Land Use Prof Blog

Craig on the Clean Water Act, Climate Change, and Energy Production

Robin Kundis Craig (Utah) has posted The Clean Water Act, Climate Change, and Energy Production: A Call for Principled Flexibility Regarding 'Existing Uses,' forthcoming in the George Washington Journal of Energy & Environmental Law.  The abstract:

Numerous provisions of the Clean Water Act affect electricity generation, from potential siting restrictions that arise as a result of Section 404’s restrictions on discharges of dredged or fill material to effluent limitations that require power plants to cool their spent cooling water before returning it to streams, rivers, and lakes. This article focuses on two aspects of the Clean Water Act that directly raise — and, in a climate change era — will increasingly force — confrontations between electricity production, on the one hand, and water quality and aquatic ecosystem protections, on the other: (1) water quality standards, including both the Act’s antidegradation policy and states’ implementation of their standards through Section 401’s requirement that states certify federally-controlled discharges within their borders; and (2) Section 316’s requirement for cooling water intake protections, which — together with thermal discharge requirements to comply with water quality standards — is becoming increasingly important for thermoelectric plants.

After reviewing the history and import of the Clean Water Act for electricity production, this article discusses how climate change impacts on both water quality and electricity demand and production are likely to sharpen the perceived conflicts between the Act’s water quality requirements and goals and future energy policy. Applying the paradigm of principled flexibility, this article concludes that a key component of future energy and water quality policy should be the recognition that stationarity is dead on both sides of the equation — that is, while energy demands and production capability will be changing in response to climate change, so will aquatic ecosystems and the relevance of existing water quality standards. As a result, different kinds of decisions may be warranted for electricity production in and near aquatic ecosystems that climate change is fairly clearly destroying than for electricity production in and near aquatic ecosystems where strict enforcement of the Clean Water Act’s “existing use” requirements is likely to enhance the ecosystem’s ability to adapt to — and survive — climate change.

Matt Festa

California's Dissolution of Its Redevelopment Agencies Lands Back in Court

On May 22, 2012, a coalition of California cities filed a writ of mandate against the State of California challenging the way the State has directed redevelopment agencies to wind up their operations. The Los Angeles Times has a nice story on the case here. The writ also provides a nice history of California's landmark decision to eliminate its redevelopment agencies as well as the cities' grievances with the winding up process. The writ is available at the court's online docketing system here, entering Case No. 2012-80001154.

All the fighting over money reminds me of the old Woodie Guthrie lyrics: "California is a garden of Eden, a paradise to live in or see; / But believe it or not, you won't find it so hot / If you ain't got the do re mi."

Stephen R. Miller

Ely on Property Rights and the Supreme Court in the Gilded Age

James W. Ely, Jr. (Vanderbilt) has posted Property Rights and the Supreme Court in the Gilded Age, forthcoming in the Journal of Supreme Court History. The abstract:

This article challenges the conventional wisdom about the property-rights jurisprudence of the Supreme Court in the period 1870-1900. It asserts that the Court was animated to protect the rights of property owners as a means of upholding individual liberty against governmental overreaching. The justices saw private property as essential for the enjoyment of liberty. This commitment to individualistic values was reinforced by utilitarian considerations. The Court repeatedly stressed the vital role of property and contractual rights as the basis of economic growth. In upholding property right the justices drew upon the long-standing Anglo-American tradition of property-conscious constitutionalism. The essay concluded that there was a close affinity between the views of the framers of the Constitution concerning the sanctity of property rights and the jurisprudence of the Gilded Age.

Professor Ely's article makes a really important connection between constitutional property theory in the founding era and a century later in the gilded age. These two eras have been largely treated as completely separate in the scholarship about the development of property as a constitutional concept--and these stories in turn have influenced the understanding of property rights through the twentieth century to today. The analysis contributes to a historical understanding of property rights as a central component of individual liberty in the Constitution.

Matt Festa

New Lawsuit Challenges San Francisco Billboard Settlement

Most land use profs are familiar with Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), a U.S. Supreme Court case that helped to clarify the extent to which billboards could be regulated under the First Amendment.  In the years following Metromedia, several cities have adopted billboard restrictions based on the case's holding, which generally allows for greater restrictions on offsite and commercial signage.  Still, despite decades of case law on the subject, billboard regulation remains a relatively risky and controversial endeavor.  A new lawsuit against the City of San Francisco is the latest example of cities' ongoing difficulty in restricting billboards.

In 2002, San Francisco voters passed Proposition G--a ballot measure later codified as City Planning Code Section 611 that severely restricts offsite commercial billboards within city limits.  Earlier this month, the citizen group "San Francisco Beautiful" filed a complaint alleging that a settlement agreement between an outdoor advertising company and the City of San Francisco violated the provisions of Proposition G.  According to local newpaper articles posted here and here, the settlement required Metro Fuel LLC, a billboard company, to remove several large billboards and pay $1.75 million in fines. However, the settlement also effectively forgave more than $5 million in other fines and allowed Metro Fuel to replace its decommissioned billboards with an even greater number of smaller signs. 

In a new complaint filed in a California Superior Court, San Francisco Beautiful is alleging that the City's settlement violated Proposition G by allowing an overall increase in billboards.    Assuming that Metro Fuel's aggregate square footage of signage is reduced under the settlement, should it matter that the company's actual number of signs is allowed to increase?  This may be a worthwhile case for land use profs to follow in the coming months, particularly since most of us will be covering Metromedia in our courses again next year.

Troy Rule

The biking bug

Coming this July, New York City will launch a bike share program with 10,000 bikes at 600 stations across lower Manhattan (below 59th Street) and the hipster enclaves of west Brooklyn.

David Byrne, former-Talking Heads front man turned biking proselytizer (maybe you've read his Bicycle Diaries about biking in cities around the world), has a great piece about biking in the Big Apple in last Sunday's New York Times. In the article, he focuses on the practical aspects of the bicycle program for daily activities, like getting some groceries or going across town to a meeting.

Byrne notes that some 200 cities around the world have bike-share programs. I've never used a bike-share program, but not for want of trying. When we were in London last summer, my wife and I were trying to find a rack in that city's bike-share program with two bikes for the both of us, and in London's Soho, we had no such luck. The good news is that the program was obviously immensely popular in London, and I have no doubt it will be in New York. (In particular, I predict Ess-a-Bagel on 1st Avenue will see an even longer line as its bagels become just a short bike-ride away for that many more people).

As a matter of policy, however, I wonder whether the best use of bikes is really the freedom it offers for complete trips, or whether biking's long-term value for large cities isn't the ability for people to use bikes to access other forms of public transportation, such as trains. For several years in San Francisco, I rode my bike, rain or shine, from Potrero Hill to the 24th Street BART station, and then took the train in to work. There were a lot of others doing the same. That requires a different biking infrastructure than bike share programs. Instead of the rental bike stands, it requires secure places to park bikes at train stations and safe pathways through more distant parts of the city. The value, of course, is making public transportation options, such as trains, more readily available to more people. Imagine such a program in the far reaches of Brooklyn or Queens linking to the city's established subway system.

Biking programs can take a long time to develop. For instance, San Francisco's bike plan went through litigation and was required to conduct an extensive environmental impact report under the California Environmental Quality Act. As such, thinking through the variety of ways that bikes can assist getting around a city, should be conducted and evaluated up front. Bike shares and bike-to-transit, I'd suggest, are both important parts of the project.

For those cities contemplating such bike-friendly options, I have two free ideas I'm offering to you. First, a bike commuter greenbelt. This is not new, by any means, but this year I've discovered the joys of bike commuting along Boise's Greenbelt, and it is such a remarkable daily experience down by the cool river. For any city that has the option of making this a reality, just do it. Second, parking squids. That's right, parking squids. Parking squids are being deployed by Seattle as a means of creating bike parking within existing parking spaces. The parking squids each park eight bikes and fit within a traditional car parking space. The squids provide utility and whimsy in the same fixture. Could there be anything better in ending a work commute than locking a bike up to a squid before heading to office?

Stephen R. Miller

Lind on Housing Code Compliance in the Mortgage Crisis

Kermit Lind, a long-time clinician at Cleveland Marshall School of Law, has posted Collateral Matters: Housing Code Compliance in the Mortgage Crisis. Cleveland has been ground zero for foreclosure crisis response, especially as it concerns the impact of subprime lending practices on vacant and abandoned properties. Here's the abstract:

This article first describes the paradigm shift in mortgage loan servicing over the past two decades. Securitization of mortgages as commodities and exotic financing products changed the position and role of mortgage loan collateral. As new and unregulated mortgage servicing and debt collection practices were increasingly insulated from mortgage ownership, collateral as a securing factor became remote and overlooked by mortgagees. Meanwhile, the collateral matters greatly to those proximately affected by the neglect of its condition. Mortgagees, but not servicers, are listed in public records as the party holding the legal interest in the property while the mortgage industry deems the servicers to have complete control over the real property abandoned by owners. This change renders conventional housing code compliance procedures obsolete in the face of massive loan failures. The article then suggests that new strategic thinking is needed to redesign and retool code compliance processes. It offers some examples of changes that are needed. There is still imminent disaster for many homeowners, neighborhoods and communities from serious blight. Upgrading local code enforcement and being strategic in its application is essential in order to limit the damage resulting from the mortgage crisis.

Jim K.

Superheroes and Zoning

Yesterday I took my kids to see The Avengers, the ensemble superhero movie featuring Ironman, Thor, Captain America, and The Hulk.  But before all the world-saving action started up, I caught a throwaway line from the Gwyneth Paltrow character who plays Robert Downey Jr.'s assistant/girlfriend-- referring to their "Stark Tower" skyscraper in midtown Manhattan (powered by some futuristic sustainable energy source, natch) and their plans to build several more, she notes that she was planning to spend the next day "working on the zoning" for the other towers.  I made a mental note that this could be a humorous, quick blog post reaffirming my theory that there is a land use angle to everything, and then proceeded to watch the superheroes smash it out with the bad guys to my son's delight.

But just now, the majesty of the Internet has shown me how badly I've been beaten to the punch.  Via our Network colleagues at the Administrative Law Prof Blog, I found a link to a blog called Law and the Multiverse: Superheroes, Supervillans, and the Law, which has a blog post--nay, a 1,500+ word essay!--on this very subject called The Avengers: Arc Reactors and NYC Zoning Laws.  This is unbelievable--from the same offhand script line that set off my land-use radar, the author delves deep into the New York City zoning code, citing chapter and verse of the regulations; identifies where Stark Tower is on the maps (all with copious linkage); and then explains the legal options available to our developer/hero:

I. Stark Tower’s Zoning District

As it happens, we know exactly where Stark Tower is meant to be located within New York: it’s built on the site of the MetLife building at 200 Park Ave.

(Update: Early on some sources indicated that it was built on the site of the MetLife building and now others indicate that Stark built the tower on top of the preexisting building. This doesn’t change the analysis. Whatever the zoning status of the MetLife building, the construction of Stark Tower was likely a “structural alteration” of the building that would disallow a grandfathered nonconforming use. It certainly exceeded the kind of “repair or incidental alteration” that would preserve the nonconforming use.)

Here’s a zoning map of the area. As you can see, it’s in a C5-3 commercial district in the Special Midtown District, which means Stark Tower has a maximum Floor Area Ratio of 18 (3 of that comes from the special district). Basically this means that if the building takes up its entire lot then it can only have 18 full-size floors (or the equivalent). There are various ways to increase the FAR, such as having a public plaza on the lot. The sloped, tapering structure of Stark Tower means that it can have more floors without exceeding its FAR because the upper floors are much smaller than the lower ones. Given the size of the 200 Park Ave lot, it’s believable that Stark Tower could be that tall, given its shape and the various means of increasing the FAR.

Stark mentions that the top ten floors (excluding his personal penthouse, presumably) are “all R&D.” Is that allowed in a C5-3?

Apart from residential uses, the permitted commercial uses in a C5 are use groups 5 (hotels), 6, 9 and 10 (retail shops and business services) and 11 (custom manufacturing). Unfortunately, research and development is not allowed as a permitted or conditional use in this district. In fact, scientific research and development is specifically allowed in a C6 as a conditional use, which requires a special permit and approval from the City Planning Commission.

So Stark needs some kind of special dispensation. How can he get it? There are many possible ways.

The essay goes on to analyze the options for rezoning, variances, and the related issues of electrical power generation permits and FAA approval, again chock full o' links to the statutes, regs, and caselaw.  The author, James Daily, concludes that "while Pepper Potts may indeed have to do some work to get the next few buildings approved, it’s not far-fetched from a legal perspective."  Read the whole thing, it's wild, and quite sophisticated too. 

But I will draw this even more compelling conclusion: Even the world's greatest Superheroes are no match for the awesome power of the Zoning Code and the Planning Commission.

Matt Festa

Memorial Day

Today was Memorial Day in the US.  There are lots of land use issues that we can associate with Memorial Day, which, stripped to its essence, is designed as a day to remember the military members who died in service to the nation.  There is the obvious land use issue of cemeteries, and the related legal and cultural norms governing how we memorialize the dead (check out any of the interesting blog posts or scholarship by Al Brophy and Tanya Marsh on cemeteries).  It gets even more relevant when we start talking about government-owned national or veterans' cemeteries, and the attendant controversies about First Amendment and other issues.  [The photo is from last year's Memorial Day ceremony at Houston National Cemetery, which my daughter attended to honor fallen Marine Lance Corporal Matthew Sauer Medlicott.]  Of course, there are always land use and local government issues involved with things like parades and public ceremonies, and in many communities there are specific rules that govern the "summer season" informally commenced on Memorial Day weekend.

For this post, though, I'll go back to the origins of the holiday.  Interestingly, it started as a private or quasi-public endeavor (perhaps like most civic affairs in the nineteenth century).  In the immediate aftermath of the American Civil War--and for much of the rest of the lives of the generations that fought it--Americans on both sides focused a great deal of attention on preserving its history and creating/controlling its public memory.  In 1868 General John Logan, head of the Union veterans' organization the Grand Army of the Republic (a private society with a great deal of government involvement), issued General Order No. 11, creating what became known as Decoration Day:

The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.

Even though this Decoration Day was only adopted in Union states until after World War I (when it was renamed Memorial Day and formally associated with all American wars), the former Confederate states had their own versions to remember the war dead at cemeteries and public venues.  And according to eminent Yale historian David Blight, the first Memorial Day celebration was performed in Charleston, SC, by newly-liberated blacks:

Thousands of black Charlestonians, most former slaves, remained in the city and conducted a series of commemorations to declare their sense of the meaning of the war. The largest of these events, and unknown until some extraordinary luck in my recent research, took place on May 1, 1865. During the final year of the war, the Confederates had converted the planters' horse track, the Washington Race Course and Jockey Club, into an outdoor prison. Union soldiers were kept in horrible conditions in the interior of the track; at least 257 died of exposure and disease and were hastily buried in a mass grave behind the grandstand. Some twenty-eight black workmen went to the site, re-buried the Union dead properly, and built a high fence around the cemetery. They whitewashed the fence and built an archway over an entrance on which they inscribed the words, "Martyrs of the Race Course" . . . . Then, black Charlestonians in cooperation with white missionaries and teachers, staged an unforgettable parade of 10,000 people on the slaveholders' race course. The symbolic power of the low-country planter aristocracy's horse track (where they had displayed their wealth, leisure, and influence) was not lost on the freedpeople.

Anyone interested in the contested history of these issues--with full attention to the negative aspects as well--should read the magnificent book by Prof. Blight (with a name like that, it's a shame he didn't go into land use!), Race and Reunion: The Civil War in American Memory.  And a related part of this history, along with the Decoration/Memorial Day commemorations, was the incipient historic preservation movement.  This confluence of impulses, as well as the also-new movement for environmental conservation, led to the novel idea of having the federal government acquire and administer large tracts of land for the purpose of preserving Civil War history.  As noted in the fascinating monograph by the late National Park Service Historian Ronald F. Lee, The Origin & Evolution of the National Military Park Idea, this was a new and not-uncontroversial exercise of government power over land use:

The idea of the Nation acquiring an entire battlefield and preserving it for historical purposes was new in 1890. It is therefore not surprising that it soon engendered a serious controversy, which arose, fittingly enough, at Gettysburg. The controversy involved two questions of fundamental importance to the future of historic preservation by the Federal Government. Is preserving and marking the site of an historic battlefield a public purpose and use? If so, is it a purpose for which Congress may authorize acquisition of the necessary land by power of eminent domain? The circumstances of this dispute, which had to be settled by the Supreme Court of the United States, are of unusual interest and provide an appropriate introduction to our story.

Lee describes the case, United States v. Gettysburg Electric Ry. Co., 160 U.S. 668 (1896), in the on-line version of the book provided by the NPS.  The case was brought by a railway which objected to the federal government's use of eminent domain to condemn their right of way for construction of a railway to take tourists to the significant "Devil's Den" area of the battlefield, "claiming that establishment of Gettysburg National Park was not a public purpose within the meaning of earlier legislation and that 'preserving lines of battle' and 'properly marking with tablets the positions occupied' were not public uses which permitted the condemnation of private property by the United States."  [What a long way from Kelo that was!]  Justice Rufus Peckham wrote for the unanimous majority in upholding the taking for preservation purposes (and not simply because members of the public could visit the park):

Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the constitution for the purpose of protecting and preserving the whole country.

The Court thus established the constitutionality of taking land by the federal government for national parks, and struck an important legal blow for historic preservation generally.

So from cemeteries to public memory to national parks and historic preservation and much more, Memorial Day is tied to land use law in many ways.  I hope that our US readers have had a good one, and with remembrance for those whom the holiday commends.

Matt Festa

Stevenson & Eckhart on Standing as Channeling in the Administrative State

My colleague Drury D. Stevenson (South Texas) and Sonny Eckhart (JD, South Texas) have posted Standing as Channeling in the Administrative State, forthcoming in the Boston College Law Review, Vol. 53 (2012).  The abstract:

For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing.

This Article takes the suggestion a step further, and argues that Congress has implicitly delegated the matter to the administrative agencies with primary enforcement authority over the subject matter. Courts regularly allow agencies to fill gaps in their respective statutes, meaning congressional silence on a point often constitutes discretionary leeway for the agency charged with implementation of the statute. Agencies already have explicit statutory authority to preempt citizen suits or define violations for which parties may sue. The existing statutory framework therefore suggests agencies could promulgate rules for the injury-in-fact and causation prongs of standing in citizen suits. Moreover, agencies have an advantage over courts in terms of expertise about the harms involved and which suits best represent the public interest. On the more delicate question of citizen suits against agencies themselves, agencies could default to the “special solicitude for states” rule illustrated in Massachusetts v. EPA. Finally, this Article explains how standing can function as a beneficial channeling tool rather than an awkward screening device, by allowing agencies to align citizen suits more closely with the larger public interest and established policy goals.

The article's administrative-law approach would have special significance for environmental and land use issues, as evidenced by its discussions of American Electric Power v. Connecticut and Massachusetts v. EPA, and the fact that environmental issues are an important subject-matter source of citizen suits. 

You should really check out Dru Stevenson's excellent Privatization Blog, which follows a lot of important land use issues in state & local government, including the privatization of schools, prisons, and other local services.  And some of you may remember Sonny Eckhart's guest-post here last year on a development in the Severance case. 

Matt Festa

Fracking: More on the story from out west

As Jessica Owley noted in her post yesterday, it seems everyone is talking about fracking these days. And it’s not just the east-coast-Marcellus-Shale-folks having all the fun.

Out here in Idaho, fracking looms big on the horizon for two reasons. First, Idaho’s spring legislative session was marked by heated debate about whether local governments should retain control over siting of fracking operations, or whether such powers would be brought to the state level. When the dust settled, the state-level folks won with the March, 2012 passage of Idaho H464, which effectively preempts local control over fracking siting. The issue has now become a matter in upcoming elections in those counties where fracking is most likely to occur in the state.

Second, I’m pleased to announce that I was asked to be the faculty advisor for the 2012-2013 Idaho Law Review’s symposium, which will be held in Spring, 2013, and will focus on fracking. Already several luminaries on the topic are slated to speak, and I’ll announce more on the symposium as time draws closer. We will plan to make the symposium resources readily available since this is such a hot topic.

In the meantime, an interesting side note: natural gas prices keep falling and are really low. As in, a 30-year low. Will the market for natural gas make the fracking fracas fade? Maybe. But probably not. T. Boone Pickens doesn’t think so, and not just because he’s an oil and gas man, but because he believes in global warming. His argument for why natural gas, and fracking, aren’t going away any time soon—and shouldn’t—is here. Is he convincing?

Stephen R. Miller

Fracking Bans

Everyone in New York is talking about fracking. We routinely have folks stopping by our door asking us to sign petitions or donate money to fight fracking. (In fact, NYSPIRG stopped by last night.) I live in the city of Buffalo, which has banned fracking. This is the case in many towns and municipalities around the state and may work because of New Yorks Home Rule law. As there is a moratorium in place pending some additional environmental review, we have some time before courts fully examine the legitimacy of these local bans. The ban in Buffalo is largely sympolic as no one is proposing to drill any gas wells here, but some of these communities are in the heart of the Marcellus shale.

Last week, Vermont became the first state with a state-wide ban. Again this is probably largely symbolic but the public outcry against this technique is worth listening to.

Jessie Owley

New San Francisco public art fee amendments permit off-site and temporary performance funding

Last January I noted in a post that San Francisco was contemplating changes to its public art fee program that I believed were significant in the evolution of such fees. Well, I'm here to report that, after a year of wrangling, such changes were finally adopted and became effective in late May. You can access the text of the legislation here.

Like the majority of over 350 other public art fee programs adopted across the country since the Sixties, San Francisco's new public art fee amendments assess a "percent-for-art" fee on new development, which requires that such development use the stated percentage (typically between .5 and 2 percent) of the total project cost for publicly-accessible art. Many percent-for-art programs apply only to public projects; however, San Francisco's ordinance has long applied to all private development within its downtown core. Most percent-for-art fees also typically require that the public art be placed on-site; however, San Francisco's new amendments require on-site public art, but permit the developer to choose to place part of the required art funding into a trust fund that could be used for off-site or temporary public art performances or installations. The permission of off-site and temporary performances or installations for private development is really what is novel here.

As I describe in an upcoming article (I'll share the link very soon), this change in the public arts funding model reflects a change in the nature of public art itself towards temporary installations. As such, San Francisco's new ordinance is a timely model for other cities that might be considering how to update the funding of public art to reflect changes in the medium funded.

Stephen R. Miller

Call for Presenters: ABA Land Use "Professor's Corner" Teleconference (August 8, 2012)

First, a big congrats to Jessica Owley and Stephen R. Miller on permanently joining the Land Use Prof Blog!  An exceptional blog just got even better!  

How often do you get a chance to make a presentation to a national audience of legal scholars without ever leaving the confines of your own office?  The ABA's RPTE Section has begun holding monthly "Professor's Corner" teleconferences at which law professors from across the country discuss recent court decisions.  Land Use Prof Blog's own Matt Festa made a presentation at one of these teleconferences back in May.  The upcoming August 8th teleconference (12:30 Eastern/ 11:30 Central) will focus solely on land use law issues, and the ABA is seeking two additional panelists to give 15-minute presentations on a recent land use decision of their choice.   

Presenting at an ABA Professor's Corner teleconference obviously requires no travel, gives you an excuse to read up on a recent case, and is something worthy of adding to your CV!  If you're potentialy interested in being a panelist, please contact me directly at [email protected] for the details. 

Troy Rule

Nolon on Regulatory Takings, Property Rights, and Sea Level Rise

John R. Nolon (Pace) has posted Regulatory Takings and Property Rights Confront Sea Level Rise: How Do They Roll.  The abstract:

Under the Beach and Shore Preservation Act, the State of Florida is authorized to conduct extraordinarily expensive beach renourishment projects to restore damaged coastal properties. The statute advances the State’s interest in repairing the damage to the coastal ecosystem and economy caused by hurricanes, high winds, and storm surges. The effect of a renourishment project conducted under the statute is to fix the legal boundary of the littoral property owner at an Erosion Control Line. Plaintiffs in Walton County v. Stop the Beach Renourishment, Inc. claimed that the statute took their common law property rights to their boundary, which would, but for the Act, move gradually landward or seaward, maintaining contact with the water. The Florida Supreme Court disagreed and the U.S. Supreme Court granted certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection to determine whether the state court reinterpreted Florida’s common law as a pretext for upholding the statute against the plaintiffs’ taking claim and, if so, whether that reinterpretation constituted a “judicial taking.” The Court ultimately decided that the Florida court’s interpretation was correct and that there was no regulatory taking. A majority of the Court could not agree as to whether a state court’s interpretation of state common law could constitute a “judicial taking.”

This article discusses greenhouse gas emissions, global warming, sea level rise, and the ferocity of coastal storms associated with climate change. It explores the tension between these movements in nature and the policy of the State of Florida to fix property boundaries, which under common law would move landward as sea level rises. The property rights and title to land of littoral landowners are described and the effect of the Beach and Shore Preservation Act on them discussed. The article contrasts the Florida coastal policy regarding beach and shore protection with the policies and programs of federal, state, and local governments that use other approaches such as accommodating rolling easements, prohibiting shoreline armoring, requiring removal of buildings, purchasing development rights or the land itself, and imposing moratoria on rebuilding after storm events. These may be less expensive and more realistic approaches to long-term coastal erosion and avulsive events and the inevitability of sea level rise as the climate warms and worsens. The article concludes with a recommendation that the framework for federal, state, and local cooperation in coastal management be revisited and strengthened so that the critical resources and knowledge are brought to bear on this critical issue. It suggests that strengthening those ties, rather than radically restructuring the relationship between state and federal courts, is a more productive method of meeting the needs of a changing society.

This is the latest in a series of articles by Prof. Nolon addressing how local land use law can be used to manage climate change, including  The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change; Land Use for Energy Conservation: A Local Strategy for Climate Change Mitigation; and Managing Climate Change through Biological Sequestration: Open Space Law Redux.  The article also discusses Stop the Beach and our favorite Texas Open Beaches Act "rolling easement" case Severance v. Patterson, and offers some solutions toward an integrated federal-state-local framework for coastal management.

Matt Festa

Oswald on Deference in Judicial Review of Public Use Determinations

Lynda J. Oswald (Michigan--Business) has posted The Role of Deference in Judicial Review of Public Use Determinations, forthcoming in 39 Boston College Environmental Affairs Law Review (2012).  The abstract:

In Kelo v. City of New London, the United States Supreme Court emphasized its longstanding practice of deferring to legislative determinations of public use. However, the Court also explicitly acknowledged that the federal Constitution sets a floor, not a ceiling, on individual rights and that the state courts are entitled to take a less deferential approach under their own state constitutions or statutes. This manuscript examines: (1) the ways in which the role of deference in judicial review of public use determinations can vary between federal and state courts and among state jurisdictions; and (2) the difficult issues raised by the interplay between legislatures and courts in public use determinations. Because the Supreme Court’s deferential approach to public use disputes provides little succor to property owners challenging takings, state court challenges to takings are likely to assume increasing importance. Property owners, therefore, need to understand the issues raised by deference in judicial review of public use challenges in both federal and state courts.

Matt Festa

Strong Towns

Today I was listening to a podcast from the Congress for the New Urbanism's annual meeting last week (more on CNU 20 to come . . . ), and I heard a talk by Charles L. Marohn, Jr., the Executive Director of a nonprofit called Strong Towns.  The organization is dedicated to improving community life at the town and neighborhood level.  Here's a link to its ten Placemaking Principles for Strong Towns.

What looks like the best feature is the excellent Strong Towns Blog, which posts in-depth original analyses three times per week.  Recent posts are on topics such as "The Micro City Beautiful"; Low-Impact Development (LID) vs. New Urbanism; and weekly news digests of interesting land use and planning stories.  Check it out.

Matt Festa

Kelly on Strategic Spillovers

Daniel B. Kelly (Notre Dame) has posted Strategic Spillovers, 111 Columbia Law Review 1641 (2011).  The abstract:

The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This Article investigates the costs of strategic spillovers, the circumstances in which threatening to engage in these spillovers may be credible, and potential solutions for eliminating, or at least mitigating, this form of opportunism through externalities.

Matt Festa

Survey for Environmental/Land Use Profs

I am excited for the upcoming AALS midyear workshop on Torts, Environment and Disaster.In particular, we will have a session addressing head on the opportunities and needs for mentoring and making connections across and within communities of scholars. In preparation for a session on 'Generations of Environmental Law' at the upcoming AALS midyear meeting, my fellow panelists and I have created a survey for environmental law professors. With this survey, we hope to get a sense of the types of mentoring available to environmental law faculty as well as get some suggestions for improvement. If you consider yourself a land use or environmental law professor, please add your voice. The survey is only 9 questions and should take 5-10 minutes. We will share the results at the conference and with the environmental law community via listserv and blogs. We appreciate your participation and our community’s efforts to improve connections among colleagues.

Begin Survey

Thanks for your participation,

Jessie Owley

(co panelists = Daniel A. Farber, Bruce R. Huber, John Copeland Nagle, Hari Osofsky, Melissa Powers, and Kalyani Robbins).

Glad to be back!

I am delighted to return to Land Use Prof Blog permanently after my stint here earlier this year. My thanks to Matt Festa and the other editors for giving me a chance to do so.

In addition to new content, I will soon begin posting updates on several items I mentioned in my January posts that have taken interesting turns since. Stay tuned! I also hope to continue the use of this blog as a voice for both the academic and practicing land use community. And so, if you have articles, events, or announcements you'd like to feature on the blog, feel free to contact me, and I'll do my best to get notices up in a timely manner.

Once again, it's great to be back. And the real blogging will begin momentarily...

Stephen R. Miller

DuVivier Wins Best Title Contest

How can you pass up a document called "Beware the Dark Side of Trees?"

K.K. DuVivier recently posted a very helpful document about planting trees in a way that does not reduce the potential passive solar heating you can get for your home. It even comes with helpful diagrams. Who knew a law professor could produce something so practical!

Here is DuVivier's abstact:

Everyone loves puppies, and everyone loves trees. But just as we had to learn to curb and clean up after our dogs, we now need to learn to become responsible tree owners. Many of today’s well-intentioned tree-planting programs ignore the dark side of trees that threaten green energy solutions such as urban gardens, buildings with passive solar designs, solar hot water, and solar-generated electricity systems.
This short pamphlet (one 2-sided page with illustrations) is an attempt to alert everyone to be aware of the dark side of any tree you plant — both the planting location and the shade footprint. Otherwise, any carbon-capture gains from the new trees may be offset by the increased fossil-fuel burned to replace the clean solar energy lost.

Jessie Owley