Land Use Prof Blog

Echeverria's Take on Koontz

John Echeverria (Vermont) has just this week posted Koontz:  The Very Worst Takings Decision Ever?.  In it, he takes on both of the U.S. Supreme Court's holdings in its most recent land use decision and spells out how they will inhibit development planning discussions at the local level.  Here's the abstract:

This article argues that Koontz v. St. Johns River Water Management District, the most widely discussed of the Supreme Court’s takings trilogy in the 2012-13 term, represents a major, unprincipled break from prior law and casts an unfortunate pall of confusion and uncertainty over takings doctrine, partly reversing the Court’s recent, successful effort to make takings doctrine more coherent and predictable. The Court ruled that the relatively heightened standard of judicial review established by the Supreme Court for so-called “development exactions” in Nollan v. California Coastal Commission and Dolan v. City of Tigard applies both (1) when the government denies a development permit after the developer rejects a government demand for an exaction as a condition of project approval, and (2) when a permit condition requires a developer to pay or expend money to mitigate project impacts. In so ruling, the Court rejected the position that claims challenging such government orders should be evaluated under either the Court’s relatively forgiving regulatory takings analysis or deferential due process analysis.  Justice Elena Kagan wrote a dissent for herself and three other justices, arguing that the case did not involve an actual demand triggering Nollan and Dolan and that the standards established by those cases do not apply to permit conditions requiring the expenditure of money. This article contends that the Koontz decision is one of the worst decisions, if the not the worst decision, in the pantheon of Supreme Court takings cases. In doctrinal terms, the majority opinion flagrantly contradicts or ignores established precedent, fails to acknowledge its departure from prior law, and does not attempt to offer any new, coherent justifications for its novel holdings. As a practical matter, the decision creates a perverse, wasteful incentive for local officials to decline to work cooperatively with developers in designing projects that make business sense and protect the interests of the community.  Finally, the decision injects new uncertainty into takings law, setting the stage for future debates over the legitimacy and appropriate scope of intrusive judicial review of local land use decision-making, including whether local governments retain the authority to reject development proposals based on unacceptable project impacts without triggering stringent judicial review. 

Jim K.

Reminder! - CFP deadline for Idaho Law Resilient Cities symposium is August 31

 

CALL FOR PAPERS
 
RESILIENT CITIES:
ENVIRONMENT | ECONOMY | EQUITY
2014 University of Idaho Law Review Symposium

The Idaho Law Review invites you to participate in its 2014 day-long symposium, Resilient Cities:  Environment | Economy | Equity, to be held in Boise, Idaho on April 4, 2014.  The symposium will focus on defining city resilience, as well as cutting-edge, non-traditional legal approaches to implementing environmental and social projects that promote city resilience.
 
The symposium plans to begin with a brief investigation into the question:  What is a resilient city?  One definition posits these basic tenets:  “A resilient city is a sustainable network of physical systems and human communities.  Physical systems are the constructed and natural environmental components of the city.  They include its built roads, buildings, infrastructure, communications, and energy facilities, as well as its waterways, soils, topography, geology, and other natural systems.  In sum, the physical systems act as the body of the city, its bones, arteries, and muscles. . . . Human communities are the social and institutional components of the city. They include the formal and informal, stable and ad hoc human associations that operate in an urban area: schools, neighborhoods, agencies, organizations, enterprises, task forces, and the like. In sum, the communities act as the brain of the city, directing its activities, responding to its needs, and learning from its experience.”* 
 
The definitional panel of the symposium seeks papers that investigate:  Is this an appropriate definition for a resilient city?  If not, what should be changed?  What are the implications of such definitions for law?  What is the relationship between environmental and social dimensions of a resilient city?  Are they separate or interconnected?  Much of the talk about city resilience focuses on disaster preparedness.  Is there more to city resilience?  If so, what else should be included in the discussion?  For new development, what does it mean to build a resilient city from the ground up?  How can a city’s physical systems and human communities respond, and thrive, in the midst of the coming century’s environmental and social stresses that will include climate change, rapid urbanization, more pronounced economic cycles, and the like?  
 
The primary focus of the symposium will then consist of panels investigating a second question:  How can cities best implement resiliency in a time of limited resources?  The symposium seeks papers that focus on cutting-edge legal implementation tools for environmental or social city resiliency.  Representative topics here include how city resiliency can be implemented through:  ecosystems services; land trusts for affordable housing; greening office buildings; community benefits agreements and workforce training; public and private protections for land conservation; social impact bonds; neighborhood empowerment; or the role for insurance in creating a resilient city.  These examples are merely illustrative of potential topics.  Approaches not listed are equally encouraged.
 
Symposium papers or presentations addressing either question above will be presented at the conference and published in the Symposium volume in Spring, 2014.  We are especially interested in shorter essays (roughly 8,000 to 10,000 words, including references).  Draft abstracts of no more than one page and queries may be addressed to Alexandra Grande, Chief Symposium Editor, at [email protected], no later than August 31, 2013.  Travel cost assistance is available, funds permitting.

*David R. Godschalk, Urban Hazard Mitigation: Creating Resilient Cities, 4 NAT. HAZARDS REV. 136, 137 (2003).

Stephen R. Miller

Iglesias on the Legality of Local Inclusionary Zoning Ordinances

Tim Iglesias (USF) has recently published Framing Inclusionary Zoning: Exploring the Legality of Local Inclusionary Zoning and its Potential to Meet Affordable Housing Needs, 36 No. 4 Zoning and Planning Law Report 1 (2013).  The Report is a West publication, so even if you cannot find the piece on SSRN or bepress, it is available here at Westlaw (login required). Apart from clicking on the link, you can copy the citation above into the Find By Citation box on the Westlaw sidebar.

Tim's briefly examines how opponents and supporters have attempted to frame various kinds of inclusionary zoning ordinances as land use regulation, exactions, rent control or something distinct from all three.  His review of leading cases on the validity of local inclusionary zoning measures looks at each of the three frames in turn, with the latter two involving state preemption as well as constitutional issues. 

I don't plan on returning to the Land Use Planning course for a few semesters, but I recommend this piece as supplemental reading for students trying to get their heads around the legal vulnerability of inclusionary zoning ordinances, particularly in the wake of Koontz.

Jim K.

Conservation Covenants in England and Wales

This summer, many of us conservation easement research types received emails from the Law Commission for England and Wales. The Law Commission is similar to the Uniform Law Commission here in the US in mission (researches potential legal reform and presents suggested statutory texts), but the British version is a body established by Parliament and the US version is a non-profit organization.

When considering changes to the law, the COmmission staff assemble consultation papers. The papers present research on the legal topic at issue, suggest statutory parameters and language, and solicit comments from "consultees." Anyone who visits the website and submits the form can comment, but the Commission also contacts specific people and organizations to solicit their views. There is even a form with specific questions on the issue to complete. I thought this was a very informative and interesting approach.

As you should have already gleaned from the title of this approach, the Law Commission is examining the case for introducing "conservation covenants" into the law of England and Wales. Now, while I read the consultation paper carefully and made lots of notes (several exclamation marks in the margins of this one), I just couldn't get my act together to submit comments  by the June 21st deadline. While this is just a proposal and not yet even a proposed bill, there are lots of interesting things going on in this british version of conservation easements. I thought I would highlight a few of them for you here:

(1) Specific choice not to use the word easement.

(2) No tax breaks associated with donating conservation covenants.

(3) All transactions must be voluntary, so presumably that means no exactions or eminent domain-like creations. However, the Commission contemplates widespread use for offsetting schemes.

(4) Conservation covenants are much easier to terminate or modify. With holders having power to unilaterally discharge obligations. Also suggests a judicial proceeding with specific factors that the tribunal should consider in modifying or terminating the covenants

(5) leaseholders with long leases can enter into conservation covenants for the term of their lease

Plus oh so much more.The differences between the proposed law and the US laws is significant.

I'd be really interested to hear both what consultees said in response to this paper and what you would change here in the US if we were to rewrite our conservation easement laws. (I have my own little wishlist of course).

- Jessica Owley

 

Dagan on Property Theory, Essential Resources, and the Global Land Rush

Hanoch Dagan (Tel Aviv) has posted Property Theory, Essential Resources, and the Global Land Rush.  The abstract:

Recent large scale transnational transfers of land threaten members of rural communities in the developing world who rely for food and shelter on access to land they lack formal title to. Contrary to some of the conventional wisdom, this Essay argues that liberal property theory provides important inroads for addressing this challenge. Properly interpreted, property requires an ongoing (albeit properly cautious) redefinition of existing property institutions as well as the design of new ones, in light of changing circumstances and in response to the liberal property values of personal independence, labor, personhood, aggregate welfare, community, and distributive justice. These property values imply that the new, transnational land market must accommodate a property institution for essential resources that secures the individual and collective rights of pre-existing users. Securing these rights does not require that we reject the logic of competitive markets. Quite the contrary. One promising path for realizing these rights is to strengthen competition through properly designed auctions that ensure the members of local communities choices between outright sale offers and equity investment in local cooperatives.

Looks like another must-read for property theorists!

Matt Festa

Blumm & Paulsen on the Public Trust in Wildlife

Michael C. Blum (Lewis & Clark) and Aurora Paulsen (Lewis & Clark) have posted The Public Trust in Wildlife, Utah Law Review (2013).  The abstract:

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine — sovereign ownership of wildlife — is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should be merged, and that state sovereign ownership of wildlife means that wildlife — like navigable waters — is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states with the authority to manage their wildlife populations but also the duty to do so and would equip members of the public with standing to enforce the states’ trust duties in court. This paper shows that the public trust in wildlife has already been employed in California and in several other states, and suggests that it deserves more widespread judicial recognition, particularly — as we demonstrate — in view of the fact that no fewer than forty-seven states use trust or trust-like language in describing state authority to manage wildlife. We include an appendix citing the sources of the wildlife trust in all forty-seven states for reference.

Matt Festa

Professors' Corner teleconference on Real Estate Issues in the Bankruptcy Courts

It's time for the monthly "Professors' Corner" teleconference sponsored by the ABA Real Property Section.  Here's this month's info! --Matt Festa

***

Professors' Corner:   Wednesday, August 14, 2013

12:30pm Eastern/11:30am Central/9:30am Pacific

Call-in number: 866-646-6488

Passcode: 5577419753

Professors’ Corner is a monthly FREE teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group.  Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.  Members of the AALS Property section are invited and encouraged to join in this call.

Our program on Wednesday, August 14 is “Real Estate Issues in the Bankruptcy Courts.”  Our panel will discuss the latest on several important real estate issues in bankruptcy, including the “absolute priority” rule in individual Chapter 11 cases; the “strip-off” of underwater liens in Chapters 11 and 13; and the artificial impairment and artificial classification in Chapter 11 cases.

Our panelists for the program include three leading bankruptcy scholars:

Professor Ralph Brubaker, University of Illinois College of Law.  Prof. Brubaker has taught at Illinois since 2004 after many years at Emory University Law School.  He has served as Interim Dean and Associate Dean for Academic Affairs at Illinois and most recently as the Guy Raymond Jones Faculty Scholar.  He will discuss a recent Fifth Circuit decision, In re Village at Camp Bowie I, L.P., and the extent to which a Chapter 11 debtor can “artificially” impair claims to facilitate cramdown of a reorganization plan and the status of the “artificial classification” doctrine.  

Professor Bruce Markell, Florida State University.  Prof. Markell returns to teaching at FSU in 2013 as the Jeffrey A. Stoops Professor, after many years of service as a United States Bankruptcy Judge for the District of Nevada and as a member of the Bankruptcy Appellate Panel for the Ninth Circuit.  Prior to his service as bankrutpcy judge, Prof. Markell had a distinguished career as a law teacher at both Indiana University and UNLV.  He will address recent case developments involving the “absolute priority rule,” including whether the rule applies in individual Chapter 11 cases and Judge Easterbrook’s recent “new value” decision in In re Castleton Plaza.

Professor Robert Lawless, University of Illinois.  Prof. Lawless has taught at Illinois since 2006, and previously taught at both Missouri and UNLV. He currently serves as the Associate Dean for Research and the Co-Director of the Illinois Program on Law, Behavior, and Social Science.  Prof. Lawless will address recent case developments regarding the ability of Chapter 11 and 13 debtors to “strip-off” underwater mortgage liens.

Please join us on Wednesday for this program!

Agricultural Conservation Easements and Charitable Trusts

An interesting case from Maryland this summer chimed on a debate going on in the conservation easement literature about the extent to to which charitable trust law applies to conservation easements. The authority on this, Nancy McLaughlin, asserts that conservation easements are a form of a charitable trust and therefore courts should use the cy pres doctrine when dealing with arguments to terminate or amend them. If this is all greek to you, check out some of Nancy's writing on the topic: here and here. While I am willing to accept the argument that donated conservation easements form a charitable trust, I find it harder to swallow with those created by sales, exactions, or other methods.

But back to Maryland. Under Maryland law,"interested persons" who are not a party to a charitable trust (neither trustee nor beneficiary) have standing to enforce the provisions of the trust. In Long Green Valy Ass'n v. Bellevale Farms, 68 A.3d 843 (Md. Ct. App. 2013), the court held the agricultural conservation easement at issue was not a charitable trust and non-parties could not enforce the agreement.

The dispute centers on a 199-acre organic dairy farm. Back in 1997, the owners sold an agricultural preservation easement to the Maryland Agricultural Land Preservation Foundation, a state agency. Notice that this is not a donated conservation easements and the case does not involve a land trust. In 2007, the farmers approached the agency seeking an amendment to the agreement to allow them to construct a creamery on their property. The agency approved the proposal over protestations from a community association and adjacent landowners, who then filed a Complaint seeking a declaration that the creamery would violate the conservation easement.

Setting aside the fact that the creamery doesn't actually appear to violate the easement or local land use laws, the case turned on standing.The association (and neighbor) claimed standing to enforce a charitable trust as as aggrieved or interested parties. The trial court didn't buy their argument, stating that there was no charitable trust and the court of appeals agreed. This agricultural preservation easement was the result of a state-funded farmland preservation program. Nothing in the law regarding the state program or the language of the conservation easement convinced the courts that this should be considered a charitable trust. There court did not read the agreement as having an intent to create a fiduciary relationship nor was the property associated with any charitable purpose.

The case does not foreclose the possibility of conservation easements being charitable trusts in Maryland, but demonstrates that courts will examine deed language and other evidence carefully to see whether it meets the qualifications: the assessment will occur on an easement-by-easement basis.

Jessie Owley

 

Unusual Reading in Buffalo: From John Birch to Glenn Beck

In summer, I like to put aside an hour or so each work day to read various articles and books that I have stumbled across during the busy semester but lacked time to review. Today, the top of my stacks were an article from The New American and a book by Glenn Beck. It was really just coincidence that these two hit the top of my piles today,  but it has made for a surreal afternoon.

First up is an article from The New American (the publication of the John Birch Society) by Tom DeWeese, entitled Conservation Easements and the Urge to Rule. You know an article is gonna be good when the first sentence mentions the Green Mafia. DeWeese's piece argues that conservation easements are the biggest threat to small family farmers out there. I don't want to spend too much time on his article, because it is just so chock full of problems and errors that it would take too long. He conflates conservation easements and zoning law and seems to rest everything on one case study whose facts are unclear in his piece. My favorite line though is where he compares land trusts to commodity traders buying and selling conservation easements at a significant profit. That sentence on page 2 is where he really lost any credibility he might have had with me. While not an adherent of the John BIrch Society, I have been a vocal critic of the uses of conservation easements. It is always surprising to me when I see them attacked from the right. In many ways, they embody fundamental conservative ideals of promoting and protecting private property rights. Instead of saying landowners can freely enter into any contract regarding their land that they like (a clear libertarian approach), DeWeese seems to be suggesting that any limitation on property rights (even voluntary ones) should not be permitted. Without giving too much credence to DeWeese's writing on this, I am just generally befuddled by the lack of consistency in the property rights movement.

I wish I could also share an interview with Becky Norton Dunlop of the Heritage Foundation on Fox News from February 2010 where she amusingly asserts conservation easements are akin to eminent domain, but the clip no longer appears available.

After zooming through that little article, I picked up Agenda 21 by Glenn Beck. Wow is this a crazy book. Now I don't have cable tv (and would unlikely be tuning into FoxNews if I did), so I have a general understanding of who Glenn Beck is but haven't really seen much more than clips. This may explain why I had no idea what I was in for. I was looking for a book to give me the conservative take on Agenda 21 conspiracy. I gave a talk at the Western New York Land Conservancy earlier this summer, and the Conservancy chose not to advertise the talk in the Buffalo News for fear of Agenda 21 protesters. I am super a bit embarrassed to admit that I was unfamiliar with the conservative Agenda 21 battle cry. My take on Agenda 21 thus far is that it is pretty toothless. Lots of big ideas with little action. So I was pretty surprised to hear that some radical right groups appear afraid of it. Clearly they must fear what it symbolizes rather than what it actually does. Enter Glenn Beck. Someone told me that Glenn Beck wrote a book about Agenda 21 and it is a fast read. What that person failed to mention is that it is a 1984-esque sci fi novel set in a future where Agenda 21 has led to a dystopia. Wanna hear my secret? I kinda love it. It is completely ridiculous, of course, but a great beach read ... if you were willing to let people see you reading it in public.

Jessica Owley

 

 

 

 

CALL FOR PAPERS - Resilient Cities - Idaho Law Review Symposium - April 4, 2014

I am delighted to be faculty advisor for the Idaho Law Review's annual symposium for the second year in a row.  This year's topic will, I believe, of special interest to land use scholars.  We have several prominent scholars and practitioners already lined up.  Please take a look at the CFP below and consider joining us in Boise on April 4, 2014!  As with last year's symposium, we will be live broadcasting and video archiving this year's symposium with the goal of giving the event a national reach.

 

CALL FOR PAPERS
 
RESILIENT CITIES:
ENVIRONMENT | ECONOMY | EQUITY
2014 University of Idaho Law Review Symposium

The Idaho Law Review invites you to participate in its 2014 day-long symposium, Resilient Cities:  Environment | Economy | Equity, to be held in Boise, Idaho on April 4, 2014.  The symposium will focus on defining city resilience, as well as cutting-edge, non-traditional legal approaches to implementing environmental and social projects that promote city resilience.
 
The symposium plans to begin with a brief investigation into the question:  What is a resilient city?  One definition posits these basic tenets:  “A resilient city is a sustainable network of physical systems and human communities.  Physical systems are the constructed and natural environmental components of the city.  They include its built roads, buildings, infrastructure, communications, and energy facilities, as well as its waterways, soils, topography, geology, and other natural systems.  In sum, the physical systems act as the body of the city, its bones, arteries, and muscles. . . . Human communities are the social and institutional components of the city. They include the formal and informal, stable and ad hoc human associations that operate in an urban area: schools, neighborhoods, agencies, organizations, enterprises, task forces, and the like. In sum, the communities act as the brain of the city, directing its activities, responding to its needs, and learning from its experience.”* 
 
The definitional panel of the symposium seeks papers that investigate:  Is this an appropriate definition for a resilient city?  If not, what should be changed?  What are the implications of such definitions for law?  What is the relationship between environmental and social dimensions of a resilient city?  Are they separate or interconnected?  Much of the talk about city resilience focuses on disaster preparedness.  Is there more to city resilience?  If so, what else should be included in the discussion?  For new development, what does it mean to build a resilient city from the ground up?  How can a city’s physical systems and human communities respond, and thrive, in the midst of the coming century’s environmental and social stresses that will include climate change, rapid urbanization, more pronounced economic cycles, and the like?  
 
The primary focus of the symposium will then consist of panels investigating a second question:  How can cities best implement resiliency in a time of limited resources?  The symposium seeks papers that focus on cutting-edge legal implementation tools for environmental or social city resiliency.  Representative topics here include how city resiliency can be implemented through:  ecosystems services; land trusts for affordable housing; greening office buildings; community benefits agreements and workforce training; public and private protections for land conservation; social impact bonds; neighborhood empowerment; or the role for insurance in creating a resilient city.  These examples are merely illustrative of potential topics.  Approaches not listed are equally encouraged.
 
Symposium papers or presentations addressing either question above will be presented at the conference and published in the Symposium volume in Spring, 2014.  We are especially interested in shorter essays (roughly 8,000 to 10,000 words, including references).  Draft abstracts of no more than one page and queries may be addressed to Alexandra Grande, Chief Symposium Editor, at [email protected], no later than August 31, 2013.  Travel cost assistance is available, funds permitting.

*David R. Godschalk, Urban Hazard Mitigation: Creating Resilient Cities, 4 NAT. HAZARDS REV. 136, 137 (2003).

Stephen R. Miller