Thursday, January 31, 2013

Might hitchhiking be the best transit solution in sprawling and rural areas?

Public transportation agencies around the country have long struggled with how to provide effective, cost-efficient transportation choices in suburban communities where few people take buses, and densities are too low to justify infrastructural costs of subways or light rail.  I’ve been contemplating whether hitchhiking, er, ride-sharing, might be the best, decentralized way to deal with this issue.

This issue came to mind recently because a student of mine wrote a really interesting post on my clinic’s blog (yeah, I make my students blog, don't you?) about his experience in a one-car family where his wife often needs the car during the day, and so he is left to find alternative means home.  Central Boise, where the law school is located, is compact by western city standards, and the city maintains a decent bus system for a city its size.  But as is often the case with bus systems, it doesn’t really take you where you want to go without transfers and an inevitable wait.  On nights when he needed a ride home and his wife had the car, my student started hitchhiking instead of taking the bus home.  Now, Boise is one of those aggressively friendly western towns (think of Arthur Chapman’s “Out Where The West Begins”), so maybe you chalk up his willingness to hitchhike, and others’ willingness to give him a ride, as a matter of culture.  But maybe we have all just come to believe that hitchhiking is more dangerous, and more deviant, than it really is.  Or should be.

Most of us probably think of that lot by the side of the road, at best, like Jack Kerouac presented them in his poem “Hitchhiker”:

"Tryna get to sunny Californy" -
 Boom. It's the awful raincoat
 making me look like a selfdefeated self-murdering imaginary gangster, an idiot in a rueful coat, how can they understand my damp packs - my mud packs -
                 „Look John, a hitchhiker"
                  „He looks like he's got a gun underneath that I. R. A. coat"
                  "Look Fred, that man by the road"                   „Some sexfiend got in print in 1938 in Sex Magazine" –
                 „You found his blue corpse in a greenshade edition, with axe blots"

Undoubtedly, we’ve been told there must be something wrong with that person by the side of the road and they probably intend to do us harm.  But if there was not a stigma around hitchhiking, I mean ride-sharing, maybe we would get more people like my student:  a bright guy whose family can normally do with just one car but on occasion finds himself stuck.  Should we really be forcing such families to buy a second car just for that occasional moment when schedules collide? 

Probably the best known hitchhiking program in the country is the “Casual Carpool” program in San Francisco’s East Bay, where well-heeled suburbanites line up to pile into cars and cross the Bay Bridge into San Francisco for a day’s work in the Financial District.  In this program, the act of hitchhiking has completely lost its sense of danger, a lot of people are getting to work quickly, and a lot of infrastructure never had to be built to accommodate all the cars those people would otherwise be driving to work.

Out in Wyoming, which might be about as far ideologically as you can get from Berkeley, there appears to be agreement at least on this:  hitchhiking might be good not just in urban areas, but rural ones, too.  In fact, a newly introduced bill in Wyoming’s Senate this term would make hitchhiking legal in that state. 

So who knows.  Maybe all of that noodling of transportation engineers about how to solve the problem of how to get lots of people from here to there in far-off distant ‘burbs, and even rural areas, ultimately boils down to changing our sentiments about the hitchhiker.  In urban areas, perhaps it means institutionalizing the act to some degree, such as with the Casual Carpool.

For those who want to learn more, a Freakanomics podcast from 2011 does a great job of discussing the relative danger of hitchhiking, and also its potential for dealing with rides in suburban sprawl, and is available here.  And a hat tip to my student, Nicholas Morgan, who also recommends these sites: Adventuresauce, the hitchwiki, vagabondish’s 10 tips, and this overview of state laws on the issue.

Stephen R. Miller

January 31, 2013 | Permalink | Comments (1) | TrackBack (0)

Friday, January 25, 2013

Tourism May Increase Ecosystem Services

A new article in Landscape and Urban Planning demonstrates that tourism can play a strong role in shaping landscape, indeed more so than local residents might realize. What I find interesting about the study is that it also shows conversion of land from agriculture to tourism resulting in an increase in economic benefit and ecosystem services. It may be hard to apply these findings outside of the Italian Island where the research was conducted, but the lessons about perceptions and planning models extend elsewhere.

Roberta Aretano, Irene Petrosillo, Nicola Zaccarelli, Teodoro Semeraro, Giovanni Zurlini, People Perception of Landscape Change Effects on Ecosystem Services in Small Mediterranean Islands: A Combination of Subjective and Objective Assessments, 112 Landscape and Urban Planning 63 (2013).

ABSTRACT:  Humans constantly modify their environment to better fit their needs. These changes are even more important in small Mediterranean islands, where the flow and type of ecosystem services (ES) is constrained by insularity and heavily exploited by economic activities. We evaluated the dynamics of ES from 1954 to 2007 linked to the changes of the landscape of the Vulcano Island (southern Italy) and related such transformation to the perception of the local communities. We estimated the changes in the total economic value of ES and we coupled this objective assessment with a survey among inhabitants to measure the perception of driving forces and ES. The results show that agriculture was replaced by tourism, which simultaneously has profoundly affected the landscape and brought economic benefits to local population. Despite the urban-sprawl related to tourism development there is an increase of the flow of ES over time because of the conversion of some land-cover classes into others that provide a greater amount of ES. Local communities are aware of landscape and ES dynamics, but they do not perceive tourism as a driving force, which affects the natural attractiveness and cultural identity of their island. This approach integrates a commonly accepted objective technique to assign value to ES, with a subjective assessment taking into account how local people value the flow of ES. Effective strategies for ES management and governance need to address and incorporate local population expectations so to empower local stakeholders in the achievement of higher level of quality of life.

Jessica Owley

January 25, 2013 in Agriculture, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 24, 2013

Food Truck Wars: Dispatches from the Front(s)

For more than two years, a number of us (Ken, Jamie, Matt, and Chad) have blogged about food trucks (usually just around lunchtime).  Here are some articles updating the situation in Chicago and other cities.

The Wall Street Journal reported on legislation and reponsive litigation involving food trucks back in August:  Food Trucks vs. Restaurants (if paywall prevents access, try this Lexis link

and again yesterday, focusing on legal advocacy efforts by the Institute for Justice: Street Vendors Battle Limits (Lexis link)

Earlier this month, the Chicago Tribune published a story on dissatisfaction among the portable vendors with the food truck ordinance Chicago enacted last year.

"Nothing cooking on food trucks \ Since legalization in July, no one has met city's standard" (Lexis link)

 Hat tip to Chris O'Byrne, who passed on this blog post.

 JIm K.

January 24, 2013 in Constitutional Law, Downtown, Food, Parking, Zoning | Permalink | Comments (0) | TrackBack (0)

Conservation Easement Symposium at Utah

I am bummed I can't make it out to Salt Lake City for what looks to be a fascinating half-day symposium on conservation easements. But organizer Nancy McLaughlin tells me that we can watch remotely. Right now, Utah will enable folks to watch the conference while it is happening. If they can get the presenters to agree, they will also record the presentations and make them available. Details below:

Friday, February 15, 2013, 12:00-5:00 p.m. MST
University of Utah S.J. Quinney College of Law

The public is investing billions of dollars in conservation easements, which now protect more than 18 million acres throughout the United States. But uncertainties in the law and abusive practices threaten to undermine public confidence in and the effectiveness of conservation easements as land protection tools. This conference will explore these issues, with the goal of minimizing abuse and helping to ensure that conservation easements actually provide the promised conservation benefits to the public over the long term. Leaders in their respective fields will address (i) the federal tax incentives offered with respect to easements donated as charitable gifts to certain qualified holders, (ii) the state conservation easement enabling statutes, (iii) federal and state oversight of charities, and (iv) the role of state attorney general offices in the charitable sector and in the protection of charitable assets on behalf of the public.

Introductory Remarks

Nancy A. McLaughlin, Robert W. Swenson Professor of Law,
University of Utah S.J. Quinney College of Law 

Federal Tax Incentives

  • History - Theodore S. Sims, Professor of Law, Boston University School of Law; Formerly with the Treasury Department
  • IRS Response to Abuses - Karin Gross, Supervisory Attorney, IRS Office of Chief Counsel
  • Proposed Reforms - Roger Colinvaux, Associate Professor of Law, The Catholic University of America, Columbus School of Law; Former Counsel to the Joint Committee on Taxation

State Enabling Statutes

  • History - K. King Burnett, Uniform Law Commissioner, Member of Uniform Conservation Easement Drafting Committee 
  • Unintended Consequences of “Easement” Terminology - Michael Allan Wolf, Professor of Law and Richard E. Nelson Chair in Local Government Law, University of Florida Levin College of Law, University of Florida Levin College of Law; Editor of Powell on Real Property
  • Reforms - Jeffrey Pidot, Former Chief of the Natural Resources Division of the Maine Attorney General’s Office (retired); Originator of Maine’s Enabling Statute Reforms

Charity Oversight

  • Cases and Controversies - Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law 
  • History - Marion R. Fremont-Smith, Senior Research Fellow, Hauser Center for Nonprofit Organizations, Harvard University 
  • Limits of Self-Regulation - Melanie B. Leslie, Professor of Law, Cardozo Law School

Working With State Attorney General Offices

  • Overview of Attorney General’s Role in Charitable Sector - Mark A. Pacella, Chief Deputy Attorney General, Charitable Trusts and Organizations Section, Pennsylvania Office of the Attorney General 
  • Working With the Attorney General’s Office in New Hampshire - Terry M. Knowles, Assistant Director, Charitable Trusts Unit, Department of Attorney General of New Hampshire
  • Working With the Attorney General’s Office in California - Darla Guenzler, Executive Director, California Council of Land Trusts

Concluding Remarks­­—Taking The Long View

Wendy Fisher, Executive Director, Utah Open Lands Conservation Association

Jessie Owley

January 24, 2013 in Conferences, Conservation Easements | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 23, 2013

ALPS Call for Papers

The Association for Law, Property, and Society (ALPS) has quicky become THE place to be each year for the leading conference on property, land use, and real estate, as well as environmental law and local government.  Hari Osofsky has posted the Call for Papers for this year's 4th Annual Meeting in Minneapolis in April. 

The ALPS 4th Annual Meeting,, will be
held at University of Minnesota Law School, April 26-27, 2013. Our annual meetings attract
over 100 participants, approximately one third of whom come from outside of North America and
a number of whom do interdisciplinary work.

Registration and paper/panel submission is available through the conference website or directly at The deadline for
submitting papers and panels is March 1, 2013, but registration for the conference will continue
to be available after that date. Please do not submit papers and panels after March 1, 2013 as part
of your registration without having emailed Hari Osofsky, for permission to
submit late. We will do our best to accommodate late submission requests, but can only
guarantee that proposals submitted by the March 1, 2013 deadline will be able to be considered
for the conference.

This year’s registration includes an option to register to attend without presenting and an option
to submit complete panels in addition to individual papers. As in previous years, we will have
both draft paper panels and early works-in-progress panels dedicated to brainstorming scholarship
at its beginning stages. We also plan to support early-career scholars in their development and in
connecting to mentors through the conference events. A discounted early registration rate of
$145 is available until March 1, 2013; after that date, the registration rate is $175.

We welcome papers on any subject related to property law and from a diversity of viewpoints.
Property related topics areas can include but are not limited to:
· Civil Rights & Inequality (including Race, Gender, Religion, Income, Disability,
etc)/Critical Legal Studies
· Economics and Property Law
· Energy/Environment/Climate Change
· History of Property
· Housing/Urban Development/Mortgages and Foreclosure
· Indian Law/Indigenous Rights Law
· Intellectual Property
· International Property Law/Human Rights and Property/Cultural Property
· Land Use Planning/Real Estate/Entrepreneurship
· Property and Personhood/Concept of Home
· Property Theory
· Takings and Eminent Domain
· Teaching Property

The ALPS 4th Annual Meeting has been planned to immediately follow a conference on Legal
and Policy Pathways for Energy Innovation on April 24 and 25, 2013,, sponsored by the
University of Minnesota’s Consortium on Law and Values in Health, Environment & the Life
Sciences. That conference also is currently accepting paper and panel proposals and offers
discounted registration to ALPS conference participants.
We look forward to welcoming you to Minnesota!

ALPS really is the place to be for any scholar connected with property and land use.  On behalf of the membership & outreach committee, we hope to see all of you there!

Matt Festa

January 23, 2013 in Conferences, Scholarship | Permalink | Comments (1) | TrackBack (0)

The right to hunt, the right to fish: Just another wedge issue, a threat—or maybe a boon—to conservation?

There is a newly discovered, “ancient” right making its way into state constitutions across the country these days.  It is alternatively packaged as the “right to hunt,” the “right to fish,” the “right to trap” or all three.  I became aware of this issue when my state, Idaho, overwhelmingly passed such a constitutional amendment last November. Initially, I thought this was just another “only in Idaho” story:  people here are gun-happy, hunting and fishing-loving souls.  (For the record, I am an occasional fisher, and am not opposed to hunting or fishing).  But then I began to look into it, and it turns out that seventeen—yes, seventeen—states have amended their constitutions with one of these right to hunt-fish-trap provisions. 

Apparently these provisions are being pushed by the National Rifle Association (NRA) and related sports groups who believe that latte-sipping liberals in cities won’t stop at trying to get rid of assault rifles, but will also try to eliminate the right to hunt anything—even deer,pheasant, you name it.  Perhaps that is truly the origin of these provisions, but if so, I wonder how much this strategy was thought through.  As I’ve read the provisions, I can’t help but wonder if some court won’t end up using these newly proclaimed rights as tools for conservation.  Here is a quick look at how that might play out.

Vermont—that bastion of liberalism—was the first state to grant the right to hunt way back in 1777. According to the National Conference of State Legislatures, other states realized the necessity for the right to hunt-fish-trap much later:  Alabama (1996); Minnesota (1998); North Dakota (2000); Virginia (2000); Wisconsin (2003); Louisiana (2004); Montana (2004); Georgia (2006); Oklahoma (2008); Arkansas (2010); South Carolina (2010); Tennessee (2010); Idaho (2012); Kentucky (2012); Nebraska (2012); and Wyoming (2012). 

Several sites have already collected the text of the right to hunt-fish-trap constitutional provisions, such as this collection by the National Shooting Sports Foundation.  They are worth reviewing in their entirety as, to my eye, they reflect a surprising diversity of language given the fact that there appears to be a major group like the NRA behind this.  I do want to highlight just a couple of the provisions, however, to illustrate what I think may be unintended effects of these provisions.  First, let’s look at Alabama’s provision passed in 1996:

All persons shall have the right to hunt and fish in this state in accordance with law and regulations.

Short and sweet. Compare that to the provision recently passed in Idaho:

The rights to hunt, fish and trap, including by the use of traditional methods, are a valued part of the heritage of the State of Idaho and shall forever be preserved for the people and managed through the laws, rules and proclamations that preserve the future of hunting, fishing and trapping. Public hunting, fishing and trapping of wildlife shall be a preferred means of managing wildlife. The rights set forth herein do not create a right to trespass on private property, shall not affect rights to divert, appropriate and use water, or establish any minimum amount of water in any water body, shall not lead to a diminution of other private rights, and shall not prevent the suspension or revocation, pursuant to statute enacted by the Legislature, of an individual's hunting, fishing or trapping license.

What’s interesting about the Idaho provision is that what the first sentence giveth, the subsequent sentences taketh away.  Yes, the Idaho provision explicitly states that “hunting, fishing, and trapping shall be a preferred means of wildlife management.”  But, the Idaho provision also states that this does not otherwise provide a right of trespass on private property; that the provision cannot be used to, essentially, lessen any water right or guarantee an in-stream flow; and that it does not “lead . . . to the diminution of other private rights.” 

Now, go back to the Alabama provision, which has none of the explicit “take backs” of the Idaho provision. Does that mean that the Alabama provision could potentially affect trespass on private property; affect water rights; guarantee in-stream flows; or lead to the “diminution of other private rights”? Take a look at Minnesota’s provision and ask the same questions:

Hunting and fishing and the taking of game and fish are a valued part of our heritage that shall be forever preserved for the people and shall be managed by law and regulation for the public good.

And now ask those questions of North Dakota:

Hunting, trapping, and fishing and the taking of game and fish are a valued part of our heritage and will be forever preserved for the people and managed by law and regulation for the public good.

Do these provisions that don’t “taketh away” like the Idaho provisions potentially affect private rights or water rights?  I don’t have the answers, only questions, because in my (admittedly, very brief) research I found no cases that actually applied any of these newly minted right to hunt-fish-trap provisions.  Nonetheless, I think many might have viewed these provisions as anti-conservation, or anti-environmentalist in nature.  It might play out that way, but I’m not sure it is necessarily destined to. 

Several arguments.  First, ostensibly the right to hunt-fish-trap imbues not just to this generation, but also to subsequent generations, as do all other constitutional rights.  As such, we would seemingly have an obligation to take care of those wildlife resources in a manner that would maintain the right to hunt-fish-trap in perpetuity not just for state residents today, but for those of tomorrow.  This is squarely in line with traditional notions of sustainability:  using resources today in a manner that does not diminish their use for future generations.  Second, many of the animals that would be covered by a right to hunt-fish-trap would seemingly include those that are exposed to climate change.  Maintaining this right to hunt-fish-trap in perpetuity would seemingly also require adaptive management strategies to ensure that changes to habitat ranges would be studied and that the state would act to ensure that such animals are protected in these new habitats so that hunters of future generations could exercise their hunting-fishing-trapping rights. 

Finally, it could be that even a state’s failure to address climate change in other capacities could be susceptible to a right to hunt-fish-trap challenge.  After all, failure to address climate change will affect those animals that hunters-fishers-trappers need for their sport through changes to habitat, etc. If the state does not act in ways that would mitigate climate change’s effects, they would necessarily be impacting future generation’s ability to hunt, fish, and trap.  

Of course, all of these arguments are highly speculative, and I’m guessing, far from the minds of those who put these rights to hunt-fish-trip in place.  But I don’t know.  Maybe not.  And maybe these thoughts were in the minds of the voters that overwhelmingly passed these provisions.  As we all know, the broad language of many constitutional provisions can open up interpretations not anticipated by those who pushed for the initial provision.  That may just be the case with right to hunt-fish-trap provisions.

Stephen R. Miller

January 23, 2013 | Permalink | Comments (1) | TrackBack (0)

Conservation Land = Tax Exempt?

When it comes to conservation easements, there are a lot of tax issues that arise. Yesterday, I referred to charitable tax deductions associated with donated conservation easements. Many conservation easements also result in reduced property taxes for landowners. This varies by state law and only occurs where the conservation easement reduces the property value. Generally, however, lands encumbered with conservation easements are still taxed. In fact, the fact that the land stays on the tax rolls has been touted as a benefit of conservation easements (when compared to government acquisition of the land). That is, tax revenue generated by the land may be reduced, but the landowner is still contributing to local services. A new case from a New Mexico Appeals Court holds that for some conserved property, no property taxes will be owed.

The court held that property owned by a conservation organization, subject to a conservation easement prohibiting all construction, for the purpose of open space conservation constitutes a “charitable use” that is exempt from property taxes under the New Mexico Constitution. The state Constitution provides that “all property used for educational or charitable purposes [among various other uses]… shall be exempt from taxation.”

The local government argued that it conservation should not be considered a charitable “use” because the “land that is idle, unimproved and not in actual use” and there “is no direct and immediate charitable use, and for which the claimed environmental benefit—even if construed to be a charitable purpose—is, at best, remote and consequential.” The court disagreed, explaining that “conservation benefits the public … through maintaining the Property for the public’s benefit in its natural, pristine state without any particular human activities or construction.” The court emphasized that not all conserved parcels would meet the charitable use criteria and a case-by-case analysis will be necessary. This will likely be a hard standard to meet for most conservation easements and it is not clear how important the identity of the underlying landowner was.

Jessica Owley

January 23, 2013 in Conservation Easements, Land Trust, Local Government | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 22, 2013

Garnett on Redeeming Transect Zoning

NDLS colleague and super-mom Nicole Stelle Garnett (Notre Dame) has recently posted Redeeming Transect Zoning?, 78 Brook. L. Rev. ____ (forthcoming).  In it, she continues the skeptical evaluation of New Urbanists as successors to Jane Jacobs' response to bad planning that she set out in her book Ordering the City (2010).  This brief article takes a look at actual form-based zoning code reforms gaining currency in U.S. localities.  Here's the abstract:

Thanks to the growing influence of the new urbanists, transect zoning” is becoming the zoning reform du jour. This alternative to zoning traces its origins to architect Andrés Duany’s 2003 SmartCode, which proceeds upon the assumption that urban development naturally proceeds from more-dense areas to less-dense ones. Duany calls this progression the “transect” and urges cities to replace traditional use zoning with regulations on building form appropriate to the various “transect zones” along the progression. Over the last decade, increasing numbers of jurisdictions (large and small) have adopted “transect zoning” laws and the “form-based” codes that accompany and supplement them. Theoretically, transect zoning embraces a relatively simple conception of how to regulate urban development: buildings that are appropriate for the city center should go in the city center (regardless of their use), and suburban buildings should look suburban (again, regardless of their use). In its implementation, however, transect zoning is anything but simple. As a practical matter, the new urbanists favor meticulous and exhaustive aesthetic regulations, found in the form-based codes that represent the ubiquitous gap-fillers in transect-zoning regimes. This Essay begins by briefly describing the rapidly evolving phenomenon of transect zoning and its companion, form-based coding. It then discusses four concerns raised by the current uses of both devices as public land-use-regulatory devices. The Essay concludes by suggesting that form-based codes may be most appropriate in situations approximating the private-development context rather than as a public regulatory.

Jim K.

January 22, 2013 in Form-Based Codes, New Urbanism, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

What is the Value of a Historic Facade Easement?

For those of you interested in conservation easements (particularly historic façade easements), you may have been following the Scheidelman saga.The next installment is now out.

In Scheidelman v. Comissioner, T.C. Memo. 2010-151 [Scheidelman I], the landowner sought a deduction for a façade easement burdening her Brooklyn brownstone. The Tax Court disqualified an appraisal because it viewed the method of calculating the easement’s value inadequate. Appraisals must include the method of valuation used as well as the specific basis for the valuation. The appraiser applied a percentage to the fair market value of the property before conveyance of the conservation easement. The Tax Court found that the appraiser had insufficiently explained the method (i.e., the percentage approach) and basis of the valuation (i.e., the specific data used).

The landowner appealed to the Second Circuit. The Second Circuit [Scheidelman II, 682 F.3d 189 (2d Cir. 2012)] reversed the Tax Court, saying that the shortcomings of the approach should not disqualify the appraisal.

On remand [Scheidelman III, T.C. Memo. 2013-18 ], the Tax Court accepted the Second Circuit's assessment that the appraisal was “qualified” but still  thought it was crappy was not credible. You can check out the case if you want to delve into the nitty gritty of appraisal methods. The most problematic issue appeared to be the fact that the appraisal just picked a number between 10 and 12% of the fair market value of the home when trying to determine the value of the conservation easement. The appraiser's reasoned that those are the numbers that courts and the IRS seem to like instead of actually looking at the property and making an assessment.

I am enamored of this case though because in the end the Tax Court said no tax deduction is warranted. The evidence demonstrates that façade easements actually increase the value of homes in this area. Additionally, the landowner herself admitted that she was seeking a tax deduction for something she would have done anyway. Here is my favorite quote from the landowner:

    "Well, I was primarily interested in preserving my house itself in light of the dramatic development     that was occurring in and around Fort Greene during those years and still is. I was also intrigued by     the tax benefit of preserving the facade which I had intended to do anyway. …I also wanted to benefit     tax wise. I didn't know how much I would benefit, but I wanted to benefit from what I was already     intended to be committed to doing."

I have been disturbed fascinated by conservation easement tax deductions that pay owners not to do things they never planned on doing. In understand that there can be some value to the conservation easements becuase perhaps future landowners would have other desires, but it is hard for me to reconcile that worth with the high value of tax deductions current landowners receive. I am glad to see the IRS and Tax Court calling these landowners out. Maybe if a landowner seeks to claim a tax decuction for a conservation easement and we see that the conservation easement increased the value of their land, they should have to pay that difference to the treasury.

Jessica Owley




January 22, 2013 in Architecture, Caselaw, Conservation Easements, Development, Historic Preservation, New York, Property Rights | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 16, 2013

MacLeod on Values in Land Use Regulation

I just received in the mail yesterday a copy of the first issue of Vol. 101 of the Kentucky Law Journal.  It features a great new article by former LUP guest blogger Adam MacLeod (Faulkner).   Adam is a Visiting Fellow in the James Madison Program in American Ideals and Insitutions at Princeton for the current academic year.  Adam's article is entited "Identifying Values in Land Use Regulation".  Here's a selection from the abstract: 

The rules governing the lawfulness of land use decisions are a mess. State enabling acts elide distinguishable and plural objectives of the police powers. Courts—especially state courts—generally fail to distinguish between different types of challenges and different types of land use regulatory actions. As a result, courts typically resort to the deferential position that the Supreme Court adopted in Village of Euclid, Ohio v. Ambler Realty Co., even where that standard of review is wholly inappropriate.
Meanwhile, the evidence is mounting that local governments often exercise their land use regulatory authority in arbitrary, irrational, and discriminatory ways. Without meaningful judicial oversight, parties are powerless to challenge these abuses. Meaningful judicial oversight would require some comprehensive account of the police powers, and particularly which regulatory objectives are permissible in which circumstances. No comprehensive account has emerged. Courts are understandably unwilling to scrutinize the regulatory objectives of local governments. And scholars remain trapped in zero-sum warfare between individual property rights and the collective interests served by political action.
This article offers a proposal to clarify the picture. The proposal is drawn from recent insights in perfectionist jurisprudence, and seeks to ground land use governance in rational objectives, while avoiding the false individualist-collectivist dichotomy. The proposal rests upon the perfectionist claim that there exist some basic human goods in which people participate communally, for the benefit of all, and that rights can and should be derived from these goods. States would do well to identify the connections between the police powers and these goods, and to require local governments to act rationally by preserving the conditions in which these common goods are realized by members of the community. 

I am very excited about Adam's neo-Aristotelian project here. I am developing a piece on Catholic Social Teaching's insights about the parameters of a just economic order.  Trying to move beyond the narrow redistribution controveries, I am interested in CST's ramifications for those aspects of immigration, education finance and land use law that create such strongly exclusive communities in supposedly free market societies. 

Jim K.

January 16, 2013 in Property Theory, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, January 14, 2013

Great collection of historic preservation articles

Last fall I attended the National Trust for Historic Preservation’s annual conference, which was held in Spokane, Washington. Among the conference schwag was a special edition of the Trust’s Forum Journal magazine called Game Changers: Forum Journal Articles That Have Made a Difference, 1987-2012. The special edition has a number of great articles that will be an invaluable resource to anyone with a historic preservation interest. The catch is, it may be hard to get ahold of the special edition if you are not a member of the Trust or did not attend the conference because the Trust does not appear to sell single copies (or at least, I did not see a way to purchase the issue on the Trust's website).  For those who may be interested, here is a list of the special edition article titles followed by the author in parentheses:

Introduction (Stephanie K. Meeks)

The Future of the National Register (Carol Shull)

The Critical Need for a Sensitive—and Sensible—National Transportation Policy (Constance E. Beaumont)

Cultual Diversity in Historic Preservation: Where We Have Been, Where We Are Going (Toni Lee)

I Can’t See It; I Don’t Understand It; And It Doesn’t Look Old To Me (Richard Longstreth)

Economics and Historic Preservation (Donovan D. Rypkema)

Are There Too Many House Museums? (Richard Moe)

The Greenest Building Is…One That Is Already Built (Carl Elefante)

If any of these articles sound interesting to you, it might be worth trying to track down the Fall, 2012 copy of Forum Journal.

Stephen R. Miller

January 14, 2013 in Historic Preservation | Permalink | Comments (0) | TrackBack (0)

Friday, January 4, 2013

Land Use in "Promised Land"

Living in Pennsylvania (as I now do) I feel compelled to see the new Matt Damon movie "Promised Land," which opened in local theaters yesterday.  The movie is about fracking, and the trailers look very intriguing.  (I saw the trailer while seeing Tom Cruise's new movie "Jack Reacher" which, while most notable for multiple visceral fight sceens and car chases, also has a land use angle - SPOILER ALERT the villians are developers trying to get an advantage in a development project in downtown Pittsburgh.)

Today I was searching for a review of Promised Land and I stumbled across this article on, which had an interesting critique of a scene where local citizens vote on whether fracking would happen in their town.

The film remains in the realm of fiction as the town debates an upcoming vote on whether drilling and fracking should be allowed. In the real world, there's almost never a vote.

"In Pennsylvania, where this film was made, municipalities have very little authority over what happens," says Kate Sinding, senior attorney and deputy director of the Natural Resources Defense Council. "They certainly don't get an up-and-down vote."

Still, I think this movie is a "don't miss" for land use afficianados, and I plan to see it soon.

Jamie Baker Roskie

January 4, 2013 in Clean Energy, Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Local Government, Oil & Gas | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 2, 2013

Sale of Frank Lloyd Wright House Assures Preservation

Here's a story out of Arizona, where apparently a historic Frank Lloyd Wright house was under dispute.   From the New York Times story by Fernanda Santos and Michael Kimmelman:

The conservancy and other organizations petitioned the city in June to consider giving the house landmark status, after they learned of the former owners’ plans to split the lot to build the new homes. Three local government bodies approved the landmark designation, but the Council, which has the final say, postponed its vote twice, in part to give the parties more time to strike some type of compromise. There was also uncertainty over how some of its members would vote, given the homeowners’ lack of consent for the landmark process.

“If ever there was a case to balance private property rights versus the public good, to save something historically important to the cultural legacy of the city, this was it,” Larry Woodin, the president of the conservancy, said in an interview. 

Seems like a good result here, while communities across the nation continue to struggle with how to strike that balance.

Matt Festa

January 2, 2013 in Aesthetic Regulation, Architecture, Historic Preservation, History, Homeowners Associations, Housing, Local Government, Planning, Property Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 1, 2013

Tyson on Localism, Annexation, and New Regionalism

Christopher J. Tyson (LSU) has posted Localism and Involuntary Annexation: Reconsidering
Approaches to New Regionalism
, published in the Tulane Law Review, Vol. 87 (2012).  The abstract:

"Involuntary" annexation - the ability of cities to expand their territory unilaterally by extending their boundaries - is one of the most controversial devices in land use law. It is under attack in virtually every state where it exists. Involuntary annexation is a direct threat to "localism," the belief in small,
autonomous units of government as the optimum forum for expressing democratic freedom, fostering community, and organizing local government. Localism has been justifiably faulted with spurring metropolitan fragmentation and the attendant challenges it creates for regional governance. This critique is at the center of "New Regionalism," a movement of scholars and policy makers focused on promoting regional governance structures that respect the cultural draw of localism while correcting for its deficiencies. New Regionalism emphasizes bottom-up, voluntary governance structures and dismisses approaches like involuntary annexation as politically infeasible. Both types of approaches face considerable political challenges, but there are arguably more examples of well-functioning involuntary annexation regimes than there are successful models of New Regionalism. While involuntary annexation has been critical to the success of metropolitan regions in Texas and North Carolina, many regard it as a violation of the liberty and freedom that comes with property rights. Property rights are rooted in instinctive and culturally reinforced notions of personal identity and the inviolability of ownership. Localism extends this logic to municipal identity. The hostility toward involuntary annexation, therefore, can be understood as a response to the taking of a person's perceived right to express individual identity, group identity, status, and ownership through municipal identity. This notion of municipal identity as property threatens to undermine both existing involuntary annexation regimes as well as future New Regionalist proposals. While New Regionalism has well-reasoned justifications for focusing on more-voluntary, bottom-up governance structures, involuntary annexation remains a potent tool for facilitating regional governance and is worthy of defense and preservation.

Matt Festa

January 1, 2013 in Local Government, Planning, Politics, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Craig on Treating Offshore Submerged Lands as Public Lands

Robin Kundis Craig (Utah) has posted Treating Offshore Submerged Lands as Public Lands: An Historical Perspective, forthcoming in Public Land & Resources Review (2013).  The abstract:

When President Harry Truman proclaimed federal control over the United States’s continental shelf in 1945, he did so primarily to secure the energy resources — oil and gas — embedded in those submerged lands. Nevertheless, the mineral wealth of the continental shelf spurred two critical legal battles over their control and disposition: First, whether the federal government had any interest in the first three miles of continental shelf; and second, if so, whether the federal government had authority to regulate the continental shelf under traditional federal public land laws, such as the Minerals Leasing Act. Congress’s reactions to federal courts’ resolutions of these questions, embodied in 1953 in the Submerged Lands Act and the Outer Continental Shelf Lands Act, continue to provide the foundations for state and federal management of the nation’s continental shelf and its energy resources.

Nevertheless, the Outer Continental Shelf’s status as federal public lands remains ambiguous. This
Article takes an historical approach to assessing that issue, reviewing the traditional definition of federal “public lands” and the historical context of the public lands issues that arose for the Outer Continental Shelf. It concludes that the Outer Continental Shelf, from a natural resources perspective, qualifies as the newest of the federal public lands, but it also acknowledges that — unlike for many other public lands — federal statutes repeatedly and consistently exclude the states from gaining ownership of those submerged lands.

Matt Festa

January 1, 2013 in Environmental Law, Federal Government, History, Oil & Gas, Property, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Private Fitness on Public Property in Santa Monica

Happy New Year, Land Users!  Since today is a day that a lot of folks begin their New Year's resolutions, this story about land use conflicts over fitness classes in public parks might be appropriate.  From the Daily Mail, Santa Monica residents complain about sea of fitness fanatics clogging up their parks.  The gist is that in Santa Monica, California, the trend towards conducting fitness classes in the public spaces near the beach has become so pronounced that other residents are asking for local government action.

In recent years, fitness classes have become as ubiquitous in Santa Monica's signature Palisades Park as dog walkers and senior citizens playing shuffleboard.

'It's starting to look like a 24-Hour Fitness gym out there,' complained Johnny Gray, an assistant track coach at UCLA and former Olympic runner who says he's often forced to navigate around weight machines, barbells and other exercise impediments as he runs

Karen Ginsberg, the city's director of community and cultural services, said other park users are complaining about fitness enthusiasts not only blocking pedestrian walkways but also making too much noise, killing the park's grass with their weights and damaging its trees and benches with all the exercise gadgets they connect to them. . . .

Naturally, one proposal is to clamp down with traditional land use regulatory tools.

So now the City Council is considering requiring that fitness trainers who conduct workouts in Santa Monica's parks and on its beaches pay an annual $100 fee and turn over 15 percent of their gross revenues to the city.

An interesting controversy that in one sense shouldn't be that surprising, but on the other it represents a clash of traditional and new imperatives--both in terms of personal preferences and in public policy: part of the whole argument for more public spaces, parks, etc., is to promote physical fitness and health, but in Santa Monica it seems as though the critical mass of space is one of the very things that made possible the explosion in use that is now controversial.  But of course "too much use" is one of the good kinds of problems to have. 

Matt Festa

January 1, 2013 | Permalink | Comments (0) | TrackBack (0)