Land Use Prof Blog

Mulvaney on Proposed Exactions

Timothy Mulvaney (Texas Wesleyan) has posted Proposed Exactions, forthcoming in the Journal of Land Use & Environmental Law, Vol. 26, No. 2 (2011).  The abstract:

In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than it has placed on the government in justifying the underlying regulations by which such approval could be withheld. Moreover, there remain a series of unanswered questions regarding the scope and reach of exaction takings scrutiny that plague the development of a coherent body of law upon which both landowners and regulators can comfortably rely. This Article explores whether these problems are amplified where the exaction takings construct that is ordinarily applied when an exaction is imposed is also applicable at the point in time when an exaction is merely proposed. The piece seeks to move beyond the cursory analysis in the few reported decisions addressing this issue by identifying and exploring the competing normative justifications underlying it.

I've seen Tim present this research, and it's really quite fascinating.  Check it out.

Matt Festa

Rose on the Rights of Tenants of Residential Properties in Foreclosure

Henry Rose (Loyola-Chicago) has posted The Due Process Rights of Residential Tenants in Mortgage Foreclosure Cases, 41 N. M. L. Rev. ___ (forthcoming 2011). Here's the abstract:

The purpose of this article is to explore the rights of tenants who reside in buildings undergoing foreclosure to receive notice and an opportunity to be heard when foreclosures threaten to terminate their tenancies. The federal Protecting Tenants at Foreclosure Act of 2009 (PTFA) will significantly reduce the incidence of residential tenancies being terminated as a result of foreclosure. However, PTFA offers weak procedural protections if the mortgagee or the person who acquires ownership pursuant to a foreclosure seeks to terminate the tenancies of residents in the foreclosed building. In those states that require judicial foreclosures, the Due Process Clause of the Fourteenth Amendment to the United States Constitution should afford tenants faced with termination of their tenancies due to foreclosure with notice and an opportunity to be heard before their tenancies are terminated. In states that allow non-judicial foreclosures, Due Process protections are not likely to be available to tenants due to a lack of state action in the foreclosure process. PTFA should be amended to afford all tenants, including those who reside in non-judicial foreclosure states, with notice and an opportunity to be heard before their tenancies are terminated pursuant to a foreclosure.

Jim K.

Mad Max and the Thunder-burbs?

This sounds ominous. 

"The Road" and "Book of Eli" and now this...ugh!

Suburbia is getting more dangerous than just wide highways and expensive gas...

Chad Emerson.

p.s. Probably, my first and only link to "Failure Magazine".  Just too depressing to do more than once (even if true).

Prairie Chickens: Another Challenge for Wind Energy Development

The Kansas Department of Wildlife is asking a wind energy developer to spend an extra $567 million to route its project’s power lines away from “lesser prairie chicken” mating areas.     

According to a Kansas City Star article published yesterday, the Department’s revised power transmission route would spare about 140 of the 20,000 to 40,000 lesser prairie chickens estimated to live in Kansas.  Based on those figures, the developer is being asked to spend about $4 million per prairie chicken saved.  An ordinary Kansas hunter can purchase a license to kill up to 40 of the birds for less than $21.   

Usually, conflicts between bird conservationists and wind energy developers center around the risk that birds or bats will suffer fatal collisions with turbines and towers.  Developers now tend to install wind turbines outside of migratory bird paths to help limit bird fatalities on wind farms. 

In contrast, wind turbines and transmission systems threaten prairie chickens by inhibiting the birds’ breeding activities.  A Bloomberg article from 2009 states that the species’ mating rituals involve an “elaborate dance” and suggests that “the chickens have learned to avoid such mating displays around structures like wind turbines or utility poles where predators may perch.” 

Based on the available information, revising the transmission route to steer clear of the chickens’ breeding grounds seemingly isn’t cost-justified in this case.  It will be interesting to see whether the Kansas Corporation Commission, which is deciding this dispute, reaches the same conclusion.

Troy Rule

Another Form-Based Code is...

...is now on the books.  This time in Paso Robles:

Form-based codes in Paso Robles – it's a first-of-a-kind adopted planning approach incorporated into a master document for the city hailed by San Luis Obispo Council of Governments and Paso Robles Community Development Department officials alike as setting an example for future planning.

Following years of public hearings, ad-hoc committee meetings, charrettes and public discussion, the city council moved forward this week with unanimously approving – with several motions – the new Uptown/Town Centre Specific Plan.

Designed in collaboration with Moule & Polyzoides, the plan will lay the framework for new planning along an 1,100-acre area on the west side of Paso Robles.

Geiska Velasquez, representing SLOCOG, commended the city for its efforts made thus far.

"This is a plan that's really going to be an example for communities across this county and the region," Velasquez said.

City Councilman Fred Strong echoed a similar sentiment.

According to Strong, at a statewide meeting the Uptown/Town Centre Specific Plan was hailed by state officials as an example of a positive approach to planning, "responding to the trends of the last 30 years and looking forward to the next 50."

Read the entire story here.

Chad Emerson.

Byrne on Stopping Stop the Beach

J. Peter Byrne (Georgetown) has posted Stop the Stop the Beach Plurality!, forthcoming in the Ecology Law Quarterly.  The abstract:

The plurality opinion in Stop the Beach Renourishment v. Florida Department of Environmental Protection articulated a new doctrine of "judicial takings," and justified it with arguments drawing on text, history, precedent, and "common sense." This essay argues that the opinion falls makes a mockery of such forms of interpretation, represents raw pursuit of an ideological agenda, and indicates why the Regulatory Takings Doctrine more generally should be abandoned or limited.

Matt Festa

Rule Against Perpetuities--Alive and Well

While it's not entirely a land use issue, many of us have had to deal with perpetuities issues in land.   Contrary to what you hear from certain property-haters out there, the Rule Against Perpetuities still affects many property law issues, even if it lurks behind the scenes much of the time.  Some of you may have seen this story going around: Millionaire's heirs get inheritance after 92 yrs; Lumber baron Wellington R. Burt finally parts with his fortune, 21 years after his last grandkid died.  

(AP)  SAGINAW, Mich. — Ninety-two years after his death, Saginaw lumber baron Wellington R. Burt is finally parting with the fortune he withheld from his descendants until 21 years after the death of the last grandchild born in his lifetime.

The estate is now valued at $100 million to $110 million. It will be shared among 12 of his heirs later this month.

According to The Saginaw News, Burt once was among the eight wealthiest Americans. He made millions of dollars in the harvesting of the Saginaw Valley's timber and then another fortune in Minnesota's iron mines. He served as mayor of Saginaw and later as a Michigan state senator.

At 19 years old, Christina Cameron of Lexington, Ky., is the youngest of the 12 and is in line to receive $2.6 million to $2.9 million. . . . Cameron is the great-granddaughter of Marion Landsill. She was the last survivor among Burt's grandchildren who were born in his lifetime. She died Nov. 21, 1989.

Saginaw County Chief Probate Judge Patrick McGraw said the estate is "one of the most complicated research projects" he's faced in his 12-year career in Saginaw.  When McGraw arrived in 1999, the estate had long been a part of courthouse lore.

The Dead Hand got its wish, to the maximum extent allowed under the RAP!  Show this story to your  students the next time you hear that they know a guy who knows a guy who knows a lawyer who says the RAP doesn't have any real-world impact.  While many states have abolished or reformed the rule, property law still remains in the shadow of the ol' lives in being + 21 rule.  Personally, I think it also gets the point across if you wear a Rule Against Perpetuities t-shirt like the one above from my closet, but that may not fit everyone's sense of style.  Thanks to Steve Homer, John Kowalczyk, and Ash Shepherd for the pointer.

Matt Festa

Alexander on New Regionalist Approaches to Sustainable Communities

Speaking of HUD, here's a new article from Lisa T. Alexander (Wisconsisn) called The Promise and Perils of ‘New Regionalist’ Approaches to Sustainable Communities, forthcoming in the Fordham Urban Law Journal, Vol. 38 (2011).  The abstract:

This Article argues that "new regionalism" is a form of "new governance." New regionalist approaches include collaborative efforts between cities and outlying suburbs to resolve metropolitan challenges such as affordable housing creation, transportation and sprawl. Such practices focus on regions as key sites for the resolution of public problems that transcend traditional local government and state boundaries. New regionalist praxis responds to local government law's failure to advance equity and sustainability throughout metropolitan regions. New regionalism promotes voluntary agreements and interlocal collaborations, rather than formal government or mandated regulation to resolve regional problems. New regionalism, then, is a form of new governance. The term new governance describes problem-solving processes that shift away from traditional government and regulation, towards voluntary, public/private collaborations including multiple stakeholders. New governance supporters assert that such approaches can enhance the participation of traditionally marginalized groups in reform and lead to more equitable outcomes. This Article examines the institutional design of the Obama Administration's Sustainable Communities Regional Planning Grant Program (the "Grant Program"), as well as its initial implementation in the Madison, Wisconsin/Dane County area, as a test of these claims. This Article identifies the Grant Program's promise and perils in advancing meaningful stakeholder participation and distributive justice. The Article concludes by making recommendations to improve the Grant Program and by outlining the implications of these observations for new regionalist and new governance practice.

Matt Festa

Washington Post Investigative Report on HUD

Courtesy of Mark Edwards at Property Prof, a link to what looks like an important and troubling report, Million-Dollar Wasteland: HUD's Mismanagement of America's Affordable Housing.  Here's Edwards' initial reaction:

Given that Congress is looking for areas to budget-cut, I suspect this series could be a game-changer for HUD.  That's unfortunate, because the need for affordable housing in the United States is enormous.  No doubt there is waste at HUD.  But I suspect that the committed and well-intentioned people at HUD are trapped in a downward spiral: they aren't given enough resources to adequately oversee the projects they fund; the projects they fund are wasteful; so their resources are cut.

Matt Festa

Live Near Work. Get Paid.

At least that's the formula for some D.C. residents as part of this pilot program:

Perhaps moving to be near your job would be more appealing if it came with $12,000 dollars. Washington, D.C.'s Office of Planning is launching a pilot program called Live Near Your Work that will match up to $6,000 in incentives that businesses offer to employees to move near work or public transit. The new digs just have to be within two miles of work, within half a mile of a Metro station, or within a quarter mile of a "high-quality" bus corridor. The program has $200,000 to give out in total, which isn't much, but that's just for this initial phase.

I've been researching downtown incentives a great deal lately and this strikes me as a very interesting one.  The key will be to quantify the benefits and demonstrate intended resulting actions like use of mass transit or walking/biking.

Chad Emerson.

Slate Declares the "Death of the McMansion"

Read all about it here. A quote from the article:

While the evidence is fragmentary—the current reduction in average new house sizes has more to do with the preponderance of first-time buyers than an overall shift in demand—it is clear that the long recessionary cold-shower will dampen the exuberance that characterized the boom years of 2000 to 2005. That will mean smaller houses closer together on smaller lots in inner suburbs, fewer McMansions, and fewer planned communities in the distant hinterland. An alternative scenario is that American optimism will prevail and it will be business as usual, as happened during the boom of the 1950s following the Great Depression, or during the period following the Energy Crisis of 1973, when car buyers, after a brief flirtation with Japanese compact cars, embraced minivans and SUVs. But I wouldn't count on it.

Of course, there were scooped on this story last summer by CNBC, who was scooped in turn in 2009 by a builder/blogger in Dallas. Hope springs eternal, I guess.  Still, to follow an (unrelated) trend to citing Dylan, the times, they are a'changin'.

Jamie Baker Roskie

Gardner on U.S. Wetland Law, Policy, and Politics

Royal C. Gardner (Stetson) has posted Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics.  It is the introduction to his new book of the same name from Island Press (2011).  The abstract:

This paper is the table of contents and introduction to Royal C. Gardner, Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics (Island Press 2011). The book is an accessible guide to the complex set of laws governing America's wetlands. After explaining the importance of these critical natural areas, the book examines the evolution of federal law, principally the Clean Water Act, designed to protect them.

Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:

the geographic scope and activities covered by the Clean Water Act; the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency; the goal of no net loss of wetlands; the role of entrepreneurial wetland mitigation banking; the tension between wetland mitigation bankers and in-lieu fee mitigation programs; enforcement issues; and wetland regulation and private property rights.

The book concludes with policy recommendations to make wetlands law more effective.

Looks like a new key resource for anyone intersted in wetlands law.

Matt Festa

The Mayors Institute on City Design...

...turns 25 years old--and Thomas Wright has some important reflections on this anniversary at Citwire.net:

Perhaps the strongest legacy of the Institute is how conventional its message has become over the past 25 years. Mayors understand the attractiveness of mixed use communities and 24/7 neighborhoods. They understand the benefits of master planning, historic preservation, arts districts, design guidelines, new urbanism, smart growth, sustainability and many more buzzwords. As a regional planner, I found myself wishing that we had made even a fraction of this progress on the need for integrated infrastructure systems and capital investments, but hopefully that’s yet to come.

As the sessions wound down in Chicago, it was thrilling to take a step back and think about what Mayor Riley’s epistle has achieved over the past 25 years, and its place in planning history. I’d argue that it should be taught in our public schools, just as Daniel Burnham’s plan for Chicago was part of the curriculum in public schools for many decades. After all, not since Jane Jacobs wrote a book about her experiences in Greenwich Village has a document had such a profound – and beneficial – impact on American cities.

Read the entire article here.

Chad Emerson.

Urban Chickens in Albany

We've posted a few times about the curious topic of urban chickens.  The issue really crosses a lot of lines between the public-health origins of zoning; class; sustainability; and modern trends like local food. 

Local chickens are being debated in my hometown of Albany.  Here is the story from the Times Union: Chickens Join City's Urban Sprawl.  Apparently it's up to the Mayor now.  The reporter also has a blog post asking for feedback here. 

Thanks to Helen Festa for the link.  Interestingly, Albany Law's Patricia Salkin mentioned this controversy last week when she was telling me that out of all of her (many!) recent pieces, it is her article Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens, that has gotten the most SSRN downloads.  There must be a lot of passion out there about urban chickens!

Matt Festa

Reminder: Designing Tomorrow thru July 10

I have mentioned a couple of times that I am very interested in the National Building Museum's featured exhibition, Designing Tomorrow: America's World's Fairs of the 1930s. 

When we were at the second annual meeting of the Association for Law, Property, and Society, guest blogger Ken Stahl and I made some time to go over to the Museum and check it out.  It was really worth the visit.  The curators have assembled a fantastic collection of images, artifacts, and presentations about these public events that really had a profound impact on how Americans envisioned--and then shaped--the future from the 1930s, a key time in planning and policy history. 

So if you haven't been yet, try to get to DC to check it out before it closes on July 10.  In the meantime, the Designing Tomorrow exhibit has an outstanding companion book, which I am about halfway through, some other web resources, and a program of guest speakers. 

Matt Festa

Will Southern Arizona Become the 51st State?

In my on-going quest to post items that marry my interests in land use and immigration law, I present an NPR story that aired yesterday about efforts by a group in Pima County, Arizona to break away over Arizona's draconian (and possibly federally preempted) effort to regulate illegal immigration.

(In the interest of full disclosure, I also note that Georgia's legislature has passed a similar bill.)

It doesn't sound much like the effort to create Baja Arizona will come to fruition, but it's an interesting piece of political protest.  We'll see what comes next.

Jamie Baker Roskie

The Legality of "Local"...

One of the interesting things that I've seen grow lately is the use of the "local" branding to sell different products.  This has become especially popular when it comes to farmers markets, farmstands, and other agricultural uses.

The idea (an accurate one in my mind) is that local is healthier and more energy efficient.  Yet, even the term "local" has legal issues:

Massachusetts doesn’t have a law on the books regulating the use of the word “local,” but Vermont and New Hampshire do – with occasionally illogical results. Bonanno and Dumaresq farm Massachusetts soils that lie just a few miles from the New Hampshire border, but by law, their produce cannot be labeled “local” at New Hampshire markets. Yet food grown more than 100 miles to the north would qualify as long as the farm is in the Granite State. In Massachusetts, grocers are free to interpret “local” as they see fit – and for big chains, it’s generally more economical to buy goods year-round from just one or two large purveyors rather than dealing with the complexities of ordering seasonally from local producers

“It’s a powerful word, there’s no doubt,” says Bill McGowan, produce coordinator for Whole Foods Market’s North Atlantic region. Although it’s an international operation, Whole Foods has a supply chain in place meant to satisfy its customers’ demand for local foods. Lee Kane, Whole Foods’ “EcoCzar” and “regional forager” (yes, that’s what it says on his business card) is responsible for ferreting out local goodies for every Whole Foods in New England and for overseeing store-based foragers.

In order to be considered local in a New England Whole Foods store, a product must meet two of three tests, says Kane. “It must be raised or grown locally, packaged locally, and/or produced locally,” and by local he means coming from one of the six New England states or eastern upstate New York. Produce buyers at each store are also encouraged to source products from farms that are closer – a policy McGowan says “is fairly unique in our industry.”

Some would argue that lumping all of New England into your definition of “local” is too broad. Grocer David Warner in Jamaica Plain prefers a much stricter definition. To Warner and his wife, Kristine Cortese, co-owners of City Feed and Supply’s two locations, “local” means within 100 miles, and products that come from within 300 miles are labeled “regional.”

“I like our definition,” Warner says. “Once in a while we also use ‘hyperlocal,’ by which we mean walking distance from the store.” His stores carry 600-plus local and regional products, even more during the growing season. “It frustrates me that [local] isn’t formalized,” he acknowledges.

From a land use perspective, this issue is closely related to a trend we're beginning to see more and more of as agriculture (traditionally located in "ag" zones) is finding itself creeping into the most urban zones of many towns (including even rooftops).

Read the entire article here.

Chad Emerson.

Hirokawa on Sustaining Ecosystem Services Through Local Environmental Law

Keith H. Hirokawa (Albany) has posted another piece: Sustaining Ecosystem Services Through Local Environmental Law, forthcoming in the Pace Environmental Law Review, Vol. 28, No. 3 (2011).  The abstract:

In the early decades of modern environmental law, local governments retained their prerogative over community design and other essentially local matters, but were largely excluded from the debate on national environmental policy. More recently, environmental lawyers have reignited the question of how and where the local government regulation of land use impacts intersects with environmental quality. It is interesting to note that as the national dialogue has turned to the important role of local governments in achieving our environmental quality goals, there has been a corresponding emergence of an "ecosystem services" approach to understanding nature. It is more interesting to note how many of the stories of ecosystem services – successes, explanations, and illustrations – take place in local governments and in community decision making. Perhaps by coincidence, but likely due to design, local environmental law and ecosystem services have evolved in a complementary manner.

This article looks at the recent trends in recognizing and regulating ecosystem services at the local level. Local governments are adopting regulations aimed at capturing the benefits of functioning ecosystems by transcending aesthetic values of local nature and focusing on ecological processes and the services they provide. Section II introduces the topic by arguing that because of the manner in which local governments regulate environmental impacts, the value embedded in ecosystem services is commensurable with local regulation. Section III illustrates the relationship between local governance and ecosystem services, as well as the opportunities presented by this relationship, by examining some of the ways that local environmental law has embraced the advantages of an ecosystem services perspective. This article concludes that local governments are leaders in the implementation of ecosystems services-based regulation, that communities are the direct beneficiaries of such action, and that this is exactly as it should be.

Matt Festa

Ely on the Constitution and Economic Liberty

James W. Ely, Jr. (Vanderbilt) has posted The Constitution and Economic Liberty, forthcoming in the Harvard Journal of Law and Public Policy.  The abstract:

This essay addresses the relationship between the Constitution and Bill of Rights and the concept of economic liberty. It calls into question the famous quip of Justice Holmes in Lochner v. New York (1905) that the Constitution was not intended “to embody a particular economic theory.” The essay contends that the framers of the Constitution clearly envisioned a constitutional order grounded on private property and a market economy. To this end, many provisions of the Constitution pertain to property interests and economic activity. It concludes that, although the Constitution does not endorse a laissez-faire regime, Holmes was wrong to suggest that the Constitution was entirely neutral with respect to economic policy. In fact, the framers favored a free market and sought to protect property and contractual rights.

This short essay from one of my mentors is packed with a compelling historical argument. 

Matt Festa

More on Practically Grounded

Just a quick follow up to Matt's post about the Practically Grounded conference last week.  This was the first time I've been to (or presented at) a conference of this type.  It was so interesting to hear how land use and environmental professors are really engaging their students in experiential and interdisciplinary learning in their doctrinal, clinical, and skills classes.  I learned so much!

It was also a historic moment in that there were three land use clinicians in the same room.  Michelle Bryan Mudd from University of Montana and Kat Garvey from Vermont joined us. There aren't many Land Use Clinics in the country, so I really enjoyed the opportunity to talk with them and get their perspective on running this type of clinic.  Who knows, this might even lead to some inter-state collaboration down the road?

Pace University Law School plans a follow up journal edition to this conference, so that folks who weren't able to attend will be able to read the preceedings.  Hopefully this is also the first of many conferences of its type to come.

Jamie Baker Roskie