Land Use Prof Blog

Salkin on Callies on Regulation in Hawai'i

Patricia Salkin (Albany) has posted a review essay called David L. Callies, Regulating Paradise: Land Use Controls in Hawai’i (2d Ed. 2010) (Book Review), published in The Urban Lawyer, Vol. 43, No. 4, p. 1107, 2011. The abstract:

In 1984, Professor David Callies wrote Regulating Paradise to describe the regulatory scheme in Hawai’i. In 2010, he followed up that book with Regulating Paradise: Land Use Controls in Hawai’i to reexamine the issues as they have developed over the last 25-plus years: housing affordability, the subjects of development agreements, condemnation, defining open space and agricultural lands, takings, cultural sensitivity, environmental assessment, the prevalence of covenanted communities, and redevelopment.

This essay is a review of Professor Callies work which is a must read for anyone involved in land use in Hawaii. What emerges from his work are lingering questions about whether the regulatory scheme has over protected paradise.

Matt Festa

Happy Leap Day

Hey everyone, it's February 29th, and that doesn't happen every year.  So Happy Leap Day! 

Some of you who follow the blog might recall that we like to do a holiday post now and then about the land use angles of the tradition-- like on Christmas, Thanksgiving, Halloween, Columbus Day, St. Patrick's Day, Veterans Day, Martin Luther King Day, and even Groundhog Day.  Today is the first chance I've had since relaunching the blog in 2009 to consider Leap Day, so it's time to add Feb. 29 to the list.  I must admit, however, that coming up with a land use angle for Feb. 29 looked like a bit of a challenge.  But I take pride in my skill at the game my students call "What Can't Festa Turn into a Land Use Story," so here goes:

First, it's an Irish tradition (supposedly), going back to the times of St. Patrick and St. Bridget, that on the quadrennial occurrence of Leap Day, the women get to make marriage proposals to the men (the legend is probably the progenitor of Sadie Hawkins Day).  In a traditional feudal society with a land-based economy and social structure, with primogeniture and entailments controlling the land, this social inversion could have a significant effect on how feudal power and family wealth get organized.  If it ever actually happened, that is . . . I'm skeptical, but the legend seems to have enough purchase to back the 2010 Amy Adams movie Leap Year. 

A second land use tie-in is related to the appellation "Leap" Day/Year.  LEAP is also an acronym that stands for "Land-use Effects on Amphibian Populations."  It's a multi-regional collaboration sponsored by the National Science Foundation.  Academic research programs were established at Missouri, Maine, and South Carolina.  And lest you think that I'm stretching here, many organizations today are using the occasion of Leap Day to celebrate Amphibians.  Amphibian Ark has rolled out an international campaign for Leap Day:

To coincide with Leap Day (February 29th) 2012, Amphibian Ark is launching a new international event, Leaping Ahead of Extinction: A celebration of good news for amphibians in 2012.

The event’s been timed to coincide with Leap Day (29^th February) 2012, and will promote the great successes in the conservation of amphibians in captivity and in the wild. The focus will be on institutions that are managing amphibian rescue or supplementation programs, recommended either during an AArk conservation needs assessment, or by national governments or field experts.

Many zoos, wildlife and conservation organizations, and even Disney are also getting into the spirit with Leap Day events for amphibians.  Hopefully they won't get too jumpy in Calaveras County.

Once again, a special day with a land use angle!  Kind wishes to our amphibian friends, especially if a princess proposes to one.

Matt Festa

UPDATE: The "Leap Day" observance is broader than I had thought, and implicitly with the amphibian connection too-- I'm getting emails imploring me to take advantage of the Leap Day discounts from the excellent LeapFrog brand of learning toys that my son enjoys.  You know you've arrived as an American holiday when businessess try to commemorate it by selling stuff.  Like the old "life, liberty, and no money down!" type of sales promotions. 

UPDATE 2: For yet another land use angle, DOT Secretary Ray LaHood tells us that we should "Leap Into Safety" today by investigating our states' pipeline profiles. 

Infranca on a New Framework for Interpreting RLUIPA

John J. Infranca (Research Fellow, NYU Furman Center) has posted Institutional Free Exercise, Charitable Purposes, and Religious Land Use: A New Framework for Interpreting RLUIPA.  The abstract:

The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects religious landowners from the imposition, through a land use regulation, of a substantial burden on religious exercise, absent a compelling interest. For purposes of RLUIPA, a religious landowner may be a person, or, as is more likely, an assembly or institution. This Article contends that courts and commentators have failed to consider the implications of the institutional identity of the vast majority of land use claimants under RLUIPA. As a result, courts frequently focus inappropriately on the substantial burden claims of individual adherents, rather than institutional claimants. The concept of institutional free exercise, as articulated in case law and legal scholarship, provides a framework for distinguishing between the religious exercise and substantial burdens of religious institutions and individual adherents and can aid in clarifying substantial burden doctrine. In addition, the treatment of religious and non-profit institutions in comparable land use contexts, particularly hardship claims under landmark laws, can help shape the evaluation of institutional substantial burden claims.

I propose that courts should distinguish between the substantial burden claims of “existing institutions,” those that have made use of a particular property for a period of time and seek to alter or expand their use, and “new institutions,” those seeking a parcel of land for their first location or seeking to obtain and use a new parcel of land. Existing institutions should receive protection akin to that provided by courts to existing uses under the “natural expansion doctrine.” Given their bonds with a specific location and community, certain land use restrictions will impose a substantial burden on their institutional religious exercise. In contrast, new institutions cannot claim the same degree of burden when denied the use of a particular parcel and their claims are adequately protected by other provisions of RLUIPA. Both new and existing institutions may have claims when the land use process itself, rather than the simple denial of a desired use, imposes a substantial burden, but those claims should be addressed through RLUIPA’s other provisions.

Matt Festa

Stein on the Modest Impact of Palazzolo

Gregory M. Stein (Tennessee) has posted The Modest Impact of Palazzolo v. Rhode Island, forthcoming in the Vermont Law Review.  The abstract:

Before 2001, state and federal courts did not agree on the extent to which a property owner’s regulatory takings claim should be weakened by the existence of legal restrictions on her use of the property at the time she acquired it. The Palazzolo Court addressed this doctrinal confusion but did not completely resolve it, offering six opinions that partially contradict each other. Some of this discord has persisted, with Palazzolo already cited in nearly five hundred judicial opinions, and not always consistently.

This Article examines the impact Palazzolo has had on state and lower federal courts. After reviewing the law before Palazzolo and the Supreme Court’s decision in that case, the Article offers suggestions as to how courts ought to interpret the contradictory opinions in Palazzolo. More specifically, cases arising at different points in the ripening process should be treated differently, and only a small subset of takings claims should benefit from Palazzolo’s relaxation of the notice rule.

Next the Article assesses the evidence, in an effort to determine whether courts interpreting Palazzolo have actually been following these suggestions. First, it examines the small number of claims in which an owner that probably would have lost before 2001 prevailed. It then compares these results with the far more numerous cases in which an owner that probably would have lost before 2001 still lost even after that decision.

The Article closes by offering a more generalized assessment of the effects of Palazzolo. It concludes that nearly all of the courts to cite Palazzolo have heeded its requirements, but only a few cases have turned out differently than they would have before 2001. The Court’s ripeness rules dictate that few landowners should benefit from the holding in Palazzolo, and only a small number actually do benefit. Lower courts understand Palazzolo, they have been applying it correctly, and they should continue to do what they have been doing.

Matt Festa

Walmart in Athens: Now in Salon Magazine

The possibility of Walmart coming to Athens, GA has now made the mainstream (albiet on-line) media with this story in Salon:

The Athens, Ga., soul-food joint Weaver D’s has barely changed in the 20 years since its slogan, “Automatic for the People,” supplied the name of a groundbreaking R.E.M. album.

You could say the same about Athens itself. After businesses fled in the ’80s, downtown Athens rebounded as an alt-rock mecca that spawned the soundtrack of Generation X. R.E.M., the B-52s, Widespread Panic and thousands of other musicians and artists helped create what is, in many ways, today a dream city: a mixed-use, walkable urban core filled with small businesses, plenty of green space — and a music scene that rivals that of cities 10 times its size.

Cue “The End of the World as We Know It.” A multi-building mall-like shopping complex, likely to include the dreaded Walmart, has set its sights on downtown Athens. Renderings by the Atlanta-based developer Selig Enterprises show a bricked concourse surrounded by large-scale retail, including a 94,000-square-foot superstore, topped with apartments. It also includes three restaurants — two of which are over 10,000 square feet — and 1,150 parking spaces. This is new for downtown Athens, which unlike most college towns, has largely kept chains away.

“There’s an Athens style,” says Willow Meyer, a 37-year-old lawyer who moved here with her husband [UGA law prof Tim Meyer] two years ago, “and if you just import this kind of ‘Anywhere, USA’ development, the city loses something.”

Another group in metro Atlanta is also fighting a Walmart, proposed by the same company behind the Athens development.

My previous posts on this issue can be found here, here and here.

Jamie Baker Roskie

Rocky Mountain Land Use Institute will hold its 21st annual conference titled, The Wilderness City: Nature, Culture and Economy in the Next West, on March 1& 2, 2012 on the University of Denver campus. RMLI is offering live streaming for those who cannot attend. More information available at http://www.law.du.edu/index.php/rmlui/rmlui-practice/rmlui-annual-conference .

Susan Kraham

Mandelker on Housing Quotas for People with Disabilities

Daniel R. Mandelker (Washington U) has a new article called Housing Quotas for People with Disabilities: Legislating Exclusion, Urban Lawyer, Vol. 43, No. 4, p. 915, 2011.  The abstract:

The transfer of people with disabilities from state institutions to residential housing is one of the great migrations in recent history, but finding adequate housing is difficult. Laws that enact housing quotas make this task even harder. Quotas can require a minimum distance between group homes, limit the number of group homes that can be allowed in a community, or limit the number of apartments in multifamily projects. This article considers the legality of these quotas under the federal Fair Housing Act, and their constitutionality as an equal protection violation.

Part I describes the universe of housing models available for people with disabilities. Part II examines the problem of clustering that occurs when this housing locates in groups. Part III describes state statutes that require a minimum distance between group homes for people with disabilities, and federal housing subsidy legislation that contains quotas and preferences. It criticizes the dispersion strategy for housing that quotas implicitly require. Part IV considers the constitutionality of housing quotas under the equal protection clause of the federal constitution.

Part V considers the legality of quotas under the federal Fair Housing Act, which makes it a violation to “otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap." Part VI discusses more acceptable models for distributing housing opportunities.

An important issue with a valuable discussion from one of the leaders in our field.

Matt Festa

Mulvaney's take on PPL Montana

Prof. Tim Mulvaney has a thoughtful and original analysis of this week's Supreme Court decision in PPL Montana v. Montana, over at the Environmental Law Prof Blog.  From Tim's Post:

Taking a cue from the Stop the Beach plurality, PPL Montana had suggested that the Montana Supreme Court was the “operative force” behind a “land grab” of privately-owned riverbeds, such that the decision itself could be violative of the Takings Clause. Yet the U.S. Supreme Court ultimately did not address this assertion. Still, Justice Kennedy’s opinion in PPL Montana could be viewed as the continuation of a disturbing trend promoted by the Court in Stop the Beach: it represents an implicit, wide-ranging distrust of state courts and a disregard for the principle that property rights are generally determined with reference to state law.

So the Court neglected to use the opportunity to expand on the judicial takings theory espoused in Stop the Beach, and seems to potentially add confusion to the question of federal judicial deference to state-law interpretations of property rights.  I'll add one other preliminary observation about the opinion: by framing the case around the fact question of whether certain riverbeds were navigable or required portage at the time of statehood, the decision highlights the importance of history and historical interpretation to issues of property law.

Matt Festa

Supreme Court opinion on PPL Montana

The U.S. Supreme Court published its decision in PPL Montana, LLC, v. Montana.  The opinion is here. 

A unanimous Court (Kennedy, J.) reversed the Montana Supreme Court's holding that the State of Montana owns and may charge for the use of the riverbeds at issue. 

Prof. Tim Mulvaney had an insightful analysis of the cert grant for us in a guest-post last year.  We previewed the oral argument here.  SCOTUSblog has, as always, a great roundup of early analysis and links. 

I look forward to hearing more discussion of this important land use case in the near future.

Matt Festa

Layard on Law and Localism in Multiple Occupancy Housing

Antonia Layard (Cardiff), one of our guest bloggers, has posted Law and Localism: The Case of Multiple Occupancy Housing, forthcoming in Legal Studies (2012).  The abstract:

This paper investigates how planning regulation constructs the local, encapsulating a locality and prioritizing local decision-making over regional and national scales. It draws on a case study of the regulation of multiple occupation to make three inter-related points. First, the analysis emphasizes the plurality of ‘locals’ and the interrelationships between them. Second, the paper explains how the justification of the local is required to make a locality legally visible. This operationalization and construction of the local (legally, spatially and socially) must take place before the political logic of localism, the prioritization of local decision-making over other scales of governance, can take legal effect. Third the paper explains how, once the ‘local’ is legally constructed and can make decisions, this prioritization of apparently neutral local expertise and knowledge can act to enclose the spatial and social with sometimes powerful exclusionary and regressive effects.

Matt Festa

Windfall--documentary on wind energy development

The documentary Windfall is making the rounds around the country.  Check out the Windfall trailer, it is very compelling.  The film's description:

Wind power… it’s sustainable … it burns no fossil fuels…it produces no air pollution. What’s more, it cuts down dependency on foreign oil. That’s what the people of Meredith, in upstate New York first thought when a wind developer looked to supplement the rural farm town’s failing economy with a farm of their own -- that of 40 industrial wind turbines. WINDFALL, a beautifully photographed feature length film, documents how this proposal divides Meredith’s residents as they fight over the future of their community. Attracted at first to the financial incentives that would seemingly boost their dying economy, a group of townspeople grow increasingly alarmed as they discover the impacts that the 400-foot high windmills slated for Meredith could bring to their community as well as the potential for financial scams. With wind development in the United States growing annually at 39 percent, WINDFALL is an eye-opener that should be required viewing for anyone concerned about the environment and the future of renewable energy.

Matt Festa

Tear Down This Mansion?

A Michigan appellate court has ordered the owner to tear down what looks to be a fairly elaborate and presumably expensive home, because it is only 80 feet from the neighboring property, instead of the 100 feet required in the deed restrictions.  Talk about strict enforcement!  But as the neighbors say in the video, rules are rules. 

The news story is here at msnbc.com.  Might be an interesting clip to show for servitudes, land use, or real estate transactions.  Thanks to Helen Jenkins for the pointer.

Matt Festa

Changed Circumstances and Conservation Easements in New Jersey

 

Conservation easements are an important tool in the conservationist’s toolkit—created by state legislation and supported by substantial federal and local tax benefits to encourage private lands to be used for conservation purposes in perpetuity.  Nevertheless, developers have asked courts to release conservation easement based on various legal principles including that of changed circumstances. These perpetual easements have been conveyed voluntarily and the benefits of the conveyance have accrued to the donor, and any successors in interest, which include expansive federal and state tax benefits as well as potential vested zoning rights.

Developers are asking courts to ignore the independent enforceability of the contractual agreement that established these conservation easements.  These easements are contractually created enforceable property rights, independent of any additional consideration. See e.g.  N.J.S.A. 18:B-3. Conservation easements are supported by valid consideration, entirely separate from more traditional municipal grants of development rights.  In exchange for donating the conservation easement to a municipality or charitable land trust, the landowners receive above mentioned substantial tax benefits from both the federal and state governments.  A changed circumstances claim is insufficient to nullify this independently created contract obligation.

In New Jersey the legislature created the statutory backstop for conservation easements in 1979 via the Conservation Restriction and Historic Preservation Restriction Act. Prior to this legislative enactment conservation easements were of dubious enforceability given the common law’s hostility to perpetual negative easements in gross (a.k.a. conservation easements). See Restatement (Third) of Property (Servitudes) § 1.6.  The New Jersey statute established a framework for enactment as well as removal of such encumberments. N.J.S.A. 13:8B-1 et seq. These removal procedures are clearly set forth in the Act; the release of a conservation easement may only be accomplished (1) under the statute; (2) with a public hearing; (3) after providing notice by publication; (4) with the Commissioner of New Jersey Department of Environmental Protection’s approval; (5) if it is in the public interest; and (6) recognizing the negotiated terms of the conservation easement itself.

Despite the independent enforceability of individual conservation easement contracts and various state statutory frameworks, developers are asking courts to be released from these easements—resulting in an economic windfall for the developer.  These developers actively entered into, or purchased the land subject to, conservation easement and its limited provisions for extinguishment. They have also benefitted from generous local and federal tax deductions.  Conservation easements—and the proper channels for their release—must be upheld as tools of conservation as intended by legislatures and traditional contract law and not used as an economic subsidy for developers when circumstances change.

 Susan Kraham

Hines on Joint Tenancies

N. William Hines (Dean Emeritus, Iowa) has posted Joint Tenancies in Iowa Today.  The abstract:

This paper updates the author's extensive earlier research on Iowa joint tenancies, which was published in the 1960s. The earlier research revealed that, while joint tenancy law had changed very little in the past five hundred years, patterns of joint tenancy usage had expanded greatly, particularly in property holdings by married couples.

This paper traces the changes in Iowa joint tenancy law since the 1960s. It posits that, in respect to joint tenancies in real property and tangible personal property, the law has changed very little, except for adoption of an "Intent" analysis to replace the former "Four Unities" test for determining severance issues. Far greater change is observed, however, in the Iowa law governing joint and survivor accounts with financial institutions. With respect to such joint and survivor accounts, the author suggests how the law might still be improved to make such accounts more effective in achieving the goals of the parties who create them.

A helpful study from one of the great senior scholars of property law.

Matt Festa

Sean Nolon on Environmental Mediators

Sean F. Nolon (Vermont) has posted another article at the interface of land use and ADR: Do We Need Environmental Mediators? Indigenous Environmental Mediation: Exploring New Models for Resolving Environmental Disputes.  The abstract:

According to the best practices of environmental mediation, mediators are professionals who come from outside the community. The conventional wisdom holds that this distance from the parties and the dispute increases the likelihood that the mediator will manage the process in an independent and neutral manner and decrease the likelihood of any substantive bias. Yet, in practice, many environmental mediations go forward without the use of outside mediators relying instead on mediators who come from within the community. While recognized in the theory as an option, the use of community mediators has not received much attention in the scholarship. When looking at disputes involving inside mediators more closely, a pattern of practice emerges that can benefit agencies and individuals in their decisions to employ environmental mediators. This article explores some of the disputes where inside mediators have been used to construct a complementary model to that of the outside model. This complementary model, labeled “indigenous environmental mediation,” relies on mediators who come from the community, instead of outsiders, to help parties improve relationships, ensure compliance with agreements, and advocate that decision making agencies respect stakeholder agreements. This article provides support for the continued use of outside mediators but also suggests a more intentional effort to employ indigenous mediators in environmental disputes.

Matt Festa

Fast Walking = Health?

This new medical story has been zipping around the web recently.  From the BBC: Slow Walking Predicts Dementia?

A study, published in the British Medical Journal in 2009, said there was a "strong association" between slow walking speed and death from heart attacks and other heart problems. A Journal of the American Medical Association study suggested a link between walking faster over the age of 65 and a longer life.

Dr Erica Camargo, who conducted the latest study at the Boston Medical Centre, said: "While frailty and lower physical performance in elderly people have been associated with an increased risk of dementia, we weren't sure until now how it impacted people of middle age." . . .

The researchers said slower walking speeds were linked to a higher risk of dementia and stronger grip with a lower risk of stroke.

Interesting and potentially another data point toward favoring walkable pedestrian-oriented urbanism.  Thanks to Elizabeth Festa for the pointer.

Matt Festa

East L.A. Cityhood Proposal Defeated

An interesting local government story from the L.A. Times: East Los Angeles, an unincorporated and predominantly Latino neighborhood of 126,000 in Los Angeles county has had its latest petition to incorporate as a municipality denied by the Local Agency Formation Commission (LAFCO.) 

Unlike many states, which simply permit any unincorporated area to incorporate if it can gather enough signatures for an incorporation petition, California actually requires all proposed municipal boundary changes to be approved by LAFCO, and one of the major factors LAFCO considers is the fiscal viability of the proposed municipality.  In this case, the LAFCO concluded that East L.A. lacks sufficient taxable resources to generate sufficient tax revenue to finance the municipal services (fire, police, etc.) that the new city would require.

East L.A.'s situation is interesting for many reasons.  For one thing, it highlights what Michelle Anderson has referred to as the problem of municipal "underbounding."  Take a look at the map of the Los Angeles basin below:

 
It's hard to read, but you can see that I have circled East LA in the center of the map.  The white portion of the map to the west and north of East LA are all encompassed within the city of Los Angeles.  The multi-colored territories to the East and South are other incorporated cities.  You can see that aside from a few small "islands" of unincorporated territory, most of the urbanized part of LA county lies within some incorporated municipality.  So what happened?

As detailed in Gary Miller's excellent book Cities by Contract, during the 1940s and 50s the two largest cities in LA county, Los Angeles and Long Beach, began aggressively annexing neighboring unincorporated land.  Many unincorporated areas were apprehensive because they sensed that annexation was driven by a desire to acquire tax-rich territory so as to redistribute tax revenue from the annexed territory to the annexing municipality.  These unincorporated areas could prevent annexation only by incorporating as municipalities themselves, but if they did so, they would then become responsible for financing their own municipal services, a potentially crippling burden.  LA county was also worried about the annexations because, as LA and Long Beach grew and swallowed unincorporated areas, they took power away from the county.  So the county and the unincorporated areas came up with an ingenious idea called "the Lakewood plan."  Under the Lakewood plan, any incorporated municipality could "contract" with the county for the provision of services so as to take advantage of the county's economies of scale in the provision of services while allowing municipalities to retain the powers they really wanted: taxing, zoning, and school control.  With the Lakewood plan in place, there was no disincentive for unincorporated areas to incorporate, and they did so with abandon.  Today there are 88 incorporated municipalities in LA county. 

So why did East LA not incorporate?  Frankly, no one wanted to annex poor areas like East LA, so East LA had no reason to incorporate. And, even under the Lakewood plan, incorporated municipalities would still be required to finance their schools out of their own tax base, which is a very significant expenditure for a poor area.  The result is that East LA remained unincorporated.  So why incorporate now?  And why are they being prevented from doing so?

The second question is somewhat easier to answer.  After the rash of Lakewood plan incorporations, someone in California state government decided this system of willy-nilly incorporation was crazy, and the LAFCO was formed in order to create a more orderly process of dealing with municipal boundary changes.

Now the harder question: why would east LA want to incorporate in light of the crushing financial burden that would impose?  Remember, by remaining unincorporated, East LA receives services from LA county that are highly subsidized by residents of incorporated cities, who are still required to pay property taxes to the county in addition to the fees they pay for the contracted services.  Why forego this subsidy and have to pay your own way?  Incorporating would give East LA control of its own zoning, schools, and tax base, but with such a minimal tax base they would apparently be better off (and LAFCO certainly thought so) getting their subsidy from the county. 

According to the website for the East LA cityhood movement, the goal is the basic one of bringing local government closer to the people.  LA county government is the largest local government in the United States, with a population of 10 million, but has only a five-person board of supervisors.  If my remedial math serves, that means each supervisor governs roughly 2 million people.

The East LA incorporation drive runs counter to the received wisdom that municipal boundary change follows a kind of "public choice" logic in which the motivation of annexing cities is to loot the tax revenue of unincorporated areas and unincorporated areas are driven by the selfish desire to hoard their stash from being redistributed to the urban masses.  Here, it seems, the desire to incorporate stems from a yearning for self-government by a group of people who perceive themselves as a distinct community within the larger city. 

Richard Briffault writes that there are two competing conceptions of local government in our political system: the polis and the firm.  Local governments are sometimes seen as little democratic republics, and other times as participants in a marketplace.  East LA's incorporation petition seems to rest on the former conception of local government -- a city is a forum for enlightened self-government. The reason East LA's petition has been stymied, however, is because LAFCO adheres to the latter conception -- local governments are business organizations.  It is telling in this regard that the principal reason LAFCO gives for disapproving the incorporation is that East LA lacks a sufficient number of big-box stores to support an independent city. 

Ken Stahl

Wiseman on Fracturing Regulation Applied

Hannah Wiseman (Florida State) has posted Fracturing Regulation Applied, Duke Environmental & Policy Law Forum (forthcoming).  The abstract:

America has a long history of oil and gas extraction, but a relatively new extraction technique called slickwater hydraulic fracturing has captured the attention of the public, academics, agencies, and politicians. The newly-revived focus on domestic oil and gas — and particularly on fracturing — has tended to center around the adequacy of environmental laws as written. A range of interested parties have questioned whether states, which shoulder the core responsibilities for regulating drilling and fracturing, have adequate regulatory regimes to address an array of potential environmental effects. The focus has tended to be on the text of regulations, however, and not on how regulations operate in practice: How states apply regulations by inspecting sites, noting violations, and enforcing violations when they believe that enforcement is justified. This paper expands the small literature that has emerged in this area, providing a preliminary glimpse into state environmental regulations applied to wells that are drilled and fractured. It briefly explores the types of violations that states have noted so far at fractured wells, the enforcement actions that they have issued in response, and the potential reasons for these patterns. Although much more detailed work will be necessary to accurately pinpoint regulatory patterns, the initial picture suggests a wide array of violations and enforcements associated with a range of potential environmental effects—many benign, but some serious. States have noted a number of substantial issues, from spills to improper maintenance of pits for waste, while others have tended to identify less pressing matters, such as operators’ failure to mow weeds around the wellhead. States’ enforcement responses to these violations also have varied substantially, perhaps due to differing policy directives and wills to enforce, budgetary needs, understaffing, or problems of regulatory capture.

Very interesting thoughts on what is fast becoming the critical issue in energy and environmental law and policy.  I take pride in mentioning once again that Hannah was one of our outstanding guest-bloggers last year.

Matt Festa

NYC Rent Control Laws at Supreme Court?

The case of Harmon v. Markus, currently before the Supreme Court on a petition for cert, is starting to draw some attention.  Among others, George Will devoted his latest column to urging the Court to hear the case in Supreme Court should take on New York City's Rent Control Laws:

James and Jeanne Harmon reside in and supposedly own a five-story brownstone on Manhattan’s Upper West Side, a building that has been in their family since 1949. But they have, so to speak, houseguests who have overstayed their welcome by, in cumulative years, more than a century. They are the tenants — the same tenants — who have been living in the three of the Harmons’ six apartments that are rent controlled.

The Harmons want the Supreme Court to rule that their home has been effectively, and unconstitutionally, taken from them by notably foolish laws that advance no legitimate state interest. The court should.

This “taking” has been accomplished by rent-control laws that cover almost 1 million — approximately half — of the city’s rental apartments. Such laws have existed, with several intervals of sanity, since the “emergency” declared because returning soldiers faced housing shortages caused by a building slowdown during World War I.

This is a tough issue on the equities; rent-control laws (most prominently in New York) are of incredible help to some people and have a very negative effect on others, not only developers, but also (perhaps most especially) would-be entrants-- which is why the politics on this issue are more difficult to track.  Rent control favoring current (and often, inherited) tenants is getting increasingly hard to justify on policy grounds, but as a matter of property law, is it unconstitutional?  Harder to prove on legal doctrine.

Richard Epstein has a podcast on the case for the Federalist Society.  I've been looking for commentaries on the other side but haven't found quite as much; let me know.

Matt Festa

Landis on the iPad and the Future of Planning

John D. Landis (U Penn--Planning) has a thought-provoking article at Planetizen called A Brave and Better World? The iPad and the Future of Planning: 

Most of my graduate planning students and several of my colleagues have iPads. And many of them have iCloud accounts. I never much saw the value of the iPad, but then just recently, I read Walter Isaacson’s biography of Apple founder Steve Jobs, and in it, Isaacson noted that as early as 2005, Jobs was thinking about how people’s digital lives could be made completely mobile and placeless. Several of us were talking about this idea over dinner recently, and it struck me: if this vision were truly to come to pass—which is to say that aspects of our everyday activities and preferences are seamlessly recorded and collected in the digital cloud—it’s a short hop, skip, or jump to not needing most planners.

Seen from the perspective of the iCloud, what is it that planners do? Mostly, we aggregate individual preferences about the uses of space and location; mediate among competing spatial preferences and demands; and use spatially-tagged data to make projections and plans about local futures. With good input data, a cloud-based preference aggregator, and a bit of forecasting intelligence, might it not be possible to write a set of Internet-based algorithms to do exactly the same thing? And do it more quickly, cheaply, and without the sturm and drang of today’s elaborate planning processes? Could it be that the iPad, the iCloud, and a series of planning algorithms might make many human planners redundant? This is a rhetorical question.

Landis then offers some crazy but not-improbable potential scenarios involving planning information aggregated and communicated through apps.  He suggests that based on the rate of recent technology advances, this could happen in the near future.  But rather than lament a diminished cachet for the traditional information-aggregating role of the professional planner, Landis suggests that they get on the wave of the future:

The best way to restore planning’s luster is to make it more efficient at its tasks, and the road to efficiency is paved with automation. So, instead of planners worrying about the long-term solvency of our current employers—principally local government—we should be busily writing the types of Internet-based applications identified above. The advent of travel websites like Expedia and Orbitz decimated the travel agency industry, but by making travel easier and cheaper, led to an increase in travel itself. So too, would the creation of useful, easy-to-use planning apps lead—I hope—to greater societal value placed on planning.

Matt Festa