek has its own dam, just a few miles from where we stand on Railroad Divide. But much more significant, immediately after flowing into the Snake River, the Weiser River water enters Brownlee Reservoir and the slack water of Brownlee Dam. Below Brownlee, it becomes the slack water of Oxbow Dam, and then the slack water of Hells Canyon Dam, a 330-feet tall concrete monolith standing at the head of Hells Canyon.
Together, these three dams—the Hells Canyon Complex, owned and operated by Idaho Power—are a complete barrier to fish passage, and the thousands of miles of streams that were historic spawning grounds for migrating salmon and steelhead.
This is what we cannot see, standing on Railroad Divide. Despite having to endure the eight dams on the Columbia and Lower Snake rivers on their journeys to and from the Pacific, salmon and steelhead continue to survive, and on occasion thrive, in the watershed to our north. But there are no migrating salmon or steelhead in the watershed just a few feet to our south.
The law means two very different things in these few feet of space we occupy on Railroad Divide, some of us standing in salmon habitat, some of us not. And we can see those differences on the ground, and in the proposals for landscape restoration we discussed in the morning and are visiting in the afternoon. The hours we spent seeking out culverts—both old and new—would have been largely meaningless just a hundred yards to our south. And the cows and off-road vehicles we will soon see would be much more meaningful—as significant as they already are—just a hundred yards to our north.
All of these subtle, meaningful things come together in this one place, as law on the ground. During this day, we have seen human uses on the landscape: sheep and old timber harvests and camping areas complete with 1950s pit toilets. We have seen the different trees, the different slopes and mountains and streams. And we have talked and thought and seen the effects of law. And so concluding my Railroad Divide soliloquy, I tell my students that it is my belief—and the raison d’être of the class—that you can only understand how law works, and why, when you understand the natural history of a place, when you know the people who live there and what they care about, and when you have walked the landscape and felt the rocks beneath your feet, waded the streams, and maybe crawled through the culverts.
And when you know the trees.
Railroad Divide, as a place, demonstrates how understanding specific laws, or particular legal or policy decisions, requires moving beyond text and into the forests. Understanding place in a broader sense is at once as simple as thinking about how water flows across the ground, and as complex as all of the constellations of legal, cultural, social, and physical landscapes through which that water might pass. An intricate understanding of people and landscapes, and of the unique cultural and social histories they developed on those landscapes, similarly requires exploring the streams and forests, meeting the people, and thinking about how legal, social, and cultural relationships work themselves out on the ground.
Friday, February 12, 2016
This past weekend, weather and stream flows cooperated enough that I could justify spending a day chasing steelhead. The high winter flows do challenge my already limited angling skills, so I spent the day searching for any kind of structure or rocks that could make the river smaller and more approachable—at least from a fly fishing perspective—and give me a slightly greater than zero chance of finding a fish. I finally found what I was looking for, immediately behind a sign declaring “Private Property.”
Two characteristics largely define the Interior West—public lands and aridity. This combination makes for some complicated land use conflicts. In an arid environment, both people and animals congregate on the same land—land near water—and the public lands landscape affects our ability to disperse by limiting land available for human settlement. Thus, despite the millions of acres of public lands in the West, much of the land use conflict occurs not on public lands but within the private landscape where we congregate.
Private western lands are private precisely because they were the most productive or attractive, and in many ways they provide the best wildlife habitat or ecological services. In some cases, they also provide the best recreational opportunities. While the public’s perception of the Interior West might focus on federal lands issues, the private lands are an increasingly significant source of both conflict and opportunity.
And lost in the stories of the West’s public lands are the thousands of examples of private landowners not only protecting or restoring their land, but also allowing the public to hunt, fish, and recreate on private property.
In the past year, while wandering around Idaho, I have squeezed through gates, walked across farm fields, followed “secret” trails below cabins, and parked along private logging roads. In each case, I was crossing or using private property to find places to fish. And in each case, I was doing so with permission of the private landowner. The two photos at the top of this essay were taken on neighboring parcels near a small stream just southwest of Yellowstone National Park—I respected the requests of both and enjoyed a memorable day of fishing with my brother. I have also spent literally hundreds of hours running, hiking, and mountain biking on publicly-accessible private forest lands near Moscow, Idaho.
In one sense, surprisingly, this notion of public “rights” in private places is embedded within western culture. The state of Montana guarantees all residents the right to use any stream that is subject to recreational uses, regardless of the ownership of underlying lands. Idaho is slightly less permissive, in a formal if not practical sense, providing that all streams capable of floating a six-inch diameter log or being “navigated by oar or motor propelled small craft” is a public highway available for fishing, boating, or other recreational purposes. Somewhat unexpectedly, Colorado—despite being arguably more progressive in some areas than other western states—has what might be the most restrictive stream access regime, potentially allowing private landowners to completely prohibit anyone from passing down “non-navigable” streams, whether they touch the bottom or banks or not (this might be an understatement, but the issue remains somewhat contested in Colorado).
These examples might seem minor, parochial, or insignificant in the broader public lands context. But two of the greatest conservation successes in the West were the result of private landowners acting to protect public rights. When people park along the roadside at the Cathedral Group viewpoint in Grand Teton National Park, what they are viewing—the Grand Teton and neighboring mountains—was originally protected by an Act of Congress in 1929. But the land they are standing on where most visitors spend most of their time, down in the valley floor, was quietly and somewhat secretly purchased by John D. Rockefeller, Jr. and later transferred to the federal government (with some significant opposition) to expand the park. Across the Tetons in Idaho, the most famous stretch of a world famous trout steam—the Railroad Ranch reach of the Henrys Fork—flows through the old hunting and fishing retreat of the Harriman and Guggenheim families. In 1977, Averell and Roland Harriman donated the 11,000-acre ranch to the state of Idaho for use as a state park, providing for permanent public access to one of the world’s great fly-fishing destinations.
These stories, and my own experiences, came to mind this week when I received a call from a researcher investigating how to manage amenity-driven population growth in the rural West. She asked if I had any ideas for tools that would work to balance private and public interests, and my immediate (and admittedly cynical) reaction was that nothing would work—not until some fundamental change occurred in how the rural West perceives private property.
But immediately upon saying that, I thought of the “private property” sign I encountered while chasing steelhead. The bottom of the sign contained two additional admonitions. Not the expected “survivors will be prosecuted,” but rather the following: “please clean up after yourself” and “48 hour maximum stay.” This sign, on a private ranch at the end of a quiet, bumpy dirt road next to a famous steelhead stream, was a welcome sign.
Stories of private landowners offering public access to their lands might be more common outside of the western United States (in Wisconsin, for example, the state claims 25,000 miles of groomed snowmobile trails open to the public, most of them on private lands). But in the West, the stories of private landowners too often lean the other direction, focusing on those that seek to exclude rather than share. They thus overlook the fact that there are also stories of western landowners who have already accepted that cooperation—even with respect to their private lands—should be a fundamental characteristic of the rural West.
These are small stories, to be sure, but they are a confirmation that in some places in the rural West, different perspectives and attitudes are emerging (or in fact, were always there) on the relative rights of the public and private with respect to our land. And those different attitudes might allow for new approaches to developing the proverbial “society to match the scenery,” as long as we are willing to recognize them. At a time when stories of western lands are focused on the selfishness of a few, we should acknowledge that these stories of sharing are just as common.
And so taking advantage of this one example last Saturday, I walked past the private property sign to where I knew (ok, hoped) a steelhead would be waiting—a steelhead that would not be waiting for me on public land.
Monday, February 8, 2016
(Photo Credit here)
ProPublica recently came out with a story detailing how NYPD officials are using nuisance law to kick individuals out of their homes, largely based on groundless criminal claims that are ultimately dismissed in court. In at least 74 cases of nuisance eviction that were studied by ProPublica in partnership with The Daily News, residents agreed to warrantless searches of their dwellings (sometimes on an on-going basis) in order to be allowed to return to their homes. More importantly, the vast majority of these nuisance actions are falling on minorities. Over an 18-month study period, 9/10 homes targeted for nuisance abatement were in minority communities. The article notes that ProPublica "identified the race of 215 of the 297 people who were barred from homes in nuisance abatement battles. Only five are white."
This story raises some very interesting legal issues for property law professors in teaching nuisance principles. At the turn of the 20th century, nuisance law began to yield to zoning and land use restrictions, which were viewed as superior methods for regulating competing, adjacent land uses. In fact, in many cases zoning rules can preclude or at least diminish the validity of nuisance claims. For an excellent historical article on the progression of zoning and nuisance law in the U.S., click here.
The way nuisance law is being wielded in NY raises a host of policy and legal issues, spanning from fair housing, criminal procedure, constitutional law, and beyond. Here's an excerpt from the ProPublica article:
The nuisance abatement law was created in the 1970’s to combat the sex industry in Times Square. Since then, its use has been vastly expanded, commonly targeting apartments and mom-and-pop bodegas even as the city’s crime rate has reached historic lows. The NYPD files upward of 1,000 such cases a year, nearly half of them against residences. . .
A man was prohibited from living in his family home and separated from his young daughter over gambling allegations that were dismissed in criminal court. A diabetic man said he was forced to sleep on subways and stoops for a month after being served with a nuisance abatement action over low-level drug charges that also never led to a conviction. Meanwhile, his elderly mother was left with no one to care for her. . .
The NYPD has embraced nuisance abatement actions as part of its controversial “Broken Windows” strategy of aggressively pursuing low-level offenders to prevent more serious ones. . . Sidney Baumgarten, the former city official who commissioned the drafting of the nuisance abatement law in the 1970s, said it is now being abused. He is alarmed by the sheer volume of cases, especially those aimed at households in which no one has been convicted of a crime.
“I think it’s wrong. I think it’s unconstitutional. I think it’s over-reaching,” he said. “They’re giving up their constitutional rights. And why? Because they’re afraid they’re going to be evicted from their home, with their children. There’s a certain amount of compulsion, and threat and coercion, by the very nature of the process they’re using.”
Wednesday, February 3, 2016
(photo by Jonathan Long)
The Malheur Occupation has presented at least two community-learning opportunities. These most recent sagebrush rebels have used a specific, limited reading of the Constitution to support their arguments, and legal and policy scholars have understandably and capably countered with a more nuanced and complete reading of the Constitution’s property-related provisions. Because the counter to “that’s unconstitutional!” is never as easy as we’d like, continuing to simplify and clarify the argument for continued federal ownership of the public lands will be useful.
But in some ways, supporters of the public lands have missed an opportunity to consider and understand the non-legal arguments of the sagebrush rebels. These non-legal arguments are generally that contemporary public lands management has treated rural westerners unfairly, and has ignored western and public lands history. While it might initially seem counter-intuitive, failing to consider carefully some of the rebels’ reasons might be problematic in a future in which threats to the public lands are likely to increase.
A common response to sagebrush rebels is that the public lands are just that, public—owned by all people, whether in New York or Nevada, and managed by the federal government in trust for all of us. In this argument, it doesn’t matter where a person lives, or whether they have or ever will visit the public lands—all should have equal say in their management. That is, of course, true in a general sense. But it assumes a specific type of and singular purpose for the public lands. The public lands story is somewhat more complex than that.
Those who have studied public lands history are familiar with three general eras: acquisition, disposition, and retention. Today, we view the disposition era somewhat out of focus, as a romantic old western that seems as much fiction as not. We forget, or at least ignore, that for a long time the official policy of the United States was to transfer the public domain to private owners. Retention largely first came in 1872 with the creation of Yellowstone National Park, and then more completely with the first forest reserves authorized in an un-debated “rider” on the General Revision Act of 1891 (note, even the “Forest Service Organic Act”—which guided management of the National Forests for eight decades—was a rider to an 1897 appropriations bill).
But disposition of the public domain did not stop being the official policy of the United States until 1976 when Congress passed the Federal Land Policy and Management Act. Even with that, disposition (i.e., transferring federal property to private owners) is still a real and important part of today’s federal property management regime, as anyone who deals with coal mining, timber harvesting, or any other resource development program on the public lands can attest.
Recognizing that the disposition and retention eras overlapped for much longer than generally acknowledged only gets us part of the way to a more complete public lands story. We often talk about the “public lands” as a single thing, but there are many categories of public lands and purposes—National Forests, National Parks, National Monuments, Wildlife Refuges, and the “public lands” managed by the Bureau of Land Management, among others. Today we think we understand, at least generally, why each of these categories exists. But their origins and original purposes were rather more contested and complicated.
Of this list, only National Parks were (or are) specifically and necessarily created by Congress for a single purpose. The others are less unified in origin and reason. When President Teddy Roosevelt created the first National Wildlife Refuges (including the Malheur National Wildlife Refuge in 1908), he did so under somewhat questionable authority. Many of our National Forests were initially reserved despite express opposition from Congress—President T. Roosevelt’s “Midnight Forest Reserves” included 16 million acres of now National Forests that were reserved after Congress had signed legislation prohibiting the President from creating more reserves (but before President Roosevelt signed the bill into law). And controversy over the use of the Antiquities Act to create National Monuments dates from its very beginnings—when it was used to create Devil’s Tower National Monument, and to help create Grand Canyon and Grand Teton National Parks—to today. On Tuesday, the Senate narrowly defeated a bill that would have limited the President’s use of the Antiquities Act.
Focusing on the National Forests alone demonstrates the potential disconnect between purpose and contemporary perception of the public lands. The 1897 Organic Act specified that the purpose of the forest reserves was to secure “favorable conditions of water flows, and to furnish a continual supply of timber[.]” That first purpose, at least, was very much locally-focused, given how water is managed in the West. And these purposes—and none other—remained until 1960 when the Multiple Use Sustained Yield Act added outdoor recreation, range, and wildlife and fish as purposes of the National Forests. It is entirely appropriate today to expect that National Forests be managed, in part, to protect biodiversity. But that was not always the case, nor is it the sole designated purpose of those lands.
With respect to the BLM-administered public lands, they were managed largely for disposition, range, and mineral development until 1976, when FLPMA specified that they also should be managed for a wider variety of uses. Today they are still managed largely, in some places, for the historically dominant uses—the joke about the “Bureau of Livestock and Mining,” while increasingly unfair, does have some reason for being. Although we might eventually so decide, the BLM public lands are not yet, nor have they ever been, intended exclusively as an outdoor recreation mecca or wildlife sanctuary.
So what is the point of this admittedly simplistic, incomplete attempt at history? The public lands are complex and contested. And many current public lands users were part of that complex public lands history. Long-term successful management of the public lands as public lands will require an intricate and nuanced understanding of the conflicting notions of purpose and ownership that have always been a part of the public lands story. Going forward, it will be insufficient to simply claim, “but they are public!” and leave it at that, even if the law seems to allow us to do so. That is too simplistic, and ignores the long history in which they weren’t public, at least not as most people understand that word today. It also ignores that, even today, we manage them for a variety of private uses, granting enforceable property rights in the public lands to private individuals. More frightening, should the assumption prove inappropriate, it assumes that efforts to “take back” the public lands never gain traction in Congress or the Supreme Court.
I was recently criticized as being “naïve and unrealistic” in my assessment of contemporary public lands conflict. That is likely true—I still believe that no one is immune to the smell of sagebrush after a rain. Maybe growing up a tree-hugger in a sagebrush town has that effect. However, naïve or not, I do think that understanding the public lands requires experiencing them on the ground and face-to-face with the people, trees, cows, and sagebrush. We cannot claim nor expect legitimacy if we ignore the history of the place or its people.
We need to love our public lands enough to be willing to consider why other people might not. Perhaps better said, we need to love them enough to be willing to consider why other people might love them differently. I believe that there are things, at least a few, that we can all agree on. And that’s where successful public “public lands” management starts.
Sunday, January 31, 2016
This past Friday I had the pleasure of participating in a symposium on Housing for Vulnerable Populations and the Middle Class: Revisiting Housing Rights and Policies in a Time of Expanding Crisis, hosted by the wonderful faculty and law review folks at the University of San Francisco School of Law (and a special hat tip to our very gracious host, Tim Iglesias). The timing of this gathering couldn’t have been better. 2015 was a busy year in the housing world as SCOTUS upheld the validity of the disparate impact theory under the Fair Housing Act and HUD issued its significantly updated regulations on the obligation to affirmatively further fair housing. Moreover, cities and local governments are being looked to more than ever to solve major and seemingly intractable issues around housing, spurring a host of new policies, programs, and initiatives. The impressive participants of the USF symposium (coming from practice, government, non-profit, and the academy) explored these and related issues, including potential solutions to pressing problems of housing. Here’s an overview of what the panelists had to say:
What’s the matter with housing?
Rachel Bratt (Harvard Joint Center) kicked off the day by giving an overview of the nation’s current housing woes. She noted that the increase in income inequality over the last 20 years, combined with disinvestment and misinvestment of public resources, has been at the core of the affordable housing issue. She also described how political spending has played a role in further entrenching existing housing interests (in 2015, $234M was spend on real estate/finance lobbying, second only to healthcare). Bratt also explained the uneven distribution of federal housing benefits to the wealthy and the continued persistence of concentrated racial segregation. Rosie Tighe (Cleveland State-Urban Affairs) followed by describing the particular housing problems facing so-called “shrinking cities” (those places in an intense population-decline). She noted that the issue for these cities has more to do with poor quality affordable housing, rather than quantity. Tighe described the failure of low-income housing tax credits to meet the needs of these locales, and discussed the need for more scattered-site developments in these areas, while recognizing the financing and property management challenges inherent in such developments. Peter Dreier (Occidental-Poli Sci) rounded-out the discussion by pointing out that the current political discussions around the presidential election have focused much on wages and other issues, but not at all on housing. He described some reasons for the absence of attention to this important area, and drew the strong connection between household over-all health and housing.
What’s the matter with our current solutions?
Chris Odinet (Southern) started the discussion by describing some current efforts by states and local governments to deal with the fall-out from the housing crisis and on-going issues of blight and abandoned property. He then explained a number of recent federal court cases and acts taken by the FHFA that have significantly frustrated these efforts and also seriously call into question the ability of states and local governments to be innovative in dealing with issues of housing when federal programs are involved. Michael Allen (Relman, Dane, & Colfax) discussed the Fair Housing Act and the new “affirmatively furthering” regulations. He went into depth on contemporary disagreements between affordable housing advocates (who support more affordable units) and fair housing groups (who support integrated housing, and advocated for a way to reconcile their views under the auspices of these new HUD regulations. John Infrana (Suffolk) followed by describing the types of housing in and changing household composition of many cities. Despite these changing demographics, however, housing has not kept pace. In connection with this, Infranca pointed to the many possibilities that micro-housing and accessory-dwelling units (ADU) provide in the way of meeting this need. He noted that ADUs allow for greater economic diversity and can better align with demographic trends, but noted current legal barriers to them such as occupancy requirements and zoning restrictions. Marcia Rosen and Jessica Cassella (both of the National Housing Law Project)) concluded the panel by discussing the current state of the public housing program in the U.S., noting that there are currently 1.2M units (and ever-declining). She described HUD’s recent efforts to give public housing authorities (PHAs) a financing tool to rehab and rebuild these properties through the Rental Assistance Demonstration Program (RAD). This program essentially allows PHAs to convert their public housing stock into section 8 funded housing, and to combine section 8 with tax credits and other forms of debt and equity financing to fund the project. Cassella stated that although the program has great potential in terms of revamping old and decaying public housing properties, there are draw-backs in the way of transparency and long-term funding stability.
What are some new solutions?
For this final panel, John Emmeus Davis (Burlington Community Development Associates) gave an overview of community land trusts (CLTs)—currently over 280 exist nationwide—and their successes across the country. He noted that these types of entities are usually most successful in communities where there would otherwise be no affordable housing available. He noted the ability of CLTs to empower communities, protect tenants, and provide street-level land reform. Andrea Boyack (Washburn) followed by noting the current lack of rental stock compared to the growing demand across the country. She pointed out that in 2015 over half of the population of the U.S. is renting, with an annual demand of 300K new rental units per year. She followed by describing some current statistical trends in American homeownership and posited a number of ways in which cities and states in particular can seek to achieve solutions to these major housing problems. Lastly, Lisa Alexander (Wisconsin) discussed the the human right to housing, not through the lens of federal law, but rather through the ways in which localities across the country are building legal structures that provide many of the rights associated with a right to housing. She noted that market participation has been important to this process, and she used the “tiny homes for the homeless” movement and community control of vacant land as examples.
You can watch each of these presentations by clicking on the youtube video above. Participants, moderators, and USF Dean John Trasviña (former HUD assistant secretary for fair housing) are pictured below.
January 31, 2016 in Conferences, Home and Housing, Land Use, Landlord-Tenant, Law Reform, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recording and Title Issues, Takings | Permalink | Comments (0)
Monday, October 28, 2013
Lee Fennell (Chicago) and Eduardo Penalver (Chicago) have posted Exactions Creep (Supreme Court Review) on SSRN. Here's the abstract:
How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.
Tuesday, October 8, 2013
Monday, July 8, 2013
Professors’ Corner: Wednesday, July 10, 2013: Koontz v. St. John’s River Water Management District: A Significant Victory for Property Rights?
Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars. Members of DIRT are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).
Wednesday, July 10, 2013
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.
Call-in number: 866-646-6488
This program will feature a roundtable discussion breaking down the Supreme Court’s important June 25 decision in Koontz v. St. John’s River Water Management District. If “monetary exactions” have always seemed a little untamed to you, you’re not alone. The 5-4 decision in Koontz leaves a lot of room for analysis, and this month’s panel is prepared to guide you through it by parsing the decision and the dissent. Our distinguished panel will include Professor Jonathan H. Adler, who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law; John D. Echeverria, Professor of Law at Vermont Law School; and David L. Callies, who is the Benjamin A. Kudo Professor of Law at the University of Hawai’i.
For those that haven’t already seen it, here’s a link to the opinion:
Please join us Wednesday for this great program!
Monday, November 5, 2012
Many many thanks to Steve, Ben, Tanya and Mark for having me. As Steve said, a few familiar names to this blog set out on a wild excusion this past year by signing on as the innaugeral faculty at the Savannah Law School. So what could Savannah Law School offer that would make it worth a move? I'm going to pitch you five reasons why you'll want to make Savannah your home too -- or at least make you want to stop by for a visit.
Young Rock Star Faculty and Amazing Staff (myself excluded from the commentary). Have you ever tried to navagate an 18 person bicycle through an ancient city with your faculty and staff on board -- that's the kind of faculty and staff we have at Savannah Law School. The faculty and staff I have joined make teaching law sooooooo much fun. I have always had fun teaching law. But joining these highly competent, extremely thoughtful, and engaging people have made teaching so much fun this year. So Caprice, Elizabeth, Kelly, Kellyn, Belinda, Montre, Ray and Rose Anne --you rock!
The Building. Our building is a rennovation of a 1790's era hospital -- the largest rennovation in Savannah in the past forty years. Listen to the date again -- 1790's. The depiction above shows the charm that the building will hold for sure, but like so many things, there is more than meets the eye. There are tunnels under the building where people who succumbed to yellow fever in the 18th and 19th century were transported out of the city. And across the street is one of the best parks (Forsythe Park) anywhere. The building (they say) is haunted -- which in itself makes this the most unique law school in the country. This building is just waiting for Al Brophy to begin what I am sure will be an Emmy Award winning show on Bravo -- Monument Hunters. If you believe esthetics are important to education (which is a hard pitch given the plethera of neo-soviet style 1950's bomb shelters canvassing American colleges today), then Savannah might be the right place for you.
The Students. Our students have been awesome. The students are highly talented, multi-versed and, like their faculty, adventurers. They are kind, endearing and not without a little bit of pizzazz.
Savannah Itself. Savannah is one of the oldest cities in the U.S. Steeped in history and covered in spanish moss, Savannah is the crown jewell of the Southeast (all due respect to our Brethren in Charleston and New Orleans). But Savannah has more than just history. There is SCAD. There is Tybee Beach (12 minutes from my house). There is the Port. There are ghost tours everywhere. And the food is amazing.
The Tree. Last but certainly not least, nestled right outside the building is the Candler Oak, the oldest Oak Tree in the State of Georgia. The stories the tree could tell would be amazing.
Later this week I will take some picutres of the inside of the new rennocation and tell you more about this awesome building.
Monday, October 1, 2012
Fascinating piece in the New York Times over the weekend about the only fenced and gated, private park in Manhattan -- Gramercy Park. The focus of the article is the limited access to the park, exemplified by the 383 numbered keys granted to residents of the 39 buildings which surround the park and pay the annual assessment. The two-acre park was established in 1831 by Samuel Ruggles as an ornamental park to be enjoyed by the residents of the mansions which lined it. Gramercy Park has been fenced since 1831 and locked since 1844. Lots of interesting historical details in the article about how the keys are made, distributed, and managed.
Beyond the history, the most interesting thing to me about the article was the drum beat of thinly veiled criticism of the existence of a private park. For example:
"Parkside residents rationalize that their communal front yard is privatized for its own protection. Besides, they, not the city it enhances, have footed its bills for nearly two centuries."
"For connection-challenged mortals, though, the park is increasingly problematic to appreciate from within ..."
"So unless you are among the fortunate few to rent or own property directly on Gramercy Park; are a member in very good standing of the National Arts Club, the Players club, the Brotherhood Synagogue, or Calvary-St. George's Church; or can splurge on a stay at the aggressively hip Gramercy Park Hotel, these coveted keys and the verdant two-acre jewel box they unlock are off limits to you, period. No exceptions are made."
So the "fortunate few" who have access to the "coveted keys and the verdant two-acre jewel box" have to "rationalize" the privatization of property that they, through a neighborhood association, own and pay to maintain. The park is "off limits" to the rest of us, the "connection-challenged mortals." So, what's up with the hostility to the exclusion of the public from private property? Is this an urban mindset, where there is very little private greenspace but many public parks? Am I unable to understand this attitude as a Midwesterner, where the opposite is true?
It does make me want to stay at the Gramercy Park Hotel so I can visit the park, however....
Friday, June 8, 2012
I visited New York City a few weeks ago and stayed in a hotel at 42nd and 10th. My room looked south, so although the weather was hazy for most of my visit, I could observe the construction of 1 World Trade Center and (I think) 4 World Trade Center.
Although I was more than three miles north of the World Trade Center site, the 1 World Trade Center building is obviously significantly taller than any structure south of Times Square. (I know, duh. When it is completed in 2013, with its nearly 400 foot spire, 1 WTC will be the tallest building in the Western Hempishere and the third tallest building in the world.) Following up on Steve's post regarding cranes on the top of skyscrapers, this photo more clearly shows the cranes on top of 4 World Trade Center. Unfortunately, the top of 1 World Trade Center is obscured by clouds.
All of this is background to introducing a really interesting article in today's New York Times regarding the history of skyscrapers. I love the Streetscapes column in the Times -- they do a wonderful job of blending the history of New York City real estate with present issues. This article is no exception. My favorite tidbit:
In 1897 The Record and Guide, alarmed by a proposal for a building 2,000 feet high, protested that New York was open “to attack from the audacious real estate owner” who cared nothing about robbing light from the neighbors, adding, “All that is needed is a barbarian with sufficient money and lunacy.”
The article discusses the historical animosity towards skyscrapers in New York, and the political battles regarding the land use restrictions that were put in place after the turn of the last century. The article begins and ends with a description of the construction of 1 World Trade Center, concluding:
No one talks seriously about banning skyscrapers anymore; indeed congestion has been in recent decades praised, not derided. And so we have before us the prospect of a tower one-third of a mile high, that will be considered a monument of civic pride, a literal triumph out of tragedy. What people would have said in the 1880s and 1890s is barely a footnote.
But as a law professor, of course, I love footnotes.
Thursday, May 17, 2012
Wednesday, May 16, 2012
The New York Times has a fascinating article today about the abandonment of Treece, Kansas, a town built literally on top of zinc and lead mines and now thoroughly, completely, contaminated. The mining companies that caused the contamination and abandoned the mines are, of course, out of business. The town is a parade of horrors -- structures and parts of roads collapse into abandoned tunnels from time to time, the lead dust in the air has led to children with lead-blood levels three times the national average, and the bodies of water that aren't orange are filled with acid. “The only thing polluted in Treece,” says Rex Buchanan, interim director at the Kansas Geological Survey, “is the earth, air and water.”
Yet, the article also describes the people who didn't want to leave, despite every reason to do so. The article describes the remaining residents:
A few blocks away, I saw an immaculate double-wide trailer on a flowery corner lot. Its owners — Della Busby, a shovel-jawed woman with short bangs like Bettie Page’s and a raspy smoker’s growl, and her husband, Tim — had refused the buyout. Treece’s official population was now just two people. “To be honest, I don’t know why everyone left,” Della told me when I found her on her porch later that morning, still in the pink pajama pants and Las Vegas T-shirt she’d slept in. “Despite the obvious, it’s kind of nice out here. I’ve got the place to myself.”
A fascinating, and depressing story.
Monday, February 20, 2012
Christopher Mims profiles L. Brooks Patterson, the county executive of Oakland County, Michigan and the country's most vocal advocate of urban sprawl:
Let’s stop the hysteria and honestly ask ourselves what is sprawl? “Sprawl” is the unfortunate pejorative title government planners give to economic development that takes place in areas they can’t control. In reality, “sprawl” is new houses, new school buildings, new plants, and new office and retail facilities. “Sprawl” is new jobs, new hope and the fulfillment of lifelong dreams. It’s the American Dream unfolding before your eyes.
Wednesday, February 8, 2012
The always-interesting Ken Stahl highlights a recent land use case out of New Jersey. In Sayreville v. 35 Club, the New Jersey Supreme Court held that the first amendment does not necessarily require a municipality to allow the sitting of adult businesses, so long as adult ventures have adequate access to locations elsewhere in the metro region (even if those locations are across state borders).
Stahl dubs this "the bizarro Mount Laurel Doctrine" and argues that it has the potential to create new red light disctricts. He writes, "Those communities that have permitted land uses deemed undesirable by other communities, perhaps out of a willingness to absorb their fair share, will be branded as red-light districts or ghettos and become dumping grounds for undesirable uses, while those that have guarded their exclusiveness most zealously will get to continue doing so for no better reason than that they always have."