Saturday, September 29, 2012

Land Use Pedagogy in “Real Time”

Land use professors have aptly observed that the subject of land use lends itself well to the integration of theory and practice.  (See, for example, past Land Use Prof postings on Nolon & Salkin’s scholarship  and conference work dedicated to this topic).  Each city offers up a wealth of land use proposals that can be observed through public hearings and brought into the classroom in various ways, including papers and simulations.  Some professors have even used their land use courses as a practicum in which students draft land use legislation or policy-related documents.

In this posting, I propose a slight twist on the theory and practice concept; one that actively involves students in an ongoing land use matter but also provides “real time” benefits to the community by fostering education and dialogue before a land use decision is made.  My proposal is to integrate student writing requirements with real time blogging about community land use proposals.

As one recent example, a student of mine named Ada Montague wanted to fulfill her advanced writing requirement through a traditional student paper.  She proposed writing on the issue of private investment companies acquiring municipal water supplies.  Her topic was inspired by a real life example--the pending purchase of the City of Missoula’s water supply by The Carlyle Group, a multinational private equity investment firm.  After putting our heads together and meeting with a colleague in the School of Journalism, we decided to transform the writing proposal into a blog format where the student would write a series of informational pieces on the purchase and cover in "real time" the proceedings of the Montana Public Service Commission as it reviewed the proposed sale.  The journalism professor would train the student in the basics of journalistic blogging and help with the technical aspects of uploading content.  (Thank you, Prof. Nadia White).  I, in turn, would review the postings for their legal content in much the same way as I would review a traditional AWR.  The stories would be housed on the School of Journalism’s Et Al. Blog, which is a site dedicated to environmental legal news.  Here is the link with the end result:

The blog’s impact exceeded our expectations.  The community began using the site as the go-to source for information on the sale, and the quality of the public discourse shifted from fear-based to fact-based.  The key players in the proceeding read the blog for analysis and shared items for posting.  When the student gave a final presentation of her work (a requirement for our AWR), the large audience included a member of the Public Service Commission, who was there to glean insights on the issues.  And the site’s content remains in place for use by other communities that may face a similar type of private equity purchase.

Needless to say, it was a powerful teaching experience to supervise this project in collaboration with my journalism colleague.  Most importantly, I realized that there is no need to relegate our students' work to the standard law paper that never sees the light of day, or that reaches completion well after a land use issue has resolved itself.  Both our students and our community can benefit from embedding these capstone writing experiences within the living discourse of the community.  My concluding questions are:  Have others tried such “real time” experiences, and what potential do you see to collaborate regionally and nationally to expand upon this local idea?

Michelle Bryan Mudd

September 29, 2012 in Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, September 24, 2012

Klass on Takings and Transmission

Alexandra B. Klass (Minnesota) has posted Takings and Transmission, forthcoming in the North Carolina Law Review.  The abstract:

Ever since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in the Kelo case itself, where government takes private property for a redevelopment project that will benefit another private party as well as increase the tax base, create new jobs, assist in urban renewal, or otherwise provide economic or social benefits to the public. By contrast, until recently, there has been little change in law or public opinion with regard to takings involving publicly-owned projects such as hospitals or post offices or “use by the public” takings that involve condemnation for railroad lines, electric transmission lines, or other infrastructure projects. However, recent changes in electricity markets and the development of the country’s electric transmission system have raised new questions about the validity of “use by the public” takings in the context of electric transmission lines. With some transmission lines now being built by private, “merchant” companies rather than by publicly-regulated utilities, and with the push to build more interstate transmission lines to transport renewable energy to meet state renewable portfolio standards, what was once a classic public use is now subject to new statutory and constitutional challenges. This Article explores the potential impact of these developments on the use of eminent domain for electric transmission lines. Ultimately, it suggests that states should ensure that their eminent domain laws governing transmission lines are consistent with their policy preferences surrounding energy development in the state, and it outlines some ways for states to accomplish this goal.

I think you could make some analogous analysis about the newly-hot issue of eminent domain and pipelines, for example the controversy over the acquisition of rights of way for the Keystone Pipeline.  Interesting issues.

Matt Festa

September 24, 2012 in Caselaw, Constitutional Law, Economic Development, Eminent Domain, Oil & Gas, Property Rights, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, September 23, 2012

Gov. Christie vetoes hydraulic fracturing wastewater ban citing dormant commerce clause

Back in January I noted that there was a hydraulic fracturing issue likely to spring up over time:  whether state bans on inter-state transport of fracturing wastewater would result in dormant commerce clause violations.  The issue has now hit the front page in New Jersey where last week, Gov. Christie explicitly cited the dormant commerce clause as his reason for vetoing a bill passed by New Jersey's legislature that would have banned fracturing wastewater from being deposited in New Jersey.  Gov. Christie's reasoning is here, noting that New Jersey is unlikely to ever be a fracturing state, and so any fracturing wastewater would necessarily come from out of state.  Response from the legislature is here, citing to a New Jersey Office of Legislative Services opinion stating that the law did not violate the dormant commerce clause.  (I was not able to find the opinion on-line immediately, but have requested it from OLS and will post a copy when and if I receive it.)  Will Christie's explicit reference to the dormant commerce clause heighten the constitutional challenges to fracturing wastewater bans?  Might a seemingly obscure dormant commerce clause claim be the first fracturing issue to make its way to the U.S. Supreme Court, whether from New Jersey or another state?  Stay tuned!

Stephen R. Miller

September 23, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, September 21, 2012

Martinez on Cognitive Reconstruction of Local Government Authority

John Martinez (Utah) has posted From Pyramids to Stories: Cognitive Reconstruction of Local Government Authority.  The abstract:

This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.

The paper offers an alternative approach to classic local government questions about land use.  Interesting ideas to ponder while some of us are here at the Local Government Law Workshop in Milwaukee. 

Matt Festa

September 21, 2012 in Eminent Domain, Local Government, Property Rights, Scholarship, Takings, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, September 20, 2012

Property Jokes

OK, I'll go ahead and post this . . . I wasn't sure if it was "blogworthy," but Steve Clowney seemed to think so (or else he was really desperate for content when he saw this yesterday on my facebook page). To prove that even the musty old historically contingent property forms can have some modern relevance, I showed the class the ironic nostalgia of this hipster, courtesy of former student Uri Heller:

Hipster feoffement

And the crazy thing is that it got a half-decent laugh.  Data point #2 in why I am worried about this Section of students is that yesterday--it being Sept. 19, of course-- I wished them a happy International Talk Like a Pirate Day.  (Pirates are certainly interested in acquiring your property through subsequent possession.)  Then--and this is what has me really worried--they actually laughed again when I mentioned that I was unable to take my 12-year-old daughter to the pirate movie . . . why? 

. . . Because, of course, it was rated Arrrrrrrrrrrr.

I would have thought these students would have had a little better taste in humor.  But at least they are so highly motivated for law school and property class that they are willing to find (or pretend to find) humor in some of the more obscure aspects of Property I. 

Matt Festa

PS  If, like some of us, you are in Milwaukee today, you might realize that you can be a pirate every day, at least at the Milwaukee School of Engineering.


September 20, 2012 in Humorous, Property Theory, Teaching | Permalink | Comments (1) | TrackBack (0)

Trees and Crime

I've been stumbling across a lot studies lately about the links (or lack thereof) between vegetation and crime.I remember back in grad school when I was studying Landscape Architecture, we would meet with communities to discuss what types of parks and resources they would most like to see. The folks in the Fruitvale Neighborhood in Oakland repeatedly told us that they didn't want creeks or trees because these bred crime. Although there was no evidence to support this assertion, several people living in the area balked when we suggested opening up a waterway and adding greenspace.

Another study has come out examining the link between vegetation and crime. A study of Philadelphia indicated that where there are lots of trees, we see lower rates of assaults, robbery, and burglary. Theft, however, was not lower. Interesting to figure out how the perception of crime and statistics play out. (Personally, when I have been robbed the culprits have tended to hide behind cars, not trees). It is educational to juxtapose these crime studies with other work generally linking lower vegetation with lower income neighborhoods.

More on that Philadelphia Study:

"Does Vegetation Encourage or Suppress Urban Crime? Evidence from Philadelphia, PA" by Mary K. Wolfe and Jeremy Mennis in Landscape and Urban Planning (20 Sept. 2012).

ABSTRACT: There is longstanding belief that vegetation encourages crime as it can conceal criminal activity. Other studies, however, have shown that urban residential areas with well-maintained vegetation experience lower rates of certain crime types due to increased surveillance in vegetated spaces as well as the therapeutic effects ascribed to vegetated landscapes. The present research analyzes the association of vegetation with crime in a case study of Philadelphia, Pennsylvania. We examine rates of assaults, robberies, burglaries, and thefts in relation to remotely sensed vegetation abundance at the Census tract level. We employ choropleth mapping, correlation, ordinary least squares regression, and spatial econometric modeling to examine the influence of vegetation on various crime types while controlling for tract-level socioeconomic indicators. Results indicate that vegetation abundance is significantly associated with lower rates of assault, robbery, and burglary, but not theft. This research has implications for urban planning policy, especially as cities are moving towards ‘green’ growth plans and must look to incorporate sustainable methods of crime prevention into city planning.

 jessie owley

September 20, 2012 in Crime, Density, Planning, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 19, 2012

Weinstein on Development Impact Fees

Alan Weinstein (Cleveland-Marshall) has posted The Ohio Supreme Court’s Perverse Stance on
Development Impact Fees and What to Do About It
.  The abstract:

Ohio is among the twenty-two states that have no enabling legislation for development impact fees. But in a 2000 ruling, Homebuilders Association of Dayton and the Miami Valley, et. al. v. City of Beavercreek, a divided Ohio Supreme Court ruled that municipalities could lawfully enact impact fees under their police and “home rule” powers, provided that the fees could pass constitutional muster under a “dual rational nexus test.” On May 31, 2012, however, the Court ruled in Drees Company, et. al. v. Hamilton Township, that a development impact fee enacted by an Ohio township with “limited home rule” powers was an unconstitutional tax. The Court’s unanimous opinion in Hamilton Township was authored by Justice Paul Pfeiffer, who, twelve years before, had authored the main dissenting opinion in the Beavercreek case. This article faults the Court’s opinion invalidating the impact fees in Hamilton Township, arguing that the Court, rather than engaging in a fair-handed analysis, chose instead to rely on very limited authority to support a conclusion that appears to have been pre-determined. In particular, the article demonstrates that the Court failed even to acknowledge, let alone distinguish: (1) its earlier ruling upholding impact fees in Beavercreek and (2) the state supreme court decisions that had rejected the reasoning of the Iowa and Mississippi courts upon which the Court relied in part. The article notes that the Court’s ruling leaves Ohio with a bifurcated approach to impact fees that is perverse because it makes impact fees most defensible in municipalities, in many of which there is little new development, and thus the need for impact fees is less, and effectively prohibits their use in rapidly-developing
townships where they are needed most. The article concludes that the time is long-past for the legislature to examine the policy debate on impact fees and make a decision about adopting enabling legislation for impact fees, and that the decision should be to join the majority of states that have enacted such legislation.

This is a big deal given the increasing resort to impact fees by local governments, while nearly half the states don't have clear rules governing their application.

Matt Festa

September 19, 2012 in Local Government, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 18, 2012

Hirokawa on Urban Forests as Green Infrastructure

Keith Hirokawa (Albany) has posted his latest interesting piece, Urban Forests as Green Infrastructure, a chapter from his book with Patricia Salkin GREENING LOCAL GOVERNMENT: LEGAL STRATEGIES FOR PROMOTING SUSTAINABILITY, EFFICIENCY, AND FISCAL SAVINGS, p. 257, Keith H. Hirokawa and Patricia Salkin, eds., American Bar Association, 2012.  The abstract:

Urban forests capture air and water pollutants as they provide shade, habitat, and social value. The health and character of urban forests are determined by the priorities that communities place on them, the local regulations that direct land use choices, and the extent to which local governments address resource shortages through zoning, resource planning, and resource regulation. Local governments can plan and regulate urban forests to benefit (economically, socially, and environmentally) from the services that trees can provide to communities. This essay explores the role of urban forests in the local provision of local green infrastructure and the ways that local governments capture of the benefits of urban forests by planning and implementing tree protections.

Matt Festa

September 18, 2012 in Books, Environmental Law, Environmentalism, Local Government, Planning, Scholarship, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)

Osofsky & Wiseman on Hybrid Energy Governance

Hari Osofsky (Minnesota) and our former guest blogger Hannah Wiseman (Florida State) have posted a terrific and important new article, Hybrid Energy Governance.  The abstract:

This Article develops a novel theory of energy governance and uses it to assess how institutional nnovation can help meet critical challenges emerging from rapid technological change. Our complex regulatory infrastructure struggles to: (1) manage risky, unconventional fuel extraction technologies like hydraulic fracturing and deepwater drilling appropriately; (2) update our aging electrical grid and implement smart grid approaches that computerize the flow of energy; and (3) integrate cleaner sources onto the physical grid and energy markets. Failing to meet these challenges would threaten our access to cheap and reliable energy and thwart efforts to make the U.S. energy system cleaner, safer, and more equitable. Building from a companion piece proposing a dynamic, comprehensive approach to federalism in energy law, this Article develops a governance model for addressing modern energy challenges. The Article focuses on the potential of institutions that are “hybrid” by virtue of including public and private actors from several governance levels and enabling important interactions among them. Grounding its approach in interdisciplinary governance theory, it argues that these institutions have characteristics that could address structural barriers — such as inadequate, divided regulatory authority and the complexities of including key private actors like utilities — to substantive progress. After introducing its conceptual model, the Article examines several hybrid institutions with substantial regional components that are working to address the three core substantive energy challenges identified
here. It analyzes their progress in meeting these challenges, and whether and how their governance approach is assisting them in doing so.

This looks to be an important contribution to the exploding issues that are coming out of the new energy landscape.

Matt Festa

September 18, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, September 14, 2012

New RLUIPA Website by Merriam and Seeman

From Dwight Merriam comes news of what looks like a really interesting new website and blog on Religious Land Use and Institutionalized Persons Act (RLUIPA) litgation:

Dwight Merriam and Evan Seeman of Robinson & Cole LLP (Dwight teaches at Vermont Law School
and UConn Law School) on August 29, 2012 launched a new land use and zoning law website, RLUIPA-Defense ( –  a resource for anyone wanting to prevent RLUIPA claims or defend against them.  RLUIPA-Defense track news and provides a database of RLUIPA federal and state court decisions, trial materials (oppositions to motions for preliminary injunction, motions for summary judgment, motions to dismiss, jury instructions), and appellate materials (circuit court briefs and petitions for writs of certiorari).  It also includes scholarly articles and legislative history concerning RLUIPA.  Visitors can register to receive e-mail about news and updates.

Prof. Merriam is one of the leading thinkers and writers bridging the land use, planning, and practitioner communities.  Check out the resource at

Matt Festa

September 14, 2012 in RLUIPA, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 12, 2012

Historic Preservation and The Greenest Building Debate

I just got around to reading a report released back in January, 2012 by the National Trust for Historic Preservation, which openly exposes the degree to which historic preservation can be at loggerheads with the green building movement.  The report, entitled The Greenest Building:  Quantifying the Environmental Value of Building Reuse, provides fuel to back the notion that the greenest building is the one that exists.  A nice summary table making the point is the one below:   

The Greenest Building - Table
While this report could have many purposes, I can't help but imagine that it will find--or has already found--use in both federal and state environmental review documents (EISs, EIRs, etc.) or challenges to such documents, especially where a historic building is proposed for demolition and the new building proposed is a gleaming, LEED-certified darling of a thing. 

Developers in hard-to-develop areas have come to realize offering up green construction can be a way to combat historic preservationists who are often popular before local zoning and planning boards.  Will this report make a difference in that battle, or will it be viewed as just one more tool of advocacy?

Stephen R. Miller


September 12, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 11, 2012

Protecting Ag Land in the Big Sky State

Contributing to the growing national dialogue on agriculture and food law, the University of Montana’s Land Use Clinic recently issued a report on agricultural protection through local planning, regulation, and incentives.  While portions of the report are specific to Montana, other portions are more national in scope, discussing a variety of communities that have used land use planning techniques to not only protect agricultural lands from development but also build agricultural support systems that keep producers in operation. 

The Montana Constitution is unique in requiring state lawmakers to “protect, enhance, and develop all of agriculture” (Mont. Const. art. XII, § 1), and Montana is among a small handful of states in expressly requiring mitigation of impacts to agriculture during subdivision review after submission of an Environmental Assessment (Mont. Code Ann. § 76-3-603, -608(3)).  These legal protections were implemented in the early 1970s but have yet to be fully carried out by Montana local governments, many of which are now facing the reality of dwindling agricultural lands and growing demand for local food supply.  A Missoula Independent story titled "Digging In" profiles one case study that is representative of the larger issue.

Agricultural protection is revealing itself to be contentious in Montana, with property rights interests pitted against interests in local food supply and the protection of agricultural heritage.  Last month, I attended a community listening session that was packed with a divided crowd.  Participants were often emotional, but also quite thoughtful, in explaining the dilemma.  Dozens of young farmers belonging to the Community Food Agricultural Coalition sported green t-shirts that read “I like AG in my culture.”  These new farmers expressed a strong desire to pursue agriculture as their livelihood but need significant help locating farmland on which to operate.  This proves difficult because they are not born into farming families and thus unlikely to inherit agricultural property.  The new farmers also need older operators to train them in the trade.   Farmers market representatives added their perspective about the growing demand for local food as a key part of the economy.  Even 4H kids stood up and said “I want to protect agriculture!”

Existing farmers, often nearing retirement age, admonished the audience that their farmland is their “IRA”---the sale of farmland to developers is often their sole source of retirement income after years of hard labor working the land.  To keep the land in production, they argue, requires that the community pay them to do so.  Mitigation requirements, they contend, are simply taking more off the farmers’ backs.   Representatives from the realty organizations argued that people also have a right to housing, and that urbanizing communities will need to look beyond their boundaries for food supply. 

The Clinic’s report offers a possible road map for local governments to begin the long process of creating robust agricultural protection programs that balance these competing interests.  We were lucky enough to receive a grant from the Pleiades Foundation to print and disseminate this report to local governments.  If there are case studies that you believe should be mentioned in the report, we welcome additional suggestions before the final version goes to print.

Michelle Bryan Mudd

September 11, 2012 in Agriculture | Permalink | Comments (0) | TrackBack (0)

Monday, September 10, 2012

Levitin & Wachter ask Why Housing?

Adam J. Levitin (Georgetown Law) and Susan Wachter (Penn--Wharton--Real Estate) have posted Why Housing?, Housing Policy Debate, vol. 23 (2012).  The abstract:

Asset bubbles come and go. Only the housing bubble, however, brought the economy to its knees. Why? What makes housing uniquely a cause of macroeconomic risk?

This Article examines the workings of the housing market as well as theories and empirical evidence about the housing bubble. It explains why housing is a particular source of macroeconomic risk and how changes in the housing finance channel were the critical element in the formation of the bubble.

Interesting stuff.  A lot has been written about the mortgage/financial crisis, but this is a good point in time for looking back with a more long-term perspective. 

Matt Festa

September 10, 2012 in Financial Crisis, Housing, Mortgage Crisis, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, September 9, 2012

Hail and Farewell: Welcome Michelle Bryan Mudd

First,let's all thank John Infranca for some outstanding guest blogging in July and August.  He's doing great work at the Furman Center, and is welcome back here anytime!

Bryan mudd2Now we have the continued good fortune to welcome another terrific guest blogger: Michelle Bryan Mudd, from the University of Montana School of Law.  Here is her web bio:

Professor Michelle Bryan Mudd teaches in the law school’s environmental program, including the Land Use Planning and Water Law courses. She is also Director of the Land Use Clinic, which works on behalf of Montana local governments and is among only a few such clinics nationwide.

Professor Bryan Mudd was drawn to the fields of land use and water law because of her background growing up in ranching and farming communities in the West. Before joining the law school faculty, she was in private practice specializing in land use and water law in both the transactional and litigation contexts. She worked with a variety of clients including local governments, private landowners, non-profits, developers, and affected neighbors and community groups. She brings this diversity of perspective to her work with students and government clients.

Her current research interests include the relationship between land and water use, the balancing of environmental and land use rights, the role of public trust in water rights, and the evolution of eminent domain law.

We're very excited to have her with us for the next few weeks!

Matt Festa

September 9, 2012 in Environmental Law, Scholarship, Teaching, Water | Permalink | Comments (0) | TrackBack (0)

Iglesias on Reunifying Property in the Classroom: Starting with the Questions

Tim Iglesias (San Fransisco) has posted Reunifying Property in the Classroom: Starting with the Questions, not the Answers.  The abstract:

This essay argues that the myriad property doctrines and rules are answers to several consistent legal questions, and that these questions provide a useful framework for teaching Property law. The problem with Property Law courses is that we cover a slew of topics in which we load students up with a wide variety of (often conflicting) answers to these questions without ever revealing that all of the doctrines and rules are responses to the same set of questions.

The proposed framework offers the questions as reference points for navigating the sea of common law Property doctrines and rules. A student still must deal with the treacherous straits of the Rule Against Perpetuities and similar difficulties. However, using the framework of questions she can always look up to see key questions and thereby orient and guide herself to an answer (or set of possible answers).

This is simply a must-read for anyone teaching property and land use.  Prof. Iglesias provides a great overview of some of the contested questions in teaching property, and suggests that regardless of the particulars of theory and doctrine that we choose to teach, we can all profit from thinking hard about the common questions that property issues present.  The essay might be helpful for property students as well.

Matt Festa

September 9, 2012 in Property, Property Theory, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

New U.S. Census Data Visualizations

For some fun, check out the U.S. Census' latest series of data visualizations of current and historical census data.  One is reproduced below.  Check out more of them here.

Stephen R. Miller

September 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, September 7, 2012

Big Box v. Little Bavaria: Lessons in Animus from the Sixth Circuit

The Sixth Circuit's recent decision in Loesel v. City of Frankenmuth, 10-2354, 2012 WL 3553272 (6th Cir. Aug. 20, 2012) provides us new lessons both in the big box wars and for this blog's on-going debate about what constitutes animus for purposes of equal protection claims in the land use context. 

Frankenmuth, “Michigan's Little Bavaria,” is one of the top tourist destinations in Michigan. Despite its popularity with tourists, Frankenmuth maintains a small town atmosphere with a population of 4,838 in the City and 2,049 in the Township, according to the 2000 U.S. Census (the last Census taken before the events relevant to this case occurred). The City is famous for its Bavarian-themed stores, restaurants such as the Bavarian Inn and Zehnder's serving family-style chicken dinners, and its gift shops. Bronner's Christmas Wonderland, the world's largest year-round Christmas store, draws over two million visitors annually.

Frankenmuth MIThe Loesels, the plaintiffs, were the co-owners of a 37–acre tract of land that borders Main Street just outside the Frankenmuth city limits but within the city's urban growth area established by the city and surrounding township to maintain the city's character.  In 2005, the Loesels, who were renting to land to a tenant farmer, entered into an agreement with Wal-Mart to purchase the property for $2.9 million, but subject to a condition that permitted Wal-Mart to back out of the agreement during a "feasibility period" if it determined that it would not be able to build a store on site.  At the time of the agreement, the store Wal-Mart wanted to build was permitted by local zoning code.  However, local officials took significant steps to change the local zoning in a way that other cities had done in successful efforts to keep out Wal-Mart. 

In particular, Frankenmuth's City Manager e-mailed a planner at the state department of transportation noting that "We have heard rumors that the proposed project is a Walmart which I am totally opposed to, and I think most people in Frankenmuth will be opposed to."  The zoning of the Loesels property was subsequently changed, Wal-Mart determined it could not build the store it wanted, and exercised its option to terminate the agreement with the Loesels.  The Loesels subsequently sued the city for $4 million, alleging a variety of constitutional violations.

Of particular note, I believe, was that the Loesels proceeded on an equal protection claim under the "class-of-one" theory in the Supreme Court's Village of Willowbroook v. Olech, 528 U.S. 562 (2000).  It is hard to win these cases because, as part of the plaintiffs' burden, they

must show that the adverse treatment they experienced was so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government's actions were irrational. This showing is made either by negativing every conceivable reason for the government's actions or by demonstrating that the actions were motivated by animus or ill-will.
Id. at *8.  Given our recent discussions on this blog about comments by local government officials stating that they would not issue a permit for a Chik-fil-A because of statements by the owner about gays, I was most interested in the animus discussion.  Here is what the Sixth Circuit held on that front:

Finally, the City contends that the district court should have granted the City judgment as a matter of law on the issue of whether animus or ill will against the Loesels motivated the enactment of the 65,000–square–foot size restriction. The district court determined that a reasonable jury could conclude that the City harbored animus against the Loesels because no invitations or notices were sent to the Loesels concerning the city council meeting at which the proposed size-limitation ordinance was discussed. But the fact that the City was not cognizant of or proactively seeking the Loesels' opinions is a far cry from harboring animus or ill will. Animus is defined as “ill will, antagonism, or hostility usually controlled but deep-seated and sometimes virulent.” Webster's Third New International Dictionary, Unabridged (2002). Similarly, ill will is defined as an “unfriendly feeling: animosity, hostility .” Id. These definitions indicate that a showing of animus or ill will (hereinafter collectively referred to as “animus”) requires more than simply failing to invite the Loesels to a meeting.
The Loesels attempt to bolster the district court's determination on this issue by claiming that Sheila Stamiris, Executive Director of the DDA, harbored feelings of envy because, when Stamiris first heard rumors of the potential sale of Loesels' property to Wal–Mart, she informed City officials in a memorandum that the Loesels were selling their land for a “great deal of money.” But Stamiris never indicated in the memorandum that the amount of money bothered her, nor did she say anything negative about the Loesels in the document. She even mentioned in the memorandum that she was grateful that the City had “been given the ‘heads up’ by the [Loesels]” about the proposed sale. Furthermore, her statement about the money involved in the deal was true: by that date, the Loesels had been offered nearly $3 million by Wal–Mart. Stamiris's isolated remark is therefore insufficient to prove that Stamiris—much less the City officials who actually enacted the ordinance—was motivated by any animus against the Loesels.
Although the Loesels presented abundant evidence showing that certain City officials, such as City Manager Graham, strongly opposed having a Wal–Mart supercenter in Frankenmuth, the animus had to be directed against the Loesels to be relevant to their claim. See Taylor Acquisitions, L.L. C., v. City of Taylor, 313 F. App'x 826, 838 (6th Cir.2009) (holding that the plaintiff had to show in its class-of-one equal protection claim that government officials expressed animus against the plaintiff, not against the development it was proposing); see also Ziss Bros. Constr. Co. v. City of Independence, Ohio, 439 F. App'x 467, 479 (6th Cir.2011) (concluding that the plaintiff failed to allege an equal protection violation based on animus where the plaintiff alleged that the animus of the defendant-city was directed at the plaintiff's proposed development plan and not at the plaintiff itself); McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir.2004) (holding that a class-of-one claim may be established by showing that there “is a totally illegitimate animus toward the plaintiff by the defendant” (emphasis added) (internal quotation marks omitted)). The district court, therefore, should have granted the City's motion for judgment as a matter of law on the animus theory of liability.

Id. at *13 - 14 (emphasis added).  You may recall that Ken Stahl had mentioned that Chick-fil-A might have an equal protection claim under Village of Willowbrook for statements of local government officials stating that they would not permit a Chick-fil-A should such officials follow through on those claims.  What makes the Frankenmuth decision of interest to me is that, similar to the Chick-fil-A controversy, the city manager openly stated that he was "totally opposed to" Wal-Mart and the city changed the zoning code that initially permitted the store with the primary intention of driving Wal-Mart away. 

The difference, the Sixth Circuit seems to imply, is that the plaintiffs are not, in fact, Wal-Mart, but the landowners that sought to sell their land to Wal-Mart.  Is that a legitimate distinction?  I'm not sure I buy it.  For instance, in many such transactions, big box stores enter into a long-term ground lease of the land from the property owners and own only the improvements on the land. Even if this were a long-term lease agreement between the Loesels and a big box store, however, it would seem that the Sixth Circuit's reasoning would not permit recovery under the animus prong of an equal protection claim.  I don't know that I believe there is such a strong distinction between the landowner and a potential big-box purchaser, especially where the sale is conditioned upon permit approvals.  Nonetheless, the Court's reasoning adds more color to the question of the animus debate and who can make such claims that will be of import in how these claims go forward. 

The decision may even effect how future deals between landowners and big box stores are structured in the future.  For instance, might we imagine a scenario in which, as part of a purchase-sale agreement negotiation, the attorneys for the landowner seek a term requiring the big box purchaser to join a lawsuit--if in name only--alleging animus that could potentially be brought by and paid for by the landowner, should the big box exercise its feasibility provision that kills the deal? 

September 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 6, 2012

Salkin on Small Scale Renewable Energy and Local Land Use Regulation

Patricia Salkin (Touro Law Center) has posted Key to Unlocking the Power of Small Scale Renewable Energy: Local Land Use Regulation, Journal of Land Use & Environmental Law No. 27 (2012).  The abstract:

This article provides an overview of some of the strategies that have been used to increase the use of small-scale renewables, focusing on non-commercial renewable energy systems installed at the home or business level. The article begins in Part II with a discussion of various renewable energy incentives offered by the federal and state governments to promote the use of these alternative sources of electricity, including financial and permitting incentives. Part III continues with a detailed examination of how the land use regulatory system can be used to promote small-scale renewable energy by employing traditional zoning techniques, asserting that without an appropriate local land use regime, the incentives reviewed in Part II cannot be effectively utilized. Part IV concludes with a warning to local governments that if they fail to accommodate the emerging federal and state policies supporting the siting of renewable energy sources, they may face preemptive statutory measures in the area of land use regulation. This creates perhaps the greatest incentive for local governments to plan and regulate responsibly for promoting the appropriate use of small-scale renewable energy.

Matt Festa

September 6, 2012 in Clean Energy, Environmental Law, Finance, Local Government, Property, Scholarship, Sustainability, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 5, 2012

Pomeroy on the Case for Standardized Vesting Documents

Chad Pomeroy (St. Mary's) has posted A Theoretical Case for Standardized Vesting Documents.  The abstract:

Practitioners, real estate professionals, and lay people throughout the country rely on the recording system to provide critical information regarding ownership rights and claims. Indeed, the recording system acts as a virtually mandatory repository and disseminator of all potential parties’ claims. This system, in turn, relies on these claimants and their agents to publicize their claims: property purchasers, lenders, lien-claimants, title companies, attorneys - these parties interact, make deals, make claims, order their affairs, and then record. The information system available to us, then, is only as good as what we make of it and what we put into it.

As such, it is surprising how little thought has been put into exactly what it is that we record. Should the mortgage of a lender in Ohio look like that of a lender in Florida? Should a deed from an individual in Texas differ from that of a corporation in Nevada? As it stands now, no one familiar with real estate law or commerce would expect different parties in different jurisdictions to record identical, or even similar, instruments. In an immediate sense, this heterogeneity of the recorded documents (“vesting heterogeneity”) does not seem a good thing: parties utilizing the recording system generally seek to make known, or to discern, the same generic type of information – that is, evidence of claims upon property – so why are different forms and types of documents utilized all over the country?

This article analyzes this vesting heterogeneity from a new perspective and concludes that it is, in fact, cause for significant concern. Vesting heterogeneity has arisen organically, growing with the recording system as they both evolved over time. This historical explanation does not, however, excuse the cost associated with such a lack of uniformity. Anyone seeking information with respect to any piece of property must navigate the complexities and uncertainties that arise because all such information is heterogeneous and, as a consequence, difficult to understand and utilize. This represents both a immediate transactional cost and an increased risk of ill-informed behavior.

This is particularly troublesome because this sort of cost-based concern arising from variability has a well-established analogue in property law that the law clearly desires to avoid. That analogue is the cost that would arise if property law were to permit unlimited property forms and gives rise to what is known as the numerus clausus theory. This theory explains the law’s hostility toward new, or different, types of property and holds that such heterogeneity is not generally permitted because of the extremely high informational costs associated with such creativity.

This article suggests that this common law concept can, and should, inform our analysis of vesting heterogeneity and that it precipitates strongly against such lack of uniformity. This is because the costs that drive the numerus clausus to hold that variability should be limited are strikingly similar to those created by variability of vesting documents. As such, this theory is relevant here such that the same analysis should be applied to vesting heterogeneity by asking whether a different (or “new”) document is helpful enough to outweigh the informational costs inherent therein.

Based on this reasoning, this article concludes that the law is wrong to systematically ignore heterogeneity in vesting documents. Instead, a numerus clausus type of analysis should be applied to new or different vesting documents to determine whether any inherent lack of uniformity is defensible. Where it is not, uniformity should be imposed.

Matt Festa

September 5, 2012 in Contracts, Finance, History, Mortgages, Property, Property Theory, Real Estate Transactions, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Anything But Peripheral: An Occasional Blog Series on California's Delta | Part 1: A Second Chance for the Peripheral Canal


This is the first in an occasional series of blog posts I intend to write this fall about California Gov. Jerry Brown's proposal to build a new peripheral canal in the California Delta.  While living in California for the past decade (I moved to Idaho last year to become a professor), I was slowly enchanted by the Delta:  its history, its wildlife, its role in California's water wars, and beyond.  I wanted to find a way to convey the peculiar issues arising in the Delta to a wider audience and explain why, as I noted in a previous post, I believe the issues in the California Delta are arguably the biggest land use story going on right now.  Standing behind that claim, I figure, requires some dedication to the cause.  And so, I plan to write this series in an effort to explain the current proposal for the Delta, but also some of the history of the place.  I will ultimately make an argument for why what happens in the Delta is a bellwhether for how we will engage with the necessities of adaptation to climate change in the next century. 

One caveat, before I begin, is that I intend these posts to be mini-primers of a sort, but by no means definitive, in contemplating the Delta's future.  It's a blog, after all!  But those who have followed Delta politics over the years will know that simply listing the agencies and coalitions that have had a hand in shaping the Delta could go on for pages.  I'm not going to tell all of those stories of agencies come and gone, but rather, seek to cut through the legal muck and provide those who are not mired in the Delta's details a little light into why we should all care about the Delta.  Moreover, I will seek to convince readers that what happens in the Delta speaks to larger questions we all face about resources, conservation, and climate change.

And so, without further adieu...

A Very Brief Introduction to the Peripheral Canal Proposal

First, some history on water infrastructure in California.  Constructon of a peripheral canal around California's Delta has been proposed since at least 1965.  In 1960, California voters approved the Burns-Porter Act, which authorized (1) the construction of the State Water Project and (2) the issuance of $1.75 billion of general obligation bonds to assist in financing the project.  In 1982, Gov. Jerry Brown, in his first term as governor, proposed a peripheral canal around the California Delta to link the two other parts of the State Water Project, which included a dam and reservoir in Oroville, California that stores water in the winter for release into the Sacramento River and the Sacraemento-San Joaquin River Delta in the summer and a large pumping plant at the southwestern edge of the Delta (near the Clifton Court Forebay, on the map below), to pump water from the Delta into an aqueduct system that services San Joaquin Valley and southern California. 

Gov. Jerry Brown's father, Gov. Pat Brown, was a major architect of the State's water program.  In 1982, when Gov. Jerry Brown was in his first term as governor, he committed to building a peripheral canal that would substantially complete the water project begun by his father.  He received the votes he needed to get the canal through the state legislature, which passed SB 900 (1979-80 session) approving the canal. But the canal soon became a political battle without match, pitting many of the states biggest players against each otherVoters subjected SB 900 to a referendum, and in June, 1982, resoundingly voted against the canal by a 2-to-1 margin.

Many years of wrangling as to the Delta's future ensued, to be discussed in future posts.

In July, 2012, Gov. Jerry Brown, now in his second term, returned to the podium with a new version of the peripheral canal.  Many thought the resounding defeat some thirty years ago made such a proposal untenable.  Ubiquitous declarations of the canal being a "third rail" of California politics were heard.

The 2012 version of the peripheral canal is wrapped in the July, 2012 Bay Delta Conservation Plan (BDCP).  The mechanics of the new peripheral canal on the Sacramento River north of the Delta would include:  three pumpling plants; state-of-the-art fish screens that would protect passing fish; a forebay for temporarily storing water pumped from the river; and two tunnels to carry water 35 miles to the existing pumping plants in the south Delta.  From there the water would enter the existing aqueducts that supply much of southern California and the San Joaquin Valley.  See diagram below.

Peripheral Canal Diagram

Opinion around the state has exhibited a complex mix of complete shock that the governor would dare to bring the peripheral canal to the fore again, proclamations that the proposal is dead on arrival, declamations that it's the end of every fish in the Delta, and others arguing that, well, maybe California really needs the peripheral canal now.  (See news stories in San Francisco, Los Angeles, Sacremento, San Jose, and especially this nice summary). Environmental groups, one of the constituencies that helped sink the original peripheral canal plan back in the Eighties, are giving the peripheral canal a more nuanced look this time.  (See NRDC, Sierra Club.)

But arguably the most important single document in bringing the peripheral canal proposal back from the dead, and one of the most important documents in changing people's opinion about the canal, was a 2007 report by the Public Policy Institute of California (PPIC), Envisioning Futures For the Sacramento-San Joaquin Delta, that spoke about the current status of the Delta, and why something big needs to be done there.  And fast. 

More about the ecosystem of the Delta, and the PPIC report, in the next installment.

Stephen R. Miller

September 5, 2012 | Permalink | Comments (0) | TrackBack (0)