Monday, May 9, 2011

Zoning for Solar Energy on Federal Lands

A recent proposal from two federal agencies recommends using zoning to encourage and coordinate utility-scale solar energy development on public lands.

Last December, the U.S. Department of Energy (DOE) and Bureau of Land Management (BLM) released their Draft Solar Programmatic Environmental Impact Statement (PEIS), which summarizes a two-year study of the potential environmental impacts of industrial-scale solar energy development on BLM land in six western states.  Based on the study, the DOE and BLM want to designate 24 specific areas covering more than 1,000 square miles of land in those states as Solar Energy Zones—areas where the BLM would prioritize its solar energy siting activities. 

The PEIS is intriguing from an academic perspective in that it evidences the DOE’s and BLM’s deliberate effort to direct solar energy development only to those specific geographic areas that can accommodate the development for the lowest environmental cost.  As Professor Sara Bronin recently emphasized in her article, Curbing Energy Sprawl with Microgrids, siting renewable energy projects in remote areas often requires expansive transmission infrastructure and other improvements that can intrude upon habitats and pristine wilderness.  For those reasons, some conservation and wildlife protection groups have expressed dissatisfaction over the new PEIS and continue to oppose solar energy projects on federal lands (for example, Colorado-based Solar Done Right released a report last month sharply criticizing the document).  On the other hand, the PEIS does attempt to address environmental concerns and should facilitate more cost-justified solar energy development on BLM property.  And markets seem poised to move more of these projects forward:  Google recently announced its commitment to invest $168 million in Brightsource’s Ivanpah Solar Project on BLM land in California’s Mojave Desert.

Troy Rule

May 9, 2011 in Clean Energy, Comparative Land Use, Development, Environmental Law, Planning, Sustainability, Zoning | Permalink | Comments (1) | TrackBack (0)

Sunday, May 8, 2011

Practically Grounded Conference on Best Practices in Teaching Land Use

On Thursday Pace Law School hosted the conference Practically Grounded: Best Practices for Skill Building in Teaching Land Use, Environmental, and Sustainable Development Law.  John Nolon and Patricia Salkin organized this event to advance the discussion they started with their recent article Practically Grounded: Convergence of Land Use Law Pedagogy and Best Practices, published in the Journal of Legal Education (2011).  The conference was ably sponsored by the Pace Law School's Land Use Law Center for Sustainable Development and the Kheel Center on the Resolution of Environmental Interest Disputes; and Albany Law School's Government Law Center and the Center for Excellence in Law Teaching. 

The conference brought together a diverse group of people from across disciplines and the legal profession.  Among academics, there were land use and environmental law profs, as one would expect, but also a number of scholars who brought their particular expertise and experience in legal education and the best practices movement.  There was also some great participation from practitioners and students at the event.  A lot of great ideas were shared.  Here's a quick rundown of the presentations:

After the introduction by Profs. Nolon and Salkin, the first panel was an overview discussion of the context of skill and value teaching in law schools and a very helpful discussion of the (much-discussed but less-well-understood) Carnegie Report and Best Practices Report.  Mary Lynch (Albany Law, and also editor of the Best Practices for Legal Education Blog), Jill Gross (Pace), and Vanessa Merton (Pace) conducted this informative discussion along with a humorous role-playing excercise.

The next panel was "Clinics and Values."  Our own co-blogger Jamie Roskie (Georgia) presented "Values as Part of the Clinical Experience," exploring the role of values in student land use clinical work.  Michael Burger (Roger Williams) gave an interesting take on intrapersonal intelligence and advocacy in "Psychological Intelligence as a Lawyering Skill: Integrating Students' Values into Doctrinal Analysis of Environmental Law & Policy."

Panel 3 was "Stakeholders and Role Playing."  Karl Coplan (Pace), in "Teaching Environmental Law Skills Through Interest Group Role-Playing," blew many of us away with how extensively he uses role playing exercises in a capstone environmental law class.  Andrea McArcle (CUNY) spoke about her fascinating newly-designed course in "Learning in Context: Land Use and Community Lawyering."

The next panel was on "Research and Writing."  Dwight Merriam (Vermont Law; Robinson & Cole LLP) presented "Out of the Nest: Getting Students Published" from his intensive land use writing seminar.  Yours truly (South Texas) then spoke about "Research and Writing as Best Practices in Teaching Land Use."

The fifth panel featured two of our recent guest-bloggers on "Science and Other Disciplines."  Jessica Owley (Buffalo) discussed an innovative project called "Distributed Graduate Seminars," where six universities have cooperated to teach an interdisciplinary course on conservation easements.  Jon Rosenbloom (Drake) showed how he engaged his students in real local policy issues in "Now We're Cooking! Adding Practical Application to the Recipe for Teaching Sustainability."

Finally, we heard about "Problem Solving."  Michael Lewyn (Florida Coastal) discussed his approach to livening up a seminar course by getting students to see practical applications in "Experiential Learning through Field Trips and Seminars."  Keith Hirokawa (Albany) closed with "Teaching Law from the Dirt," which discussed his use of and class visit to a real local development project.

The papers were all very interesting, and will be published online in a forthcoming issue of the Pace Law Review.

This was a really enjoyable conference and, I think, a very important one too.  It was absolutely fascinating to learn about so much innovation and creativity that is actually taking place in (and outside of) our classrooms.  One of the common themes--proceeding from the organizers' Practically Grounded article--is that land use is uniquely suited to the application of the best practices movement.  But I think that any field could profit from a discussion like this.  It's a great time to be teaching land use. 

Matt Festa

May 8, 2011 in Conferences, Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)

Friday, May 6, 2011

One PlanningProf Reflects on His Profession...

The University of North Carolina at Chapel Hill is generally considered to have one of the country's better planning schools.  That's why its especially interesting to read Prof. Thomas Campanella's reflections on the state of his profession and its academy (including a reconsideration of Jane Jacobs' critiques):

Planning students today need a more robust suite of skills and expertise than we are currently providing — and than may even be possible in the framework of the two-year graduate curriculum. [15] Planners today need not a close-up lens or a wide-angle lens but a wide-angle zoom lens. They need to be able to see the big picture as well as the parts close up; and even if not trained to design the parts themselves, they need to know how all those parts fit together. They need, as Jerold Kayden has put it, to "understand, analyze, and influence the variety of forces — social, economic, cultural, legal, political, ecological, technological, aesthetic, and so forth — shaping the built environment." [16] This means that in addition to being taught courses in economics and law and governance, students should be trained to be keen observers of the urban landscapes about them, to be able to decipher the riddles of architectural style and substance, to have a working knowledge of the historical development of places and patterns on the land.

Read the entire essay, here--it's very thought-provoking.

Chad Emerson

May 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 5, 2011

Massachusetts SJC Hears Arguments in Bevilacqua (and so can you)

The Massachusetts Supreme Judicial Court heard oral arguments Monday in a foreclosure title case called Bevilacqua v. Rodriguez. Earlier in the year, I blogged about the Court's Ibanez opinion invalidating a bank's foreclosure title based on a botched securitization. Bevilacqua concerns the validity of the title claim of a foreclosure sale purchaser. In the Land Court proceedings below, U.S. Bank was unable to establish its ownership of the underlying loan leading to a declaration that the foreclosure and sale left the original owner's title unaffected.

In addition to video of the oral arguments (brought to you by the good folks at Suffolk Law), the SJC website features an amicus brief supporting the decision below submitted by Adam Levitin (Georgetown) and three other leading real estate law professors. If the Court agrees with these prominent academics that "U.S. Bank, N.A. was no more capable of passing good title to the Rodriguez property than a common thief", then the decision could have broad implications for titles coming out of nonjudicial mortgage foreclosures in Massachusetts and possibly many other states. But, that would only happen if slapdash securitizations turned out to have been somewhat commonplace. The Court should issue a ruling in the next few months.

Jim K.

May 5, 2011 in Caselaw, Finance, Financial Crisis, Mortgage Crisis, Mortgages, Property, Property Rights, Real Estate Transactions, Remedies | Permalink | Comments (0) | TrackBack (0)

Boyack on Keeping HOAs Above Water in Foreclosure Storms

Andrea Boyack (GW) has posted Community Collateral Damage: A Question of Priorities. In it, she deals with the very timely issue of lien priority for statutory condominium and homeowner association (HOA) dues. Many such common interest communities are facing high homeowner foreclosure rates and an inability to maintain services without a viable collection mechanism. The Maryland state legislature has now passed a lien priority bill of the kind discussed in the article. The Governor should be signing it into law any day now. Here's the abstract:

Today’s soaring mortgage default rate and the uncertainty and delay associated with mortgage foreclosure proceedings threatens to cause financial tragedies of the commons in condominiums and homeowner associations across the country. Assessment defaults in privately governed communities result in an inequitable allocation of upkeep costs, and current law provides no way to prevent this spillover effect. But the collateral damages caused by delayed foreclosures and insufficient recoveries can be minimized by gradually increasing the priority position of the association lien.

In a majority of states, association liens are completely subordinate to the first mortgage lien. At foreclosure of the mortgage lien, the junior priority assessment lien will be extinguished whether or not there are sufficient proceeds to reimburse for community charges. Assessment delinquencies grow over time, so the longer it takes to complete foreclosure, the greater the costs to the neighborhood. Although several states have adopted a limited lien priority for up to six months’ worth of unpaid assessments, foreclosures today take far longer than six months, and the amount ultimately owed to a community can be significant and far exceed that cap. Federal housing policy impacts the resolution of the issue because the FHA, Fannie Mae and Freddie Mac only permit qualifying mortgages to be subject to a six-month assessment lien priority. The decelerating pace of foreclosure further exacerbates the already unjustifiable financial impact borne by non-defaulting neighbors. The lien priority status quo fails to adequately protect communities in today’s context of widespread and delayed foreclosures and under-collateralized mortgage loans. Decreasing the first mortgage lien’s priority during a foreclosure delay would mitigate the harm.

Lien priority statutory changes can protect association finances in the future, and such provisions may be applied retroactively as well. In other contexts, states have held that changes to a lien priority regime can apply to existing associations and existing mortgages without unconstitutionally impairing contract or property rights. This is particularly true where the association’s lien is deemed to be created as of the date the organizational documents for the community were recorded (prior in time to any unit’s mortgage). Bank lobbyists have historically opposed any enhanced assessment lien priority, but supporting property upkeep and making assessments more predictable and collectible would actually benefit lenders by shoring up the value of their collateral. Better certainty with respect to homeowner payment obligations will also enable more responsible credit underwriting and contribute to economic recovery. Shoring up assessment lien priority not only ensures a fair allocation of community costs, but also helps to contain the current housing market decline.

Jim K.

May 5, 2011 in Common Interest Communities, Financial Crisis, Mortgage Crisis, Mortgages, Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 3, 2011

More on Highway Removal...

Okay.  If you follow this blog much, you probably know that I have a penchant for posting articles that discuss the benefit of removing highways (especially elevated ones) that bisect, trisect, and otherwise disect a city's urban fabric.

I'm a big believer that spending money to destruct bad, existing transportation projects can be just as productive and important as building new ones.  In the deep debt situation that our country is in, resource allocation will be tighter than ever. 

Restoring original street networks can be a cost effective way to address congestion as most of these networks disperse traffic into a grid rather than a bottlenecked arterial system.

More on this important topic from this article discussing the proposed removal of a Dallas highway:

Any effort to get more freeways/expand road capacity undermines all efforts at expanding scope/efficacy of other forms of transportation. Rail, bikes, new kicks for pedestrians become little more than niceties used primarily by the indigent as everybody else thinks life is just fine ... as gas climbs to $5/gallon. What then?

Chad Emerson

May 3, 2011 | Permalink | Comments (0) | TrackBack (0)

The Spillover Effects of Flood Control

While waiting for the first stack of ungraded final exams to hit my desk this week, I’ve been following developments in a dispute between Illinois and Missouri over flooding along the Mississippi River.  Rising floodwaters in the region presented federal government officials with a difficult choice.  If they took no action, severe flooding would likely destroy the small town of Cairo, Illinois.  If they intentionally broke a downstream levee, they would save Cairo from ruin but would allow floodwaters to devastate 90 homes and 200 square miles of farmland in Missouri.  I plan on discussing this simple dilemma to introduce the concept of cost-benefit analysis to my Land Use students this Fall. 

The conflict has centered on whether to activate the Birds Point-New Madrid Floodway, a 130,000-acre area in southeast Missouri.  In the 1920s and 1930s, the federal government paid private landowners an average of $17 per acre to acquire “flowage rights” throughout the floodway.  The acquisition of these rights, authorized under the 1928 Flood Control Act, entitles the federal government to purposely divert water from the main channel of the Mississippi River onto the burdened properties when necessary to prevent flooding elsewhere.

For the past week, Illinois and Missouri have been battling in court over whether the federal government should fill the floodway with water for the first time since 1937 to prevent flooding in Cairo.  Missouri’s attorney general filed a complaint in U.S. District Court last week seeking a court order to prevent intentional flooding of the floodway, arguing that it was unjustified and would cause water pollution in violation of the Clean Water Act.  The District Court denied Missouri’s request, and Missouri’s appeals to the Eight Circuit Court of Appeals and U.S. Supreme Court also failed.  With the legal obstacles cleared, the U.S. Army Corps of Engineers used explosives to blast a two-mile-wide hole in a river levee last night and began floodwaters pouring into the floodway.    

According to Bloomberg, the U.S. Government believes that flooding the floodway will cause about $314 million in damage and contamination but will avoid more than $1.7 billion in damage in Cairo and other communities along the river.  Based on those figures, landowners within the floodway were the least-cost avoiders in this context and sacrificing their land uses to protect more valuable uses upstream probably maximizes social welfare.  Not surprisingly, many of the private individuals residing or working within the 200-square-mile floodway were more focused on their own losses.  A local newspaper article suggests that some landowners intend to file a takings claim against the federal government for breaking the levee. 

Ironically, the concept of externalities or “spillover” effects takes on a double meaning in this case.  The question of whether or not to flood the floodway required government decision makers to consider both the literal and figurative spillover effects of each option!

Troy Rule

May 3, 2011 in Environmentalism, Federal Government, Politics, Property Rights, State Government, Takings, Teaching, Water | Permalink | Comments (1) | TrackBack (0)

Introducing Troy Rule

The Land Use Prof Blog is delighted to welcome its newest guest blogger, Professor Troy A. RuleRule-t Prof. Rule is an Associate Professor at the University of Missouri School of Law.  He teaches land use, secured transactions, and sales & leases, and his research focuses on renewable energy and property law.  He's an alum of BYU and Chicago and worked in the finance industry before a law practice in Seattle focused on commercial real estate and wind energy.

We've featured his scholarship several times on the blog, including Shadows on the Cathedral: Solar Access Laws in a Different LightRenewable Energy and the Neighbors; and, most recently, Sharing the Wind.  His next piece is Airspace in a Green Economy, forthcoming in the UCLA Law Review.  He was also recently on a well-received panel at ALPS with some of our regular Land Use bloggers. 

It's a great privilege to introduce Troy and to add him to the list of outstanding new voices in land use law that we've been lucky enough to host here.  It's fantastic that he has volunteered to guest-blog during May, which is the month that most of us love to procrastinate by reading blogs, but are too busy grading to write very much.  So thanks to him for signing up!  On top of all of his scholarly accomplishments, Troy Rule might just have the single greatest name of any junior scholar in the legal academy.  We look forward to reading.

Matt Festa

May 3, 2011 in Clean Energy, Property, Real Estate Transactions, Scholarship, Teaching, Wind Energy | Permalink | Comments (0) | TrackBack (0)

Upcoming Conference and Call for Papers...

This one sounds pretty interesting...learn more here:

University of British Columbia, Vancouver, Canada    
10-12 January 2012     

This year's Sustainability Conference will take place in Vancouver, Canada at the University of British Columbia, Robson Square. A satellite campus of the University of British Columbia, UBC Robson Square is located in downtown Vancouver.  The largest city on Canada's west coast, Vancouver is dedicated to incorporating sustainability in all of its practices, making it the ideal city to discuss the themes of the conference.

This conference aims to develop a holistic view of sustainability, in which environmental, cultural and economic issues are inseparably interlinked. It will work in a multidisciplinary way, across diverse fields and taking varied perspectives in order to address the fundamentals of sustainability.

The conference will include numerous paper, workshop and colloquium presentations by practitioners, teachers and researchers. We would particularly like to invite you to respond to the conference call-for-papers. Presenters may choose to submit written papers for publication in the fully refereed International Journal of Environmental, Cultural, Economic and Social Sustainability. If you are unable to attend the conference in person, virtual registrations are also available which allow you to submit a paper for refereeing and possible publication, as well as access to the Journal.

Whether you are a virtual or in-person presenter at this conference, we also encourage you to present on the conference YouTube Channel. Please select the Online Sessions link on the conference website for further details.  We also invite you to subscribe to our monthly email newsletter, and subscribe to our Facebook, RSS, or Twitter feeds at

The deadline for the next round in the call for papers (a title and short abstract) is 19 May 2011. Future deadlines will be announced on the conference website after this date. Proposals are reviewed within two weeks of submission.

May 3, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, May 2, 2011

U.S. Supreme Court Rules on Western Water Law Case

As previously reported on this blog, the U.S. Supreme Court took on a relatively rare original-jurisdiction matter with the case of Montana v. Wyoming. Today, the Court ruled in a 7-1 opinion (Kagan recused; Scalia in dissent) to dismiss Montana's suit. Following the conclusion of Buzz Thompson (Stanford), the master it appointed on the matter in 2008, the Court held that the western water law doctrine of prior appropriation allowed upstream users to improve the efficiency of irrigation operations even to the detriment of downstream users.

Jim K.

May 2, 2011 in Environmental Law, Water | Permalink | Comments (1) | TrackBack (0)

Alexander on New Regionalism and Sustainable Communities

Lisa Alexander (Wisconsin) has posted The Promise and Perils of ‘New Regionalist’ Approaches to Sustainable Communities, 28 Fordham Urb. L. J. ___ (2011). Here's 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.

Jim K.

May 2, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 1, 2011

Types of Suburbia...

This USA Today article does an interesting job of using Professor Robert Lang's (UNLV, Urban Sociology) research to address the different "types" of American suburban development:

•Inner suburbs. Many developed in the 1920s and 1930s along streetcar lines. Because they're close to cities and usually have extensive public transportation, they have gained in appeal as gas prices have soared. They're most attractive to the young, the childless and immigrant families. Many buildings are old, so there is less reluctance to rebuild and fill in vacant space. Key examples are Arlington and Alexandria, Va., suburbs of Washington, D.C., and sections of Tampa's Hillsborough County and San Antonio's Bexar County — all double-digit gainers since 2000.

Bill Rubin, executive director of the St. Croix Economic Development Corp., is pushing the Wisconsin county to create jobs, not just housing for residents commuting to nearby Minneapolis and St. Paul in Minnesota.

"There's been a growing sentiment towards moving closer (to cities) in the past decade," says John McIlwain, a housing expert at the Urban Land Institute, a non-profit group that promotes sustainable development.

•Mature suburbs. The next ring out from inner suburbs, these communities began their growth in the 1970s and 1980s and are filling out: Jefferson County in the Denver metropolitan area or Chicago's DuPage. On the whole, these suburbs grew the slowest from 2000 to 2010 , adding 3.5 million people, a 7.8% increase.

"These are suburbs that are finished being built — were finished in the '80s and '90s — and are not old enough to be rebuilt,'' Lang says. As rail lines begin to extend into these suburbs, denser development may follow and growth may pick up again, he says.

•Emerging suburbs and exurbs. Despite the housing bust and foreclosures that hit new subdivisions the hardest, these communities along the outer ring of suburbia ended the decade with phenomenal growth.

Contrary to some suggestions, not all forms of suburban development are unsustainable.  Indeed, some of the "Inner Suburbs" actually date back to pre-automobile years when they were founded along trolley car routes. 

This "type" of suburb is most prone to sustainable revitalization as they essentially represent the earliest form of transit-oriented development.

Chad Emerson

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

Hail and farewell, guest bloggers

The blog has been going great this past year, and we've been especially lucky to have a number of phenomenal guest-bloggers recently.  We take credit for recruiting these voices to contribute to the broader discussion of land use, but I haven't done as good of a job as I should have in thanking them for their excellent service. 

Hannah Wiseman was with us for April, and her posts were fantastic.  I didn't even realize until after she had started guest-blogging that in the prior month she was one of the five intrepid scholars who relaunched the Environmental Law Prof Blog, which had been dormant.  (We know something about that task, and we welcome them as colleagues on the Law Professor Blogs Network!).  Amazingly, Hannah kept contributing interesting substantive posts on both blogs.

So thanks to Hannah, and thanks to McKay Cunningham, Antonia Layard, Jessica Owley, and Jon Rosenbloom.  You guys have made the blog successful, and you're welcome back any time.  The guest bloggers' contributions have been the main thing on which I've received the most positive feedback recently.   So here's the teaser-- we have a couple of additional excellent guest bloggers lined up for the summer! 

Thanks to all of our readers and most especially to our contributors.

Matt Festa 

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

Signing Off

Thank you to the Land Use Prof Blog for including me as a guest blogger for the month of April; I have enjoyed participating.  I will sign off with a brief pop culture reference, which would amuse my students because I am typically hopelessly ignorant in this field.  If you watch Parks and Recreation--an entertaining comedy about a parks department manager's struggles with red tape, unenthusiastic city employees, vacant lots, and budget cuts--you are likely familiar with the show's story line about state auditors.  In the show, the fictional town of Pawnee, Indiana, faces a budget crisis, and state auditors played by Rob Lowe and Adam Scott swoop in and threaten to shut down the parks department.  Parks department manager Leslie Knope (Amy Poehler) saves the day by organizing a brilliant money-making harvest festival, although the state auditors stick around after the festival and appear to maintain some authority over Pawnee affairs.  The New York Times recently featured an article with more serious real-life scenarios that echo this television story line, describing how Michigan has empowered state auditors to take control in struggling towns.  In Benton Harbor, Michigan, for example, the article reports that a state auditor has laid off workers and introduced "a plan to merge the fire and police departments into a single unit."  It is not clear that a harvest festival will cure Benton Harbor's financial woes, but the article offers an interesting glimpse into expanding state authority over municipal affairs. 

-Hannah Wiseman

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