Monday, September 30, 2013

Idaho Law Economic Development Clinic wins major state land use award

I am proud to announce that my Economic Development Clinic here at the University of Idaho College of Law was just notified that the Clinic's 2012 report, Area of City Impact Agreements in Idaho, has been awarded the American Planning Association, Idaho Chapter’s 2013 “Planning Excellence Award for Best Practice.”

According to APA Idaho, “[t]his award honors a specific planning tool, practice, program, or process.  Eligible projects should have transferability and may include regulation, codes, design guidelines, growth management guidelines, public/private partnerships, [or] applications of technology. . . .”  The award is given to just one project each year. 

This is one of the highest professional honors awarded with regard to land use matters in Idaho; for the Clinic students to win this award is a testament to their hard work and vision throughout last year.  Students in the 2012 – 2013 Economic Development Clinic that worked on the report were:  Marc Bybee, Joan Callahan, Nicholas Morgan, Jane Gordon, and Anna Garner.

The 871-page Area of City Impact Agreements in Idaho advisory document collected and assembled over 130 such agreements for the first time ever, and was released by Economic Development Clinic in December, 2012. 

Stephen R. Miller

September 30, 2013 | Permalink | Comments (0) | TrackBack (0)

Call for Papers: Going to Seed: Urban Agriculture in Distressed Cities

Corrected date from earlier post:  Date of symposium is March 7, 2014.

The Law Review of the University of Detroit Mercy School of Law invites proposals for its 2014 Symposium, “Going to Seed:  Urban Agriculture in Distressed Cities,” scheduled for Friday, March 7, 2014.  This symposium will bring together both national scholars and local leaders to assess the role urban agriculture plays in the economic recovery of economically distressed cities such as Detroit, Cleveland, and Philadelphia.  Symposium organizers invite proposals for presentations and panels for the event.  Any topic related to urban agriculture will be considered; topics that dig into the ground-level details of current urban farming efforts in major American cities are especially welcome.  Relevant topic ideas could include regulatory issues such as zoning; permitting, water access, use, and discharge; chemical use and runoff, and developing physical and commercial infrastructure; as well as unique issues such as integrating agricultural animals into residential neighborhoods; food security and sustainability as a political, social, or theological priority; public and private liability for negligent or harmful agricultural practices; effects of urban agriculture on fundamental property law concepts, including, e.g., encroachment, boundary issues, nuisance, restrictive covenants, or eminent domain; as well as creative, outside-the-box topics that connect with urban agriculture and economic recovery in new ways.

Special Features:  Scholars whose proposals are accepted will be invited to join Symposium organizers for a tour of local urban agriculture projects.  

Deadline:  E-mail submissions of 500 words or less must be received no later than Monday, December 2, 2013, and should be directed to Ms. Gerta Rapo, Law Review Symposium Editor, University of Detroit Mercy School of Law / Law Review, at  Accepted proposals will be considered as possible publication topics for a special symposium edition of the UDM Law Review; editorial staff will follow up with selected speakers regarding the details and deadlines for publication.

Additional Info: Questions regarding the Symposium or the proposal process should be directed to Law Review Symposium Editor Ms. Gerta Rapo,, University of Detroit Mercy School of Law / Law Review, 651 E. Jefferson Ave., Detroit, MI 48226 (ph. 313-492-6318). 

September 30, 2013 | Permalink | Comments (0) | TrackBack (0)

Sunday, September 22, 2013

Fromherz on Community Consent to Environmentally Significant Projects

Nicholas Fromherz (Lewis & Clark) has posted From Consultation to Consent: Community Approval as a Prerequisite to Environmentally Significant Projects, 116 W. Va. L. Rev ___ (2013).  Here's the abstract:

Since the United States enacted the National Environmental Policy Act (NEPA) in 1969, nations all around the world have adopted similar statutes. What started as a unique response to the American environmental movement grew to become a nearly global standard. Although the details of the regimes vary from country to country, there are two constants: (1) the regimes force the government to consider environmental impacts before conducting or authorizing projects, and (2) they allow some degree of public participation. This article focuses on the latter of these two features.

Public participation in NEPA-style regimes generally means public consultation: information is disseminated and civil society is allowed to comment. Depending on a range of factors — some political and some legal — comments may influence the circumstances under which a project takes place or whether it occurs at all. Though the public’s influence is often limited in practice, the mere fact of public participation at the project level — as opposed to participation at the candidate level through elections or at the issue level through referenda — is exceptional. In the U.S. and many other countries, NEPA and its counterparts represent a break from the normal rule of executive decision-making by encouraging public involvement and deliberative, participatory democracy.

Despite the progress, critics have accused these regimes of falling short. In practice, public consultation under NEPA-style frameworks is severely limited in terms of who participates, how many participate, and the extent to which this participation impacts the decision-making process. This is not surprising. By its very nature, consultation implies limited influence.

In this article, I argue that policy-makers, both domestic and foreign, should replace consultation with consent as the public-participation requirement in certain cases. Although the concerns leading to the inclusion of public consultation in NEPA and its foreign counterparts were many, one of the more important ideas was that those persons affected by environmentally significant projects should have a say in the matter. Unfortunately, the consultation approach has proven increasingly ineffective. If the goal is to match influence with stake, consultation is the wrong mechanism.

Requiring consent, even in a limited number of cases, may seem like an extreme remedy. Not so. It is an attractive way to respond to a situation inherent in many major public works (especially infrastructure and energy projects) and in large-scale private endeavors on public land (especially extractive projects). While the benefits of these projects are often spread around an entire nation or large region, the environmental costs are frequently concentrated within a small, local community (the site community). Requiring the consent of the local site community insures that its interest is adequately accounted for in the decision-making process.

I am always glad to see authors taking on the question of strengthening community control of land resources especially as a response to a particular impact, as Rachel Godsil and I have each written about in the urban context.  Fromherz dedicates some important discussion to defining the affected community, a problem made even more interesting in his piece by the overlay of the rights of indigenous inhabitants. 


Jim K.

September 22, 2013 in Environmental Justice, Environmental Law, Oil & Gas, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, September 20, 2013

Did Pittsburgh really sprawl 39 times more rapidly than Los Angeles between 1950 and 2010?

The recently issued second edition of EPA’s Our Built and Natural Environments: A Technical Review of the Interactions Between Land Use, Transportation, and Environmental Quality, which I previously blogged about, has a lot of great information in it. 

One piece of data that keeps me coming back--and scratching my head--is the table below (reproduced below my signature; click on image for full-sized chart), which compares 1950 population and land area to 2010 population and land area of major American cities.  The chart then lists cities in descending order of the ratio of land area growth to population growth.  So what city had the greatest land area gain compared to its population growth in the last six decades?  Pittsburgh (ratio of land area growth to population growth=19.6), Boston (7.6), Milwaukee (6.6), Philadelphia (6.2), and Detroit (6.1).  What cities had the lowest ratio of land area gain to population growth in the study?  San Jose (.4), Los Angeles (.5), Riverside-San Bernardino (.6), Salt Lake City (.8), and San Diego (.8).

What to make of these numbers?  When I first looked at the data, and starting at the top of the chart, it appeared that Pittsburgh was a city especially worthy of sprawl scorn; after all, its ratio of land area gain to population gain was just shy of 3 times the next city—Boston—on the list.  However, by the time I got to the bottom of the list to the cities I expected to be laudatory smart-growth cities, I did not see what I expected.  Are San Jose, Los Angeles, Riverside, Salt Lake City and San Diego what you think of when you think of compact development?  No me. 

What do these numbers indicate to you?  I’d be curious of how readers respond to these numbers, either as to whether they have any real statistical significance or any anecdotal data on the ground about cities listed on the table.

Stephen R. Miller

  Growth of cities


September 20, 2013 | Permalink | Comments (0) | TrackBack (0)

Conservation Development without Conservation Biologists?

A new paper on conservation development provides oodles of information about conservation development in the western United States while pinpointing shortfalls with current ordinances. Conservation development for the uninitiated is well... pretty much exactly what it sounds like. It is a land-se planning strategy that requires conservation measures for new development. It can take the form of conservation easements, cluster development, conservation-oriented planned development, etc. A common feature is setting aside some portion of land for conservation in a residential development project. Many counties and local governments have laws promoting conservation development (often pledging faster project review or bestowing density bonuses).

Although not yet available in print, you can get an early view of an article in the upcoming issue of Conservation Biology by Sarah Reed, Jodi Hilty, and David Theobald that examines conservation development ordinances in 11 western states. The authors did an impressive job of reviewing ordinance for 402 counties (97% response rate-- wowzers). As conservation biologists, the authors were interested to see if the county ordinances promoted sound ecological principles.  A few interesting things coming out of the study:

  • over 30% of the counties actually had conservation development ordinances
  • most required protection in perpetuity, but not all
  • most required conservation of some portion of the land, but set no minimum sizes on protected area, rarely required connection with other protected lands or even other lands within the site
  • very few ordinances required ecological analysis
  • only 8% required some type of consultation with an ecologist or conservation biologist
  • few required management plans

These  are just a few of the points that they make, and I recommend getting the full article to learn more. This is a good article for lawyers and planners to read because it highlights some of the problems we have communicating with each other. One thing they don't answer but I wondered about is how many conservation biologists were consulted when the counties actually wrote the ordinance.

Here is the full title and abstract:

Guidelines and Incentives for Conservation Development in Local Land-Use Regulations


Article first published online: 3 SEP 2013

DOI: 10.1111/cobi.12136

Effective conservation of biological diversity on private lands will require changes in land-use policy and development practice. Conservation development (CD) is an alternative form of residential development in which homes are built on smaller lots and clustered together and the remainder of the property is permanently protected for conservation purposes. We assessed the degree to which CD is permitted and encouraged by local land-use regulations in 414 counties in the western United States. Thirty-two percent of local planning jurisdictions have adopted CD ordinances, mostly within the past 10 years. CD ordinances were adopted in counties with human population densities that were 3.0 times greater and in counties with 2.5 times more land use at urban, suburban, and exurban densities than counties without CD ordinances. Despite strong economic incentives for CD (e.g., density bonuses, which allow for a mean of 66% more homes to be built per subdivision area), several issues may limit the effectiveness of CD for biological diversity conservation. Although most CD ordinances required a greater proportion of the site area be protected than in a typical residential development, just 13% (n = 17) of the ordinances required an ecological site analysis to identify and map features that should be protected. Few CD ordinances provided guidelines regarding the design and configuration of the protected lands, including specifying a minimum size for protected land parcels or encouraging contiguity with other protected lands within or near to the site. Eight percent (n =11) of CD ordinances encouraged consultation with a biological expert or compliance with a conservation plan. We recommend that conservation scientists help to improve the effectiveness of CD by educating planning staff and government officials regarding biological diversity conservation, volunteering for their local planning boards, or consulting on development reviews.


- Jessie Owley


September 20, 2013 in Community Design, Conservation Easements, Density, Local Government, Planning, Scholarship, Subdivision Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 18, 2013

Conservation Easements and Fracking

One of the tricky things about conservation easements is that most of purport to protect land in perpetuity but the original parties to conservations easements are probably not going to have thought of every possible future circumstance or land use. Fracking is a great example. Many conservation easements cover property that now appears desirable for fracking. The potential for fracking on these properties may not have been contemplated by the folks who drafted the conservation easements just a few short years ago. An example of this appears in the recent case of Stockport Mountain Corp. v. Norcross Wildlife Foundation, 2013 WL 4538822 (M.D. Penn. Aug 27, 2013) (Munley, J.)

A 2002 conservation easement burdens some property in Pennsylvania that now appears quite attractive for shale gas development. Although the parties involved in crafting the conservation easement discussed it over the course of several years and went through multiple drafts, no one mentioned the words shale, natural gas, or fracking.  After being approached by two different companies seeking natural gas leases, the landowner sought a declaratory judgment that the conservation easement permitted fracking because ... er... because it doesn't expressly prohibit it....

Court said no go in this case based on a provision prohibiting commercial and industrial uses on the property (except for those specifically permitted). Good news for the many conservation easement holders that commonly include such language in their agreements. One interesting thing is that the CE did allow some quarrying, which the court seemed to view as even more environmentally destructive than fracking... but the court prohibited the fracking because it wasn't mentioned in the savings clause of the commercial prohibition. What the court did not reach is whether fracking would have been at odds with the conservation values of the property. That might have been a trickier one.

This is a nice example of cases we should continue to see with conservation easements as landowners seek to engage in uncontemplated activities like erecting windmills and cell phone towers.. oh yeah and probably more fracking.

Jessie Owley

September 18, 2013 in Caselaw, Conservation Easements | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 17, 2013

Manifestoes, theories, and programs of 20th century architecture

Two excellent collections of architectural theory were recently recommended to me that I think would Programs and Manifestoesprove handy to other land use legal scholars who may want to dabble into this literature.  The two books are Theories and Manifestoes of Contemporary Architecture (2006, Charles Jencks & Karl Kropf, eds.) and Programs and Manifestoes on 20th-Century Architecture (1975, Ulrich Conrads, ed., Michael Bullock, trans.).  Each book provides several pages of excerpts from tens of key documents in architectural theory.  They are great for dipping into when you have a few spare moments.

Stephen R. Miller Theories and Manifestoes

September 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 11, 2013

China Research?

It seems like every other environmental law professor I talk to these days is doing work in/about China. Now here something for us land use types as well. I just received this email from the Lincoln Institute:

The Annual International Fellowship Program of the Lincoln Institute of Land Policy’s Program on the People’s Republic of China cordially invites applications from academic researchers working on issues related to the following fields in China:
  • Land Policy and Development
  • Urban Planning and Urban Development
  • Land, Property Taxation, and Local Public Finance
  • Social Housing Policy
  • Environment and Urban Sustainability

This fellowship program helps to promote international scholarly dialogue on China’s urban development and further Lincoln Institute’s mission to be a leading center for tax and land related policy throughout the world. If applicable, please distribute or post this information in your department. Applications are due by email on October 18, 2013.

You may download the full Request for Proposal and Application Guidelines at If you have further questions after reviewing this material, please contact China Program Administration, Diana Ngo at

Information about our other fellowship programs is available at

Jessica Owley



September 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, September 9, 2013

Framing environmental sustainability as a matter of rights or the common good

I just had a chance to read a fascinating paper by MarYam G. Hamedani, Hazel Rose Markus and Alyssa S. Fu, which I heard about on NPR many months ago, regarding the how framing issues to an audience as a matter of independence (rights-based) as opposed to interdependence (community-based) can have a tremendous impact. 

Those who teach land use, environmental law, and sustainability courses would do well to read about one of their studies, in particular, which involved framing an environmental sustainability course.  The study evaluated those of both European American background and Asian American background.  As the study notes, European Americans “have been exposed primarily to mainstream cultural contexts that promote and value independence,” while Asian Americans “have been exposed both to these contexts and also to cultural contexts that promote and value interdependence.” 

Broadly stated, the study found that for a proposed environmental sustainability course, “European Americans demonstrated less motivation, . . . allocated fewer resources, . . . when the course was framed with interdependent behavior than with independent behavior.  They were also less likely to agree that the course should be a university requirement when the course was framed with interdependent behavior than with independent behavior. . . . Asian Americans did not differ in their responses according to condition.”

The study concluded, in part, as follows and drawing on a larger number of studies than the one noted above:

In the land of the free, can appeals to increased interdependent awareness and action undermine motivation for independent Americans? The present studies reveal that they can. Specifically, we found that priming interdependent rather than independent action undermines general motivation for both mental and physical tasks and that framing participation in a university class about environmental sustainability in terms of interdependent action (working together) rather than independent action (taking charge) leads to decreased motivation and resource allocation. These effects were robust and suggest that the frequent and pressing calls for Americans to recognize their shared fate and think collectively may result in the unintended consequences of undermining the very motivation they seek to inspire. It is important to note that interdependent action is not inherently demotivating for all Americans. Rather, it is demotivating for European Americans for whom, unlike for bicultural Asian Americans, interdependent action has not yet been systematically and pervasively associated with valued, normative, “good” behavior in their sociocultural context.

The article is In the Land of the Free, Interdependent Action Undermines Motivation  and is in the January 9, 2013 edition of Psychological Science (sub. req’d) .  A fascinating study that is well worth a read!

Stephen R. Miller

September 9, 2013 | Permalink | Comments (0) | TrackBack (0)

Sunday, September 8, 2013

Fennell on Lee's Eminent Domain as Just Undercompensation

Lee Fennell (Chicago) critiques and enhances Brian Lee's Columbia Law review article entitled Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, blogged about here earlier this summer.  In her concise on-line response, Just Enough, 133 Colum. L. Rev. Sidebar 109 (2013) (pdf here), Fennell moves through the positive and normative aspects of the tripartite analysis of how Fair Market Value (FMV) purportedly fails to fully compensate property owners whose interests are liquidated through eminent domain proceedings.  As she lays it out in her intro:

Like other scholars, I have previously observed that the FMV measure of compensation leaves an increment of value uncompensated:

The uncompensated increment is made up of three distinct components: (1) the increment by which the property owner’s subjective value exceeds fair market value; (2) the chance of reaping a surplus from trade (that is, of obtaining an amount larger than one’s own true subjective valuation); and (3) the autonomy of choosing for oneself when to sell.

Lee argues that appropriate amounts of both subjective value and the chance of gains from trade are included in FMV, leaving only interference with autonomy categorically uncompensated in a manner that would implicate fairness concerns. This Part focuses only on the positive question of what does and does not get included in FMV, leaving the normative questions to the next Part. Part I.A considers subjective value and Part I.B turns to the last two components of the “uncompensated increment.”

Even after demonstrating, contra Lee, that existing owners' subjective attachments are not necessarily baked in to market valuations, she helps out by showing that a prevalence of rooted homeowners together with zoning-induced supply contraints might support the kind of extended sellers' market that diminishes the difference between market prices and the reservation prices of most homeowners. 

Jim  K.


September 8, 2013 in Constitutional Law, Eminent Domain, Judicial Review, Property, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 4, 2013

Singer's Keynote on Property, Poverty and Immigration in a Free and Democratic Society

I hope many of you attended the AALS Workshop on Property, Poverty and Immigration this past summer in San Diego.  For those of us who couldn't (or did, but just weren't taking copious notes), the keynote speaker, Joseph William Singer (Harvard), has posted his talk entitled Titles of Nobility: Property, Poverty, and Immigration in a Free and Democratic Society.  Here's the abstract:

Both property and immigration are premised on exclusion yet both human rights and democratic norms require us to treat every human being with equal concern and respect. While neither sovereigns nor owners can have completely open borders, they have obligations to respect the human dignity of "the stranger." Biblical sources link the stranger with the poor and develop a version of the Golden Rule that requires both to be accorded "love." The related secular principle of equal concern and respect means that poverty is, in principle, incompatible with the norms of a free and democratic society. That principle is embodied in the constitutional prohibition on titles of nobility which mandates treating every human being as of equal value and importance. While the nobility clauses do not mandate particular policies, they do outlaw treatment that places some as occupying a lower status than others.This has consequences for both immigration and property law, as well as laws and policies designed to alleviate and prevent poverty.

Jim K.

September 4, 2013 in Affordable Housing, Constitutional Law, Property, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)