Wednesday, April 6, 2011


My friends at the Madison-Morgan [Georgia] Conservancy have just published and posted the Farmeander Map.  This is a cool driving tour tool for visiting agritourism sites (including organic farms, berry and flower farms, and natural meat operations) in Morgan County, along with fun places to stay and a schedule of festivals throughout the year.

For many smaller agriculture operations in Georgia, agritourism is critical for economic viability.  It also helps we city-dwellers create and maintain relationships with the folks who produce our food.  While "Fameander" is a new (and trademarked) term, there are many agritourism programs around the country, including "Farmer for a Day."  So, wherever you are, consider "farmeandering" around to find out what's what with your local food supply.

Jamie Baker Roskie

April 6, 2011 in Agriculture, Georgia | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 5, 2011

Mixed Use/TOD/New Urbanism/Form-Based Codes "Day"

I'm asking for your help.  I've blocked out one day near the end of the semester to focus directly on "modern urban development forms"--i.e., mixed use; transit-oriented development; new urbanism/neotraditional development; form-based codes; etc.  The casebook I use has about ten pages on this, and they're good, but I'd like to supplement it with at least one accessible, interesting article that would help introduce the concepts to students.  We have been talking about these concepts peripherally throughout the semester, but I'd like to spend one class focusing exclusively on them.  I've got lots of great books on these subjects, but I'm looking for an assignable article-length piece; it could be academic or general-interest.

So if you had to pick one article to give to someone as a starting point for learning about the trend toward mixed use and new urbanism, what would it be?  I'd love to know what you think.  Please leave a comment or email me your recommendations.  I'd love to share the recommendations with the blog readers too.  Thanks!

Matt Festa

April 5, 2011 in Form-Based Codes, New Urbanism, Planning, Scholarship, Smart Growth, Smartcode, Transect, Transportation, Urbanism | Permalink | Comments (2) | TrackBack (0)

Practically Grounded Conference

We've already blogged about the very exciting upcoming conference Practically Grounded – Embracing Skill and Values Teaching in Land Use, Environmental, and Sustainable Development Law Classes, May 5 at Pace.  The official brocure is now out--click the link for a full-size version, and please consult the website for more information and registration.  It looks like a great program, and I'm very much looking forward to it.

Download Practically Grounded

Matt Festa

April 5, 2011 in Conferences, Environmental Law, Scholarship, Sustainability, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, April 4, 2011

The Final Four and Land Use in the Unzoned City

Img_0468 As many of you might be aware, the NCAA Men's Basketball Final Four has been this weekend in Houston, where I live and teach.  As I write this, the championship game is set to tip off in about an hour in Reliant Stadium, about a mile from my home.  So of course you must be thinking "how is Festa going to turn this into a land use issue?" 

Already done, with my students' help.  On the first day of the semester, to make the point that land use issues intersect with almost everything that goes on in our communities, I put up the home page of the Houston Chronicle and challenged them to explain the land use issues in a given story.  The lead story was something about the then-upcoming Final Four.  So here's some of what we came up with on the fly:

Land assembly--where did they get the land to build the stadium and the parking?  It's next to the old Astrodome (you can see a corner of it in the picture), so I don't believe eminent domain was needed this time around, but you know that's always a big issue with new sports stadiums. 

Use--the Reliant/Astrodome complex was just used up until about two weeks ago for one of the nation's largest Livestock Show & Rodeo events with accompanying carnival.  It's impressive that they could retrofit for the Final Four so quickly.

Transportation--can people get there?  Do the roads need to be widened, etc.?  If so, who pays, and are there legal changes needed?  Houston has a seven-year old light rail that goes from downtown through the Texas Medical Center to the stadium, and it's been quite busy the past weekend.  Also, there've been lots of limos, helicopters, and blimps around town the last few days--where do they go?

Local government--the stadium is goverened not by the City of Houston, but by an independent quasi-public County Sports Authority.  Plus the transportation is governed by a separate Metro agency.  However a lot of coordination is necessary for big events like the Final Four. Final Four 010

Facilities--lots of people coming in from all over the country; where do they stay, etc.  For example, I took a ULI-sponsored construction site tour about a year ago of the just-opened Embassy Suites downtown.  The city's goal was to get a hotel opened in time for the Final Four, so there was a fairly complicated tax incentive scheme put in place that involved changing the law to provide an occupancy-tax break for new hotels sited in a particular space (and they say we don't have zoning based on use).  The incentivized siting was between the light rail and the new Discovery Green park--where a lot of free concerts have been given as part of the festivities--and the downtown convention center, where the "Bracketown" official hoopla program was held.  All of this is just a few blocks from where I teach at South Texas College of Law.  Discovery Green is itself also a recently-built and critically acclaimed new urban park and public space.  Finally, all of the planning and coordination that involves a city's hosting a big event requires lots of logistics, regulatory changes, and many many permit approvals, for things ranging from temporary buildings to new signs.

So my students and I think there are a lot of land use issues involved with having the Final Four in town, and it goes to show that even in the Unzoned City, there are many ways that land use gets regulated and controlled.  It's been fun having all the activity in town, and . . . Go Butler!

UPDATE: It wasn't to be for the underdogs, so congrats to Connecticut.  The photo above was taken by Natalie Festa at almost the exact time that the national championship game tipped off.  "The Road Ends . . ." = land use metaphor?  Tuesday is the women's championship--don't tell my fellow Texans that I'll be pulling for Notre Dame vs. A&M. 

Matt Festa

April 4, 2011 in Development, Downtown, First Amendment, Green Building, History, Houston, Humorous, Local Government, Planning, Politics, Property, Property Rights, Scholarship, Signs, Sun Belt, Teaching, Texas, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)

Los Angeles Becoming a Bicycle Haven?

When you think of the City of Angels, bicycle connectivity isn't typically one of the first things to pop to mind.  However, according to this article, LA is making a big bicycle play:

For the past few years L.A. has been trying to shed its car-centric image and move its population towards public transportation and more eco-friendly means of travel.

Now, the Los Angeles City Council approved a new plan that will give the city a network of 1,680 miles of interconnected bikeways. This would include more than 200 miles of new bicycle routes every five years.

This is a huge move considering the city currently has fewer than 400 miles of bikeways that aren’t really connected to each other.

About $1.75 million each year for bike infrastructure could come from Measure R, a transportation sales tax approved by county voters in 2008. Additional funding will come from state and city transit agency sources, City Councilman Bill Rosendahl said.

Chad Emerson

April 4, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 3, 2011

Glover Blackwell on Social Equity and Geographic Inclusion

Just in time for this week's discussion of the Mt. Laurel responses to exclusionary zoning, Shelterforce, the magazine of the National Housing Institute, features an article by PolicyLink's founder and CEO, Angela Glover Blackwell.  In Equity Is Not Optional, she makes the case for both social equity as indispensable to sustainable national success and commitment to inclusionary, place-based strategies as critical to social equity.  She then sets out five principles for a social equity strategy illustrating each with model programs such as Harlem Children’s Zone and San Diego's Market Creek Plaza.   With Patrick Maier's sidebar on Inclusionary Zoning, it may make for some timely supplemental reading.

Jim K.

April 3, 2011 in Affordable Housing, Community Economic Development, Inclusionary Zoning, Race | Permalink | Comments (0) | TrackBack (0)

Saturday, April 2, 2011

Property and Renewable Energy

This semester, I have taught a Wind Energy course in the form of a writing seminar.  I should call this more of an experiment than a course, really--there's no textbook, of course, and in place of regular law review style papers, I have assigned my students to write pieces of a model wind energy code.  My  surprise in teaching the course has been the content that I have found to be most important.  I expected the course to be mostly about permitting, ratemaking, and other classic electricity-based issues, but each day, as I introduce my students to a new phase of the wind energy development process, I find myself teaching a Land Use and Property class. 

First, there is the challenge of finding a suitable site for a large wind development.  (I have focused on utility-scale developments in the course, although in the future I am determined to fit in distributed renewable issues, too.)  The location challenge is a big one:  for renewables, a developer needs two parallel estates.  First, she needs a strong wind resource, which I call a "fugitive estate" (or a "renewable estate" if one wants to more clearly differentiate wind from water, minerals, and wildlife).  Second, she needs a static land resource that's sufficiently free of competing uses to ensure that she can site large towers and turbines on the property.  Combining these estates into one neat package or "renewable parcel" is no easy task because strong winds do not cooperatively follow jurisdictional lines. A developer of one wind project often has to build a farm that straddles county or town lines and of course mutiple private property lines; she may even have to cross state lines, as the "Stateline" wind farm on the Washington-Oregon border has done.  Even where her development does not cross county lines, she also often must deal with several school districts, which impose different taxes.

In oil and gas development, law addresses the challenge of the combined fugitive-land estate through a combination of common law and state legislation.  Typically, an oil or gas developer leases just the mineral estate.  The developer then uses the surface to the extent necessary to economically produce the mineral estate; she does not have an express lease or even easement on the surface, but state legislation and the common law provide that she has the right to reasonable use of the surface.  Wind could potentially be moving in this direction--where a developer would acquire the rights to the wind flowing over properties and then use the surface as necessary to develop the resource.  But in many states, it does not appear to be, which may make sense. Wind technology, after all, is more permanent and land intensive than an oil or gas well, and perhaps it makes sense that some states require the wind developer to lease the surface.  But what happens when a wind developer with surface rights and/or wind rights wants to place a tower on the very spot planned for an oil or gas well?  Whose rights are superior?   Ernest Smith and Becky Diffen have a rich article that addresses these issues, suggesting that wind and oil and gas developers are typically contracting around this problem (at least in Texas) and that wind developers are indeed obtaining wind rights in hopes that courts will recognize these new rights if they are challenged in court--which they likely will be when a disgruntled surface owner buys a property only to discover that the wind rights have been sold away and towers will begin to be installed next month. In addition to Smith and Diffen's article, Lincoln Davies on the Environmental Law Prof Blog has recently alerted us to some new articles exploring the common law of renewables.

Once the developer finds a suitable site, she must of course obtain permission to build not just from the private property owners but also from the relevant land use authorities.  This process varies substantially by state, with states like Minnesota fully centralizing the process for wind developments of a certain size and states like Washington and Oregon allowing municipalities to regulate but collecting these municipal regulations within a centralized process (for projects beyond a certain size threshold) and ensuring compliance through this process, and states like Kansas leaving almost all siting authority to municipalities.

Finally, beyond the renewable parcel itself, there is the challenge of transmission, which merits a post of its own.  For now, I hope that I have persuaded you that Land Use and Property issues are central in the renewable realm and present interesting case studies in siting challenges.

-Hannah Wiseman

April 2, 2011 in Wind Energy | Permalink | Comments (0) | TrackBack (0)

Friday, April 1, 2011

Penalver & Strahilevitz on Judicial Takings or Due Process?

Eduardo Penalver (Cornell) and Lior Strahilevitz (Chicago) have posted Judicial Takings or Due Process?  The abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court concluded that the Takings Clause of the United States Constitution prohibits the judiciary from declaring that “what was once an established right of private property no longer exists” unless the property owner in question receives just compensation. In this paper, we delineate the boundaries between a judicial taking and a violation of the Constitution’s due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach.

Our argument proceeds in two parts. The first is a conceptual section that explains what factors are relevant to determining whether a judicial action diminishing a private property interest is a judicial taking or something else. In our view, where a judicial decision intentionally seizes private property in order to achieve a legitimate public end, the Takings Clause is an appropriate framework for evaluating the constitutionality of the state’s action. Due Process is the more appropriate doctrinal pathway where the judiciary does not intend to abrogate a private owner’s property rights, or where the diminution of private property rights results from a judicial action that serves no legitimate public purpose. By clarifying the boundaries of judicial takings, we also hope to shed light on the constitutional foundation for numerous state-court doctrines concerning the retroactivity of new property rules. The second section articulates a novel functional argument, which suggests that creating liability for judicial takings may cause litigants to underinvest in high quality legal representation, which will in turn increase the likelihood of judicial mistakes and contribute to the destabilization of existing entitlements. This phenomenon prompts us to argue that cases in which the underinvestment incentives are most pronounced should be litigated under the Due Process Clause, but cases where repeat-play or the government’s involvement as a litigant mitigates the underinvestment problem represent more appropriate vehicles for judicial takings treatment. What rides on the distinction between judicial takings and due process violations? Under our approach, judicial takings cases should be (a) easier to win than due process cases, (b) more likely to result in damages remedies than injunctive remedies, and (c) may lend themselves to attractive “comparative fault” inspired solutions.

Looks like a very important paper!

Matt Festa

April 1, 2011 in Beaches, Caselaw, Constitutional Law, Judicial Review, Property Rights, Property Theory, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Introducing Hannah Wiseman

It's hard to believe (and terrifying for my 1Ls), but today is April 1.  So it's time--no fooling!--to introduce a new guest blogger.  We're thrilled to have Hannah Wiseman join us for the month. Wiseman

Professor Wiseman recently joined the faculty at the University of Tulsa College of Law, where she teaches and researches in the areas of property, land use, energy, environmental, state & local government, and administrative law.  She studied at Dartmouth and Yale Law, and clerked for Judge Higginbotham on the Fifth Circuit before serving as a visiting assistant professor at the University of Texas School of Law. 

Professor Wiseman has published a number of excellent articles, primarily in the areas of energy and environmental law and regulation and local government.  She has several on the very hot topic of hydraulic fracturing, as well as my particular favorite: Public Communities, Private Rules, published last year in the Georgetown Law Journal.  Check out all of her work at her SSRN page.  We're very honored to have her join us here at the Land Use Prof Blog!

UPDATE: I didn't even realize it until Jessica pointed it out in the comments, but Hannah has also joined a group that just recently relaunched the Environmental Law Prof Blog on our Law Professor Blog Network.  We know something about that task too, so congrats to Hannah, Lincoln Davies, Brigham Daniels, Blake Hudson, and Lesley McAllister for doing it and for your future contributions to the broader discussion of land use, property, and environmental law!

Matt Festa

April 1, 2011 in Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)

More on Chinese "Ghost Towns"...

I've blogged in the past about the somewhat stunning cities where no lives in parts of China.

This video expands on that and provides an astonishing perspective of land use that isn't being used:


 Chad Emerson

April 1, 2011 | Permalink | Comments (0) | TrackBack (0)