Friday, July 30, 2010

Asheville Ordinance Aimed at Sustainability... voted down:

The ordinance, crafted over two years by the Mayor’s Affordable Housing task force, allows developers to build denser housing than normally allowed by an area’s zoning if it’s considered affordable or sustainable and located in certain areas a quarter-mile from major transit corridors. Exactly how much denser the projects may be depends on how affordable, how green and how close to transit they are. The rules would allow such projects to be directly approved by Planning and Zoning, instead of having to go before Asheville City Council for a vote.

However, at the commission meeting last Thursday, there was a sharp split between advocates of the proposed rules, who believe it would provide a major boost to making Asheville a better place to live, and those who fear it would intrude on neighborhoods and harm the democratic process. The commission ended up voting down the initial proposal, with members Jerome Jones and Cindy Weeks supporting it. The body then unanimously approved asking city staff to revise the proposal to exempt neighborhoods zoned for single-family homes and to reduce the areas affected by the proposed ordinance to those within an eighth of a mile of transit corridors.

The article focuses on how much of the opposition centered on the alleged negative effect that the ordinance would have on single-family residential areas.  As in other sustainability efforts, the single-family detached home continues to be a sacred cow--immune from even allowing compatible uses nearby. 

This is really unfortunate as, historically, the neighborhood corner store was a key part of the community.  In addition to providing basic sundries without having to resort to traveling on crowded city streets and state roads, the corner store often provided a community gathering place.

Today, though, the single, segregated use model of residential development often treats anything other than similar, homogeneous residential detached houses as some sort of development pox.

The key to advancing a sustainable development pattern is not to absolutely bar compatible uses but to craft land development codes that allow compatible commercial uses to appropriately conform to compatible residential uses.  This can be done through a wide variety of codes ranging from design regulations to sign ordinances to building codes.

Unfortunately, it appears that even a progressive city like Asheville is not ready to consider the sacred cow in context.

--Chad Emerson, Faulkner U.

July 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 29, 2010

Smart Growth in the Country...

Oftentimes, smart growth and sustainable development topics focus primarily on urban settings.  After all, those are the areas that issues like walkability, mixed use, and transit-oriented development are most prevalent.

Even so, the domain of smart growth land use principles is not limited to downtowns, main streets, and central business districts. 

In fact, the ICMA recently released a report entitled “Putting Smart Growth to Work in Rural Communities."

I've scanned the study and it looks quite interesting.  Here is more:

This report focuses on smart growth strategies that can help guide growth in rural areas while protecting natural and working lands and preserving the rural character of existing communities. These strategies are based around three central goals: 1) support the rural landscape by creating an economic climate that enhances the viability of working lands and conserves natural lands; 2) help existing places to thrive by taking care of assets and investments such as downtowns, Main Streets, existing infrastructure, and places that the community values; and 3) create great new places by building vibrant, enduring neighborhoods and communities that people, especially young people, don’t want to leave.
Chad Emerson, Faulkner U.

July 29, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 27, 2010

Heading to SEALS...

The annual Southeastern Association of Law Schools conference begins this Friday at the Breakers in West Palm Beach.

I had the honor of chairing the Program Format Committee this year so I'm very familiar with all of the different sessions.  As a property and land use prof, there are several that are very interesting.  So, if you are looking for a last minute reason to head to the Breakers, consider SEALS.

And, if you are attending SEALS, drop me an email at as I always enjoy visiting with our readers (especially when the setting is the beautiful beaches of Palm Beach!).

--Chad Emerson, Faulkner U.

July 27, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, July 26, 2010

Gregory, Leiserowitz, & Failing on Climate Change and Adaptation in NW Alaska

Robin S. Gregory (Decision Research), Anthony A. Leiserowitz (Decision Research), and Lee Failing (Compass Resource Management) have posted Climate Change Impacts, Vulnerabilities, and Adaptation in Northwest Alaska.  The abstract:

A two-day workshop on climate change impacts, vulnerabilities and adaptation in northwest Alaska was held in Kotzebue on May 24 & 25. The overall objective of the workshop was to help key stakeholders in northwest Alaska consider climate change impacts and vulnerabilities in the region, discuss the pros and cons of various adaptation strategies, and identify several potential near- and medium-term actions.

Matt Festa

July 26, 2010 in Climate, Environmentalism | Permalink | Comments (0) | TrackBack (0)

A Marxist's View of Manhattan (and Other Urban Settings)...

Okay, so maybe I was making a weak attempt at introducing a Woody Allen-like title to Land Use Prof.  But, is does accurately reflect this interesting article from

"New York? The whole damn place has been turned into a suburb," sneered David Harvey, startling a roomful of New Yorkers who prided themselves on the same things he derided: the makeover of the city's parks; the new network of bike lanes; the pedestrian malls along Broadway. "The feel of the city is losing its urbanity and being made okay for suburbanites to enjoy Times Square," he continued, going on to condemn New York's gentrification not on aesthetic or nostalgic grounds, but for being at the root of the financial crisis.


Harvey is merely putting into Marxist terms the same laments offered recently by Patti Smith ("New York has closed itself off to the young and the struggling... So my advice is: Find a new city") and the anonymous blogger behind Lost City, who viciously described Bloomberg's city as "homogenous, anodyne, whitewashed, suburban, toothless, chain-store-ridden, ordinary, exclusive and terribly, terribly expensive. A town for tourists and the upper 2%."

While I personally do not subscribe to Harvey's ideas, they do provide a thought-provoking (or maybe just provocative) frame in which to consider the trend toward urban gentrification in some of America's largest cities.  After all, it was not long ago that places like Times Square or large chunks of D.C. were largely abandoned and crime-ridden. 

In many respects, the revitalization of these areas has produced good results like increased safety and revenue for cities.  Indeed, just last month I spent a wonderful evening in Bryant Park reading a book, dining, and relaxing in that near perfectly formed public space.  In that park's relative recent history, this would have been a dicey thing to do.  Clearly, the revitalization of places like Bryant Park has been useful and good things on many levels.

But, if you're David Harvey, the likely retort is "At what cost?" 

--Chad Emerson, Faulkner U.

July 26, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 25, 2010

Chapman on the Ontological Problem with Sovereignty

Chelsea Chapman (Wisconisn--Anthropology) has posted The Ontological Problem with Sovereignty: Indigenous Nations, Territoriality, and the Making of Natural Resources in Alaska.  The abstract:

Congressional resolution of Alaska Native land claims in the 1970s, driven by a discursive collusion of carbon crisis and neocolonial urgency to build the Trans-Alaska Pipeline, has created a substantively different legal and economic relationship between Alaskan indigenous nations and the state than that which exists for Lower 48 tribes. It has also resulted in increasingly intense inter-tribal and intra-organizational conflict over environmental governance, development, and energy, most recently culminating in a January 2009 heating oil crisis in rural villages throughout the state. In this paper, cultural conceptions of fossil energy held by young indigenous anti-development activists from Gwich’in and Koyukon tribal villages are contrasted with those held by energy analysts in Doyon, Ltd, interior Alaska's largest regional Native corporation. The villages rejected the Alaska Native Claims Settlement Act and their citizen activists now provide counter-narratives of sovereignty and ‘natural resources’ that not only diverge from those held by Doyon members, but also illuminate indigenous diversity in conceptions of energy as category. Narratives of last winter’s rural crisis demonstrate how fossil energy is conceived of in culturally distinctive ways by Alaska Native environmental activists, policy makers, and energy analysts. Further, their evaluations of energy covary with diverse legal relationships between village governments, the corporations, and the state. By investigating fossil energy as a total social fact, critical ethnography can illuminate the multiple cultural understandings of relational sovereignty and energy that inform indigenous conflict in Alaska.

Matt Festa

July 25, 2010 in Development, Environmentalism, Federal Government, Local Government, Oil & Gas, Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, July 24, 2010

Gordy on Canadian Sovereignty in Arctic Waterways

Again, if everything goes as planned, I will be away in Canadian waterways today, so I've arranged to post this somewhat topical article.  Kimberley Celeste Gordy (J.D. Candidate, U. of Houston) has posted Dire Straits: The Necessity for Canadian Sovereignty in the Arctic WaterwaysFordham Environmental Law Review, Vol. 20, pp. 551-596, 2010.  The abstract:

Experts predict that a desperate global desire for the Arctic’s natural resources will be the catalyst for the next cold war unless the question of sovereignty in Northwest Passage and surrounding Arctic waterways is finally settled. As climate change takes hold in the Arctic, scholars have continued to focus on both outdated and legalistic arguments to draft unworkable solutions to a current crisis. Arctic management solutions based upon international agreements offer insufficient protection for Canada, the nation most vulnerable to international exploitation and environmental devastation. 

This Article brings to light three considerations previously overlooked by scholars in past sovereignty analyses. First, it argues that effective management of the finely tuned Arctic ecosystem must be the responsibility of those developing the region. Second, it contends that a feasible Arctic solution must promote socio-economic stability for Arctic residents while also preserving the indigenous culture. Finally, it asserts that a nation must have an incentive to fund the expense of creating environmentally safe and sustainable development. Canada is the nation best suited to accomplish the three tasks the Article identifies. It also has the greatest motivation because Canadians, especially the indigenous people, will suffer direct harm if these considerations are ignored. 

For the first time, the Canadian government’s assertion of Arctic sovereignty can be realized at international law. This Article offers a modern and timely interpretation of sovereignty under Historic Consolidation of Title. The analysis presents the legal merits of Canada’s claim under this doctrine and demonstrates Canada’s ability to exercise effective control over the Arctic. Most importantly, this Article establishes that Canadian sovereignty is the only equitable solution for the modern Arctic.

Matt Festa

July 24, 2010 in Climate, Comparative Land Use, Environmental Law | Permalink | Comments (0) | TrackBack (0)

Friday, July 23, 2010

An Interesting Analysis Related to Land Use and Schools...

Architect and planner Steve Mouzon--a strong advocate of sustainable development on the lot, block, and community scale--recently posted a very informative comparison of three elementary school sites in Alabama and how land use regulations affected them:

Let’s look at the difference between the way we used to build schools, the normal way we build schools today, and a better way of building schools today. All three schools shown here are elementary schools, and are located in the state of Alabama so that it’s close to an “apples and apples” comparison. Satellite views of the schools are shown at the same scales for equal comparisons. I’ve darkened the land outside the property lines of the school to make the school property obvious.

As you can read in the article, the minimum acreage requirements for school sites can be ridiculously large in many states. The damage that oversized school sites cause to a pedestrian scale development can be huge (literally).

Steve's analysis does a succinct and reasoned job of explaining the different options.

--Chad Emerson, Faulkner U.

July 23, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 21, 2010

Fox on Smart Growth in Vancouver & Seattle

David Fox (J.D. Candidate, Boston College) has published Halting Urban Sprawl: Smart Growth in Vancouver and Seattle, 33 B.C. Int'l & Comp. L. Rev. 43 (2010).  The abstract:

Haphazard and unorganized land-use planning in United States cities has resulted in endless sprawl that is straining infrastructure, polluting the atmosphere, and negatively affecting quality of life. This Note compares efforts of two similarly situated North American cities—Seattle and Vancouver—in enacting Smart Growth policies to combat sprawl and argues that Seattle, and American cities in general, should look to Vancouver’s example to limit urban sprawl and comprehensively plan at local and regional levels for sustainable growth and more livable spaces over the coming decades.

I'll be in Vancouver when you read this post, so I'll be checking out the land use!

Matt Festa

July 21, 2010 in Comparative Land Use, Density, Environmentalism, Local Government, Planning, Scholarship, Smart Growth, Urbanism | Permalink | Comments (0) | TrackBack (0)


Noise and light ordinances have always been interesting to me, primarily because they often accentuate legitimate disconnects between certain types of development.

For instance, many cities want bright lights and interesting sounds in those areas of town where evening activity provides for nice sales tax receipts.  At the same time, many residential property owners enjoy the sound of crickets and night lights of the cosmos.

The conflict arises when the two intersect.  After all, you certainly wouldn't want to be able to see the stars and hear the crickets each evening in a central business district if the goal was a viable nighttime entertainment destination where people are looking for music and such.

Sound ordinances and light regulations are sometimes used to balance this issue.  Recently though Sullivan's Island in South Carolina seemed to get the balance at little, well, un-balanced.

From USA Today:

Visitors to the Charleston, S.C., suburb of Sullivan's Island are invited to have a good time eating, drinking and making merry in the seven restaurants that comprise its business district.

But if a proposed amendment passes Tuesday, they won't be welcome to sing or whistle on the street. The town council has given initial approval to an amendment to its noise ordinance that would make it unlawful "for any person to yell, shout, hoot, whistle or sing on the public streets."

The proposed amendment says these restrictions are to be enforced "particularly between the hours of 11 p.m. and 7 a.m.," but also "at any time or place so as to annoy or disturb the quiet, comfort or repose" of the townspeople.

The time-based restrictions seem fairly straightforward but the second part screams at a problem of ambiguity. Now, I'm all for not disturbing another person's repose unnecessarily but this is about as a subjective standard as I've seen codified in a long, long time. 

Let the Sullivan's Island Whisper Wars begin...

--Chad Emerson, Faulkner U.

July 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 20, 2010

Starting Land Use

My apologies for reminding everyone that the beginning of the fall semester is just around the corner, but since registrars everywhere will soon be calling for syllabi, it seems like an appropriate occasion to get some perspectives on starting off the land use course.  In the past, I have started with a discussion of the Euclid case, which seems logical enough since it is the foundation of all modern land use law and gestures at many of the grand themes of the subject (e.g., municipal land use authority, planning, NIMBYs, LULUs, the relationship between zoning and the common law, single-use zoning, solicitude for the single-family home, judicial deference to local land use decisionmaking, the Progressive concept of zoning as a form of social control, and more).   Nevertheless, I often emphasize to my students that while Euclid is an important case, that's not the same thing as saying that it's a well-reasoned case or, more crucially, a good learning tool.  I have increasingly discovered that it is neither.  Students find the case's cryptic logic confusing and its prose inscrutable.  Having read the case numerous times (and written about it), I can't say I disagree.  In my next post, I will throw out some thoughts about a different way to start the land use class.  But first I would like to solicit comments from about how you start the land use course.  Thanks in advance for sharing your thoughts.

Ken Stahl (

Chapman University School of law

July 20, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, July 19, 2010

Benson on Modern-Day Reclamation Statutes

Reed D. Benson (New Mexico) has posted New Adventures of the Old Bureau: Modern-Day Reclamation Statutes and Congress' Unfinished Environmental Business, forthcoming in Harvard Journal on Legislation.  The abstract:

Congress established the reclamation program in 1902, and the hundreds of federal water projects built in the 20th century helped shape the West. Today, the Bureau of Reclamation plays an enormously important role in managing these projects. But with no big new dams to build, the Bureau has been forced to revise its mission to address today’s water management challenges, such as stretching finite water supplies and restoring aquatic ecosystems. Through both site-specific enactments and programmatic statutes, Congress in recent years has given the Bureau new authority and direction to address these modern challenges. But Congress has left a significant gap in the Bureau’s statutory powers by failing to provide general authority for restoration of ecosystems impaired by reclamation projects. This article reviews Congress’ expressed priorities for the reclamation program since 2002, identifies programmatic statutes intended to help the Bureau address the water issues of today’s West, examines the absence of general environmental restoration authority, and concludes with options for Congress to provide such authority.

Matt Festa

July 19, 2010 in Environmental Law, Federal Government, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

House Bill Addresses Flooding and Land Use Issues...

Awhile back, I posted on the wisdom (or lack thereof) in building buildings in flood-prone areas and how the current federal flood insurance program essentially subsidizes such risky behavior.

Now, I'm not suggesting that House members read Land Use Prof Blog (then again, Prof. Festa is pretty well-connected in the highest reaches of government), but Congress does appear to be addressing the problem of subsidizing development in areas where we know that the area is very likely to flood again in the future. 

From the Washington Post:

The bill takes such steps as permitting an increase in premiums, deductibles and coverage, and phasing out subsidies for vacation homes and for people living in areas repeatedly hit by floods. It now goes to the Senate.
In the past, this topic has made for several very interesting policy and regulatory discussions in my land use courses. Most center on the often-unrealized extent at which the federal flood insurance program has supported (if not downright incentivized) land development in areas where nature would seem to suggest otherwise.

--Chad Emerson, Faulkner U.

July 19, 2010 in Beaches, Coastal Regulation | Permalink | Comments (0) | TrackBack (0)

Sunday, July 18, 2010

Leshy on a Property Clause for the Twenty-First Century

John D. Leshy (Hastings) has posted A Property Clause for the Twenty-First Century, published in University of Colorado Law Review Vol. 75 (2004).  The abstract:

This article tries to draw some lessons from the way the Supreme Court has addressed implementation of the Property Clause of the U.S. Constitution by the Congress and the Executive, the more political branches of the national government. The Court has long said that the Property Clause contains no judicially enforceable limits on those other branches, and that stance is likely to continue. This article argues, instead, that the Property Clause can be said to have framed an attitude the Supreme Court has brought to bear on legal issues involving federal lands. That attitude, which may fairly be viewed as an expression of constitutional common law, favors retention of federal land in national ownership (retention), national over state and local authority (nationalization), and environmental preservation (conservation). It concludes that the Court’s decisions embodying that attitude have left a decidedly positive imprint on American life and culture.

Matt Festa

July 18, 2010 in Caselaw, Constitutional Law, Environmental Law, Federal Government, Judicial Review, Property Rights, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, July 16, 2010

Hester & Wright on the Shifting Scope of Railroad Easements

Jeffrey Hester (William J. Tucker & Assocs.) and Danaya C. Wright (Florida) have posted Pipes, Wires, and Bicycles: Rails-to-Trails, Utility Licenses, and the Shifting Scope of Railroad Easements from the Nineteenth to the Twenty-First Centuries, published in Vol. 27, Ecology Law Quarterly.  The abstract:

This article responds to a series of class action suits filed against railroads, telecommunication companies, and the federal government claiming that once railroads abandon their corridors, all property rights shift to adjacent landowners. This article reviews the state law on this matter and offers a theory of how courts should handle these cases. After discussing the history of nineteenth-century railroad land acquisition practices, it analyzes the scope of the easement limited for railroad purposes, then discusses the role of abandonment in affecting the rights of third party users of these corridors as well as successor trail owners. The article concludes with a theory of railroad easements that interprets the railroad's powers based on the public participation that helped create and establish these corridors and the tenuous claims of adjacent landowners.

Matt Festa

July 16, 2010 in Federal Government, History, Property Rights, Scholarship, Servitudes, Transportation | Permalink | Comments (0) | TrackBack (0)

Thursday, July 15, 2010

64.5 Million Vacant Homes...

One of the tricky things facing many U.S. jurisdictions is the number of houses and apartments sitting empty.  Among other things, these can increase crime and other safety hazards.

Plus, from the private side of things, its a huge drain on future housing demand. 

That's why if you attend a typical Planning Commission meeting, you won't find many development plans or large subdivision plats on the agenda.  There just isn't enough demand with all of the currently empty housing supply in the U.S. (an amount that some like the Realtor association estimate at over 3 million).

Well, if you thought that we here in the U.S. were in a sticky wicket of sorts, then check out these new estimates of empty housing in China:  over 64 million units (note: access to the article requires a free registration to that site).

If this number is even remotely accurate (and it uses a very interesting metric to establish the estimate), then what we've seen to date in the worldwide housing crisis has been nothing more than an appetizer of problems.

--Chad Emerson, Faulkner U.

July 15, 2010 | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 14, 2010

Chen on Property Law & Property Rights in China

Albert H.Y. Chen (Hong Kong) has posted The Law of Property and the Evolving System of Property Rights in China.  The abstract:

The enactment of the Law of Property (LP) 2007 in China has been hailed as a milestone in the development of contemporary Chinese law. This chapter attempts to understand some of the key concepts and provisions in the LP in the context of the evolving Chinese law relating to property rights, the changing economic system, and from the perspective of comparative law. It suggests that the conceptual framework employed by the LP has largely been borrowed from the continental European, particularly the German, legal tradition, although there are also vestiges of legal ideas transplanted from the former Soviet Union. This chapter also demonstrates that the three main types of "yongyi wuquan" (Nutzungsrechte in German) provided for in the LP are to varying degrees private property rights, and "collective ownership" in respect of rural land also contains elements of private property.

Matt Festa

July 14, 2010 in Comparative Land Use, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Haar and Wolf on Planning and Law

Charles M. Haar (Harvard) and Michael Allan Wolf (Florida) have posted Planning and Law: Shaping the Legal Environment of Land Development and Preservation, published in Environmental Law Reporter, Vol. 40, No. 4, pp. 10419-10431, 2010.  The abstract: 

It has been more than a century since the City Beautiful movement captured the imagination and attention of public officials throughout America. Today, many states and localities continue to wrestle with the need for, and legal and social significance of, comprehensive planning. In most of the country, zoning preceded planning, a fact that is often evident when one studies current land use patterns. In the last few decades, planning law has reached a new level of sophistication, as courts, commentators, and public officials have explored the ways in which environmental protection and land use controls intersect, at times in a complementary fashion and at other times in conflict. To be successful in this new legal milieu, the modern land use attorney needs to have a healthy respect for planners and planning theory, keeping in mind the needs and desires of their clients and the ways in which poor planning and zoning decisions and the footprint of the modern public-private partnership often have a lasting, negative effect on the unbuilt environment within and beyond our artificial political boundaries. This Article is excerpted from Charles M. Haar & Michael Allan Wolf, Land Use Planning and the Environment: A Casebook (Envtl. L. Inst. 2010).
Matt Festa

July 14, 2010 in Books, Environmental Law, Local Government, Planning, Scholarship, Teaching, Zoning | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 13, 2010

Leinberger (vs. Kotkin): Walking--Not Just for Cities Anymore

On The New Republic's excellent "The Avenue" blog, Christopher Leinberger (author of The Option of Urbanism) discusses a recent Brookings debate with Joel Kotkin (author of The Next Hundred Million: America in 2050).  From Walking--Not Just for Cities Anymore, Leinberger notes:

I just had a debate with Joel Kotkin, whom many consider to be an apologist for sprawl. Surprisingly, there is a convergence between his view of the next generation of real estate and infrastructure development and mine: a constellation of pedestrian-friendly urban development spread throughout metropolitan areas, redeveloping parts of the central city and transforming the inner, and some outer, suburbs. There are certainly differences between the two of us: I happen to see significant pent-up demand for walkable urban development and massive over-building of fringe car-oriented suburban housing and commercial development.

In fact, I see compelling evidence that the collapse of fringe drivable suburban markets was the catalyst for the Great Recession, and the lack of walkable urban development due to inadequate infrastructure and zoning is a major reason for the recovery’s sluggishness. Joel feels the demand for walkable urban development is a fraction of the future growth in households. I think rail transit, biking and walking infrastructure are crucial to make this walkable urban future happen; Joel thinks bus rapid transit is as far as we have to go in the transit world… making cars more technologically efficient is his main answer.

I have been hoping that Leinberger will prove correct about his belief in the untapped market demand for walkable urbanism, which has not persuaded Kotkin and other critics.  Leinberger concludes:

We need move away from 20th century concepts that confuse the conversation. If I am right, 70 to 80 percent of new development should be in walkable urban places, and my research leads me to think the majority of that development will be in the suburbs.

Matt Festa

July 13, 2010 in Density, Development, Downtown, Exurbs, Financial Crisis, Local Government, Mortgage Crisis, New Urbanism, New York, Pedestrian, Planning, Sprawl, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

Hudson on The Public and Wildlife Trust Doctrines and the Lucas Remand

Blake Hudson (Stetson) has posted The Public and Wildlife Trust Doctrines and the Untold Story of the Lucas Remand, published in Columbia Journal of Environmental Law, Vol. 34, No. 1, 2009 .  The abstract:

Government attempts to protect ecosystems on private lands are often thwarted by Fifth Amendment takings claims demanding that “just compensation” be paid to the property owner. In the case of Lucas v. South Carolina Coastal Council, the U.S. Supreme Court found that a state statute could survive a takings claim if the state could prove on remand that “background principles of property law” applied to the subject property. Scholarly works since Lucas have argued that “background principles” includes the public and wildlife trust doctrines. However, on remand, the state failed to assert either doctrine in defense of the statute. Though authors have focused on this aspect of the case, no author has before, to my knowledge, discussed the oral arguments presented on remand to the South Carolina Supreme Court. These arguments were neither transcribed in court documents, nor detailed in the final court order. Strikingly, during the oral argument the court actually invited the state to assert the public trust doctrine, but the state was unprepared. This invitation by the court lends important support to the argument that the doctrines may be asserted to protect environmental regulations from takings claims under the circumstances presented in Lucas. This article details the history of the two doctrines, discussing the similarities between them and demonstrating their broad application to a greater number of resources than those protected in the seminal cases. The article next analyzes the Lucas remand, focusing on the court’s invitation to the state to assert the public trust doctrine. Finally, the article discusses how the U.S. Supreme Court could have decided the case without remand, by applying the doctrines directly – the nature of the doctrines would have allowed the Court to uphold the state law without violating the Constitution.

Matt Festa

July 13, 2010 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Judicial Review, Property Rights, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)