PropertyProf Blog

Hamilton on the Unconstitutionality of RLUIPA

Marci A. Hamilton (Cardozo) has posted The Constitutional Limitations on Congress's Power Over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act is Unconstitutional on SSRN.  Here's the abstract:

The purpose of this Article is to bring to the forefront of discussion bedrock principles of land use law, which have been ignored to date, and to place RLUIPA analysis on a more constitutionally sound base. The Article is divided into three main sections. Section I recounts the history of land use principles from the drive to ordering urban centers in the seventeenth and eighteenth centuries to the development of the rich amalgam of modern practices that now constitute local land development and planning. Section II examines the Supreme Court’s constitutional doctrine of land use law and describes the federal laws that directly or incidentally affect local land uses and shows that these few are cabined within narrowly circumscribed arenas or in fields in which federal coordination of the states is necessary. These laws are readily distinguishable from the sweeping effect of RLUIPA on local land use determinations. Section III then looks closely at Section 2(a), to show how it impacts local decision-making, and operates as a radical and careless interference with settled constitutional principles. In addition, it points out that state courts have a history of rooting out invidious discrimination against religious landowners and invalidating discriminatory or arbitrary zoning and permitting decisions.

Ben Barros

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Salkin on Land Use Ethics

Patricia Salkin (Albany) has posted 2009 Ethical Considerations in Land Use on SSRN.  Here's the abstract:

This article is one in a series of annual updates on reported cases and opinions in the area of ethics and land use regulation, A number of themes emerged from the round of litigation in the last year. The most surprising discovery was for a second year in a row, the number of reported cases involving allegations of unethical conduct on the part of land use attorneys. This article reviews these cases, as well as cases involving conflicts based on community involvement, familial relationships, employment and finacial interests; and cases involving allegations of bias and prejudgment.

Ben Barros

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Saxer on Eminent Domain and First Amendment Land Uses

Shelley Ross Saxer (Pepperdine) has posted Eminent Domain Actions Targeting First Amendment Land Uses on SSRN.  Here's the abstract:

This Article explores constitutional and statutory limitations on land use regulations where First Amendment rights are implicated. The government’s eminent domain power can weaken the protection due undesirable land uses under the First Amendment. Professor Saxer advocates that courts should distinguish between the government exercising eminent domain and the government using typical land use regulation and should impose stricter constitutional limitations on the eminent domain power.

In particular, this Article focuses on how courts have dealt with eminent domain actions targeting adult business and religious land uses. Although these two types of uses are strange bedfellows, they are the land uses that typically involve First Amendment rights and that tend to generate emotional responses from the community leading to content-based regulation. Issues examined in this Article include: eminent domain actions against religious land uses protected under state and federal constitutions, state Religious Freedom Restorations Act (RFRA) statutes, and the Religious Land Use and Institutionalized Persons Act (RLUIPA).; government motivations for targeting protected land uses; and special valuation considerations for just compensation determinations.

Ben Barros

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Johnson et al. on No Walmart in My Backyard

Daniel K. N. Johnson, Kristina M. Lybecker, Nicole Gurley, Alex Stiller-Shulman, and Stephen Fischer (all of Colorado College) have posted The NWIMBY Effect (No Walmart in My Backyard): Big Box Stores and Residential Property Values on SSRN.  Here's the abstract:

Recent Wal-Mart openings have been accompanied by public demonstrations against the company’s presence in the community, asserting (among other things) that their presence is deleterious to residential property values. This study empirically evaluates that claim, analyzing the spatial correlation between Wal-Mart locations and residential property values, while comparing Wal-Mart with other big-box retailers for a frame of reference and controlling for other important aspects of a home’s market value. We recognize that market value may represent a trade-off between price and patience, so perform a similar analysis using a property’s days on the market to evaluate any big-box effect. Finally, we interpret the resulting effects in two ways, from both the resident’s and retailer’s point of view, casting new light on the NWIMBY effect.

Ben Barros

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Salkin on Alternate Members of Planning and Zoning Boards

Patricia Salkin (Albany) has posted Providing for Alternate Members of Planning and Zoning Boards: Drafting Effective Local Laws on SSRN.  Here's the abstract:

It is not uncommon for members of planning and zoning boards to have conflicts of interest with repsect to applicants and applications before the board. When these members disclose and recuse themselves from further involvement in pending matters, it can lead to problems including a lack of quorum for the conduct of business and to tie votes resulting in either inaction or in default approvals. A number of states specifically authorize, but do not require, the appointment of alternate members to these local land use boards. However, many of these statutes fail to provide necessary guidance as to how alternate members are to be selected and appointed, and what their responsibilities and powers are during their term of office. This article offers lawyers, municipal officials and other community leaders best practices with respect to the drafting of effective local laws for the appointment of alternative members of planning and zoning boards.

Ben Barros

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Novikov on Solar Rights in the US

Igor V. Novikov (Suffolk) has posted State of Solar Rights Across the United States on SSRN.  Here's the abstract:

Solar energy is cheap, abundant, and readily available. Solar energy could help the United States to decrease (and, potentially, eliminate) its dependency on oil imports. However, the rate of solar technology adoption has been slow, to say the least. This paper is an attempt to summarize different ways in which state and local governments, courts, and private citizens address challenges arising from solar power adoption.

Ben Barros

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The Creed in the Deed

Ralph Waldo Emerson said as a part of his eternal wisdom: "go put your creed into the deed, nor speak with double talk."  Apparently, some people took Waldo (as he affectionately preferred to be called) seriously -- (Ok, so the groups that undertake this practice are very unlikely to draw wisdom from a transcendentalist, but hey, its a good hook).  

During the late 19th century and continuing until even recently, at least one American church group included in its property deeds certain creedal statements of faith.  Here is one example: 

"To have and to hold the aforementioned real estate with all the appurtenances and hereditaments "hereunto belonging or any wise appertaining unto the said trustees for the (Name) Church of Christ, its heirs and assigns in fee simple forever.

"Included in the deed and expressly made a part of the conveyance are the purpose and limitations for which the lot hereinbefore described was purposed, to wit: to be used by the said (Name) Church of Christ for as long as the following practices of worship and work by the said (Name) Church of Christ are maintained.

1. The Holy Scriptures shall be taught and accepted as the final, all-sufficient revelation from God to man, and regarded as an infallible rule of faith and practice.
2. Mechanical instruments of music shall never be permitted to be brought on to the premises, for the purpose of being used in worship, or for any other purpose, use or design.
3. No teacher or preacher shall be allowed use of the building, its premises, and grounds for the purpose of advocating any doctrine or practice which conflicts with the teaching and practice of the (Name) Church of Christ as taught in the Bible and as currently held by the elders, trustees, or members responsible for the execution of this deed. Expressly excluded from such use are any and all teachers, preachers and others who hold to any form of liberalism, modernism, or premillennialism, along with all hobby-riders, factionists and divisive persons, who advocate any doctrine or practice in conflict with the teaching and practice now current in said (Name) Church of Christ.

"After such a time the property shall be held in trust for such members only which remain faithful to the purposes for which this conveyance is made, and for no others; and, when there are no others, the property shall revert to the (Neighboring) Church of Christ, now meeting at (address)."

A couple of comments.  Isn't amazing the intersection of our deeply held values with the tangible things we hold.  This strikes me as very similar to the article Al Brophy wrote several years ago on covenants against Yankees: Whistling Dixie: The invalidity and unconstitutionality of covenants against yankees,10 Villanova Environmental Law Journal 57. One of the covenants uncovered by Brophy and Gnosh in that article was this one: 

The property shall never be leased, sold, bequeathed, devised or otherwise transferred, permanently or temporally, to any person or entity that may be described as being part of the Yankee race. "Yankee" . . . shall mean any person or entity born or formed north of the Mason-Dixon line, or any person or entity who has lived or been located for a continuous period of one (1) year above said line.

Brophy's account traces the unlikely tale of a recent southerner who had not forgotten the war (at least as late as 1998) who attempted to enforce a covenant against yankees in the sale of certain property in Georgia. Like this case, certain church members used the courts (or so I am told) to enforce these creeds against apostates of the faith. Church folk, like Southerners after the war, are greatly invested in their larger normative beliefs, and for some, the best way of expressing it is through the material intrusions of this world -- like property.(Ever wonder why the Catholics and Lutherans disagreed so adamantly in the sixteenth century -- whether the bread and the wine actually became the body and blood of Christ (transubstantiation) or whether it only spiritually became the body and blood of Christ (consubstantiation)). The fact that the idea of the South became a spiritual idea, as Robert Penn Warren wrote, rather than a geographic one after the war, makes the analogy even more appropriate.  Some people just want their religion to touch real dirt. 

And perhaps the law is willing to give a little to allow these covenants to exist.  Brophy notes in his part that the covenant against Yankees may be preserved if the potential owner accedes to the seller's demands to take a loyalty oath to the south.  But, likely the restraint is unenforcible even with an oath.  Again, Brophy: 

Mr. Ingram's offer to allow Yankees to purchase the property if they take a Southern loyalty oath may offer some hope of saving the covenant from invalidation. Even with the dispensation for those Yankees willing to take the oath, a direct restraint on alienation remains, which may be invalid. That is, the oath may not sufficiently free the land from the covenant's restraint on alienation. The oath is difficult to police, which will counsel against enforcement through injunction.

So here's the lesson.  Go ahead and take the apostate down to the river to be baptized -- but don't expect that the deed will prevent him from defying the creeds of the church. 

***

As a matter of full disclosure, I grew up since I was twelve in Church's of Christ.  My wife and I now belong to a denomination that traces its roots to the same movement that spawned Church's of Christ, but is more socially progressive and theologically ecumenical (the Christian Church, Disciples of Christ).  The selection above is from a book written by a Church of Christ minister, Cecil Hook, titled Free as Sons, in which is describes the Creed in the Deed as being against faithful discipline.  I know of no instance as Cecil describes in which Churches actually litigated their creeds, though I also have no reason to dispute his claim. If you are aware of any examples, I would love to know about them, as well as any other instances of faith bodies utilizing their deeds to inject their creeds. 

Marc (MLR)

The Image is of the building at Cane Ridge, where the Cane Ridge Revival took place in 1801, spawning the American Restoration Movement.   

There may be a delay in comments as they are approved.  

LaCroix on Urban Agriculture and the City

Catherine J. LaCroix (Case Western) has posted Urban Agriculture and Other Green Uses: Remaking the Shrinking City on SSRN.  Here's the abstract:

For many decades, the primary challenge of land use law has been how to promote and channel growth and development. Nobody wants stagnation; the cure is growth, and lately the cure has been “smart growth.” In the last several years, however, some cities have begun openly to address a previously unacknowledged truth: some cities will and do shrink. They lose population and have no foreseeable prospect of ever regaining it. The land use planning community has begun to grapple with the issue of the shrinking city, asking how we can achieve managed, “smart” shrinkage To some extent, the answer is to shift density and promote green uses of various kinds This brings us to the legal question Does an organized effort to help a city shrink pose any distinctive legal issues? What constraints might the law impose on a city’s goals of diminishing its infrastructure responsibilities, downzoning its land to less intensive uses, or taking other steps consistent with a goal of managed shrinkage This paper explores a few of those issues, using Cleveland, Ohio as an example. It considers legal challenges the shrinking city might face, particularly when downzoning urban property to promote urban agriculture and other green uses, focusing on the application of takings law It also briefly considers the fairness issues associated with downzoning and the limitations of the current legal structure for revitalizing Brownfields in a setting where traditional redevelopment is unlikely.

Ben Barros

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Restrictions Against Clotheslines: The Next Great Battlefield for Property Rights?

It appears possible, according to the New York Times.

From the story:

Jeanne Bridgforth, a real estate agent in Richmond, Va., said that while she had no personal opinion on clotheslines, most of her clients were not thrilled with the idea of seeing their neighbors’ underwear blowing in the breeze.

She recalled how she was unable to sell a beautifully restored Victorian home in the Church Hill neighborhood of Richmond because it looked out onto a neighbor’s laundry hanging from a second-story back porch. In June, the house went into foreclosure.

“Where does it end?” Ms. Bridgforth said of the legislative push to prevent housing associations from forbidding clotheslines.

To take some covenants from Chapel Hill for purposes of illustration .... Southern Village's covenants (paragraph 20) require that clotheslines by concealed, but do not prohibit clotheslines entirely.

Alfred L. Brophy

Salkin on New York Land Use Law and Sustainability

Patricia Salkin (Albany) has posted Modernization of New York's Land Use Laws Continues to Meet Growing Challenges of Sustainability on SSRN.  Here's the abstract:

There has never been a more challenging time to practice land use planning and zoning law in New York. With goals of sustainability at the forefront of the land use regulatory agenda, this brief account of recent developments in land use law highlights some discernable trends, namely: the modernization and increased flexibility of New York State planning and zoning enabling acts, the inspired local initiatives and lethargic State response to affordable housing issues, and the increasing impact of alternative energy systems on local regulatory schemes.

Part I of this article explores the impacts on community development caused by the many modifications to New York State’s planning and zoning enabling acts over the last two decades. Particularly, the article identifies the delegation of extensive discretionary authority to local governments as New York’s signature approach to land use control.

Part II discusses “affordable housing” as a key attractant for judicial action and local government response. With the exception of the Long Island Workforce Housing Act in 2008, the State has been slow to act on judicial calls to action, forcing local governments to develop unique solutions in order to provide affordable housing.

Finally, Part III notes the challenges being faced by lawyers and planners in light of growing preference for alternative energy systems, with specific focus on reactions to Wind Energy and Solar Energy installations.

Ben Barros

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Tyler and Markell on Evaluating Land Use Procedures

Tom Tyler (NYU/Dep't of Psychology) and David L. Markell (Florida State) have posted The Public Regulation of Land Use Decisions: Criteria for Evaluating Alternative Procedures on SSRN.  Here's the abstract:

In this article we argue for an empirical governance approach - the use of public evaluations - as one basis for deciding whether and how to regulate decisions with public consequences. We propose a conceptual framework for evaluating public acceptability, notably that public judgments should be evaluated against five criteria: overall acceptability ex ante; robustness; consensus; procedurality; and their ranking on non-fairness issues such as cost and convenience. In the article we also move beyond theory to implementation by modeling our framework to evaluate public judgments concerning acceptability in the contentious area of land use decisions in Florida.

Data from a survey of Florida stakeholders offers several interesting findings about five procedures currently in use to make land use decisions: private negotiation; public hearings conducted by elected local officials; administrative law hearings; judicial adjudication; and public referendums. Based upon the above five criteria, judicial adjudication is evaluated as the most desirable of these procedures through which to govern land use decisions. Respondents view judicial and administrative adjudication differently, a finding that raises important questions concerning the appropriate roles for, and structure of, administrative and judicial adjudication. Referendums receive mixed reviews, while public hearings, the most common form of decision-making procedure in the land use arena, are the least acceptable. In short, as the paper details, our findings in the specific context of land use decision-making procedures raise interesting and important questions about the most appropriate procedure through which decisions should be made in this arena and whether there are ways to revise procedures to improve their acceptability to the public. Further, the findings raise important questions across policy arenas about the appropriate use and structure of different types of decision making processes.

Our more general objective is to offer a framework for using empirical governance to consider and, ultimately, enhance the public acceptability of government decision-making processes. Our basic premise in this project is that, to further good governance, government should make decisions using procedures in which the public has confidence and that will increase public acceptance of such decisions.

Ben Barros

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Bronin on Solar Rights and Modern Lights

Sara C. Bronin (U Conn) has posted two related articles on SSRN.  The first is Solar Rights:

The rights to access and to harness the rays of the sun - solar rights - are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences. Accordingly, for at least two thousand years, people have attempted to assign solar rights in a fair and efficient manner. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American legal scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the treatment of solar rights, especially given the emergence of solar collector technology that could transform solar energy into thermal, chemical, or electrical energy. These scholars proposed several legal regimes that they believed would clarify solar rights and facilitate increased solar collector use. Very little has changed since this debate about solar rights began. Although some jurisdictions have experimented with scholars’ suggestions, reforms have not been comprehensive, and solar rights are guaranteed in very few places. At least in part because of the muddled legal regime, and despite numerous technological advances that have reduced the cost of solar collectors, only one percent of our nation’s energy currently comes from the sun. In this context, this Article aims to reinvigorate and refocus the scholarly debate about solar rights. The Article first explains why solar rights are valuable to both individuals and to the country as a whole. It then analyzes three methods by which solar rights can be allocated: express agreements between property owners, governmental permit systems or zoning ordinances, and court assignments that result from litigation. Although this Article analyzes the concerns of both solar rights seekers and possible burdened parties with respect to current law; it does not fully address the possible solution to the problem of solar rights. Instead, this Article sets the stage for a second piece, 'Modern Lights,' simultaneously being published in the University of Colorado Law Review.

The second is Modern Lights:

This Article functions as a companion to a piece, Solar Rights, recently published in the Boston University Law Review. In that piece, the author analyzed the absence of a coherent legal framework for the treatment of solar rights - the rights to access and harness the rays of the sun. The growing popularity of, and need for, solar collector technology and other solar uses calls for reform.

Answering the call for reform in Solar Rights, this Article proposes a framework within which a solar rights regime might be developed. First, as a baseline, any regime must recognize the natural characteristics of sunlight. Sunlight travels in beams, often across multiple legal parcels, meaning that while a solar right benefits one parcel, it also likely burdens others. Any solar rights regime must weigh the relative value of various property interests and reject frameworks that attempt to implement absolutist approaches. In addition, solar rights must address topographic, latitudinal, and other location-specific conditions. In other words, the rules for solar rights should be flexible, drawing from water law to combine strategies of exclusion and governance to manage sunlight, a fugitive resource like water.

Second, in addition to accommodating the natural characteristics of sunlight, solar rights must clarify both the identity of the holder of the initial entitlement and the nature of the entitlement itself. In recognition of the public benefits of protecting solar access, solar rights should initially be assigned to the party who can put the solar right to the highest socially beneficial use: the solar collector owner, rather than the potential obstructer. Along with the assignment of the initial entitlement, and in recognition of the relativity of solar rights, we must embrace liability rules (as opposed to property rules), which compensate burdened landowners.

A solar rights regime that both recognizes the natural characteristics of sunlight and adequately articulates the nature of the initial entitlement may be difficult to formulate. This Article suggests that instead of creating new legal forms that may further complicate an already complicated task, we rely on existing property forms within the numerous clausus. It advocates a regime that draws from principles in water law, sets the initial entitlement so as to produce socially beneficial results, and adequately compensates burdened landowners. Although much work remains to refine and implement a functional solar rights regime, this Article aims to restart a discussion that has remained 'in the shadows' for too long.

Ben Barros

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Land Use Prof Blog

The Land Use Prof Blog has been re-launched with a new group of editors.  Check it out!

Ben Barros

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Serkin on Private Conservation Easements and Public Land

Christopher Serkin (Brooklyn) has posted Entrenching Environmentalism: Private Conservation Easements Over Public Land on SSRN.  Here's the abstract:

This piece for the University of Chicago Law Review Symposium: Reassessing the State and Local Government Toolkit, examines how local governments can use private law mechanisms to entrench policy in ways that circumvent typical legal limitations. The piece examines in detail a specific example of a town donating conservation easements over property it owns to a third-party not-for-profit conservation organization in order ensure that the property would not be developed in the future. This is nearly the functional equivalent of passing an unrepealable zoning ordinance restricting development, something existing anti-entrenchment rules would never permit. The piece examines the costs and benefits of using such a device. It theorizes generally about the nature of entrenchment outside of public law, and identifies anti-entrenchment protections designed to prevent the worst abuses. It ultimately argues that eminent domain serves an important role in allowing subsequent governments to escape the precommitments of prior governments and proposes a modest modification in compensation rules to limit the extent to which conservation easements can entrench an anti-development agenda.

Ben Barros

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Lefcoe on Curbing Opportunistic TIF-Driven Economic Development

George Lefcoe (USC) has posted After Kelo, Curbing Opportunistic TIF-Driven Economic Development: Forgoing Ineffectual Blight Tests; Empowering Property Owners and School Districts on SSRN.  Here's the abstract:

When economic development or urban redevelopment is funded by tax increment financing (TIF), local government officials, in their haste to pump up local tax receipts, may become overzealous in displacing some private land users to make way for private developers They are also tempted to hog property tax revenues collected from the project area and use it to repay redevelopment agency debt. These tax proceeds would previously have been divided among cities, counties, school districts and other taxing entities. This paper is about the legal solutions afoot to deal with these controversial aspects of TIF funded economic development - displacement of private owners for private development projects and diversion of the property tax base from other taxing entities.

Most states require findings of blight as a pre-condition to economic development or redevelopment projects. They hope their blight tests will meet ‘public use’ challenges and steer local governments away from economic development projects of questionable value. But blight definitions vary greatly. Some are so expansive and vague as to be virtually meaningless as constraints. Also, the same definition of blight cannot fulfill both these functions adequately because a blight definition protective of property owners must shield unblighted properties from the threat of condemnation while a blight norm meant to limit economic development to areas that desperately need rejuvenation must be predicated on an area wide basis, and include unblighted properties necessary for a successful economic development effort.

This paper recounts the measures that most states have enacted to complement or replace blight tests. Among these, states have enacted outright prohibitions on economic development takings, approved more generous compensation standards, instituted reforms in the planning process favoring citizen participation, and mandated condemnor’s to negotiate acquisition prices fairly. States have also legislated to safeguard school districts and other taxing entities from having their tax bases raided by opportunistic economic development projects. These enactments are described briefly here as well.

At the same time, state courts have been responding to ‘public use’ challenges to economic development takings in the wake of Kelo v. City of New London. Local governments undertake economic development projects to spike local tax and job rolls, enhance urban infrastructure (street improvements, ball parks, affordable housing), and advance planning norms, such as those favoring increased urban densities to facilitate the use of public transit. Many courts seem sensitive to the purposes of economic development projects and are more sympathetic to projects offering traditional ‘public goods’ such as infrastructure and planning improvements than they are to projects with no apparent ‘public use’ other than to increase the redeveloping jurisdiction’s tax rolls.

Ben Barros

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Blumm on the Public Trust Doctrine

Michael C. Blumm (Lewis & Clark) has posted The Public Trust Doctrine: A Twenty-First Century Concept on SSRN.  Here's the abstract:

This article briefly surveys the evolution of the public trust doctrine in 19th and 20th century America and discusses some notable recent developments, particularly in the doctrine's scope. It also discusses a treatise project on the public trust doctrine the author is undertaking with a colleague as well as three recent student publications the project has produced on the federal common law nature of the doctrine, its applicability to uplands like parks and beaches, and the adoption of the doctrine in the 2008 Great Lakes Compact. The article serves as an introduction to the publication of two of those articles.

Ben Barros

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Of Roosters and Pit Bulls

Two articles caught my eye today, both on the topic of limiting animals in residential areas.

The LA Times reports that the Los Angeles City Council passed a law yesterday that caps the number of roosters per parcel of private property at one unless the property is a "permitted and licensed commercial, agricultural or industrial business" on a street with the proper zoning. 

On the other coast, the New York Times reports that, effective May 1st, the New York City Housing Authority banned pit bulls and other dog breeds which may grow larger than 25 pounds from public housing.  The policy has thus far caused 113 dogs to be surrendered to shelters, including 49 which have been euthanized.  Given that the policy covers 178,000 apartments, it is likely that a number of residents have not yet surrendered their pets.

It seems that interesting cross-currents are at work here.  I have seen a number of articles dealing with municipalities becoming more permissive of chickens as the twin concerns of local food and recession have encouraged urban flocks.  At the same time, attempts continue to limit the size and breeds of permitted dogs.  Much of this activity (limiting and permitting) is done through zoning and land use regulations.

Tanya Marsh

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Rule on Solar Access Laws

Troy A. Rule (Missouri) has posted Shadows on the Cathedral: Solar Access Laws in a Different Light on SSRN.  Here's the abstract:

Unprecedented growth in rooftop solar energy development is drawing increased attention to the issue of solar access. To operate effectively, solar panels require un-shaded access to the sun’s rays during peak sunlight hours. Some landowners are reluctant to invest in rooftop solar panels because they fear that a neighbor will erect a structure or grow a tree on nearby property that shades their panels. Existing statutory approaches to protecting solar access for such landowners vary widely across jurisdictions, and some approaches flatly ignore the airspace rights of neighbors. Which rule regime for solar access protection best promotes the efficient allocation of scarce airspace, within the constraints of existing law? This Article applies Calabresi and Melamed’s “Cathedral” framework of property rules and liability rules to compare and analyze existing solar access laws and to evaluate a model solar access statute recently drafted under funding from the US Department of Energy. Surprisingly, the Article concludes that a statute implementing the Cathedral model’s seldom-used “Rule Four” is best suited for addressing solar access conflicts.

Ben Barros

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McLaughlin on Land Trusts and Biodiversity

Nancy A. McLaughlin (Utah) has postedThe Role of Land Trusts in Biodiversity Conservation on Private Lands on SSRN.  Here's the abstract:

This short article explores the role land trusts and conservation easements can play in the protection of biodiversity on private lands.

Short and sweet!

Ben Barros

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Food Policy is a Land Use Policy

Michael Pollan, the author of "The Omnivore's Dilemma," contributed an opinion piece to The New York Times this week that linked the federal government's subsidies of commodity crops to the health insurance debate.  An excerpt:

"[S]o far, food system reform has not figured in the national conversation about health care reform. And so the government is poised to go on encouraging America’s fast-food diet with its farm policies even as it takes on added responsibilities for covering the medical costs of that diet. To put it more bluntly, the government is putting itself in the uncomfortable position of subsidizing both the costs of treating Type 2 diabetes and the consumption of high-fructose corn syrup."

Thinking about the connection between farm policy and health care led me to begin to consider how deeply our federal farm policy influences local land use. 

For example, confined feeding operations, a popular topic amongst those interested in zoning, environmental issues, and land use, are encouraged by a farm policy that subsidizes the commodity crops fed to meat animals.  If grain were more expensive, farmers would be encouraged to shift to grass feeding rather than feedlots.  Such a move would have a ripple effect in some parts of the country, impacting the balance between ranchers and public grazing lands.

Flying coast to coast illuminates both the range/township/section method of dividing land in the Midwest and West (witness the neat squares of tilled soil in 160 acre units) and also shows the conforming influence of the farm policy.  I have spent time looking through the agricultural schedules from the 1880s.  The Nebraska farms I studied produced a dizzying variety of items -- animals kept for meat, eggs, milk, and fiber, along with fruit, vegetables, and several types of grain (corn, rye, wheat, oats).  Today, those same farms are largely dedicated to a single crop and perhaps a home garden.  Unless a farm is organic and within an easy drive of a good-sized population with busy farmer markets, it simply isn't economically feasible to continue that traditional model of farming.

Pollan ties together health care, the farm policy and land use near the end of his piece:

"Recently a team of designers from M.I.T. and Columbia was asked by the foundation of the insurer UnitedHealthcare to develop an innovative systems approach to tackling childhood obesity in America. Their conclusion surprised the designers as much as their sponsor: they determined that promoting the concept of a 'foodshed' — a diversified, regional food economy — could be the key to improving the American diet."

Just as some communities have used zoning codes to discourage confined feeding operations, it would be interesting to consider whether local land use policies could encourage a "foodshed" rather than commodity crops.  Or whether they would even want to.

Food for thought.  (Pardon the pun.  I couldn't resist.)

Tanya Marsh

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