Wednesday, June 13, 2012
Joseph D. Kearney (Marquette) and Thomas W. Merrill (Columbia) have posted Private Rights in Public Lands: The Chicago Lakefront, Montgomery Ward, and the Public Dedication Doctrine, 105 Northwestern University Law Review (2011). The abstract:
The Chicago Lakefront, along Grant Park, is internationally regarded as an urban gem. Its development - or, perhaps more accurately, lack of development - has been the result of a series of legal challenges and court rulings, most famously involving the landmark U.S. Supreme Court decision, Illinois Central R.R. v. Illinois (1892), and four decisions of the Illinois Supreme Court, from 1897 to 1910, involving Aaron Montgomery Ward. The former invented the modern public trust doctrine, which continues as much the favorite of environmental groups; the latter involved the now largely forgotten public dedication doctrine.
This article begins with a description of the evolution of what is now known as Grant Park. After tracing the origins of the public dedication doctrine in the nineteenth century, the article describes how the doctrine was invoked in controversies over the use of the Chicago lakefront before Montgomery Ward came on the scene. The article then details Ward’s remarkable crusade to save Grant Park as an unencumbered open space, which created a powerful body of precedent having a lasting impact on the use of the park. Next, the article describes the limits of the public dedication doctrine that was recognized in the Ward precedents. The article concludes with some brief observations about why the public trust doctrine eclipsed the public dedication doctrine, a comparison of the efficacy of the two doctrines in the context of the Chicago lakefront, and by offering general reflections about what this history tells us about the promises and pitfalls of recognizing 'antiproperty' rights to contest development of public spaces.
A terrific example of how legal history and land use case studies can illuminate important issues of legal doctrine.
June 13, 2012 in Chicago, Constitutional Law, Development, Environmentalism, History, Planning, Property Rights, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 12, 2012
As some of you know, the ABA section on Real Property recently has started a monthly teleconference called "Professors' Corner," to update section members and anyone who else is interested on recent developments in property, real estate, and land use law. Tanya Marsh writes with a reminder that the June call is scheduled for Wednesday, June 13:
The Real Property Trust and Estate Law Section of the ABA will host monthly "Professor's Corner" Conference Calls featuring three property professors who will discuss recent cases. You do not need to be a member of the section or the ABA to participate in the call.
The June call will be held on June 13th at 12:30 eastern/11:30 central and so on. The call-in information is:
Dial in number: 866/646-6488
Participant Pass code: 9479109954
The June call will feature:
Ray Brescia, Visiting Clinical Associate Professor of Law at Yale, currently on leave from Albany Law, will discuss recent developments in "Reverse Redlining" litigation in the wake of the financial crisis. He will focus on recent settlements of actions against Wells Fargo and Countrywide Financial, and provide a brief overview of other ongoing litigation.
Shelby Green, Associate Professor at Pace Law School will discuss Italian Cowboy Partners, Ltd. v. The Prudential Ins., Co. Of Am., 341 S.W.3d 323 (Tex. 2011). In this case, the court considered whether disclaimer-of-representations language in a lease contract precludes a fraud in the inducement claim.
John V. Orth, William Rand Kenan Jr. Professor of Law at University of North Carolina School of Law will discuss RBS Citizens, N.A. v. Ouhrabka, 30 A.3d 1266 (Vt. 2011) in which the court considered a creditor’s challenge to the doctrine of tenancy by the entireties.
Check it out. I participated last month (talking about Severance v. Patterson) along with Tanya and Wilson Freyermuth, and it was a great deal of fun. This month's lineup looks great. I encourage you to dial in; and any prof who is interested in participating should contact Tanya or Troy Rule.
I have been a bit quiet on the blog these past few days because I have been busy attending some amazing events. I already told you all about Widener's Constitutional Environmental Rights Workshop that I found inspiring for kick starting some long-planned work on the Public Trust Doctrine, but I also want to take a moment to praise a new Junior Environmental Law Scholar Works-in-Progress Workshop.
Amanda Leiter of American University's Washington College of Law organized an excellent weekend. Five of us submitted works in progress. We all read each other's work closely and a couple of others joined in to provide comments. We spent 60-90 minutes on each person, with indepth discussions. It was amazingly helpful. We ended on Saturday with a field trip to Kenilworth Park and Aquatic Gardens, a truly hidden jem on the Anacostia River. Events like this are remarkably productive and fun. So who out there wants to coordinate the first Land Use Works-in-Progress event? (please invite me)
"Speaking of frac'ing fraking fracking, the University at Buffalo recently created a new Institute to study the issue. The Shale Resources and Society Institute (SRSI) was created back in April and has already been quite busy. It recently issued its first report on the Environmental Impacts of fracking Shale Gas Drilling.
My first reaction to this report was "Wow, I can't believe they put this together in just one month." Others actually spent more time carefully reading the document, however. Generally, the reaction has been a negative one.I think there are many reasons to criticize the fracking report and to question its findings and others have done so admirably. Environmentalists are concerned about the legitimacy of the study, which concluded that "state oversight of oil and gas regulation has been effective" and that there is "a low risk of an environmental event occuring in shale development, and the risks continue to dimish year after year."
There was some small kerfuffles regarding peer review (peers offered feedback but did not do a formal peer review) and folks disputed the data and the conclusions. I have been quite intrigued by the discussions that have popped up about the funding of the study. While people quickly jumped to the conclusion that the study was funded by oil and gas companies, that turned out not to be true. However, many criticize the publishing of what is a "pro-fracking' report from a public institution. Particularly rankling appears to be the report authors' ties to industry and a earlier report some of them had written for a conservative think tank. This is an issue we rarely face in legal academia as so few of us receive extensive outside funding (and I personally don't know anyone who has received industry funding), but I wonder how much we should have to disclose when publishing articles. Should we include a footnote explaining who our former clients are? what organizations we support? Do these requirements change if we work for public institutions?
The Harvard Civil Rights and Civil Liberties Law Review has published Property and Identity: Vulnerability and Insecurity in the Housing Crisis, 47 Harv. C.R.-C.L. L. Rev. 119 (2012) by Nestor Davidson (Fordham). This piece builds on the author's previous theoretical work in the area of property and personal identity by taking a hard look at the, perhaps evanescent, soul-searching occasioned by the nation's mortgage crisis. Here's an excerpt from the introductory section:
A growing body of evidence in a number of fields has challenged the ethos of acquisition thatprevailed before the crash, and these insights can form the basis for a different understanding of property and identity. It is not clear, however, that this opportunity is taking hold. As the economy stabilizes, early signs of a rebalance involving a shift toward an emphasis on personal relationships and experiences rather than possessions seem to be fading.
The housing crisis, in short, holds lessons about the ineluctable distortions that the intimate landscape of property can generate. This Article focuses on three facets of that landscape. Part I examines the role that status anxiety played in the housing boom. Part II turns to emotional aspects of how the pendulum has swung against homeownership after the downturn. Part III reflects on what these dynamics suggest for rethinking homeownership as a touchstone, and for re-examining the centrality of consumption more broadly. The Article concludes in Part IV by arguing that the legal system and housing policy must be more cognizant of these emotional variables, even if the institutional mechanisms available to do so are relatively limited.
Monday, June 11, 2012
June has long been a perennial favorite of blushing brides and nervous grooms (apparently June, August, September, and October are the most popular months for weddings). In step with the season, on June 6, 2012 the Ninth Circuit issued an intriguing decision, Kaahumanu v. Hawaii, (slip opinion here, or at 2012 WL 2018171), that will affect anyone out there planning to offer vows on a Hawaiian beach at sunset. In short, you will need a permit.
The case also has less romantic, but no less important, offerings for land use lawyers. In particular, it deals with the interplay of First Amendment rights and the regulation of shorelines in a case I think must be one of the few appellate decisions where those lines of law intersect.
The case was brought by a Native Hawaiian pastor and professional wedding event coordinators who objected to the State's permit requirement for any commercial activity, including weddings, on the State's 200 "unencumered beaches." In particular, the regulations applied only to State jurisdiction on such beaches, which extended from the "water's edge" to the "hightide line," defined in a previous Hawaiian case as the "upper reaches of the wash of waves, usually evidenced by the edge of vegetation or by the line of debris left by the wash of waves."
The permit terms were outlined by the court, in part, as follows:
Terms and Conditions provide that a permit can reserve a “right-of-entry area” for no more than two hours. The fee for a permit is $0.10 per square foot of the requested beach area, with a minimum of $20 per “event.” An applicant for a permit must obtain “comprehensive public liability insurance,” naming the State of Hawai‘i as an additional insured, of “at least $300,000 per incident and $500,000 aggregate.” An applicant must also agree to indemnify and hold harmless DLNR for loss or damage arising out of actions by the applicant. No alcoholic beverages are allowed in the permitted area. An applicant must agree to restore the beach to its original condition after the event.
Although the court concluded that "wedding ceremonies are protected by the First Amendment," the court upheld the permit regulations under a variety of First Amendment challenges, even though they applied to weddings as few as three people (the bride, groom, and officiant). Interestingly, the court did hold that another term, which allowed the State to revoke permits or add to permits' terms and conditions with "unbridled discretion," violated the First Amendment.
While the lengthy decision is too detailed to summarize here, those interested in the regulation of commerce at the water's edge--perhaps your mind turns to Nollan or public trust cases among others--will find this case of interest. Those interested in the interplay of the First Amendment and land use will also be rewarded.
Stephen R. Miller
Friday, June 8, 2012
News from Prof. Julian Juergensmeyer on a very exciting opportunity:
Urban Land Use and Environmental Law Position at Georgia State University’s College of Law
Georgia State University College of Law is searching for a tenure-track Assistant/Associate Professor specializing in urban environmental and land use law.
This position is part of a university-wide interdisciplinary hiring initiative of four faculty members—one at the GSU College of Law, and one each at the GSU Departments of Economics, Public Management and Policy, and Sociology—who will collaborate in research and teaching relating to shaping the future of cities. These GSU faculties share a common strength in urban policy, featuring internationally recognized experts in the areas of urban economics, social networks, urban planning, environmental law, and land use law.
This tenure-track position will be associated with the College of Law’s Center for the Comparative Study of Metropolitan Growth, whose mission is to advance interdisciplinary dialogue, academic exchange and research related to the challenges of cities. The Center’s current programs include: an interdisciplinary policy and research program (Urban Fellows Program); a certificate program in Environmental and Land Use Law; a dual degree program with Georgia Tech’s School of City and Regional Planning; a comparative urban policy course taught by foreign scholars; a summer legal study program in Brazil; and international and domestic conferences and symposia on environmental and land use law.
It looks like a fantastic land use/interdisciplinary opportunity.
No "hails" this month (more to come soon, though!), but I did want to make sure and thank Troy Rule for his excellent guest-blogging during the month of May. We're really glad he came back for a return performance. Troy is always welcome here, and until next time we'll keep on the lookout for more of his interesting scholarship on above-the-land use law.
Thursday, June 7, 2012
Over the last several months, some of the big players in the world economy have rolled out new approaches to valuing economies that go beyond the gross domestic product (GDP) approach developed in the 1930s. The new approaches increasingly seek to place a monetary value on the environment. For instance, in February, the United Kingdom established a Natural Capital Committee to value its environmental wealth in terms of air quality, fresh water, wildlife and other natural resources. India committed to doing the same back in 2010.
Earlier this month, the World Bank unveiled its new Environmental Strategy for the next decade, which is intended to assist countries in building “green, clean, and resilient” economies. A key priority of the World Bank’s new approach is its Wealth Accounting and Valuation of Ecosystem Services (WAVES) global partnership which supports countries’ efforts to factor natural capital into national accounting systems. (Data hounds will want to check out the Little Green Data Book - 2012.)
Perhaps of most significance on this front, though, is a report due to be released at the UN’s Rio+20 sustainability conference that is just a few weeks away. At the conference, a new measure will be unveiled, the Inclusive Wealth Index (IWI). From the press release:
The Inclusive Wealth Report, developed by UNU-IHDP (hosted by UNU-ViE) and UNEP, is based on a new economic indicator that measures natural, human and produced capital and can provide guidance for economic development towards sustainability. Scheduled to be published at Rio+20, it will describe the capital base of 20 nations, among them Brazil, China, Germany, India, Kenya and Venezuela.
Brazil and India pay a high price for rapid economic growth, according to experts speaking at a major international meeting in London, Planet under Pressure.
Between 1990 and 2008, the wealth of these two countries as measured by GDP per capita rose 34% and 120% respectively. But a myopic focus on economic capital is flawed, scientists and economists at the conference argue. Natural capital, the sum of a country’s assets, from forests to fossil fuels and minerals, declined 46% in Brazil and 31% in India, according to a new “Inclusive Wealth Indicator” designed to augment GDP as a measure of economic progress.
When measures of natural, human and manufactured capital are considered together to obtain a more comprehensive value, Brazil’s “Inclusive Wealth” rose just 3% and India’s rose 9% over that time.
“The work on Brazil and India illustrates why Gross Domestic Product is inadequate and misleading as an index of economic progress from a long‐term perspective,” says Professor Anantha Duraiappah, Executive Director of the United Nations University’s International Human Dimensions Programme (UNU‐IHDP).
“A country could completely exhaust all its natural resources while posting positive GDP growth. We need an indicator that estimates the wealth of nations – natural, human and manufactured and ideally even the social and ecological constituents of human well‐being.”
The new metric will be detailed in a new book to be published concurrently with Rio+20 called Inclusive Wealth Report 2012: Measuring Progress Toward Sustainability. The implications of valuing “natural capital” appear huge to me, though I don’t know if it always cuts in the environment’s favor. If nothing else, the ability to place a dollar figure on the environment would have the seeming ability to create an "apples-to-apples" comparison with economic development. But environmentalists leading the charge, I think, must presume that the numbers they will arrive at for natural capital will be large, in fact, so large that they will be a tool to challenge economic development projects that don’t pencil out when you factor in the environmental harms. Would it always work that way? How might such numbers be used against the environment? How would the above-quoted UN analysis play out in the politics of Brazil and India? As those of us in the land use world know, so many decisions about the shape of our communities—the land use decisions that shape the relationship between economy and environment—happen at the local level. Will the economic analysis of natural capital be of sufficient specificity to allow local governments to analyze potential projects in light of “nature’s economy”? I am intrigued by these projects, but also maintain a skepticism at this time as to how they will be used as tools. I will be curious to hear back from those attending Rio+20 on this issue and the reception of the IWI metric.
Stephen R. Miller
Wednesday, June 6, 2012
Christopher Leinberger (Brookings) and Mariela Alfonso have published Walk this Way:The Economic Promise of Walkable Places in Metropolitan Washington, D.C., an economic analysis of certain DC neighborhoods using walkability measures. The study offers four findings:
--More walkable places perform better economically.
--Walkable places benefit from being near other walkable places.
--Residents of more walkable places have lower transportation costs and higher transit access, but also higher housing costs.
--Residents of places with poor walkability are generally less affluent and have lower educational attainment than places with good walkability.
The authors urge inclusion of walkability measures into lender underwriting criteria, developer feasability analyses, and private foundation sustainability metrics. In a brief article on TheAtlanticCities.com, Leinberger argues that walkability in neighborhoods has become a price benefit and that cities need to meet the growing demand. (Hat tip to my NDLS colleague Chris O'Byrne for sharing TheAtlanticCities.com piece)
Tuesday, June 5, 2012
Earlier in the Spring, Matt let us know about the availability of the first chapter of Daniel Mandelker's Designing Planned Communities (2010). Now, Prof. Mandelker (Washington U.) has posted the next four chapters of the book. The entire book can be downloaded from the author's website. Here are the links to the second through fifth chapters in order with the author's descriptions:
This is the second chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Planned communities require a number of design solutions: a design for the entire project as well as designs at the site, building, and streetscape levels. The discussion of these issues in this chapter assumes a planned community large enough to need design solutions at the project level and for a number of subsidiary elements such as mixed-use centers, neighborhoods, sites, buildings, and streetscapes. Many of these design solutions are also required in smaller planned communities such as mixed-use communities. All planned communities need a neighborhood design, for example, and all must consider designs for buildings and their sites. This is true even of cluster housing. The chapter surveys the design ideas, concepts, and solutions that are available for planned communities and for each level within these communities.
This is the third chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. This chapter shows how design policies and standards can be incorporated in local comprehensive plans, design guidelines, and manuals for the purpose of guiding the design of planned communities. Comprehensive, or general, plans are mandatory in many states and contain planning policies for the future growth of the jurisdiction. Land-use regulations and decisions are expected to take the planning policies into account, and, in some states, must be consistent with the plan. Design policies can be one of the elements in a plan. Design guidelines and manuals are separate and usually unofficial documents that supplement planning policies in the plan and land-use regulations in the zoning ordinance.
The role these documents play in the review and approval of planned communities varies. Significant design detail in these documents can provide a policy framework for planned community zoning amendments or for formal design standards in planned community regulations. Alternatively, some local governments adopt design guidelines and manuals if they know they will not be able to update their zoning regulations for some time, and need policies to support rezoning requests and variances that may arise from major conflicts with underlying zoning in the meantime.
This is the fourth chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Design standards can be included in the planned community ordinance, where they function as one of the standards local governments consider when they review planned community projects. Such standards in planned community ordinances present a different legal problem than design standards in advisory plans, guidelines, and manuals. Design standards in ordinances are regulatory, and compliance with these standards is a condition to project approval. A constitutional problem may arise, however, if the design standards contain qualitative terms such as “harmonious,” “creative,” or “innovative,” which courts may find unconstitutionally vague.
There is no way around the constitutionality problem if only words are used to set forth a standard because all descriptive words are ambiguous and indeterminate. There is no language “fix” that can solve this problem. This chapter provides examples of design standards that use indeterminate terms that may make the standards vulnerable to constitutional objection. Selecting these standards for discussion was done intentionally, partly because plans, guidelines, and manuals can help give meaning to indeterminate standards, and partly because the constitutional objections are not as serious as many imagine. At the same time, local governments may not opt out of this problem by declining to have any standards for planned communities. A review without standards of planned community projects is an unconstitutional delegation of legislative power.
This is the fifth chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Design standards in planned community regulations can raise constitutional problems because a court can hold them unconstitutionally vague or an unconstitutional delegation of legislative power. This problem occurs especially with planned community regulations that contain indeterminate design standards, such as equirements that a planned community’s design be “creative” or “harmonious.” The judicial record on the constitutional issues is mixed. Some courts have struck down stand-alone design standards that are not part of a comprehensive program for regulating planned communities, but some have not. Courts have upheld design standards when they are one element in a program of planned community regulation. Even when the courts have struck down design standards, they have provided drafting guidelines that can avoid constitutional problems.
Monday, June 4, 2012
Interesting decision out of the US Supreme Court today on infrastructure assessments. In a 6-3 ruling in Armour v. Indianapolis, the Court refused an equal protection challenge from property owners to a municipal sewer assessment. Justice Breyer, writing for the majority, summarized the case and the Court's decision as follows:
For many years, an Indiana statute, the “Barrett Law,” authorized Indiana’s cities to impose upon benefited lot owners the cost of sewer improvement projects. The Law also permitted those lot owners to pay either immediately in the form of a lump sum or over time in installments. In 2005, the city of Indianapolis (City) adopted a new assessment and payment method, the “STEP” plan, and it forgave any Barrett Law installments that lot owners had not yet paid.
A group of lot owners who had already paid their entire Barrett Law assessment in a lump sum believe that the City should have provided them with equivalent refunds. And we must decide whether the City’s refusal to do so unconstitutionally discriminates against them in violation of the Equal Protection Clause, Amdt. 14, §1. We hold that the City had a rational basis for distinguishing between those lot owners who had already paid their share of project costs and those who had not. And we conclude that there is no equal protection violation.
The slip opinion is here.
Stephen R. Miller
Recently I came across the following cluster of five houses in an otherwise standard subdivision of front-
facing houses with their usual (yawn) front setbacks, side setbacks, and usual suburban land use controls that created the dominant suburban urban form.
The image of these five houses in Teton County, Idaho, however, will immediately induce a land use lawyer's headache. Inevitably, everyone knows, that if there is the will to make something like this work as a "one off" experiment, someone will call it a "planned unit development," or something like that, and there will quickly be a retreat from the strictures of the dominant code and a run for the relief provisions, whatever they may be locally. Maybe its a conditional use, maybe it's a special use district, a planned unit development. [Insert your local jurisdiction's relief provision here.]
But I began to wonder... what if you wanted to build a whole community, or thinking big--a whole city--built upon the premise of this five-house approach? As readers of this blog know, I have recently been somewhat infatuated with the idea of how attention to our smallest living units--neighborhoods--can be an impetus to solving our larger land use and environmental challenges. And so, I find this particular model of five units intriguing. Think about the density of these single-family houses (quite high), and think about the livability of an environment like this (also quite high, I believe). This approach will not appeal to everybody--nothing does--but if it can appeal to people in big-sky country of eastern Idaho, I think it could appeal to lots of other people, too. The combination of density and appealability seems to me a potentially winning combination in efforts to try to build more dense, environmentally sustainable communities.
Now, the question is, how could we make experiments in suburban neighborhood design like this easier from a land use law perspective? One person who has thought about the issue significantly is Ross Chapin, whose book Pocket Neighborhoods, addresses urban design of small neighborhood units in suburban reaches. Chapin's dominant proposal clusters 8 to 12 houses, rather than five, around a central "common," as shown in the graphic here. In addition, the Municipal Research and Services Center of Washington has compiled codes from places that have adopted this style of housing, which the Center calls cottage housing. For those interested in pursuing this, a review of the codes the Center has compiled is well worth it. These model and enacted codes provide approaches to neighborhood design that I believe could prove valuable to re-thinking what it means to live in a suburb, and maybe even in quasi-urban, environments.
Stephen R. Miller
Sunday, June 3, 2012
George Lefcoe (USC) has posted CRA v. Matosantos: The Demise of Redevelopment in California and a Proposal for a Fresh Start. The abstract:
This paper describes how redevelopment in California came to an end with the California Supreme Court’s decision in California Redevelopment Association v. Matosantos and how redevelopment could be resuscitated. The first part of the paper highlights the precipitating events leading up to the case: California’s unique property tax history, the successes and drawbacks of redevelopment, how redevelopment is financed, and the text and politics of Proposition 22, the state constitutional predicate for the Court’s opinion. The second section describes the arguments and outcome of the case in which the Court upheld a statute dissolving redevelopment agencies (RDAs) and simultaneously struck down a companion bill — a “pay-to-stay” law — that would have enabled cities and counties to preserve their RDAs by pledging local funds to the state. A concluding section proposes that California legislators consider a new redevelopment enabling law, modeled along the lines of Texas’s tax increment reinvestment zones (TIRZs). Such a statute would conform to the guidelines for constitutionality from the concluding paragraph of the Court’s opinion in Matosantos, and it would be fiscally responsible because it limits the use of tax increment financing.
Friday, June 1, 2012
Yesterday, I spent a delightful jam-packed six hours at a constitutional environmental rights workshop at Widener Law School (Delaware not Pennsylvania) hosted by James May and Erin Daly. The workshop brought in scholars from many corners of the US and elsewhere to talk about how environmental rights are and should be embodied in national and subnational constitutions.
The participants indulgently listened to me ramble about a very new project I have examining the constitutionalization of the Public Trust Doctrine. While many others have written cogently and persuassively about the role of the public trust doctrine (Sax, Thompson, and Blumm jump quickly to ming) and powerhouses like Robin Kudis Craig (I love that she has a wikipedia page) have even helpfully catalogued public trust language in state constitutions, I am seeking to explore the "so what" part of the question. If a state chooses to constitutionalize their public trust doctrine, does that result in any on the ground changes? Are those state more likely to have healthier environments? Are those courts likely to be more protective of the environment? Will the state legislatures feel obligated empowered to pass legislative protecting natural resources? These are the questions I am seeking to explore. (Any advice on how to do so would be warmly welcomed).