Land Use Prof Blog

Do you know a talented Midwestern high school-aged young woman who wants a fellowship to a summer program at a top university?

Forgive me for a non-land use post... 

For the last seven years, I have been a volunteer and board member for the Joyce Ivy Foundation (JIF), which we believe is now the largest provider of summer academic scholarships in the country (we awarded 80 scholarships last year, and are looking to provide more this year).  The program provides needs-based scholarships to talented Midwestern high school-aged young women to attend summer programs at the countries best colleges.  I became involved with the foundation due to my Midwestern roots and my life-long efforts to improve educational opportunities in that part of the country.  Seeing the transformation this program has afforded scholarship recipients over the past seven years has been one of the most rewarding experiences of my professional life.  Deadlines for the JIF scholarship are March 15 and available here.  Official eligibility requirements here.

In addition, on May 10-11, we are in our second year of hosting a free symposium near Ann Arbor, MIchigan that will seek to take some of the mystery out of applying to top schools.  If you know a high school student in the area that would benefit from this symposium, have him or her stop by!

Stephen R. Miller

ALPS registration Friday March 1!

[Registration here].  Many of you know that the annual meeting of the Association for Law, Property, and Society (ALPS) has quickly become THE place to be for academic discussions in property, land use, real estate, IP, and local government and environmental law--in short, everything that is considered to be in the universe of "property" is more than welcome at ALPS.  It's been a really interesting, rewarding, and collegial conference in its first few years, and again, it's almost immediately become the central annual confab for property and land use profs.  To wit:

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 Theory • Property and Personhood/Concept of Home
Takings and Eminent Domain • Teaching Property 

The deadline for paper proposals is this Friday, March 1.  This year there is also the option to register to attend without a proposal, which makes participation even more accesible to everyone in the field.  

The link to register and for more information about the conference is here.  

I have to clear a couple of calendar items myself too, but I really hope to see all of you In Minneapolis on April 26-27 for ALPS.  And on behalf of the ALPS Membership & Outreach Committee, feel free to contact me with any questions.  

Matt Festa

Readings on community lawyering

As blog readers know, I live a dual-life in academics as both a doctrinal teacher and a clinical teacher (I love it!).  This posting is written with my clinician hat on.  Last week, I sent an e-mail to the “lawclinics” listserv, the major listserv for clinicians, asking for recommended readings on community lawyering that were short and easily accessed by a student audience.  I received many excellent responses. 

I assembled all of the suggested readings and sent them to the listserv yesterday.  I thought the suggestsions were so good, I would post them here, too, as I imagine there may be non-clinicians who would also benefit from this list.  Citations are not official or verified, but just as folks sent them to me in e-mails. 

Incidentally, the most recommended reading was not a reading as all, but the video, So Goes a Nation: Lawyers and Communities.  This video was recommended by four respondents, was the only resource cited multiple times, and seems a “must see.” 

Here are the rest of the recommended readings in no particular order:

Bill Quigley, Reflections of Community Organizers (1995) at
http://www.loyno.edu/~quigley/Reflections_Community_Org_Ohio_Northern_LRev_1994.pdf.

ROGER CLAY & SUSAN JONES, BUILDING HEALTHY COMMUNITIES: A GUIDE TO COMMUNITY ECONOMIC DEVELOPMENT FOR LAWYERS, ADVOCATES AND POLICYMAKERS, American Bar Assn Publishing (2010) (chapter on community lawyering).

Chuck Elsesser & Purvi Shah, Community Lawyering (2010) at
http://www.organizingupgrade.com/index.php/modules-menu/community-organizing/item/71-purvi-amp-chuck-community-lawyering.

Nancy D. Polikoff, Am I My Client?  The Role of Confusion of a Lawyer Activist, 31 HARV. C.R.-C.L. L. REV. 443 (1986).

Paul R. Tremblay, Counseling Community Groups, 17 CLINICAL L. REV. 389 (2010).

Ross Dolloff & Marc Potvin, Community Lawyering--Why Now?, 37 CLEARINGHOUSE REVIEW 136 (July-Aug. 2003).

Michael J. Fox, Some Rules for Community Lawyers, 14 CLEARINGHOUSE REVIEW 1 (May 1980) (“sets forth 16 principles for community lawyering”).

Penda Hair, Community Justice Lawyering & Community Economic Development Practice, 37 CLEARINGHOUSE REVIEW 145 (July-Aug. 2003).

Cynthia Mark & Evonne Yang, The Power-One Campaign: Immigrant Worker Empowerment Through Law & Organizing, 36 CLEARINGHOUSE REVIEW 264 (July-Aug. 2002).

ALAN CHEN & SCOTT CUMMINGS, PUBLIC INTEREST LAWYERING: A CONTEMPORARY PERSPECTIVE (2012) (community lawyering materials).

Publication on lawyers in communities that excerpts stories in a more accessible way: http://www.racialequitytools.org/resourcefiles/hair.pdf.  “It’s a little dated now (2001) but still relevant.”

“Chapter One of the Community Economic Development Law book from Susan Bennett, Louise Howells, et. al. very briefly discusses CED lawyering and contextualizes organizing and advocacy strategies in the broader framework of more traditional transactional/organizational representation. . . . Our students got something from the reading (but it’s quite short).”

Susan R. Jones, Small Business and Community Economic Development: Transactional
Lawyering for Social Change and Economic Justice, 4 CLINICAL L. REV. 195 (1997).

Roger Conner, Community Oriented Lawyering: New Approach for Public Sector Lawyers, THE PUBLIC LAWYER (Summer 2000).

Ross Dolloff, Marc Potvin, Community Lawyering - Why Now?, Clearinghouse Review (July-August 2003) (pgs. 136-139).

Bouman, Growing the Toolbox: Diverse Strategies for Public Interest Lawyers in Campaigns to Expand Access to Health Care for Low-Income People, CLEARINGHOUSE REVIEW JOURNAL OF POVERTY LAW AND POLICY, July-August 2009, 173-183.

Muneer Ahmad, Interpreting Communities: Lawyering Across Language Difference, 54 U.C.L.A. L. REV. 999 (2007).

Susan Bryant & Jean Koh Peters, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 CLINICAL L. REV. 33 (2001).

Nancy Cook, Looking for Justice on a Two-Way Street, 20 WASH. U. J.L. & POL'Y 169 (2006).

JENNIFER GORDON, SUBURBAN SWEATSHOP: THE FIGHT FOR IMMIGRANT RIGHTS (2005).

Gerald P. Lopez, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice (1992).

Karen Tokarz, Nancy Cook, Susan Brooks, Brenda Bratton Blom, Conversations on "Community Lawyering": The Newest (Oldest) Wave in Clinical Legal Education, 28 WASH. U. J.L. & POL'Y. 359, 363-365 (2008).

Lucie E. White, Collaborative Lawyering in the Field? On Mapping the Paths From Rhetoric to Practice, 1 CLINICAL L. REV. 157 (1994).

Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 1 BUFF. L. REV. 1 (1980).

Thank you all for your suggestions!

Stephen R. Miller

Nolon et al., Towards Engaged Scholarship

John Nolon has posted Towards Engaged Scholarship, an article that is the result of last year's symposium by the same name that he hosted at Pace, which was a follow-up to 2011's highly successful Practically Grounded conference.  The meeting was really productive, and even though most of us were discussing engaged scholarship in land use and environmental law, the article has insights about the relationship between research, teaching, and practice that could be valuable to anyone in the field or law teaching generally.

The article is forthcoming.  Here are the contributors: John R. Nolon (Pace); land use guest-blogger Michelle Bryan Mudd (Montana); Michael Burger (Roger Williams); Kim Diana Connolly (SUNY Buffalo); Nestor M. Davidson (Fordham); Matthew Festa (South Texas); Jill Gross (Pace); Lisa Heinzerling (Georgetown); Keith H. Hirokawa (Albany); Tim Iglesias (San Fransisco); Patrick C. McGinley (West Virginia); Sean Nolon (Vermont); Uma Outka (Kansas); co-blogger Jessica Owley (SUNY Buffalo); Kalyani Robbins (Akron); guest-blogger Jonathan D. Rosenbloom (Drake); and Christopher Serkin (Brooklyn).  Here is the abstract:

The practice-oriented influences of the Carnegie Foundation’s Educating Lawyers and the report of the Clinical Legal Education Association, Best Practices for Legal Education, have been working on the academy for only five years; law teachers are just now learning how they can better prepare their students to practice law “effectively and responsibly in the contexts they are likely to encounter as new lawyers.” These reports have stimulated a vast literature on how law professors can improve their teaching methods, how law schools can alter their curricula, and how the legal academy as a whole can prioritize skills education.

Much less attention has been paid to the connection between legal scholarship and the practice of law. For many law professors, there is an intuitive link between their teaching and scholarship. Does that link apply to teaching law students to be more practice-oriented, and what precisely does that mean? Should our scholarship examine more regularly the problems that practitioners confront and the contexts in which they arise? This article addresses these pressing questions in the context of legal scholarship as a context and opportunity.

This article presents the reflections of sixteen law professors on linkages between scholarship and the legal profession. From these reflections, several themes are identified that lead to new perspective on legal scholarship in a time of dynamic change in the law school education. This article begins a dialogue on engaged scholarship and concludes with the some proposed directions for critical reflection on the roles of law professors as academics and as molders of the careers of their students.

The conference was great, both for the ideas that were shared and for the chance to discuss them with a group of both senior and junior scholars in our fields.  I think the article will advance the discussion of how to make scholarship both theoretical but also practically useful. 

Matt Festa

 

Conference Announcement: Class CritsVI

Last year, I attended Class Crits for the first time. It was a wonderful program and I met a lot of folks who are interested in the issues of class and economic (in)equality. I presented some of my ongoing work on neoliberalism and land conservation. The Call for Papers for the 2013 conference has just been released.

Check it out

- Jessie Owley

Bipartisan Policy Center Housing Commission Report

I am just finished streaming the press conference for the release of the Bipartisan Policy Center's Housing Commision Report.  Led by its Co-Chairs, Sens. George Mitchell, Mel Martinez and Kit Bond, as well as former HUD Secretary Henry Cisneros, the Commission is offering a far-reaching set of recommendations regarding the housing finance system, public subsidy for affordable housing development and preservation (particularly in rural areas) and promotion of housing counseling as a vital resource.  Even if the Executive Summary is too long for you, I would encourage you to check out a two-page article available on Politico authored by the four co-chairs.   

Jim K.

Eagle on Economic Impact in Regulatory Takings Law

Steven J. Eagle (George Mason) has posted "Economic Impact" in Regualtory Takings Law, forthcoming in the West-Northwest Journal of Environmental Law & Policy.  The abstract:

In Penn Central Transportation Co. v. City of New York the Supreme Court stated that the existence of a regulatory taking would be determined through “essentially ad hoc, factual inquiries,” and that one of three factors of “particular significance” was the economic impact of the regulation on the claimant. This article examines the conceptual problem whereby the Fifth Amendment requires compensation for the taking of property and not a fraction of its owner’s worth. The fact that economic impact of stringent regulations is greater when parcels are smaller has led to a complex “parcel as a whole” test that conflates impact with another Penn Central test, owner’s expectations. Furthermore, application of the impact test to parcels held as investment property might vitiate the temporary taking. The Federal Circuit’s recent abandonment of its prior “return on equity” approach is emblematic of this problem. 

Measuring the economic impact upon owners also is complex where government condemns part of an owner’s parcel, leading to difficulties in computing severance damages. Broad assertions that “offsetting benefits” conferred upon property owners by government actions reduce the impact of regulations also requires clarification. 

The article concludes that unresolved issues and complexities in adjudicating the “economic impact of the regulation on the claimant” test provide an additional reason why the conceptually incoherent Penn Central doctrine must be replaced.

Matt Festa

President & CEO position, Insight Center for Community Economic Development

I recently received word that Roger Clay, long-time president and CEO of Insight Center for Community Economic Development (formerly the National Economic Development and Law Center) in Oakland is stepping down.  I worked for Roger almost a decade ago as a summer law clerk and had a great summer there.  Insight is now looking for someone to fill Roger's shoes.  This would be a tremendous opportunity to head a national community economic development organization for the right practitioner.  Read more at the position announcement and position profile.

And best wishes to Roger on what's next!

Stephen R. Miller

Yale Law CED fellowship

Great community economic development fellowship at Yale Law:

YALE LAW SCHOOL LUDWIG CLINICAL FELLOWSHIP
In the Community and Economic Development Clinic

Yale Law School seeks applications for a Ludwig Clinical Fellowship for a two-year position beginning on July 1, 2013.  The Fellowship is designed for lawyers with at least five years of practice who are interested in preparing for a career in law school clinical teaching.  The Fellow will work with the Ludwig Community and Economic Development (CED) Clinic and will be supervised by CED faculty member Jay Pottenger. 

The primary responsibilities include supervising students as they represent clients in a wide range of areas (from community development banking to commercial & residential real estate development to foundation tax law), teaching classes, and working on one’s own scholarship.   This year we are looking for a Fellow with particular experience in community development financial institutions, but will consider applicants who have other relevant experience. The Fellow will be allowed sufficient time, resources and assistance to engage in research and writing. All work will be conducted with the assistance of the clinical faculty.  Visit our website at http://www.law.yale.edu/academics/Ludwig.htm to learn more about the CED Clinic.
Candidates must be able to work both independently and as part of a team, and must possess strong written and oral communication skills.   Annual salary is $63,000.  In addition, the Fellow will receive health benefits and access to university facilities.  Send (or email) a resume, cover letter, writing sample, and names, addresses and telephone numbers of three references by April 12, 2013 (early applications are encouraged) to: Kathryn Jannke, Office Manager, The Jerome N. Frank Legal Services Organization, P.O. Box 209090, New Haven, CT 06520-9090; telephone: (203) 432-4800; fax: (203) 432-1426; [email protected].

Yale Law School is an Affirmative Action,
Equal Opportunity, Title IX employer

Stephen R. Miller

Ngov on Selling Land and Religion

Eang L. Ngov (Barry) has posted Selling Land and Religion, Kansas Law Review, Vol. 61, No. 1, 2012 .  The abstract:

Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object. 

Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the objects and land to private parties. Some transactions have included restrictive covenants that require the buyer to maintain the religious object or reversionary clauses that allow the government to reclaim the land. Others have sold or transferred the religious object without soliciting bids from other buyers. 

This article provides an in-depth analysis of five cases in which governmental bodies resorted to privatizing public land to avoid violating the Establishment Clause. Drawing from Establishment Clause jurisprudence involving religious displays, this article utilizes the Lemon and Endorsement tests as analytical tools for resolving the constitutionality of land dispositions involving religious displays.

This article considers the purported secular government purposes for selling or transferring land to private parties. The government has sought to justify these land dispositions as a means to provide memorials that honor veterans or promote civic-mindedness, to preserve the religious object in order to avoid showing disrespect to religion, and to avoid violating the Establishment Clause. I argue that these purported government purposes are secondary to a religious interest because there are other alternatives to achieve the government’s purposes.

I also examine the effects of these land dispositions on the reasonable observer. The Herculean efforts exerted by the government to save the religious monument send a message of government endorsement of religion. Restrictive covenants that require the private owner to maintain the religious monument and reversionary clauses that allow the government to reclaim the monument and underlying land perpetuate state action and excessively entangle the government.

I conclude that the best measure to avoid the Establishment Clause is to simply remove the religious object. Removing the religious object will protect the dilution of sacred religious symbols through their secularization and will provide greater inclusiveness in public spaces for religious minorities and nonbelievers.

An original and helpful analysis of an issue that I think has been relatively neglected over the last couple of years, particularly since the Summum case came out-- the interplay between private land use rights and the religion clauses always tends to highlight some of the salient fault lines in many communities.

Matt Festa

ABA Forum of Aff. Housing and Comm. Dev. Law Student Writing Competition-2013

Every year, the ABA Forum of Affordable Housing and Community Development Law sponsors a student writing competition.  The winner gets a $1000, plus an expenses-paid trip trip to DC in May for our Annual Meeting chock full of potential private and public-sector legal employers as well as a chance to publish the submitted piece in our Journal. 

As Editor-in-Chief of the Journal of Affordable Housing and Community Development Law, I wanted to make sure you and your students already knew about the Student Writing Competition.  Particularly if you know of a relevant student-written scholarly work (a note, a seminar paper or the like) that deserves consideration, encourage the student to submit the work to me at the email address below on or before Friday, March 8^th. 

 

Jim K.

[email protected]

Serkin on The State's Constitutional Obligations to Property Owners

Christopher Serkin (Brooklyn) has posted Affirmative Constitutional Commitments: The State's Obligations to Property Owners, Brigham-Kanner Property Rights Conference Journal, Forthcoming. The abstract:

This Essay, prepared for the 2012 Brigham-Kanner Property Rights Conference, argues that social obligation theories in property generate previously unrecognized obligations on the State. Leading property scholars, like Hanoch Dagan, Greg Alexander, and Eduardo Peñalver, have argued that the institution of property contains affirmative duties to the community as well as negative rights. This Essay argues that those affirmative duties are two-way streets, and that moral bases for social obligations also generate reciprocal obligations on the State to protect property owners. The social obligation theories rely upon a dynamic not static vision of property rights. The community’s needs change, the conditions of ownership change, and the appropriate allocation of benefits and burdens within a society changes over time. Therefore, a legal obligation that is justified and permissible at the time it is enacted because it is consistent with moral obligations may become impermissible over time, even if the content of the legal obligation does not change. At the extreme, the State’s failure to respond to certain kinds of changes in the world can lead to a regulatory taking.

An interesting and important take on some of the implications of progressive property theory.  Especially interesting is Serkin's appreciation for the changing social notions of property over time, and how that challenges static notions of property rights and obligations.

Matt Festa

Nolon on Shifting Paradigms in Environmental and Land Use Law and Sustainable Development

John R. Nolon (Pace) has posted Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, forthcoming in the Pace Environmental Law Review (2013).  The abstract:

We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.

Prof. Nolon has spearheaded the scholarly movement toward framing land use as an area of law that incorporates local government mechanisms and the imperatives of environmental regulation, which he has led into a broader conception of sustainability. This essay provides a great overview of how our communities depend on land use law.

Matt Festa

Plummer on The Effects of Property Tax Protests on Assessment Uniformity of Residential Properties

Elizabeth Plummer (Texas Christian) has posted The Effects of Property Tax Protests on the Assessment Uniformity of Residential Properties, forthcoming in Real Estate Economics.  The abstract:

This study examines whether the appeals process improves assessment uniformity for residential properties. The sample includes all single family residential properties in Harris County, Texas, for 2006-2008. I use a hedonic pricing model and Heckman’s two stage approach to explain the assessed values of all properties before and after the appeals adjustments. Full sample results suggest that the appeals process increased assessment uniformity and that the value adjustments were appropriate in amount. I also present results across properties of different values (low, medium, high). The first stage probit model provides evidence on the factors that affect the likelihood that an owner will protest.

I'm personally excited to see this study of real estate value effects in my own backyard, here in The Unzoned City.  

Matt Festa

Hydraulic fracturing and the emergent dormant Commerce Clause

I was recently invited to write a short essay on hydraulic fracturing and the dormant Commerce Clause based upon a post on this blog in January, 2012.  The essay just came out and, since this blog was the source of the essay's origin, I thought it was only fitting to post it here, too.  Here is the abstract:

This essay reviews the increasing prominence of the dormant Commerce Clause in debates over hydraulic fracturing. In particular, the essay is framed around New Jersey Governor Chris Christie’s citing of the dormant Commerce Clause as a reason for vetoing a ban on hydraulic fracturing wastewater disposal passed by the New Jersey Legislature. The Governor’s reasoning is compared to analysis in a New Jersey Office of Legislative Services' memorandum indicating the dormant Commerce Clause would not be implicated by the proposed ban. The legal reasoning of the New Jersey dispute regarding the applicability of the dormant Commerce Clause to hydraulic fracturing is then considered in light of other scenarios around the country.

Get a free copy here!  I welcome comments.  And thanks to Jim Wedeking (Sidley Austin, ABA SEER Constitutional Law Committee) for the invitation to write the essay.

Stephen R. Miller

Follow up: Readers comments on “Two hypotheses on why there are so few new urbanism cases”

Last week I wrote a blog post stating two hypotheses for why there are so few form-based code cases.  Briefly, my hypotheses were that form-based codes are still largely optional in jurisdictions where they would be controversial; or, in the alternative, they are essentially acting as a form of pre-project approval for large developments, and thus have implicit developer approval. 

I received several great comments from all over the country, both from professors and practicing attorneys, each largely confirming my hypotheses.  That was re-assuring!  I wanted, in particular, to acknowledge the helpful comments of Nick Morantz, a Ph.D. candidate at MIT's planning school, who has studied the issue and wrote the following nice summary to me:

Based on my observations, form based codes seem to fall into four broad categories: (1) advisory documents; (2) components of design guidelines for expedited permitting review; (3) components of CC&Rs for homeowners associations; and (4) binding public law. Categories 1 and 2 correspond to your hypotheses. Category 4 seems vanishingly small.

Mr. Morantz, who has studied form-based codes in depth, recommended Blaesser's Discretionary Land Use Controls as the best compilation of form-based code cases.  He has also written an interesting book chapter I’d recommend, “The Business of Codes:  Urban Design Regulation in an Entrepreneurial Society,” along with MIT planning professor and planning department head Eran Ben-Joseph in the book Urban Design in the Real Estate Development Process. 

Thanks to Mr. Morantz, and all the others, who wrote in on this interesting topic.

Stephen R. Miller

Legal Aspects of Hydraulic Fracturing: 2013 Idaho Law Review Symposium

I am excited to announce that on March 29, 2013, the Idaho Law Review will be hosting its annual symposium, which this year is Legal Aspects of Hydraulic Fracturing.  As the faculty adviser for the event, I am so proud of our students for putting together such an excellent program that will include both top professors and top practitioners from around the country. 

Even better, we will be live streaming the event so those of you who can't make it to Boise can join us from wherever you might be (office, home, cafe, mountaintop). 

Moreover, we will also offer 5 streaming CLE credits, which should be attractive to practitioners (outside of Idaho, reciprocal credits must be authenticated with attorney's state bar by submitting materials we will provide).

Come join us in Boise if you can, and if you can't make it to Boise, join us online!  Feel free to contact me if you have any questions about the event.

Stephen R. Miller

 

 Legal Aspects of Hydraulic Fracturing:  An Idaho Law Review Symposium

CLE Credits and Price: 5 CLE credits. Price $145 CLE, $45 non-CLE (includes breakfast and lunch). Limited seating is available. Register online. Registrations will be processed in the order received.

Registration and Continental Breakfast (8:00 – 8:30)

Introductions and Welcome (8:30 – 8:45)

Science and Technology of Hydraulic Fracturing (8:45-9:45)
Moderator: Anastasia Telesetsky (Idaho)
John Imse (NORWEST)
Virginia Gillerman (Idaho Geological Survey)

Break (9:45-10:00)

Regulation of Hydraulic Fracturing’s Environmental Effects (10:00 – 12:15)

Water. (10:00 – 11:00)
Moderator: Barbara Cosens (Idaho)
Joseph Dellapenna (Villanova)
Robin Kundis Craig (Utah)

Air & Land. (11:00 – 12:00)
Moderator: Jerrold Long (Idaho)
Jim Wedeking (Sidley Austin LLP)
Carlos Romo (Baker Botts LLP)

Morning Wrap-Up Panel Discussion (12:00 – 12:15)

Lunch Break (12:15-1:30)

State & Local Government Regulation Hydraulic Fracturing (1:30 – 2:30)
Moderator: Stephen R. Miller (Idaho)
Uma Outka (Kansas)
Michael Christian (Marcus Christian Hardee & Davies LLP)

Two Hydraulic Fracturing Hot Topics: Trespass & Trade Secrets (2:30 – 3:30)
Moderator: TBA
Chris Kulander (Texas Tech)
Keith Hall (Louisiana State)

Break (3:30 – 3:45)

Does Hydraulic Fracturing Have a Role in a Clean Energy Future? (3:45 – 4:45)
Moderator: Dale D. Goble (Idaho)
Joshua Fershee (West Virginia)
Patrick Parenteau (Vermont)

Concluding remarks (4:45 – 5:00)

Reception (5:00 – 6:00)

 

Anderson, MacDonald, Bluthenthal, & Ashwood on an Empirical Study of Reducing Crime with Zoning

James M. Anderson (RAND Corp.), John MacDonald (Penn--Criminology), Ricky Bluthenthal (Southern Cal--Medicine), and J. Scott Ashwood (RAND Corp.)  have posted Reducing Crime by Shaping the Built Environment with Zoning: An Empirical Study of Los Angeles, 161 University of Pennsylvania Law Review 699 (2013).  The abstract:

The idea of using law to change the built environment in ways that reduce opportunities to commit crimes has a long history. Unfortunately, this idea has received relatively little attention in the legal academy and only limited rigorous empirical scrutiny. In this Article, we review the considerable literature on the relationship between zoning, the built environment, and crime. We then report the results of two empirical studies on these relationships. First, we conducted a study of the effect of zoning on crime using 205 blocks selected in eight different relatively high crime neighborhoods in Los Angeles that have similar demographic character- istics but different forms of zoned land use. We find that mixed commercial- and residential-zoned areas are associated with lower crime than are commercial-only zoned areas. Second, we matched neighborhoods undergoing zoning changes between 2006 and 2010 with neighborhoods that underwent no zoning changes during this period but had similar preexisting crime trajectories between 1994 and 2005. The primary zoning change in these neighborhoods was to convert parcels to residential uses. We find that neighborhoods in which there was a zoning change experienced a significant decline in crime. Our results suggest that mixing residential-only zoning into commercial blocks may be a promising means of reducing crime.

Looks like a fascinating interdisciplinary collaboration.

Matt Festa

Missouri Law Conference on Promoting Sustainable Energy through Tax Policy

The University of Missouri School of Law is hosting a Symposium on February 22, 2013, called Promoting Sustainable Energy through Tax Policy.  Sponsored by the Journal of Environmental and Sustainability Law and the Missouri Tax Law Society, the event will be introduced by Mizzou profs Michelle Arnopol Cecil and our own guest blogger Troy Rule, and features panels with Alexandra Klass (Minnesota), Steve Gaw (The Wind Coalition), Felix Mormann (Miami), Roberta Mann (Oregon), Robert Peroni (Texas), with a keynote by David Weisbach (Chicago).  Here's the info and link:

Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation’s reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation’s fledgling sustainable energy sector to a grinding halt.

This year’s Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.

Cost and Registration

The symposium is free and open to the public.
Registration is suggested by Friday, February 15.

To register, please contact:
Journal of Environmental and Sustainability Law
University of Missouri School of Law
12E Hulston Hall
Columbia, MO 65211
[email protected]

More Information on 2013 JESL Symposium

Matt Festa

Dispute over Yard Sign Destroys Fairfax HOA

A Virginia Homeowner's Assocation appears to have gone bankrupt due to litigation over its attempts to enforce its rules against a four-inch violation by a couple's Obama yard sign during the 2008 election.  After four years, skyrocketing assessments, and hundreds of thousands of dollars in legal fees, the bankrupt HOA is considering selling off the central common area.  From the Washington Post, Feud over sign could force Fairfax's Olde Belhaven to sell square.

Such HOA disputes are as suburban as cul-de-sacs and two-car garages, but few metastasize into legal battles that spend years in the courts, break legal ground and bankrupt the HOA.

Most damaging of all, though, was a move probably unprecedented in area neighborhood feuds: The common area that is the literal and metaphoric heart of Olde Belhaven was put up for sale last year to settle its debts. It appeared that “the square,” as some called the neighborhood, would no longer have a square.

“It destroyed our community,” Maria Farran said.

The litigation ranged from a challenge to the HOA's power to fine the owners, and a retaliation claim.  It made some new law:

In 2010, a county judge sided with the Farrans on the fining issue. The case set a Virginia precedent that HOAs cannot claim powers, such as fining, that are not specifically laid out in their covenants. 

 You can read the whole article for a great description of the legal issues and the story.  As HOAs trend toward more extensive sets of rules, and as not everyone buys in, you can probably finds examples of similar (if not quite so expensive) conflicts in communities around the country.  And one thing that's common to both public and private regulation: when individual property rights clash with collective restrictions regarding people's homes, passions run high--even (especially?) when the stakes are as low as four inches on a political yard sign.

Thanks to Helen Jenkins for the pointer.

Matt Festa