Land Use Prof Blog

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.

Job Posting - Fellow in Urban Design and Housing - Yale Urban Design Workshop

JOB ANNOUNCEMENT
Fellow in Urban Design and Housing
Yale Urban Design Workshop
Note: For immediate hire
Posted July 29, 2022

Yale School of Architecture seeks applications for a Fellow in Urban Design and Housing at the Yale Urban Design Workshop, to begin immediately. Intended for an early- to mid-career urban planner, urban designer, architect, lawyer, or real estate developer interested in new, synthetic approaches to affordable housing and neighborhood development in an interdisciplinary, academic, clinical setting, the 2022 Fellow will help design, support, and coordinate the clinical activities of the Yale Urban Design Workshop (YUDW), the School of Architecture's community design center. Central to this fellowship will be support of the UDW's new affordable housing clinic, entitled Housing Connecticut: Developing Healthy and Sustainable Neighborhoods. Offered in collaboration with the School of Management, School of Law, and the Connecticut Department of Housing (DOH), this clinic will pair interdisciplinary groups of graduate students with local non-profit housing developers in Connecticut, asking them to develop novel but practical solutions to the affordable housing crisis, while also addressing other pressing neighborhood challenges, such as community health, air quality, environmental equity, or resilience. Working under the supervision of the Yale Urban Design Workshop's faculty directors and affiliates, the fellow will develop supporting research, mapping, supervise student clinical projects, engage with community members, politicians, policy makers, and local non-profits, and provide ongoing logistical and administrative support both during and after the clinic ends. It is expected that the fellow will assist in the development of one or more academic white papers on the clinic and assist in the publication of results. Clinical projects will have the opportunity for fast-track funding from DOH, and the fellow will provide ongoing implementation support to the local non-profit partners as projects progress. This may include supervising student independent studies during the spring 2023 semester. The fellow will also collaborate with UDW faculty and affiliates on independent research and writing in the areas of affordable housing, urban and neighborhood history, neighborhood development, and social and environmental equity, and will develop research on architectural clinical models in support of the development of additional UDW clinical courses and projects. In addition, there may be opportunities for the Fellow to be involved in other ongoing community-based UDW projects.

The ideal candidate will have the following qualifications: * Advanced professional degree in planning, law, management, urban design, or architecture from an outstanding program. * Minimum 3 year's professional experience in community design and/or development, neighborhood or urban planning, affordable housing, or related fields, working in particular with underserved communities. * Experience in urban research and description, including geography, history, demographics, culture and economics; publication preferred * Interest in working in an intensive academic environment with graduate students; some prior teaching experience preferred * Strong research, organizational, and interpersonal skills * Collaborative and team-oriented, while also independent and self-motivating * Strong written and communication skills in English * Experience developing maps and research using Geographic Information Systems (GIS) preferred but not required * Fluency in Spanish preferred but not required

This is a full-time position, and physical presence in New Haven is required. Evening and weekend hours may be required to attend community meetings and events. The salary for this position is $63,000, plus full Yale benefits. The fellow will be appointed at Yale at the faculty rank of Instructor with an initial appointment of one year, renewable for one additional year. The fellow will be located at the off-campus offices of the Yale Urban Design Workshop, and will be part of the larger Yale community. Letters of interest, along with resume or CV, and portfolio if applicable, should be sent to Andrei Harwell, [email protected]<mailto:[email protected]>. Review of applications will begin immediately and will continue until the position has been filled.

Anika Singh Lemar
Clinical Professor of Law | Yale Law School
P.O. Box 209090
New Haven, CT 06520-9090
T: (203) 432-4022 | F: (203) 432-1426
E: [email protected]<mailto:[email protected]>

Prospects for a Unified Approach to Housing Affordability, Housing Equity, and Climate Change

I just posted on SSRN an article I wrote for the Vermont Law Review, which might be of interest to some of you.  The article is "Prospects for a Unified Approach to Housing Affordability, Housing Equity, and Climate Change," and is available here.  The abstract is below:

This symposium Article investigates competing tensions among housing activists today and proposes several solutions around which those activists could unite that may also be attractive to the development community. First, the Article defines and investigates three types of housing advocates operating today: the affordability activists, which are primarily concerned with increasing housing affordability; the equity activists, which are concerned with providing homes in areas that assist with de-concentrating poverty and its ill effects; and the environmental activists, which today focus increasingly on reducing climate change effects through land use planning. While these activists have overlapping goals, they are often at odds on policy prescriptions, which this Article analyzes. The Article then investigates how the dissonance between the housing activists can be resolved by considering development through the lens of the entity that is charged with building housing: the private developer subject to real-life market demands. Several proposals are discussed, as well as why certain fashionable concepts of the day--such as eliminating single-family districts--are unlikely to result in significant new housing production.

April 21-22 - Zoom in to Idaho Law Review symposium on growth and development in the American West

Joins us for a discussion on growth and development in the American West!  Congratulations to Idaho Law Review symposium editors Charlotte Cunnington, Natalie Lussier, and Victoria Wright for putting together a great mix of local and national leaders.  The panels are all online, and I will be moderating the two panels on Thursday.  (And if you are an Idaho attorney, get 5.5 CLE in the process...)

Schedule and link below.

 

The Idaho Law Review presents . . .

Boomtown! Growth & A Clash of Identity in the American West

All panels will be hosted via zoom at: https://uidaho.zoom.us/s/81635495822

Thursday, April 21, 2022

Financing Growth

Time: 9:30 - 11:00 AM MT

Introductory remarks by Dean Kalb & Professor Stephen Miller

Panelists: Robert McQuade; Justin Ruen; Seth Grigg; Nicholas Warden; William Doyle

 

Growth in Other Cities & Lessons Learned

Time: 12:00 – 1:30 PM MT

Panelists: Brian Connolly; Edward Sullivan; Daniel Dansie; Thomas Dansie; Robert Liberty

Friday, April 22, 2022

Homelessness & Issues with Affordable Housing

Time: 9:30 – 11:00 AM MT

Panelists: Jodi Peterson-Stigers; Howard Belodoff; Susan Bennett

 

Eviction Moratorium: Landlord/Tenant Law & COVID

Time: 12:00 – 1:30 PM MT

Panelists: Jim Cook; Zoe Anne Olsen; Evan Stewart; Morgan DeCarl

 

Land Use Issues in Idaho

Time: 2:00 – 3:30 PM MT

Panelists: Jaap Vos; Elizabeth Koeckeritz; Meghan Sullivan Conrad

Panelist Biographies

 

FINANCING GROWTH 

Robert McQuade 

Rob McQuade serves as the General Counsel to the Association of Idaho Cities (AIC) where he provides education, training, and advocacy services to Idaho’s 199 cities. Rob has the unique perspective of practicing law at the federal, state, and local level and uses that experience to problem solve on behalf of his client.  Prior to joining AIC, he worked for the Idaho Division of Occupational and Professional Licenses where he practiced administrative law and oversaw the implementation of the Red Tape Reduction Act for 29 regulatory bodies, helping to achieve a historic reduction in Idaho’s Administrative Code.  Rob’s first exposure to municipal law was at the City of Boise, where he spent five years advising the City on a variety of matters, including land use and procurement.  After graduating from the University of Idaho, he moved to Washington, D.C., where he worked on Capitol Hill for Senator Larry Craig and the U.S. House of Representatives Committee on Veterans’ Affairs.  

Rob attended the George Mason University School of Law and the University of Baltimore School of Law, where he received his juris doctorate.  

Justin Ruen 

Justin Ruen has served as a Policy Analyst for the Association of Idaho Cities for 21 years.  He is responsible for monitoring the state policy process, reviewing bills that affect city governments, and providing resources and technical assistance to help city officials to govern and serve their communities more effectively.  

Mr. Ruen is a graduate of the University of Idaho, B.A. in Political Science, where he taught Political Science 101 while in graduate school.  

Seth Grigg 

Seth Grigg is the Executive Director for the Idaho Association of Counties, where he carries out the objectives as set by the IAC Board of Directors by providing overall strategic and operational oversight of IAC’s staff, member service programs, financial operations, and legislative advocacy. Prior to this position with the IAC, Mr. Grigg was the Executive Director for the Association of Idaho Cities and a Policy Analyst for the Idaho Association of Counties.  

Mr. Grigg holds an MPA from Boise State University. 

Nicholas Warden  

Nick Warden is an attorney at Bailey Glasser, where he predominantly practices commercial litigation, including employment litigation and complex business litigation. Prior to this position with Bailey Glasser, Mr. Warden spent three years with the Civil Litigation Division of the Idaho Office of Attorney General representing employers in cases involving claims of civil rights violations, discrimination, harassment, whistleblower claims, and wrongful discharge.

Mr. Warden received his J.D. from the University of California, Davis School of Law and B.A., Master of Science from the University of Oxford, and B.A. from the University of Southern California.  

William Doyle –   forthcoming

GROWTH IN OTHER CITIES & LESSONS LEARNED  

Brian Connolly 

Brian Connolly is an attorney at Otten, Johnson, Robinson, Neff & Ragonetti, P.C., where he practices a broad range of land use matters, including zoning compliance, rezonings and other regulatory amendments, planned unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions. Mr. Connolly serves as an adjunct professor of law at both the University of Colorado School of Law and the University of Denver Sturm College of Law, where he teaches land use planning.

Mr. Connolly holds a J.D. from the University of Michigan Law School, and a B.S. in urban and regional studies and Master of Regional Planning degrees from Cornell University. 

Edward Sullivan 

Ed Sullivan specialized in land use law for over 45 years and is now retired from practice. Before going into private practice, he served as Assistant County Counsel and County Counsel for Washington County, Oregon, and as Legal Counsel to the Governor of Oregon. Over the course of Mr. Sullivan’s career, he has taught and mentored countless law and land use planning students, as well as published a body of work that aims to explain land use law in Oregon and beyond.

Mr. Sullivan holds an L.L.M. from University College in London, a J.D. from Willamette University College of Law, a Diploma in Law from University College in Oxford, an M.A. from Portland State University and the University of Durham, and a B.A. from John’s University. 

Daniel Dansie 

Daniel Dansie is an attorney at Kirton McConkie in Salt Lake City, Utah. He is licensed to practice in Utah and Idaho and focuses his practice on real estate. For three years he practiced at Holden, Kidwell, Hahn & Crapo in Idaho Falls. He received a J.D. from the University of Utah S.J. Quinney College of Law and a B.A. from Brigham Young University. 

Thomas Dansie 

Thomas Dansie is the Director of Community Development for Springdale, Utah. Prior to this position, Mr. Dansie was a Planning Consultant for Leeds, Utah. His expertise includes land use policy analysis, ordinance development, design and development review, and public outreach. He received an M.S. from the University of Arizona and a B.S. from Brigham Young University. 

Robert Liberty 

Robert has almost forty years of experience with the design, implementation, evaluation and politics of land use and transportation plans at the local, regional, and state levels. His advice has been sought from places as different as Bozeman, Montana, and Beijing, China. Robert has a JD from Harvard Law School, an MA from Oxford University, a BA from the University of Oregon Honors College, and was a Loeb Fellow at the Graduate School of Design at Harvard. 

HOMELESSNESS & ISSUES WITH AFFORDABLE HOUSING 

Jodi Peterson-Stigers 

Jodi Peterson-Stigers is the co-director of Interfaith Sanctuary, an overnight shelter that serves 164 men, women and families with children each night in Boise. Ms. Peterson graduated from Boston University with a degree in communications and sociology and for many years worked in marketing, communications, and public relations. 

Howard Belodoff 

Howard Belodoff is the Associate Director for Idaho Legal Aid Services where he provides free civil legal representation to low-income Idahoans. Mr. Belodoff began working at Idaho Legal Aid Services after graduating law school. His cases primarily concern the civil rights of low-income persons, prison and jail inmates, adults and children who suffer from mental illness, persons who are homeless, disabled and people with HIV/AIDS, Native Americans, and farm workers. 

Mr. Belodoff has practiced advocacy work at ILAS for his entire career. He received his JD from the University of Idaho College of Law. 

Susan Bennett 

Susan Bennett is a Professor of Law Emerita at American University Washington College of Law, where she founded and directed the Community and Economic Development Law Clinic, through which students provide transactional representation to non-profit organizations, small businesses, and affordable housing cooperatives in under-served neighborhoods in D.C. and the metro area.  

She held the position of Director of Clinical Programs for the Washington College of Law from 2003 to 2006. In addition to her clinical teaching, she taught first year Property, Law and Poverty, and seminars on community development, and law and homelessness. Before coming to WCL, she specialized in housing and consumer litigation at the Maryland Legal Aid Bureau. 

Ms. Bennett holds a J.D. from Columbia University School of Law, as well as an M.A. and A.B. from Yale University. 

EVICTION MORATORIUM: LANDLORD/TENANT LAW AND COVID 

Jim Cook 

Jim Cook is the Executive Director for Idaho Legal Aid Services where he provides free civil legal representation to low-income Idahoans. Prior to his time at ILAS, he was an Associate Attorney at Thompson, Ashcraft and Burnham, where he practiced in state and federal litigation with an environmental law emphasis.  

Mr. Cook received his J.D. from the University of Idaho College of Law, where he spent his third year participating in a law school clinic project with Idaho Legal Aid Services to provide free legal representation to low-income Native Americans on the Nez Perce Reservation. Mr. Cook also has his B.S. from the University of Idaho. 

Zoe Anne Olsen 

Zoe Anne Olsen is the Executive Director for Intermountain Fair Housing Council. Prior to this position, Ms. Olsen was an attorney for Idaho Legal Aid Services. She has extensive housing law experience, including the Fair Housing Act (FHA), Idaho State housing law, reasonable accommodations and modifications, public housing cases, wrongful evictions, repairs, security deposits, mobile home park cases, foreclosures, and predatory lending.  

Ms. Olsen received a J.D. and M.P.A. from Seattle University and a B.A. from the University of Washington. 

Evan Stewart  

Evan Stewart is a Program Manager for Jesse Tree, an organization that provides financial assistance and case management to households at risk of eviction and homelessness who are unable to pay rent. 

Mr. Stewart is from Missoula, Montana where he earned a doctorate degree in Applied Anthropology at the University of Montana. During his time at the University of Montana, he conducted his dissertation project in the high Himalayas of Nepal working with local communities and addressing water, sanitation, and hygiene needs in the region. Mr. Stewart also worked as an anthropology instructor for the university.  

After graduating in May 2019, Mr. Stewart remained in Missoula working as a social worker at a child abuse prevention agency where he provided direct services, taught the Adverse Childhood Experiences Study (ACEs), family education classes, and resilience-building to members of the community. 

Morgan DeCarl 

Morgan DeCarl is an Eviction Court Program Manager. Before coming to work for Jesse Tree she worked as a case manager for adults with intellectual and developmental disabilities and fell in love with social work and the impact it has on the quality of life of others as well as their communities. Ms. DeCarl became a Professional Mediator in 2019 upon moving to Idaho and has experience providing mediation services in Ada County eviction court. 

Ms. DeCarl has a Bachelor of Science in Human Development from Purdue Global, and is starting her Masters in Social Work this year. 

LAND USE ISSUES IN IDAHO (AOI) 

Jaap Vos 

Jaap Vos is a professor of Planning and Natural Resources at the University of Idaho’s College of Natural Resources. At the University of Idaho, he teaches courses about community planning, sustainable communities, and rural planning issues. He also teaches a community assessment course and the advanced class of the Northwest Community Development Institute. He is the founding co-chair of APA Idaho’s Ag Chat, a group of planners and other stakeholders from throughout Idaho that meet monthly to discuss emerging planning issues in rural communities. 

His research is focused on planning for rural places. Most recently he and his students wrote an article about how traditional planning practices lead to the fragmentation of rural places. He was the lead author for the Infrastructure Section of the McClure Center for Public Policy Research’s Idaho Climate-Economy Impacts Assessment. He is currently analyzing driver’s license surrender data from ITD’s DMV from 2011-2021 to get a better understanding of population changes in different areas of Idaho. 

Mr. Vos has a Ph.D. in regional planning from the University of Illinois at Urbana Champaign and an M.S. in Environmental Science from Wageningen University in the Netherlands. 

Elizabeth Koerckeritz  

Elizabeth Koerckeritz is a Partner at Givens Pursley and provides advice to developers and businesses on the acquisition, entitlement, financing, and development of both large and small scale projects. She helps clients obtain economic incentives and entitlements from all levels of the government and represents clients on judicial reviews and administrative hearings before state agencies. She also assists airports in a wide range of federal regulatory matters and the negotiation of complex airport transactions. 

Prior to joining Givens Pursley, Ms. Koerckeritz was the senior managing attorney for the Boise City attorney’s office, where she supervised all of the attorneys and staff providing advice to the municipal departments within the City. In addition to her supervisory responsibility, she served as the attorney for the Boise Airport and was the lead attorney in the City’s efforts aimed at reducing homelessness and increasing affordable housing within the City. Ms. Koerckeritz has also been a solo practitioner, was a deputy attorney general for the State of Idaho specializing in criminal appeals, and a prosecutor in Jackson, Wyoming. 

Ms. Koerckeritz received her law and MBA’s degrees from the University of Colorado – Boulder. She graduated from Colorado College with a degree in anthropology. 

Meghan Sullivan Conrad 

Meghan Sullivan Conrad’s practices at Elam & Burke and focuses on local economic development with extensive representation to urban renewal agencies throughout the state on issues including structuring of private-public partnerships, government contracts, tax increment financing, litigation, appeals and governmental relations. Ms. Conrad’s practice also includes representation of a commodity promotion and research program, consumer and commercial lenders in foreclosures and collections, and she participates in insurance defense litigation. Ms. Conrad represented issuers in connection with both tax-exempt and taxable bond transactions and has worked as special Idaho counsel on a large energy (solar) financing project. 

Ms. Conrad has had the opportunity to speak at numerous conferences on the topic of urban renewal.  In 2014, Ms. Conrad was recognized by the Idaho Business Review as a Leader in Law, Firm Associated: Associate.  She is currently the Vice-Chair of the University of Idaho College of Law Advisory Council and is a member of State Law Resources, Inc., Idaho Women Lawyers and the Idaho Association of Defense Counsel.  

Ms. Conrad received her J.D. at the University of Idaho and graduated from Colgate University with a B.A. in International Relations and French. 

Student Note on housing appeals

Dan Mandelker forwarded a note by one of his students that might interest readers.  The note is by Bob Neel and entitled, "Combating Exclusion & Achieving Affordable Housing:  The Case for Broad Adoption of Housing Appeals Statutes."  The note was published in Washington University's law review.  You can download the note below.

Download Housing Appeals Boards Note

100th anniversary of the Standard State Zoning Enabling Act (SZEA)

For those with an eye towards history, we are coming up on the 100th anniversary of the Standard State Zoning Enabling Act (SZEA).  Whether this is the appropriate year for celebrating (or shaking fists at) the SZEA depends on how you count it.

On September 15, 1922, the first version of the SZEA was released by the U.S. Commerce Department.  Subsequent drafts were released in December, 1922.  Other slightly-edited versions were released in 1924 and 1926.  A history is here.   

For students, it would make a lovely topic for a law review symposium this year or in the next few years!

My comments submitted to NCBE regarding removal of land use subjects from the bar

I submitted the following comments to the NCBE today.  I welcome folks' thoughts and would be happy to post other professors' or professionals' comments on the blog, too.

Also, I asked NCBE to review my analysis in a previous post as to the subjects to be eliminated.  NCBE confirmed that my analysis was correct.

Here is the website where you can submit formal comments to NCBE:  https://nextgenbarexam.ncbex.org/csopc-register/. 

_______________

 

I want to start by saying that I recognize the difficult work it takes to restructure the bar exam, and I commend all of those associated with this effort.  I also understand the desire to reduce the number of subjects on the bar and I generally support that effort.  Nonetheless, I have concerns regarding the proposals for the Real Property subject outline.

At the outset, it is worth acknowledging that the role of the NCBE outlines in the legal academy is not readily agreed upon.  At the most obvious level, the outlines do represent the subjects that will be on the bar exam; however, I have talked to some professors that tell me they do not pay much attention to the outlines in preparing their courses.  I think that position holds more true at elite law schools where the presumption is that students will be able to acquire the details of legal knowledge in a bar course and instead the focus of teaching is primarily legal theory. 

At the other 180 (out of 200 or so) law schools, I suggest that the picture is very different.  At most law schools, preparation for class course coverage—especially in the first year courses—starts with the NCBE subject matter outlines.  I work at one of those schools, and I can attest that though we do not prescribe coverage in courses, we do expect our professors to hit most of the subjects on the NCBE outline that are relevant to first year subjects.  For those schools (such as mine), taking a topic off the subject outline will have one of two effects.  On the one hand, professors may continue to teach the de-listed topic; on the other hand, there could be increasing pressure to teach the tested subject matter more intensely with a hope of driving up bar passage scores.  Having served a term as an associate dean, it is hard for me to believe that the effect won’t be the latter.  What we will see, I believe, is more intense teaching of the subjects remaining on the NCBE subject outlines rather that faculty using the time to teach more relevant subject matter to present-day practice.  And so, I suggest that removal from the outline means, in essence, removal from teaching at most law schools.  That is probably more true the further down the rankings of schools you go, but again, my contention is that NCBE outlines are the centerpiece of course planning at the vast majority of law schools.

This brings me to the proposed changes to the Real Property subject matter outline.  The changes to the Real Property outline are essentially the following four:

1. The elimination of all land use subjects.  The existing outline requires a study of zoning laws, non-conformity, and "rezoning and other changes." 
2. The elimination of all discussion of common interest communities, the most prevalent form of private land use controls.
3. Takings also appears to be de-emphasized; it is not a starred subject in the Con Law section meaning students apparently are not expected to know the doctrine, just be able to work with it. See the intro note below.
4. Private nuisance is emphasized; public nuisance is not.

With these changes, the remaining subjects emphasize private transactional real estate practice almost exclusively.  I suggest that is highly problematic to students’ understanding of how real property law works today.  That is because the proposed change would result in virtually no coverage of public or administrative law on real property, a remarkable choice given how property operates today.  Virtually all land in the U.S. is zoned or otherwise subject to some kind of regulation.  Even in Houston, which has no zoning, land is controlled through private restrictive covenants enforced by the city through third party rights of enforcement.  If the scoping outline eliminates all forms of public regulation of property, students in classes guided by the outline will leave with a deeply misguided sense of what property is today. 

It also strikes me as an unusual time in the history of property to decide to eliminate land use topics from the bar.  There is arguably more interest in land use regulation than ever, in large part due to the heightened understanding within the last decade of how these regulations have been abused to segregate communities along racial and class lines.  There is also an increased focus on land use due to the unprecedented challenges of housing affordability.  There is also recognition that land use is essential to resolving the climate crisis.  As California’s 2017 Scoping Plan noted, “Contributions from policies and programs, such as renewable energy and energy efficiency, are helping to achieve the near-term 2020 target, but longer-term targets cannot be achieved without land use decisions that allow more efficient use and management of land and infrastructure.”  California’s 2017 Climate Change Scoping Plan, CAL. AIR RES. BD.,  100 (2017), https://ww2.arb.ca.gov/sites/default/files/classic/cc/scopingplan/scoping_plan_2017.pdf.https://ww2.arb.ca.gov/sites/default/files/classic/cc/scopingplan/scoping_plan_2017.pdf.  That the bar would de-emphasize these subjects at a time of heightened interest in the topic is hard to understand.

I am similarly concerned about the elimination of the common interest community (CIC).  My understanding is that there are presently very few traditional restrictive covenants of the two-party variety drafter much anymore; all of the action is in CICs.  According to a recent paper, nearly 60% of new residential construction is subject to HOAs, a residential form of CICs.  See Wyatt Clarke & Matthew Freedman, The rise and effects of homeowners associations, 112 J. of Urban Economics (2019) 1–15.  Commercial developments are also commonly subject to CICs, which has become an ever-increasing headache for redevelopment of aging commercial properties.  Teaching restrictive covenants without teaching CICs is a decision to teach an ancient rule without teaching its modern real-world application. 

Similarly, the de-emphasis of takings and public nuisance is odd to me at a time when the Supreme Court seems interested in re-framing the takings clause as an ever-increasing sword against a variety of governmental administrative action.  Cedar Point Nursery is indicative of that trend, but I believe there is reason to presume that the trend is just beginning. 

Finally, I do want to commend the expansion of fair housing within the revised outline.  However, if the outline is adopted as proposed, fair housing will be the only public law real property subject left.  I do want to note, though, fair housing as typically taught does not operate the way the other public law subjects proposed for elimination and de-emphasis do.  The disparate treatment and disparate impact claims under the Fair Housing Act operate primarily through litigation, while most of the other public and private regulation subjects slated for removal are primarily administrative in nature.  As a result, it would be wrong to think that fair housing could stand in as representative of public and private law real property regulation because the implementation of fair housing is unique in the world of real property.  Ironically, the most active discussions around fair housing these days are on the long-forgotten third prong of the Fair Housing Act, which requires local governments to “affirmatively further” de-segregated communities.  The first effort to give force to that prong of the Act was the Obama-era Affirmatively Furthering Fair Housing Rule (AFFH Rule) and recently revived by the Biden Administration.  The tenets of the AFFH Rule require local governments to take prospective steps towards de-segregation.  How so?  Almost universally, those steps are administrative in nature and focus on land use policy changes slated for de-emphasis or elimination on the bar.  See HUD’s AFFH Guidebook.

For these reasons, I suggest that NCBE revisit its decision to eliminate most of the public law subjects on the Real Property scoping outline, as well as CICs.  One option would be to leave these subjects on the outline but not to star them as primary subjects.  A second option would be to more formally define the land use subjects the bar wants to test.  At present, it is admittedly unclear what aspects of “zoning” to emphasis in a day or two of first year class when the subject is massive. 

Thank you for reaching out for comment. 

STEPHEN R. MILLER Professor of Law, Univ. of Idaho College of Law [email protected]  208-364-4559  |  415-377-9501 (Cell)  501 W. Front Street | Boise, ID  83702-7232

NCBE proposes to eliminate all land use subjects and de-emphasize takings on its subject outlines beginning in 2026

I was asked by NCBE to begin a discussion of the Real Property outline of the proposed 2026 NextGen Bar Exam.  For the uninitiated, this is the outline of subjects that NCBE plans to test on the standardized portions of the bar.  NCBE is taking public comment at https://nextgenbarexam.ncbex.org/csopc-register/. The deadline for public comments is April 18.

Here are the proposed new outlines:   Download NextGen Content Scope Outlines Report.

It just so happened that I had undergone an extensive review of our Property course and so I had the existing NCBE coverage for Property handy, and went through the 2026 proposal.  A couple things stand out:

1. The elimination of all land use subjects.  The existing outline requires a study of zoning laws, non-conformity, and "rezoning and other changes."  
2. The elimination of all discussion of common interest communities, the most common form of private land use controls.
3. Takings also appears to be de-emphasized; it is not a starred subject in the Con Law section meaning students apparently are not expected to know the doctrine, just be able to work with it. See the intro note below.
4. Private nuisance is emphasized; public nuisance is not.

I have not submitted comments to NCBE, but wanted to get this out on the blog at their request, and also get folks thinking about it.  I doubt land use has ever played much of a role in the bar exam overall, but I thought it was worth flagging the elimination of these sections of the existing outline.

 

2026 Proposal:  Topics followed by an asterisk (*) will be tested in a way that assumes examinees know the details of the relevant doctrine without consulting legal resources.  All other topics will be tested in a way that assumes examinees have general familiarity with the topics for purposes of issue-spotting or working efficiently with legal resources provided during the exam.
Existing NCBE Real Property Outline subjects (no new subjects proposed by 2026 NCBE Proposal)	Existing NCBE coverage	2026 NCBE Proposal coverage
I.         Ownership of real property	x	x
A.    Present estates and future interests	x	x
1.     Present estates	x	x
a.     Fees simple	x	x*
b.     Defeasible fees	x	x
c.     Life estates	x	x
2.     Future interests	x	x
a.     Reversions	x	x
b.     Remainders, vested and contingent	x	x
c.     Executory interests	x	x
d.     Possibilities of reverter, powers of termination	x	x
e.     Rules affecting these interests (including survivorship, class gifts, waste, and cy pres)	x	x (arguably broader here, stating "language used in conveyance (children, heirs, issue); class members not yet born; when the class closes; conditions on disposition; contingency of survival (express and implied); and affirmative waste, permissive waste, and ameliorative waste (open mines doctrine, obligations to pay taxes, make repairs, apportionment of costs for special assessments)"
B.    Cotenancy	x
1.     Types: tenancy in common and joint tenancy	x	x* (also includes tenancy by the entirety)
2.     Rights and obligations of cotenants	x	x* (also obligationscludes and by the entirety)
a.     Partition	x	x*
b.     Severance	x	x*
c.     Relations among cotenants	x	x
C.    Landlord-tenant law	x	x
1.     Types of tenancies	x	x*
2.     Possession and rent	x	x
3.     Transfers by landlord or tenant [assignment / sublease]	x	x*
4.     Termination (including surrender, mitigation of damages, anticipatory breach, and security deposits)	x	x*
5.     Habitability and suitability [constructive eviction / IWOH]	x	x*
D.    Special problems	x	x
1.     Rule against perpetuities: common law rule and statutory reforms	x
2.     Alienability, descendibility, and devisability of present and future interests	x	x*
3.     Fair housing/discrimination	x	x*
4.     Conflicts of law related to disputes involving real property	x
II.        Rights in real property	x	x
A.    Restrictive covenants (includes equitable servitudes)	x	x
1.     Nature and type	x	x*
2.     Creation	x	x
3.     Scope	x	x*
4.     Transfer	x	x*
5.     Termination	x	x*
6.     Property owners’ associations and common interest ownership communities	x
B.    Easements, profits, and licenses	x	x
1.     Nature and type	x	x*
2.     Methods of creation	x	x
a.     Express	x	x*
b.     Implied	x	x*
c.     Prescription	x	x*
3.     Scope and apportionment	x	x*
4.     Transfer	x	x*
5.     Termination	x	x*
C.    Fixtures	x	x*
D.    Zoning (fundamentals other than regulatory taking)	x
1.     Zoning laws	x
2.     Protection of pre-existing property rights	x
3.     Rezoning and other zoning changes	x
III.       Real estate contracts	x	x
A.    Real estate brokerage	x	x
B.    Creation and construction	x	x
1.     Statute of frauds and exceptions	x	x*
2.     Essential terms	x	x*
3.     Time for performance	x	x*
4.     Remedies for breach	x	x*
C.    Marketability of title	x	x
D.    Equitable conversion (including risk of loss)	x	x
E.    Options and rights of first refusal	x
F.     Fitness and suitability	x
G.    Merger	x	x*
IV.       Mortgages/security devices	x	x
A.    Types of security devices	x	x
1.     Mortgages (including deeds of trust)	x	x*
a.     In general	x	x
b.     Purchase money mortgages	x	x
c.     Future advance mortgages	x	x
2.     Installment land contracts	x
3.     Absolute deeds as security	x
B.    Security relationships	x	x
1.     Necessity and nature of obligation	x
2.     Mortgage theories: title, lien, and intermediate	x	x
3.     Rights and duties prior to foreclosure	x
4.     Right to redeem and clogging the equity of redemption	x
C.    Transfers	x
1.     By mortgagor	x
a.     Assumption and transfer subject to	x
b.     Rights and obligations	x
c.     Application of subrogation and suretyship principles	x
d.     Restrictions on transfer (including due-on-sale clauses)	x
2.     By mortgagee	x
D.    Discharge of the mortgage	x
1.     Payment (including prepayment)	x
2.     Deed in lieu of foreclosure	x
E.    Foreclosure	x
1.     Types	x	x
2.     Acceleration	x	x
3.     Parties to the proceeding	x	x
4.     Deficiency and surplus	x	x
5.     Redemption after foreclosure	x	x
V.        Titles	x	x
A.    Adverse possession	x	x
B.    Transfer by deed	x	x
1.     Requirements for deed	x	x*
2.     Types of deeds (including covenants for title)	x	x*
3.     Drafting, review, and negotiation of closing documents	x
4.     Persons authorized to execute documents	x	x*
C.    Transfer by operation of law and by will	x	x
1.     In general	x	x
2.     Ademption	x	x
3.     Exoneration	x	x
4.     Lapse	x	x
D.    Title assurance systems	x
1.     Recording acts	x	x
a.     Types	x	x
b.     Indexes	x	x
c.     Chain of title	x	x
d.     Hidden risks (e.g., undelivered or forged deed)	x	x
2.     Title insurance	x
E.    Special problems (including estoppel by deed and judgment and tax liens)	x
Other topics covered on bar on other sections of MBE outline
Takings [Con Law IV(d)]	x	x (Proposal Con Law V(b)) ("This topic includes just compensation, the “public use” limitation, and the distinction between taking and regulation.")
Eminent Domain
Penn Coal; Penn Central
Per Se Rules
Trespass [MBE Torts I(a)]	x	x (Proposal Torts I(b)]
Nuisance [MBE Torts IV(a)]	x	x (Proposal Torts V(a)]
Private nuisance	x	x*
Public nuisance	x	x