Land Use Prof Blog

Chicago's Cut the Tape report analyzes housing barriers

The City of Chicago just recently released its "Cut the Tape" report, which looks at how to build more housing in particular and encourage growth otherwise. I like the report because it shows how zoning is part of the housing production problem, but in large cities, there are a number of other substantive and procedural issues that need to be addressed. In fact, the report gives 100 recommendations, some big and some small. Here are the 10 the report deems the most important:

 

   

 

Stephen R. Miller / Northern Illinois University COL

New book! Advanced Introduction to Land Use Law by Stephen R. Miller

I'm delighted to announced my new book, the Advanced Introduction to Land Use Law. This compact book--just 200 pages--is also an inexpensive guide that I hope will be useful for planning commissioners, local government officials, and as a narrative supplement to undergraduate and graduate courses.

Feel free to reach out if you would like to learn more or grab a review copy!

More from the publisher below.

 

Dillon's Rule is on the ropes in Illinois

Land use folks might be interested in following a current bill in the Illinois legislature that would eliminate Dillon's Rule in the state. In Illinois, Dillon's Rule only applies to non-home rule local government units, which are defined as cities with a population less than 25,000 and counties without a CEO form of government (all but Cook County). In non-home rule jurisdictions, Dillon's Rule still applies, but the new legislation would grant the constitutional police power to those local governments. Interestingly, Illinois' constitutional grant of authority to local governments includes the police power along with the right to tax, incur debt, and license. The bill would not include the three latter powers in the grant of authority to non-home rule local government units. 

So will Illinois grant the police power to local non-home rule governments and end Dillon's Rule's...rule? Stay tuned...

More here: https://iml.org/ams/tl.cfm?&job=bill&year=1&key=48432

 

Rebuilding after the California wildfires

I was quoted several times in this NBC News article on rebuilding after the California wildfires. It's a pretty good piece: https://www.nbcnews.com/science/environment/california-fires-rebuild-quickly-could-put-homes-at-risk-rcna188004

Reviving Rural America Toward Policies for Resilience Author by Ann M. Eisenberg

Ann (Annie) Eisenberg (West Virginia COL) has recently published Reviving Rural America Toward Policies for Resilience. Details below:

We often hear that there is no way out of the modern economic and political tensions that fall along geographic lines. The media regularly declares that rural America is dying and that rural voters are driven only by anger. This narrative of hopelessness centers on the role that markets have played in abandoning rural regions and populations. In Reviving Rural America, Ann M. Eisenberg analyzes our society's laws and policies' role in the urban/rural divide to make the case for hope. She demonstrates how law and policy, as well as decision-makers acting on their own subjective values, have contributed to modern rural challenges. Each chapter debunks a common myth about rural people, places, and policies, helping reveal how we got to where we are now. Ultimately calling for our laws and policies to steward rural America holistically, as a collective resource for all, this book envisions an alternative, more resilient and more just future.

Reviews & endorsements

‘Eisenberg provides a sweeping condemnation of those tending to ridicule the rural in politics and practice, while she gives us hope for a common path forward.' Loka Ashwood, University of Kentucky

‘This important and timely book tells a story of rural America that we rarely hear. It is a story that fosters greater understanding of the structural forces that shape rural livelihoods, and thus also makes space for sympathy for the populations at the mercy of those forces.' Lisa Pruitt, University of California, Davis School of Law

‘Expansive in range, meticulously researched, and expertly argued, Reviving Rural America represents a much needed antidote to a spate of myths and misconceptions that justify the continued neglect of the rural US. In chapters that take on myths ranging from rural decline, to radicalism, to obsolescence, she illustrates how rural America's struggles are neither natural nor inevitable, but rather the direct outcomes of decades of policies and choices that resulted in the exploitation of rural resources and underinvestment into rural communities, often in the name of market supremacy and neoliberal ideals. The book goes beyond explaining why rural areas are struggling or why rural people are frustrated, to propose a framework for creating just and sustainable policy solutions for the reinvigoration and renewal of rural America. Most importantly, Reviving Rural America makes the case for why rural America matters and is worth saving. This book is a must-read for anyone interested in understanding the challenges faced by rural places and people in the twenty-first century.' Jennifer Sherman, Washington State University

Litwak and Sullivan on Oregon Land Use Law

Jeffrey Litwak (Lewis & Clark) and Edward Sullivan (Portland State) recently published the 2025 edition of their book, Oregon Land Use Law: Cases and Materials, which is available here. Here is their abstract:

Land use law is a staple in most law schools and in undergraduate and graduate planning programs throughout the United States. Occasionally, students may take a comparative land use class, and inevitably, Oregon’s innovative and unique land use planning program is taught. Students learn that Oregon enacted 19 statewide planning goals, that local governments must enact comprehensive plans and land use ordinances consistent with those goals, and that the Land Conservation and Development Commission must approve those plans and ordinances as consistent with the goals. Students learn that Oregon has established urban growth boundaries with meaningful criteria for changing those boundaries. And students learn that Oregon has a one-of-a-kind Land Use Board of Appeals to decide appeals of land use decisions. No other state in the United States has this package of statewide planning elements.

Making the Oregon way work takes ongoing effort and support of the governor, the legislature, the citizen volunteers of the Land Conservation and Development Commission and its advisory committees, the professional staff of the Department of Land Conservation and Development, other state agencies, the governing bodies, planning commissions, staff, and citizen volunteers of Oregon’s 241 cities and 36 counties, myriad special districts, nongovernmental entities, and private planning practitioners. And making the Oregon way work requires the interpretation, deference, and decisions from Land Use Board of Appeals and Oregon’s appellate courts.

Oregon’s land use planning program is more than 50 years old. There is a lifetime of reading historical and current state statutes and regulations and their legislative histories; past and current state and local administrative documents, plans, ordinances, orders, land use decisions, and other final actions; Land Use Board of Appeals and appellate court decisions; and law review and professional planning journal articles and scholarly work from Oregon’s universities and law schools, and beyond. This casebook is a teaching tool for planning and law students; we do not intend it to be a comprehensive resource on all topics relating to Oregon land use. Consequently, we do not cover all land use and related topics and we do not treat the topics in this book in the depth that each deserve if writing on them individually, and we do not treat all topics with the same level of detail. Our choices of what we cover in this book and the depth in which we cover them reflect the topics that one or both of us teach or our use of other sources and teaching tools.

Robbing the TIF to Pay the School Board?

Some local Chicago news that may be of interest... the Chicago schools are facing a budget shortfall of an estimated $500 million. The teachers' union is proposing to "close" the TIFs, which are numerous in the city, and send the money to the school board.

While the proposal seems to be gaining ground politically, I have seen little discussion of the potential legal pitfalls.

More on the story here: https://www.cbsnews.com/chicago/news/chicago-teachers-union-cps-tif-funding-budget-deficit/

Stephen R. Miller, Northern Illinois University COL ([email protected])

 

 

 

Films for land use lovers

The Chicago Architecture Center's Architecture and Design Film Festival has a bunch of great films that any good land use lover might want to see. Some of them are already out on streaming services...

Here is a link to the festival list, and schedule with links below.

FESTIVAL SCHEDULE

**Opening night pre-screening reception will be held on Wednesday, January 31, 2024**

Wednesday, January 31, 2024

• 7:00 PMWe Start With the Things We Find (2023)Gand Lecture Hall TheatreBUY
• 7:15 PMWe Start With the Things We Find (2023)Drake Family Skyscraper Gallery TheatreBUY

Thursday, February 1, 2024

• 5:45 PMTerra Forma / House of Adaptation (2023 | 2023)Drake Family Skyscraper Gallery TheatreBUY
• 6:00 PMWomen in Architecture / Clodagh (2022 | 2022)Gand Lecture Hall TheatreBUY
• 8:30 PMRadical Landscapes (2022)Gand Lecture Hall TheatreBUY
• 8:45 PMThe Promise: Architect B.V. Doshi (2023)Drake Family Skyscraper Gallery TheatreBUY

Friday, February 2, 2024

• 6:00 PMThe Genius of the Place: The Life and Work of Geoffrey Bawa (2023)Gand Lecture Hall TheatreBUY
• 6:15 PMWomen in Architecture / Clodagh (2022 | 2022)Drake Family Skyscraper Gallery TheatreBUY
• 8:30 PMEmotional Architecture 1959 / Soviet Bus Stops (2022 | 2022)Gand Lecture Hall TheatreBUY
• 8:45 PMPoint of Origin / Veins (2023 | 2023)Drake Family Skyscraper Gallery TheatreBUY

Saturday, February 3, 2024

• 1:00 PMBest in the World (2022)Gand Lecture Hall TheatreBUY
• 1:15 PMThe Genius of the Place: The Life and Work of Geoffrey Bawa (2023)Drake Family Skyscraper Gallery TheatreBUY
• 3:00 PMRehab (from rehab) (2023)Gand Lecture Hall TheatreBUY
• 3:15 PMLife, Assembled (2022)Drake Family Skyscraper Gallery TheatreBUY
• 5:15 PMThe Mies Van der Rohes (2023)Drake Family Skyscraper Gallery TheatreBUY
• 5:30 PMMy Architect: A Son's Journey (2004)Gand Lecture Hall TheatreBUY
• 8:30 PMEmotional Architecture 1959 / Soviet Bus Stops (2022 | 2022)Drake Family Skyscraper Gallery TheatreBUY
• 8:45 PMModernism, Inc. (2023)Gand Lecture Hall TheatreBUY

Sunday, February 4, 2024

• 1:45 PMModernism, Inc. (2023)Drake Family Skyscraper Gallery TheatreBUY
• 2:00 PMSkin of Glass (2023)Gand Lecture Hall TheatreBUY
• 4:00 PMThe Mies Van der Rohes (2023)Drake Family Skyscraper Gallery TheatreBUY
• 4:15 PMRehab (from rehab) (2023)Gand Lecture Hall TheatreBUY
• 6:30 PMThe Power of Utopia -- Living with Le Corbusier in Chandigarh (2023)Gand Lecture Hall TheatreBUY
• 6:45 PMPoint of Origin / Veins (2023 | 2023)Drake Family Skyscraper Gallery TheatreBUY

Midwest, West and Back Again

After 23 years living in the West--first 11 years in San Francisco, then 12 years in Idaho--my wife and I decided we'd head back to the Midwest where we grew up. 

I've been debating whether to make this public or not, in large part because I continue to teach at Idaho Law and was visiting at Iowa Law in the fall. It's complicated. My carbon footprint is too large. But it works in a way.

I wanted to start up the blog again for several reasons, perhaps mostly because I wanted a forum for my musings about the differences between places. Particularly, I wanted to write more about living in a big American city. This is my third: first New York City for three years after undergraduate; then San Francisco for 11 years; and now...Chicago for six months. Before I started writing about Chicago and the Midwest again, I thought it might make sense to explain why. And so, that is why.

I still have plenty to say about the West. I just might now have something to say about the Midwest, too.

Feb 9 - New Frontiers in Enviro Law @ UC Law SF

Excited to be part of this event...

 

Apply to be Part of Study Space, Creating Resilient Cities, in Rio de Janeiro

We are now accepting applications for Study Space XIII:  Creating Resilient Cities:  Disaster Preparedness, Climate Change Adaptation and Public Health Responses in Rio de Janeiro, Brazil from June 16-21, 2024.  This weeklong workshop is being organized by the Center for the Comparative Study of Metropolitan Growth at Georgia State University College of Law in conjunction with FGV Direito Rio. 

Through daily lectures from leading experts and guided site visits, topics discussed throughout the week will include:

• Disaster preparedness and mitigation
• Housing and human rights
• Climate change, urban forests and biodiversity
• Land use law and urban revitalization
• Pandemic preparation and recovery

The cost of the program is $975 and includes scheduled group meals, speaker honoraria and site visits.  Hotel, airfare, and airport transportation must be purchased separately. 

For more information, contact Karen Johnston at [email protected] or Ryan Rowberry at [email protected] or visit our website.

Applications are due February 23, 2024 but early application is encouraged and space is limited.  No payments are required at the time of application.  Apply online at:  Online Survey Software | Qualtrics Survey Solutions

Download the Study Space Brazil brochure

What does it take to convert office space to housing?

A new report by SPUR, the San Francisco Planning & Urban Research organization, provides some great ideas for what it takes to convert downtown office space into housing.  The report differs from some previous studies because--importantly--it takes into account developer viability of the projects.  The take-away is that it won't be easy to do this in many markets, but it's important work:  SPUR notes that San Francisco's downtown office vacancy rate is 28% and there are up to 11,000 units that are commercially viable.  BUT...it will take a lot of policy re-invention, including:  changes to the planning and building codes; changes to impact fees; and maybe even some developer incentives and tax breaks (think TIF and property tax breaks for affordable units) to make developers begin to do this type of development at scale.

Feb 2 - Disaster Law & Policy: Global Perspectives @ GSU Law

Register for Disaster Law & Policy: Global Perspectives, a virtual (and in person) event on Thursday, February 2^nd from 9 am - 2 pm EST celebrating the release of The Cambridge Handbook of Disaster Law and Policy edited by John Marshall (GSU Law), Ryan Rowberry (GSU Law) and Susan Kuo (Univ. of SC).  Expert panelists will provide a comprehensive overview of the ways in which laws and policies at every level – public and private – leave us vulnerable to major disaster events.  They will also offer legal solutions that governments, nonprofits, businesses, and citizens can pursue to help make communities more resilient.

Please feel free to share this event with your network, faculty colleagues and students. Virtual attendance is free.

Register at:  Disaster Law & Policy: Global Perspectives Symposium (touchnet.com)  

This event is sponsored by the Center for the Comparative Study of Metropolitan Growth at Georgia State University College of Law. For questions, contact Karen Johnston at [email protected].

The schedule for the day is as follows:

February 2 Agenda 

  

• Registration (coffee and light breakfast), 8:30 – 9:00 am  
• Opening remarks, 9:00 - 9:15 am  
• Dean LaVonda N. Reed, Georgia State University College of Law 

• Session 1, 9:15 - 10:15 am  
• Title:  Disaster Law & Policy –Perspectives from the Global South 
• Moderator: Susan S. Kuo, J.D., Associate Dean for Academic Affairs
  Professor of Law & Class of 1969 Chair for Teaching Excellence, University of South Carolina School of Law 
• Panelists: 
• Livhuwani David Nemakonde, Ph.D., Associate Professor, North-West University School of Geo- and Spatial Sciences, Potchesfstroom Campus, South Africa  
• Romulo Sampaio, SJD, LLM, Professor of Law, Getulio Vargas Foundation (FGV) School of Law, Rio de Janeiro, Brazil 

• Break, 10:15 - 10:30 am  
• Session 2, 10:30 - 11:30 am  
• Title:  Disaster Law & Policy– European Perspectives 
• Moderator: Ryan Rowberry, J.D., Professor and Janice C. Griffith Chair in Law, Co-Director for the Center for the Comparative Study of Metropolitan Growth, Georgia State University College of Law 
• Panelists: 
• Asli Ceylan Oner, Ph.D., Associate Professor, Izmir University of Economics Department of Architecture, Turkey 
• Juli Ponce Sole, Ph.D., Professor of Law, University of Barcelona 
• Lunch, 11:45 - 12: 30 pm  
• Lunch Speaker, 12:15 - 12:30 pm 
• Title: Current Trends in Disaster Law & Policy 
• Lisa Grow, J.D., Howard W. Hunter Professor of Law, Brigham Young University, J. Reuben Clark Law School 

• Session 3, 12:45 – 2:00 pm 
• Title: Disaster Law & Policy – U.S. Perspectives from the Frontlines 
• Moderator: John Travis Marshall, J.D., Associate Professor, Co-Director, Center for the Comparative Study of Metropolitan Growth Georgia State University College of Law 
• Panelists: 
• Arthur C. Nelson, Ph.D., Professor Emeritus of Urban Planning and Real Estate Development, University of Arizona and Presidential Professor Emeritus of City and Metropolitan Planning, University of Utah  
• Edward Thomas, J.D., President Emeritus of the Natural Hazard Mitigation Association and Member of the ABA Disaster Response and Preparedness Committee Mr. Thomas manages a private practice of Law, Edward A. Thomas Esq., LLC. 
• Katie Hill, J.D., Research Professional IV, Carl Vinson Institute of Government, University of Georgia 

AALS - See you at the Property / S&L / CED sections' housing panel and Property WIP

I am going to be at AALS in San Diego for the first time in a long while.  I'm speaking at the Property / State & Local Government / CED sections' panel on housing on the 6th and also commenting on a junior work-in-progress on the 7th.  I'm arriving mid-day on the 5th and leaving early on the 8th.  But I never know how to make good use of my time at AALS.  If you will be there and want to grab coffee or a drink, or maybe just head to the beach...email me!

Here are the panel details...

 

January 6, 2023 10:00 am - 11:40 am Event: 2023 Annual Meeting Session Type: Section Programs Session Capacity: N/A Hotel: N/A Room: Marriott Grand Ballroom 13 Floor: Lobby Level, North Tower   The pandemic highlighted longstanding tensions with respect to who decides where and how we live. For example, local housing officials adopted disparate strategies to pandemic-era challenges, state legislatures intervened to protect the interests of tenants or landlords, and federal eviction and foreclosure moratoria and assistance funding dramatically impacted housing rights and costs. Variable approaches to housing at different levels of government is mirrored by variable reactions and responses to other hot button issues (racial equity, climate change, infrastructure, education, etc.).Key to resolving the issues is deciding who the decisionmakers should be   State and Local Government Law's business meeting held on Friday, January 6, 2023 at 7:00 am.     The Section held a virtual business meeting prior to the Annual Meeting.  Session Speakers   Andrea J Boyack Organization: Washburn University School of Law Moderator Rebecca M. Bratspies Organization: City University of New York School of Law Speaker from a Call for Papers Jade A Craig Organization: Nova Southeastern University Shepard Broad College of Law Speaker from a Call for Papers Nestor M. Davidson Organization: Fordham University School of Law Speaker from a Call for Papers Stephen R Miller Organization: University of Idaho College of Law Speaker from a Call for Papers

 

January 7, 2023 3:00 pm - 4:40 pm Event: 2023 Annual Meeting Session Type: Section Works-in-Progress Session Capacity: N/A Hotel: N/A Room: San Diego Ballroom Salon A Floor: Lobby Level, North Tower This works-in-progress program brings together junior (pre-tenure or teaching for seven or fewer years) with senior property law scholars to give the junior scholars an opportunity to present and receive useful feedback on papers not yet submitted for publication. In addition to having the opportunity to share work through the panel, at least one senior scholar will be designated as a reviewer who will have read the paper ahead of time and will be prepared to lead a discussion on the paper at the program.

Session Speakers   Andrea J Boyack Organization: Washburn University School of Law Moderator Jade A Craig Speaker from a Call for Papers Danielle D’Onfro Organization: Washington University in St. Louis School of Law Speaker from a Call for Papers Elizabeth Elia Organization: University of New Mexico School of Law Speaker from a Call for Papers Paula A Franzese Organization: Seton Hall University School of Law Speaker from a Call for Papers Meghan Morris Organization: University of Cincinnati College of Law Speaker from a Call for Papers Daniel Rosenbaum Organization: Michigan State University College of Law Speaker from a Call for Papers

 

I will be commenting on Prof. Rosenbaum's article.  Excited for all of this!  See you in San Diego...

2022 Federal Land Use Law & Litigation...now edited by me!

It has been out for several months, but I wanted to note that I took over the Federal Land Use Law & Litigation treatise this year.  Although the book is dated 2022, it is current through August, 2022 and is updated to include all U.S. Supreme Court cases through the end of the term.

The treatise is a real gem for those looking for a review of federal land use issues including takings, but also a far wider assortment of claims that most lawyers tend to associate with land use in federal courts.  The "gem" nature of the treatise stems from the fact that it was started by Dan Mandelker some 40 years ago and most recently edited by Alan Weinstein and Brian Blaesser.  I'm just trying to keep up with their legacy!

Here are the notes of major changes for 2022 from the treatise's preface.

 

Preface

This 2022 edition of the treatise discusses significant developments particularly in the areas of sign regulation, religious institutions, gun regulation, housing, and environmental law affecting land use development.  

There were considerable changes in constitutional law that emerged from the U.S. Supreme Court’s last term; accordingly, background sections of the treatise are amended throughout.  In many instances, the long-term effects of the Court’s decisions on land use law remain to be seen.  Next year’s edition will be able to more fully sketch the impact since most of this term’s major decisions were released only weeks prior to this edition going to print.

Here is a brief description of major changes in this edition in order of the treatise’s organization:

Substantive Due Process.  Chapter 2 has new content discussing the potential impact of Dobbs v. Jackson Women's Health Org. on substantive due process.  Although Dobbs concerned the right to an abortion, dicta in the case cast doubt on the theory of substantive due process generally, as well as several specific fundamental rights previously recognized.  That dicta implicates the viability of substantive due process claims even in the land use context, including the right to privacy, which is covered in Chapter 1. 

Second Amendment.   Chapter 2 provides a review of the U.S. Supreme Court’s new decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, which affects how courts interpret gun regulation under the Second Amendment going forward.  In Bruen, the Court rejected means-ends analysis in favor of a textual and historical approach to regulation, which will change analysis under future Second Amendment land use cases.  Land use cases in which the Second Amendment has been applied thus far have primarily focuses on shooting ranges, and such cases will now be subject to the new analysis driven by the historicity of such regulations now required by Bruen.

Physical Invasion Takings.  Chapter 3 offers a review of the most important set of takings cases this year:  those invoking the Cedar Point Nursery v. Hassid theory of physical invasion.  Thus far, most of the Cedar Point Nursery circuit court cases have tested the theory against novel landlord-tenant provisions without much success.  More traditional land use cases are sure to follow in coming years.

Retaliation.  Chapter 4 adds a new section on First Amendment retaliation capturing several circuit court opinions on land use matters this year deciding such claims.

Sign Regulation.  Chapter 5 has several substantial new sections reflecting the impact of the U.S. Supreme Court’s decision in City of Austin, Texas v. Reagan Nat'l Advert. of Austin, LLC.  An important question remaining after the U.S. Supreme Court’s Reed v. Town of Gilbert, Ariz. decision was whether cities sign regulations that differentiated between on-site and off-site signs were content-based and thus must withstand strict scrutiny.  The City of Austin decision held that such on-site/off-site sign regulations are not content-based, and thus intermediate scrutiny applies.  Also of importance, City of Austin repudiated the “read-the-sign” rule for deciding whether a sign regulation was content neutral, which some lower courts had interpreted Reed to mandate.  Although the Court remanded for the application of intermediate scrutiny, and thus did not provide more guidance on what that analysis should look like, the decision permits on-site and off-site regulations to continue for now, and clarifies the test for determining whether a sign regulation is content-based from Reed.

Free Exercise Clause and Establishment Clause. Chapter 7 has new content updating constitutional developments related to the Free Exercise and Establishment Clauses governing religious expression.  The Court’s three religion cases decided thus far in 2022—Kennedy v. Bremerton Sch. Dist., Shurtleff v. City of Bos., Massachusetts, and Carson v. Makin—collectively appear to have substantially altered the interpretation, and relationship, between the religion clauses of the First Amendment.  The Court announced the death of the Lemon Test for determining whether an Establishment Clause violation had occurred and replaced it with a historical analysis test.  The Court emphasized a harmony between the Free Exercise and Establishment Clauses based upon a review of their context in history.  This re-frames the relationship between the clauses, which was one the Court had previously viewed as one of tension.  Land use cases applying these cases had not been decided as of this writing, but will need to grapple with this new constitutional landscape.

Clean Air Act, Greenhouse Gases, and the Major Questions Doctrine.  Chapter 8 also has substantial new content updating major developments in environmental law affecting land use development.  Chief among these is the U.S. Supreme Court’s decision in W. Virginia v. Env’t Prot. Agency, which utilized the major questions doctrine to strike down the primary tool to reduce greenhouse gas emissions, which had claimed its regulatory authority from the Clean Air Act.  Greater detail on the history of this case, including prior regulatory approaches from the Obama and Trump Administrations that form the background to the ruling, also are added to this treatise.

NEPA Reform.  There were also a number of important rules promulgated by the Biden Administration this year that affect environmental regulation.  These include, as of this writing, the promulgation of the first of two phases of final rules on the National Environmental Policy Act re-establishing pre-Trump Administration regulations for conducting environmental review of federal projects under the Act.  The new NEPA final rule also addresses categorical exclusions, and separate new guidance addresses how greenhouse gas emissions should be addressed in NEPA analysis, all of which is covered in Chapter 8.  

Endangered Species’ Habitat.  The Fish and Wildlife Service issued a proposed rule that would redefine habitat under the Endangered Species Act and, for the first time, takes climate change into account in establishing that habitat.  The proposed rule is reviewed in Chapter 8.

Waters of the United States.  A proposed rule was promulgated to return the definition of “waters of the United States” in the Clean Water Act to its meaning during the Obama Administration.  Before the rulemaking could be completed, the U.S. Supreme Court granted certiorari to Sackett v. EPA, a case that will give the Court a chance to revisit whether Justice Scalia or Justice Kennedy’s opinion in Rapanos should prove controlling in evaluating what constitutes “waters of the United States” within the Clean Water Act’s statutory scheme.  The Sackett case, which is on its second trip to the U.S. Supreme Court though with a different certified question, is scheduled to be heard in October, 2022.

Fair Housing.  Chapter 9 offers a new section focusing on the Fair Housing Act’s Affirmatively Further Fair Housing (AFFH) Rule.  The chapter also covers the new proposed rule from the Biden Administration to restore the pre-Trump era definition of “discriminatory effects,” which has importance in the viability of disparate impact claims under the Fair Housing Act.

Railroad Preemption of Land Use Permitting.  Chapter 10 offers a review of a longstanding federal statute not previously covered, which is the Interstate Commerce Commission Termination Act of 1995.  The ICCTA provides categorical preemption for railroads and their related facilities from “preclearance requirements,” which include land use discretionary permitting.  Several recent cases are also reviewed.

In addition to these substantial changes, new citations and descriptions of important circuit court cases update the remainder of the treatise.

I hope that readers will find this latest edition of the treatise easy to us, and helpful in understanding the impact of federal law on the regulation of land use and real estate development.  Please do not hesitate to contact me with questions, comments, or proposals for updating or revising the treatise.  My email is [email protected].

Stephen R. Miller

University of Idaho College of Law

Boise, Idaho

 

Georgia State Law Review seeks energy law symposium issue submissions

The Georgia State Law Review invites you to submit articles or essays for Vol. 39, Issue 4 for publication in our Symposium Edition. We are looking for topics regarding energy law. This year’s Symposium strives to investigate the legal and regulatory infrastructure in place to handle the transition to renewable energy. Potential topics could include, but are not limited to, environmental justice in access to renewables, siting and permitting changes, and the realistic legal landscape that non-renewable energy industries must now face. Authors whose articles are selected will be invited to present their papers at the Law Review’s annual symposium on March 31, 2023, and their articles will be published in our Symposium edition in the Spring of 2023. 

While we welcome submissions of any length, our preference is for articles around 10,000 words (including footnotes) so that we are able to cover a wide array of issues. Submissions and queries should be sent either via Scholastica to the Georgia State Law Review, or directly to the Law Review Symposium Editors, Dori Butler and Paul-Michael Haley, at [email protected]. 

The submission deadline is November 11, 2022, however we will begin reviewing submissions on September 12, as so we encourage early submissions.

For more information, please see our website here. Please reach out if you have any questions.

Program Manager-Rocky Mountain Land Use Institute, Sturm College of Law

The Rocky Mountain Land Use Institute is hiring a project manager.  More details here:  https://jobs.du.edu/en-us/job/495700/program-managerrocky-mountain-land-use-institute-sturm-college-of-law 

New edition of Mandelker's Free Speech Law for Signs Handbook

Dan Mandelker has just released a new edition of his Free Speech Law for Signs Handbook.  You can download a copy below:

Download Free Speech Law for Signs Handbook

Supreme Court of North Carolina eliminates legislative/adjudicative distinction for applying Nollan/Dolan/Koontz

In what I believe is a first since the U.S. Supreme Court denied cert in the CBIA v. San Jose case, a court has held that the Nollan/Dolan/Koontz exactions tests apply to legislative as well as adjudicative actions.  In its August 19, 2022 decision, the Supreme Court of North Carolina wrote in Anderson Creek Partners, L.P. v. Cnty. of Harnett, 2022-NCSC-93, ¶¶ 50-51:

In addition, we are not persuaded that the applicability of the test enunciated in Nollan and Dolan depends upon whether the challenged condition was imposed administratively or legislatively. As at least one member of the Supreme Court has recognized, the lower courts have reached differing conclusions with respect to this issue, which the Supreme Court has yet to address. See Cal. Bldg. Indus. Ass'n v. City of San Jose, 577 U.S. 1179, 136 S.Ct. 928, 194 L.Ed.2d 239 (2016) (Thomas, J., concurring in the denial of certiorari).¹³ After carefully reviewing the relevant decisions, we agree with plaintiffs that nothing in Nollan, Dolan, or Koontz supports a view that those decisions only apply in the context of “administrative” decisions,¹⁴ with the Supreme Court having consistently described the “unconstitutional conditions” doctrine as “preventing the government from coercing people into giving up” a constitutional right rather than preventing a particular branch of government from acting in a particular manner. Koontz, 570 U.S. at 604, 133 S.Ct. 2586 (emphasis added); see also Dolan, 512 U.S. at 385, 114 S.Ct. 2309 (noting that “the government may not require a person to give up a constitutional right—here the right to receive just compensation when property is taken for a public use—in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property”) (emphasis added).

*19 12¶ 51 Admittedly, the fact that the challenged “capacity use” fees were imposed as the result of a legislative, rather than an administrative, process, may tend to suggest that those fees “more likely represent[ ] a carefully crafted determination of need tempered by the political and legislative process rather than a ‘plan of extortion’ directed at a particular landowner.” Curtis, 1998 Me. 63, ¶ 7, 708 A.2d 657 (citing Dolan, 512 U.S. at 387, 114 S.Ct. 2309). In light of that logic, the General Assembly's recent decision to enact the Public Water and Sewer System Development Act, S.L. 2017-138, 2017 N.C. Sess. Laws 996, which provides uniform guidelines for the implementation of water and sewer system development fees on a prospective basis, suggests that, in the future, such fees are likely to satisfy the “essential nexus” and “rough proportionality” requirement enunciated in Nollan and Dolan. Even so, as a constitutional matter, we believe that a decision to limit the applicability of the test set out in Nollan and Dolan to administratively determined land-use exactions would undermine the purpose and function of the “unconstitutional conditions” doctrine. See James Burling & Graham Owen, The Implications of Lingle on Inclusionary Zoning and other Legislative and Monetary Exactions, 28 Stan. Envtl. L. J., 397, 438 (2009) (observing that “[g]iving greater leeway to conditions imposed by the legislative branch is inconsistent with the theoretical justifications for the doctrine because those justifications are concerned with questions of the exercise [of] government power and not the specific source of that power”); David L. Callies, Regulatory Takings and the Supreme Court: How Perspectives on Property Rights Have Changed from Penn Central to Dolan, and What State and Federal Courts Are Doing About It, 28 Stetson L. Rev. 523, 567–68 (1999) (finding “little doctrinal basis beyond blind deference to legislative decisions to limit [the application of the test enunciated in Nollan and Dolan] only to administrative or quasi-judicial acts of government regulators”); see also Town of Flower Mound v. Stafford Ests. Ltd. P'ship, 135 S.W.3d 620, 641 (Tex. 2004) (expressing skepticism that “a workable distinction can always be drawn between actions denominated adjudicative and legislative” and noting that the conditions under consideration in both Nollan and Dolan were imposed pursuant to authority granted by state law). At the end of the day, we conclude that the applicability of the test enunciated in Nollan and Dolan hinges upon the fact that the government has demanded property from a land-use permit applicant, either through a dedication of land or the payment of money, as a pre-condition for permit approval rather than the identity of the governmental actor that imposed the challenged condition. See Koontz, 570 U.S. at 619, 133 S.Ct. 2586.

If anyone knows of another post-CBIA v San Jose case where a court reached the same holding as in North Carolina, I'd love the cite!

 

 

Idaho Law hiring for a tenure-track Housing Clinic position

Hi,

The University of Idaho College of Law is hiring for a tenure-track Housing Law Clinic professor, which would be located in Boise.  I am happy to discuss with folks, in addition to the search committee director.  The announcement is below.

Housing Clinic

The University of Idaho College of Law seeks to hire a tenure-track faculty member to direct a Housing-Related Law Clinic. The successful candidate could be an entry-level Assistant Professor rank on a tenure track, or an Associate or Full Professor rank with tenure, depending on the candidate's qualifications. This position involves directing a housing-related clinic, which could include landlord-tenant, reentry, veterans, or benefits issues. The faculty member must supervise the clinic, teach one additional course on a related subject, mentor and advise students, produce scholarship, and conduct community outreach. Applicants must have a J.D. from an accredited school or the equivalent; a distinguished academic record; five years of post-J.D. practice or clerking experience; active membership in at least one state bar and ability to obtain Idaho State Bar admission as a supervising attorney by November 1, 2023; a record or the promise of teaching and scholarly excellence. Preferred qualifications include more than two years of post-J.D. practice or full-time teaching experience in the law clinic setting and/or serving clients in housing-related matters. This position is located in Boise. Interested candidates should submit an application, including a statement of demonstrated commitment to fostering an inclusive community, at https://www.uidaho.edu/human-resources. Please direct questions to Samuel Newton, the search committee chair, at [email protected]. Priority will be given to applications received by September 15, 2022.