Friday, November 16, 2018

Real Estate Review seeking short articles / excerpts for Winter, 2019 edition

As some of you know, I am the editor-in-chief of Real Estate Review, a quarterly Thomson Reuters publication aimed at legal professionals and the real estate industry more generally.  I am seeking several additional 2,000 - 5,000 word articles for our upcoming edition.  I would need the submissions by mid-December.  The articles do not need to be copiously footnoted.  Excerpts of larger articles--where permitted by previous publisher--are also welcome.  While articles tend to focus on legal issues, the broader areas of real estate practice are also encouraged!

E-mail me if you have interest at millers@uidaho.edu.

I am also pleased to say that, beginning with this edition, we will offer a $150 honorarium per accepted article.  

RER Logo

 

November 16, 2018 | Permalink | Comments (0)

Thursday, November 15, 2018

2019 Affordable Housing & Community Development Law Law Student Legal Writing Competition

The Forum on Affordable Housing and Community Development Law of the American Bar Association is sponsoring its annual student competition.  Details are in the pdf below.

Download 2019 ABA Writing Competition Guidelines

November 15, 2018 | Permalink | Comments (0)

Wednesday, November 14, 2018

Video from Law, Planning and Wildfire in the Wildland-Urban Interface conference now available

The archived video from the University of Idaho's Law, Planning and Wildfire in the Wildland-Urban Interface conference now available here.  The schedule of events is available below:

Download Wildfire Symposium - Schedule

There were a number of excellent presentations that I think many will find timely.

 

 

November 14, 2018 | Permalink | Comments (0)

Tuesday, November 13, 2018

The Cambridge Handbook of the Law of the Sharing Economy now available!

The brand new Cambridge Handbook of the Law of the Sharing Economy, which was edited by Nestor Davidson (Fordham), Michele Finck (Oxford), and John Infranca (Suffolk) will be available Nov 22.  With essays by 36 scholars, it will surely be a resource for both academic and regulator alike in the coming years.  View the table of contents here.  

I'm excited to be a part of the collection. 

9781108416955A

 

November 13, 2018 | Permalink | Comments (0)

Saturday, November 10, 2018

Call for Papers: 10th Annual Conference on Law, Property, and Society (ALPS)

Call for Papers 10th Annual Conference on Law, Property, and Society

For more information, as well as registration, please visit:

http://ALPS2019.syr.edu

The Association for Law, Property & Society (ALPS) is an organization for those engaged in
scholarship on all aspects of property law and society. Its annual meeting brings together scholars
from different disciplines and from around the world to discuss their work and to foster dialogue
among those working in property law, policy, planning, social scientific field studies, modeling,
and theory. Most annual meetings include participants attending from six continents, representing
numerous counties, and working in common law, civil law, Indigenous law, and mixed legal
traditions. ALPS will hold its 10th Annual meeting at Syracuse University, in Syracuse New York,
May 16-18. The dates include a pre-conference reception on the evening of May 16; full day
meetings on May 17-18, each with continental breakfast, lunch, and light reception; and an
optional field trip during the day on May 16. Field trip detail will be available prior to registration
and tentatively include a visit to the Oneida Indian Nation of New York. The Oneida Indian Nation
is one of the original members of the Haudenosaunee people (also known as the Six Nation of the
Iroquois).

Paper submissions on any subject related to property law and the practices that shape property
norms and institutions are welcome. ALPS has a strong commitment to international and
interdisciplinary diversity, and paper topics reflecting that commitment are encouraged. ALPS
accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 4
presenters, sometimes including films or multimedia outputs). Individually organized sessions of
full panels may have as few as 3 presenters; all sessions with individually submitted papers will
typically have at least 4 presenters. Submissions may be of full paper drafts and completed
projects, or early works-in-progress.

While papers on any topic of property law are welcome, some possible organizing themes might
include property in relation to...

• Disability law, the Built Environment, and Accessibility • Indigenous People • Energy Law • Water Law • Climate Change • Land Use Planning, Land Regulation, and Zoning • Historic Preservation • Property and Real Estate Development • Environment • Housing • Human Rights • Natural Law • Tax • Mortgages and Financing • Land Titles / Land Registries • Tenure • Estates • Conveyancing • Intellectual Property, Patents, Trademark, Copyright • Property Theory • Theoretical Approaches to Property: e.g. Feminist; Economic; Empirical; Behavioral; Semiotic • Historical Perspectives on Property • Takings, Confiscation, and Compensation

Submissions should include an abstract of no more than 250 words. In addition, submissions must include: (1) the name of the submitting scholar, (2) the scholar’s institution, and (3) an email contact for the author or authors. If submitting a panel, please insure that an abstract for each paper accompanies the submission and that each abstract includes the name of the panel. Abstracts may be submitted beginning October 10, 2018. Submissions may be made via the concerned webpages. Authors and panel proposers will be notified of the acceptance of their individual submissions or proposed panel on a rolling basis starting after December 1, 2018. In general, each presenter will be limited to one research paper presentation per conference, although some exceptions may be made for special discussion groups or other unique thematic panels. The deadline for submitting papers and panels is February 20, 2019.

Conference registration will open December 1, 2018. The cost of registration is as follows:

                                                           Regular           Full-time LL.M. or PhD students

Until January 31, 2019                  $195                $75

Beginning February 1, 2019         $280               $125

Registering for the conference authorizes ALPS to include your name, institutional affiliation, and e-mail in the official program for attendees.

November 10, 2018 | Permalink | Comments (0)

Thursday, October 18, 2018

LIVE Friday: Law, Planning and Wildfire in the Wildland-Urban Interface

The University of Idaho College of Law's conference on wildfire planning and law is being broadcast live this Friday.  Tune in if you have a chance.  All times Mountain.

Click here to view the live video and then select "Lincoln Auditorium."

Law, Planning and Wildfire in the Wildland-Urban Interface

Law, Planning and Wildfire in the Wildland-Urban Interface: The Future of Government and Governance of Disaster in the West

State Capitol Building, Lincoln Auditorium
Boise, Idaho
Oct. 19, 2018
8:30 a.m. – 5:00 p.m. 
Basic Admission:  $75

Schedule

8:00 - 8:45 Registration and Light Breakfast (Capitol Cafeteria)
8:45 - 9:00 Introductory Remarks
Stephen R. Miller, Associate Dean & Professor of Law, University of Idaho College of Law
9:00 - 10:00 How is Wildfire in the WUI Different? How Do We Plan for It?

Trends, Impacts, and the Economics of Wildfires at the Community Scale
Kimiko Barrett, Research & Policy Analyst, Headwaters Economics

Using Pre-Disaster Community Capacity to Address Land Use Post-Wildfire: Three California Case Studies
Edith Hannigan, Land Use Planning Policy Manager, California Board of Forestry and Fire Protection
10:00 - 11:15 Finding Success in WUI Regulations: A Case Study from Washington State
Molly Mowery, President, Wildfire Planning International
Craig Gildroy, Planning Director, City of Chelan, Washington
Mike Kaputa, Director, Chelan County Natural Resources, Chelan County, Washington
Steve King, Economic Development Director, City of Wenatchee, Washington
BREAK  
11:30 - 12:00 Fires of Change
Shawn Skabelund, Installation Artist / Curator
12:00 - 1:00 Lunch (Capitol Cafeteria)
1:00 - 2:00 What are the Limits of Planning for Wildfire in the WUI?

Limits to Adaptation: Post-Wildfire Views of WUI Regulations and Planning
Miranda Mockrin, Research Scientist, U.S. Forest Service, Northern Research Station
Hillary Fishler, School of Sociology, Social Work, and Anthropology, Utah State University
Susan Stewart, Research Scientist, U.S. Forest Service (Ret.)

Addressing the Impact of Absentee Landowners on Community Wildfire Safety
Meghan Housewright, Director, Fire and Life Safety Policy Institute, National Fire Protection Association
Michele Steinberg, Manager, Wildfire Division, National Fire Protection Association
2:00 - 3:15

Envisioning a Cohesive Wildfire Strategy for the Northern Rockies
Sandi Zellmer, Professor of Law, Director of Natural Resources Clinics, University of Montana School of Law
Michelle Bryan, Professor of Law, University of Montana School of Law
Samuel Panarella, Professor & Director, Max S. Baucus Institute, University of Montana School of Law
Ronald K. Swaney, Fire Management Officer, Confederated Salish & Kootenai Tribes

BREAK  
3:30 - 4:30 The Role of Informal Governance in Wildfire Planning: Observations from Idaho
Stephen R. Miller, Professor of Law & Associate Dean for Faculty Development, University of Idaho College of Law
Jaap Vos, Professor & Program Head, Bioregional Planning & Community Design, University of Idaho College of Art and Architecture
Eric Lindquist, Associate Professor, School of Public Service, Boise State University
4:30 Reception (Idaho Law & Justice Learning Center)

October 18, 2018 | Permalink | Comments (0)

Monday, October 8, 2018

Zoned Out: How Zoning Law Undermines Family Law's Functional Turn

Kate Redburn, a student at Yale Law, has posted "Zoned Out:  How Zoning Law Undermines Family Law's Functional Turn."  Here is the abstract:

A fundamental contradiction in the legal definition of family lurks at the intersection of family law and zoning law. One set of doctrines has increasingly recognized the claims of “functional families,” the other has come to rely on the definition of “formal family”- those related by blood, marriage or adoption. As a result, the “functional turn” in family law is undermined or unstable in at least 32 states. Using original legal analysis and historical research, this paper illuminates that contradiction, explains how it came about, and argues that it must be resolved in favor of functional families. After a brief introduction (Part I), Part II surveys the "functional turn" in state family law, while Part III offers a novel history of the definition of family in zoning law, which I call the "formal turn." Part IV offers normative and practical reasons why the definition of family should be loosened, offering recommendations for legislative and judicial solutions.

 

October 8, 2018 | Permalink | Comments (0)

Wednesday, September 19, 2018

APA launches a new timeline of planning

The American Planning Association has a nifty new timeline of planning, which is worth a look and might be a good background tool to mention for students.  It is available here.

September 19, 2018 | Permalink | Comments (0)

Thursday, September 13, 2018

Vacant Property Research Network issues new policy brief on strategic code enforcement

From Kermit Lind...

The Vacant Property Research Network has issued new policy brief on strategic code enforcement.  You can view it here.  

September 13, 2018 | Permalink | Comments (0)

Sunday, September 9, 2018

CFP: ABA Journal of Affordable Housing & Community Dev Law: Sustainability in Affordable Housing, Fair Housing & Community Development

From Tim Iglesias:

ABA Journal of Affordable Housing & Community Development Law

 

Call for Papers

 

Sustainability in Affordable Housing, Fair Housing

 & Community Development

 

Abstracts due October 15, 2018

 

Drafts due January 1, 2019

TheJournal of Affordable Housing & Community Development Law(the Journal)invites articles and essays on the theme of sustainability in affordable housing, fair housing and community development. Contributions couldexplore sustainability from environmental, economic, social or political perspectives and address topics ranging from green building and disaster preparedness/response to affordable housing preservation to funding for local fair housing organizations. Articles and essays could analyze new issues, tell success stories and draw lessons, or explore problems and propose legal and policy recommendations. The Journalwelcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words). 

In addition, the Journal welcomes articles and essays on any of the Journal’straditional subjects: affordable housing, fair housing and community/economic development. Topics could include important developments in the field; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies.

The Journalis the nation’s only law journal dedicated to affordable housing and community development law.  The Journaleducates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at iglesias@usfca.eduby October 15, 2018. Submissions of final articles and essays are due by January 1, 2019.The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

September 9, 2018 | Permalink | Comments (0)

Friday, September 7, 2018

Free Online Sept. 14: ABA State & Local Gov Land Use Committee presentation: "Mt. Laurel: An Update"

From Sarah Adams-Schoen:
 
Next Friday's online meeting of the ABA State & Local Government Law Land Use Committee will feature a presentation on "Mt. Laurel: An Update," by Judge (retired) Peter A. Buchsbaum & Kevin D. Walsh, Exec. Dir. of the Fair Share Housing Center. The event is Fri., Sept. 14, 1-2 CT. 
 
The meeting is open to anyone, so please feel free to join if you're interested, and please forward this invitation to students or others you know who may be interested.  
 
To attend, simply join the online meeting on September 14 at 1 pm CT, by clicking (or copying and pasting into your browser): 
 
 
(You can also join the meeting from a mobile device by downloading the Zoom app and then clicking https://zoom.us/j/8013549496, or from your phone by calling either +1 669 900 6833 (US Toll) or +1 929 436 2866 (US Toll) and entering the Meeting ID: 801-354-9496. International numbers are available at https://zoom.us/u/dkiEeM2u.)

September 7, 2018 | Permalink | Comments (0)

Wednesday, September 5, 2018

Oct 19: Law, Planning and Wildfire in the Wildland-Urban Interface: The Future of Government and Governance of Disaster in the West

I am pleased to announce that on October 19, 2018, the University of Idaho College of Law, along with UI's Bioregional Planning Department, Boise State University's School of Public Service, and the Idaho Department of Lands, will host a day-long event on legal and planning tools for wildfire management in the wildland-urban interface.  

In addition, the events will be broadcast live on the Internet and archived.  I hope some of you will be able to join us in person or online.  The schedule and registration just went public and are reproduced below.  The official page is here.

 

 

Law, Planning and Wildfire in the Wildland-Urban Interface: The Future of Government and Governance of Disaster in the West

State Capitol Building, Lincoln Auditorium
Boise, Idaho
Oct. 19, 2018
8:30 a.m. – 5:00 p.m. 

Schedule

8:00 - 8:45 Registration and Light Breakfast (Capitol Cafeteria)
8:45 - 9:00 Introductory Remarks
Stephen R. Miller, Associate Dean & Professor of Law, University of Idaho College of Law
9:00 - 10:00 How is Wildfire in the WUI Different? How Do We Plan for It?

Trends, Impacts, and the Economics of Wildfires at the Community Scale
Kimiko Barrett, Research & Policy Analyst, Headwaters Economics

Using Pre-Disaster Community Capacity to Address Land Use Post-Wildfire: Three California Case Studies
Edith Hannigan, Land Use Planning Policy Manager, California Board of Forestry and Fire Protection
10:00 - 11:15 Finding Success in WUI Regulations: A Case Study from Washington State
Molly Mowery, President, Wildfire Planning International
Craig Gildroy, Planning Director, City of Chelan, Washington
Mike Kaputa, Director, Chelan County Natural Resources, Chelan County, Washington
Steve King, Economic Development Director, City of Wenatchee, Washington
BREAK  
11:30 - 12:00 Fires of Change
Shawn Skabelund, Installation Artist / Curator
12:00 - 1:00 Lunch (Capitol Cafeteria)
1:00 - 2:00 What are the Limits of Planning for Wildfire in the WUI?

Limits to Adaptation: Post-Wildfire Views of WUI Regulations and Planning
Miranda Mockrin, Research Scientist, U.S. Forest Service, Northern Research Station
Hillary Fishler, School of Sociology, Social Work, and Anthropology, Utah State University
Susan Stewart, Research Scientist, U.S. Forest Service (Ret.)

Addressing the Impact of Absentee Landowners on Community Wildfire Safety
Meghan Housewright, Director, Fire and Life Safety Policy Institute, National Fire Protection Association
Michele Steinberg, Manager, Wildfire Division, National Fire Protection Association
2:00 - 3:15 Envisioning a Cohesive Wildfire Strategy for the Northern Rockies: A Case Study from Montana
Michelle Bryan, Professor of Law, University of Montana School of Law
Samuel Panarella, Associate Professor & Director, Max S. Baucus Institute, University of Montana School of Law
Sandi Zellmer, Professor of Law, Director of Natural Resources Clinics, University of Montana School of Law
BREAK  
3:30 - 4:30 The Role of Informal Governance in Wildfire Planning: Observations from Idaho
Stephen R. Miller, Professor of Law & Associate Dean for Faculty Development, University of Idaho College of Law
Jaap Vos, Professor & Program Head, Bioregional Planning & Community Design, University of Idaho College of Art and Architecture
Eric Lindquist, Associate Professor, School of Public Service, Boise State University
4:30 Reception (Idaho Law & Justice Learning Center)

September 5, 2018 | Permalink | Comments (0)

Sunday, September 2, 2018

Gregory M. Stein: Will the Sharing Economy Increase Inequality?

Gregory M. Stein (Tennessee) has posted, "Will the Sharing Economy Increase Inequality?" on SSRN.  Here is the abstract:

The rise of the sharing economy benefits consumers and providers alike. Consumers can access a wider range of goods and services on an as-needed basis and no longer need to own a smaller number of costly assets that sit unused most of the time. Providers can engage in profitable short-term ventures, working on their own schedule and enjoying many new opportunities to supplement their income. Sharing economy platforms often employ dynamic pricing, which means that the price of a good or service varies in real time as supply and demand change. Under dynamic pricing, the price of a good or service is highest when demand is high or supply is low. Just when a customer most needs a good or service – think bottled water after a hurricane – dynamic pricing may price that customer out of the market. This Article examines the extent to which the rise of the sharing economy may exacerbate existing inequality. It describes the sharing economy and its frequent use of dynamic pricing as a means of allocating scarce resources. It then focuses on three types of commodities – necessities, inelastic goods and services, and public goods and services – and discusses why the dynamic pricing of these three types of commodities raises the greatest inequality concerns. The Article concludes by asking whether some type of intervention is warranted and examining the advantages and drawbacks of government action, action by the private sector, or no action at all.

Well worth a read.

September 2, 2018 | Permalink | Comments (0)

Friday, August 24, 2018

Call for Papers: Rocky Mountain Land Use Institute Conference / Scholarly Workshop

The Rocky Mountain Land Use Institute at the University of Denver Sturm College of Law is soliciting panel topics, speaker proposals, and academic papers for its 28thAnnual Western Places/Western Spaces conference, which will take place March 7-8, 2019 on the University of Denver campus.  

The Institute has, for more than 25 years, served as a forum for bringing together leading land use and environmental scholars and practitioners to think about solutions and approaches to address vexing land use, development, natural resource and local environmental problems.   This year our theme is Designing for the Future: Building Enduring Value, and we will be looking at the ways in which the quality of design informs and shapes our communities.    The deadline for submitting panel proposals is September 7, 2018.

In addition, on March 8th, the annual spring conference will include a Land Use and Environmental Scholarly Workshop, to bring together a diverse group of up to 10 scholars who are working on legal and policy issues at the intersection of land use, environmental law, and sustainability in a format designed to feature the work of emerging scholars and to foster rich discussion, academic growth, and collaboration.  Some limited funding is available to help defray travel costs, and Workshop participants may attend the entire conference at no expense.

To learn more about the conference and to submit a panel or speaker proposal, visit the RMLUI conference website.     To learn more about the Land Use and Environmental Scholarly Workshop, please contact Susan Daggett at sdaggett@law.du.edu.

August 24, 2018 | Permalink | Comments (0)

Friday, August 3, 2018

CFP: Preparing for Climate Change in the Planned and Unplanned City - Texas A&M - Feb 18-23

From Tim Mulvaney at Texas A&M Law:

PLPR'19-CallForPapers-email

August 3, 2018 | Permalink | Comments (0)

Graphic: How America Uses Its Land

Bloomberg recently posted a scrollable info-graphic about how America uses its land.  Well worth a look here.  Below is a screenshot, though since it's a scrollable graphic, it's best to visit the page for the whole effect.

 

Screen Shot 2018-08-03 at 2.47.38 PM

August 3, 2018 | Permalink | Comments (0)

Tuesday, July 31, 2018

Seeking collaborators on Sustainable Development Code: Jon Rosenbloom

From Jon Rosenbloom:

Dear colleagues,

The Sustainable Development Code is a model local code providing the best sustainability practices to local governments. The Code focuses on local development practices that implicate a wide array of sustainability issues, including climate change, wildlife habitats, water quality, and affordable housing.

I am co-managing the Code with the University of Colorado at Denver, School of Architecture and Planning. We are working with practitioners, academics, and students from around the country.

Would you be interested in incorporating drafting Code provisions into your environmental, land use, energy law, water law, or state and local government course, as was done at several law schools last semester. Overwhelmingly, the response from those that have incorporated the Code into their courses has been that it provides excellent educational opportunities to understand local environmental issues, local regulations, and, more generally, federalism and decentralization. In addition, it is a good chance for students to hone their researching and writing skills.

The Code is divided into 32 chapters, covering topics such as “water supply quality and quantity,” “coastal hazards,” and “wind energy” (a list of chapters can be found in the prezi presentation linked below). Each chapter consists of 30-40 concrete policy actions local governments can take to become more sustainable in that particular area. Each action has a corresponding brief describing:

  • The specific recommendation;
  • The effects the recommendation is projected to have;
  • At least two local governments’ code provisions that have implemented the recommendation; and
  • 4-6 additional local code citations and parentheticals with similar recommendations.

Drafting the briefs has been primarily incorporated into coursework. The idea is that the briefs will provide local governments with quick and easily accessible information that can be used to enact local legislation. The briefs were designed by a multidisciplinary group of experts and practitioners (a list of the Advisory Committee can be found in the prezi presentation). I’m glad to forward sample briefs.

If you would like additional information on the Code, in 5-7 minutes I could walk through the prezi presentation found at:

https://prezi.com/view/cdEnRwvramAieQGsIbWl/

I will make myself fully available to anyone interested in this project. We expect to launch the Code in summer/fall 2019.

I hope this project interests you and, if so, please contact me.

Jon Rosenbloom

jonathan.rosenbloom@drake.edu

 

July 31, 2018 | Permalink | Comments (0)

Saturday, July 28, 2018

POSITION ANNOUNCEMENT – ASSISTANT/ASSOCIATE/PROFESSOR OF LAW AND DIRECTOR OF THE DRAKE AGRICULTURAL LAW CENTER

DRAKE UNIVERSITY LAW SCHOOL invites applications for a tenured/tenure-track position as Assistant/Associate/Professor of Law in the field of Agricultural Law and Director of the Drake Agricultural Law Centerbeginning in the fall of 2019. Applicants must hold a J.D. degree (or the equivalent) and should have outstanding records of accomplishment in scholarship, teaching, and service as well as substantial practice experience. 

The successful candidate will teach agricultural law courses and serve as the Director of the Drake Agricultural Law Center. Drake was the first American law school to offer a specialization in agricultural law, offering courses not only on agricultural and food law but also on agriculture’s effect on social, economic, and political systems. Drake is the only accredited law school in the nation with a student-published legal journal, the Drake Journal of Agricultural Law, focusing solely on these issues.

Founded in 1983, the Agricultural Law Center provides opportunities for students to explore how the legal system impacts the global food system and the agricultural sector's ability to produce, market, and use agricultural products. The Center promotes and supports research and scholarship andhas hosted distinguished agricultural law scholars from all over the country and the world to teach students and share their unique cultural perspective on food and agricultural law. Students can earn a Food and Agricultural Law Certificate by completing 21 credits of coursework, a major legal research and writing project, and an internship.

The Agricultural Law Center also provides information and resources for American farmers, landowners, and agricultural entrepreneurs to help these key agriculture stakeholders make profitable and sustainable decisions regarding our nation’s land and agricultural production.

Applicants with backgrounds in all areas of Agricultural Law are welcome. Over 85% of Iowa’s land is used for agriculture. Drake’s location in central Iowa places it at the heart of a state that leads in production of soybeans, corn, eggs, and pork.

Drake University is an equal opportunity employer and actively seeks applicants who reflect the nation’s diversity.  No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status.Diversity is one of Drake’s core values and applicantsneed to demonstrate an ability to work with individuals and groups of diverse socioeconomic, cultural, sexual orientation, disability, and/or ethnic backgrounds.

Confidential review of applications will begin in August 2018. Applications (including a letter of interest, a complete CV, teaching evaluations (if available) and the names and addresses of at least three references) should be sent to Professor Ellen Yee, Chair, Faculty Appointments Committee, Drake University Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: ellen.yee@drake.edu

July 28, 2018 | Permalink | Comments (0)

Monday, July 23, 2018

John Nolon on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 8:  Hot Topics in Takings

by John Nolon

While Stephen and Jonathan explore upcoming cases and concepts, my focus here is on the fundamental aspects of takings cases. I find that the basics are tough and need a patient hand to be turned so that students truly understand constitutionally protected property rights and remedies for their violation.  I spend a lot of time on Lingle, which, along with Palazzolo, handle the basics well.

In Lingle, the majority dispenses with the two-part, disjunctive Agins test, including the incomprehensible notion that a regulation can be a taking if fails to substantially advance legitimate state interests.  “Correcting course,” Mrs. Justice O’Connor, writing for the majority, properly characterizes that test as a due process standard. Understanding due process claims is as critical for students as understanding takings jurisprudence. Many, many of the cases in our book are disposed of on due process grounds, beginning with Euclid. These waters should not be cloudy and Lingle does an excellent job of separating due process from takings cases and explaining the prevailing rules of interpretation in each category.

The district court decision in Lingle held that a taking occurred because it found Chevron’s economist more credible than the state’s expert who argued that no state interest was advanced by the state’s control of rents charged to lessee-dealers by oil companies. It reasoned that the substantially advance test of Agins was violated because the law was ineffective and that a taking had occurred, even though no damages were proved. 

This is a can of worms. If there are no damages, what is the remedy if the Constitution provides that just compensation must be paid for the taking by the offending regulating entity?  What does the Constitution mean when it says no person shall be deprived of property without due process of law?  How is that different from the provision that protects private property from being taken for a public use, without just compensation? What is a court doing choosing the plaintiff’s expert over the one relied on by the state legislature, to which it owes deference?.   In addition to dispensing with the substantially advance rule for takings, O’Connor also reminds us that courts do not heavily scrutinize substantive due process challenges to government regulation?

Having clarified takings waters this much, the Justice further explains that there are four categories of takings including per se cases like Loretto and Lucas (“two relatively narrow categories”) and Penn Central, which articulates specific factors for resolving regulatory takings claims that do not fall within the other categories.  The fourth type of takings case she mentions is “the special context of land-use exactions” that arise mostly in context of conditions imposed by adjudicatory bodies, like planning boards, as part of the project review and approval process. Although Koontz rendered this fourth category fundamentally cloudy, the categories themselves are clear enough to guide law students’ understanding of this field of law. 

In explaining the Penn Central factors, Justice O’Connor refers us to the Court’s 2001 Palazzolo case, in which a developer was approved to build one residence on two dryland acres in a 20 acre tidal wetland site that he owned.  He had asked the relevant agency for permission to build 74 homes on individual lots and claimed damages of over $3 million, which he claimed constituted a total taking under Lucas. The Court disagreed finding that “the petitioner failed to establish a deprivation of all economic value [one of the Penn Central factors] for it is undisputed that the parcel retains significant worth for the construction of a residence.” In other words, the Court considered the Lingle takings categories and placed this in the Penn Central rather than Lucas bucket.  On remand, the Rhode Island Superior Court affirmed that there was no taking -- under Lucas there was no total taking and under Penn Central the petitioner’s investment backed expectations were not frustrated.  

Although takings law is anything but free of nuance and ad hoc applications, there is a degree of clarity in these categories and the Lingle decision. .  Most takings cases fall into the Penn Central category, rather than the relatively narrow per se categories, unless they involve an exaction.  Within Penn Central, the Court imposes the burden of proving the taking on the challenger, defers to legislative discretion, and presumes the validity and constitutionality of its actions.  If the other categories are narrow or specific and most takings cases are decided under Penn Central,  one would expect that takings claims are hard to win.  This is affirmed in a recent William and Mary Law Review article by Professors James Krier and Stewart Sterk who conduct “An Empirical Study of Implicit Takings.” They find that “takings claims based on government regulation almost invariable fail.” 

If students can be taught this much, they will know more than land use attorneys who advise their clients that regulations that prevent the highest and best use of their properties are takings or that simple diminution of property values caused by regulations should be actionable under the takings clause.  Unfortunately there are too many such cases, suggesting that lawyers don’t understand the basics or are misrepresenting the law to their frustrated clients.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2018-19 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin

Question 8:  Hot Topics in Takings [Miller | Rosenbloom | Nolon | Salkin]

July 23, 2018 | Permalink | Comments (0)

Monday, July 16, 2018

Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 8:  Hot Topics in Takings

by Jonathan Rosenbloom

Continuing Stephen’s line of inquiry, another hot topic in takings jurisprudence is whether a takings claim may be recognized against a local government for failing to adapt to climate change. Once the students review most of Chapter 5, I might ask them whether attorneys representing local governments should counsel those governments on potential takings claims based on the failure to adapt to climate change. While yet decided, these claims may have the capacity to result in massive damage awards and to encourage local action.

In Incentivizing Municipalities to Adapt to Climate Change: Takings Liability and FEMA Reform as Possible Solutions, 43 B.C. Envtl. Aff. L. Rev. 281 (2016), Professor David Dana (Northwestern) identified the following four potential takings claims against local governments based on the failure to adapt to climate change:

  • Inaction Claims: Takings claims against governments for failing to take action to adapt to climate change.
  • Ineffective Action: Takings claims against governments for taking adaptive actions that were insufficient to prevent property loss.
  • Counterproductive Action: Takings claims against governments for taking action that not only was ineffective in preventing property loss, but also caused greater losses than otherwise would have occurred.
  • Improper Diversion: Takings claims against governments for diverting the effects of climate change, such as flooding or fire, from one area/community to another, such that the latter area/community incurred greater property losses than it otherwise would have incurred, although the former area/community incurred less loss then it otherwise would have.

Id. at 285-86 (relying heavily on another excellent article, Christopher Serkin, Passive Takings: The State's Affirmative Duty to Protect Property, 113 Mich. L. Rev. 345 (2014) (Serkin argued that “passive takings” liability should be recognized whether a government acts or fails to act when it asserts regulatory control such that it is responsible for harm in the face of ecological change)).

Dana’s four potential takings claims set up a nice intellectual exercise for the students to explore the contours of the takings clause and whether it could fit a claim based on adaptation (Dana is skeptical of whether local action will change in the face of such a takings finding, see Dana, supra, at Section II). Compared to recent successes under federal substantive due process and public trust, see Juliana v. U.S., 217 F.Supp.3d 1224 (2016) (denying defendants’ and intervenors’ motions to dismiss), denying mandamus,In re U.S. v. U.S. Dist. Ct. for the Dist. Of Oregon, 884 F.3d 830 (2018), plaintiffs still, I think, have a way to go before not only finding success under the takings clause, but also encouraging or compelling local action on climate adaptation. Nonetheless, it is a developing area of takings jurisprudence and offers a good opportunity for students to explore the application of takings to new circumstances.

As a callous and inept federal administration fails to protect communities from a rapidly changing environment, local communities continue to suffer (see one of many federal administrative actions abandoning communities battling climate change, see, e.g. Christopher Flavelle, U.S. Disbands Group That Prepared Cities for Climate Shocks, Bloomberg (Dec. 4, 2017)). If local governments fail to address more-and-more foreseeable uncertain disasters, citizens will look for a remedy. And local governments just may be in the crosshairs.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2:  Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3:  Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4:  Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom] 

Question 5:  How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6:  Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7:  How to Teach the Contract Transformation in Land Use Regulation?  [Miller | Nolon | Rosenbloom | Salkin

Question 8:  Hot Topics in Takings [Miller | Rosenbloom | Nolon | Salkin]

July 16, 2018 | Permalink | Comments (0)