Friday, November 29, 2013

This American Life episode on destiny by address

Is land use becoming hip?  Nowhere was I more surprised to hear an entire hour dedicated to land use law than on This American Life.  When Ira Glass is giving an hour to affordable housing and the role of property tax in education, it might just be that people are starting to care about land use issues.  Then again, the term "land use" was never mentioned in the broadcast at all, but still...

Here is the description of the episode:

Where you live is important. It can dictate quality of schools and hospitals, as well as things like cancer rates, unemployment, or whether the city repairs roads in your neighborhood. On this week's show, stories about destiny by address.

Much of this story is told to Nancy Updike by ProPublica reporter Nikole Hannah-Jones, whose series on the Fair Housing laws — with more stories, research and interviews — is here.


Ira talks to 15 year old Jada who, when she was in third grade, moved from Akron Public Schools in Ohio, to the nearby Copley-Fairlawn schools in the suburbs. After two years, Jada was kicked out by administrators who discovered that her mother was using Jada's grandfather's address in Copley, instead of her own in Akron. Jada says that while the schools are only a few miles apart, the difference in education was astounding.

For more information about Jada and her mother, Kelley Williams Bolar, who spent 10 days in jail because she falsified documents so she could enroll Jada and her sister in the Copley-Fairlawn schools, you can go here.

Act One

Reporter Nancy Updike talks to a group of New York City residents about their frustrating attempts to rent an apartment. With hidden microphones, we hear landlords and supers tell the apartment hunters that there's nothing available. But that's not necessarily true. Forty-five years after the passage of the Fair Housing Act in 1968, ProPublica reporter Nikole Hannah-Jones talks to Nancy about the history of racial housing discrimination in the United States and what has been done — and hasn't been done — to rectify it.

Act Two

Once the Fair Housing Act became law in 1968, there was some question about how to implement it and enforce it. George Romney, the former Republican Governor of Michigan and newly-appointed Secretary of HUD, was a true believer in the need to make the Fair Housing Law a powerful one — a robust attempt to change the course of the nation's racial segregation. Only problem was: President Richard Nixon didn't necessarily see it that way. With Nikole Hannah-Jones, Nancy Updike continues the story. (16 minutes)

Nikole Hannah-Jones's investigative series on the history and enforcement of the Fair Housing laws — with more stories, research and interviews — is here.

Listen to it here:



 Stephen R. Miller


November 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, November 25, 2013

Goodbye to all that: San Francisco edition

The Sunday New York Times had a nice article on how Joan Didion's famous leaving-New York essay, "Goodbye To All That," has spawned a collection of goodbye letters to Gotham.

I thought of Didion's essay in light of an article in today's NYT about how tech money is changing San Francisco, a city where I lived for more than a decade and where I still spend a fair amount of time, and is forcing an exodus and a redefinition of the city's neighborhoods.   From the article:

For critics, such sights are symbols of a city in danger of losing its diversity — one that artists, families and middle-class workers can no longer afford. On the day of Twitter’s public offering this month, 150 demonstrators protested outside the company with signs reading “People not profit” and “We’re the public, what are you offering?”

More and more longtime residents are being forced out as landlords and speculators race to capitalize on the money stream.

Mary Elizabeth Phillips, a retired accountant, is fighting eviction from the rent-controlled apartment where she has lived for almost half a century. If her new landlords have their way, she will have to move in April, shortly after her 98th birthday, because they want to sell the units.

Her neighborhood has given way around her. The car dealership across the street is now a luxury apartment complex, complete with rooftop herb garden, a butterfly habitat and a Whole Foods.

“I can understand it from an investment standpoint,” she said of her landlords’ actions. “But I don’t think I’d ever be that coldblooded about this.”

All of which makes me wonder, will this transformation of the former bohemian capitol of the country spawn a batch of leaving-San Francisco essays?  Or, ironically, will the goodbyes come in the form of tweets and Facebook posts, the very media that transformed the city having transformed the essay itself? 

Stephen R. Miller



November 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Maryland appellate court okays Johns Hopkins' development plans for smart growth advocate's farm donated to university

A Maryland appellate court held last week that Johns Hopkins University could develop land donated to it by one of Montgomery County, Maryland's most outspoken smart growth advocates who thought her farm was going to be maintained by the university as a reserve.  The case came down to one of contract interpretation rather than land use law per se, but it is a cautionary tale in this age of private land conservation.

Detailed history of the case here.

Local coverage here and here.

The court clearly had a hard time reckoning what the agreement said with what was obviously otherwise the desire of Elizabeth Banks, one of the county's leading smart growth advocates in a county renowned for its smart growth policies.  From the case's preamble:

This case has generated a lot of publicity and emotion, and understandably so. Elizabeth Banks was renowned, even revered, for her opposition to development in Montgomery County. Ms. Banks had owned and lived on property known for more than a century as the Belward Farm (the “Farm”), and she undoubtedly had a vision of how The Johns Hopkins University (“Hopkins”) could, and would, steward her beloved family land after she and her siblings conveyed the Farm to Hopkins in 1989. Her heirs and surviving family (the “Family”) argued in the Circuit Court for Montgomery County, and argue here, that Ms. Banks would not approve Hopkins's current plans to develop the Farm, and Hopkins does not contend otherwise.
But whether Ms. Banks would approve Hopkins's current plans is not the question before us. Instead, this case turns on the terms of a contract and deed that the parties executed nearly twenty-five years ago. The Family does not dispute the validity of the conveyance, or that Hopkins emerged from the transaction with the right to develop the Farm for “agricultural, academic, research and development, delivery of health and medical care and services, or related purposes,” or that the proposed “ ‘mixed-use’ research park that ‘brings together university, government and private research’ “ would use the Farm entirely for those allowed purposes. The Family argued below, and argues here, that the scale, density, and lessor/lessee structure of Hopkins's current plans violate the terms of the parties' agreement, and that the circuit court erred in finding their contract not to be ambiguous, and in declining to consider extrinsic evidence of the parties' (particularly Ms. Banks's) intentions and visions when defining Hopkins's rights to develop the Farm, and thus in granting summary judgment for Hopkins.
We understand the Family's frustration as they face the increasingly likely prospect that the Farm will transform into a campus that they believe Ms. Banks would never have countenanced. But although the Family may now regret that Ms. Banks and her siblings conveyed the Farm to Hopkins, or at least that they did not negotiate different terms, we agree with the circuit court that the operative contract frames Hopkins's development rights solely and unambiguously in terms of permissible uses. Unlike hindsight, foresight is not 20/20, and whether anyone specifically envisioned the proposed development, the contract permits it. We affirm the judgment of the circuit court.
Newell v. Johns Hopkins Univ., 1861 SEPT.TERM 2012, 2013 WL 6097561 (Md. Ct. Spec. App. Nov. 21, 2013).  Ouch.  The case is likely to go up to Maryland's highest court.
Full reported decision here
Stephen R. Miller

November 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Why Bad Environmentalism Is Such an Easy Sell: Ed Glaser on Freakanomics radio podcast

The local government economist Ed Glaser (Harvard) was on Freakanomics radio last week for a show called "Why Bad Environmentalism Is Such an Easy Sell."  Glaser's work is always provocative and the podcast is a fun listen.  You can listen at the link below, or at the Freakanomics website here


November 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 21, 2013

Davidson and Foster on the Mobility Case for Regionalism

So excited about this one.  Nestor Davidson (Fordham) and Sheila Foster (Fordham) have posted The Mobility Case for Regionalism, 47 U. C. Davis L. Rev. 63 (2013).  Here's the abstract:

In the discourse of local government law, the idea that a mobile populace can “vote with its feet” has long served as a justification for devolution and decentralization. Tracing to Charles Tiebout’s seminal work in public finance, the legal-structural prescription that follows is that a diversity of independent and empowered local governments can best satisfy the varied preferences of residents metaphorically shopping for bundles of public services, regulatory environment, and tax burden.

This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. People today move between — and not just within — metropolitan regions, domestically and even internationally. This is particularly so for a subset of residents — high human-capital knowledge workers and the so-called “creative class” — that is prominently coveted in this interregional competition. These modern mobile residents tend to evaluate the policy bundles that drive their locational decisions on a regional scale, weighing the comparative merits of metropolitan areas against each other. And local governments are increasingly recognizing that they need to work together at a regional scale to compete for these residents.

This Article argues that this intermetropolitan mobility provides a novel justification for regionalism that counterbalances the strong localist tendency of the traditional Tieboutian view of local governance. Contrary to the predominant assumption in the legal literature, competition for mobile residents is as much an argument for regionalism as it has been for devolution and decentralization. In an era of global cities vying for talent, the mobility case for regionalism has significant doctrinal consequences for debates in local government law and public finance, including the scope of local authority, the nature of regional equity, and the structure of metropolitan collaboration.

Jim K.

November 21, 2013 in Inclusionary Zoning, Local Government, Planning, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 18, 2013

Dwon on the corner: A city's nomenclature writ wrong

Tom Rogers, a planner with the City of Menlo Park and a member of the San Francisco Pedestrian Safety Advisory Committee (and a fellow student with me in Berkeley's planning program years ago) has made a mission of documenting San Francisco's mispelled street markers, of which there are plenty. 

His work was recently profiled in a story here.

Below are several efforts of city workers to spell "Middlefield" Rogers documented, each coming up a tad short:




Tom is an avid urban photographer, and more of his work is available here.

November 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Field Notes on Starting a Law School Clinic by Miller

Two years ago I moved from San Francisco to Boise, Idaho to start life as an academic with a tenure-track position that included both doctrinal teaching and starting a new Economic Development Clinic at the University of Idaho College of Law's new Boise campus.  I found the experience to be one of the most challenging, and rewarding, of my professional career.  In so doing, I also found that there was precious little out there that talked about the experience of starting a law school clinic.  To try and fill this void for future professors new to the academy, I recently wrote Field Notes from Starting a Law School Clinic, which will be published in 2014 by the Clinical Law Review.  The abstract:

The goal of this article is to provide guidance for clinicians starting new law school clinics through “field notes” of the author’s experience starting a new Economic Development Clinic. Using personal experience as a reference point by which to discuss the new clinician’s experience generally, the article first discusses the role of clinicians in the contemporary legal academy. Second, the article discusses how to find and choose clinic clients, which is arguably the most difficult part of starting a clinic. This section also offers a digression on framing community and economic development clinics, which the author argues also provides a valuable test case for contemplating client selection in all subject clinics. Third, the article addresses non-client serving components of new clinics, such as class structure, readings, writings, and the like. Fourth, the article addresses the client-serving component of new clinics, including a number of logistical issues in running a clinic that are often a surprise to new clinicians. This section also discusses grading clinics. Fifth, the article addresses publicizing a new clinic. Sixth, the article addresses student recruitment for new clinics. Seventh, the article concludes by discussing ways new clinicians can get to know the legal clinic professorial community.

This article makes no pretense of providing everything a new clinician needs to know.  It is necessarily limited by my own experience, but also, hopefully, enriched by it.  I hope that other new clinicians--and perhaps even new doctrinal professors--will consider taking the time to reflect upon their beginnings for the benefit of others that will soon walk that same path. 

The article is still in its final revisions, and I would welcome any comments on how to make it better or more useful to those starting a new law clinic.

Stephen R. Miller


November 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, November 15, 2013

Jeff Speck's TED Talk on The Walkable City just posted

Jeff Speck's TED Talk on The Walkable City, which is based on his 2012 book of the same name, was just posted.  His ideas won't surprise anyone reading this blog, but it's a good, condensed summary of a lot of information that could prove a useful introduction for the uninitiated and a useful recap for the dedicated.

About Jeff Speck:

Jeff Speck is a city planner and architectural designer who, through writing, lectures, and built work, advocates internationally for smart growth and sustainable design. As Director of Design at the National Endowment for the Arts from 2003 through 2007, he oversaw the Mayors' Institute on City Design and created the Governors' Institute on Community Design, a federal program that helps state governors fight suburban sprawl. Prior to joining the Endowment, Mr. Speck spent ten years as Director of Town Planning at Duany Plater-Zyberk and Co., a leading practitioner of the New Urbanism, where he led or managed more than forty of the firm's projects. He is the co-author of Suburban Nation: The Rise of Sprawl and the Decline of the American Dream as well as The Smart Growth Manual. He serves as a Contributing Editor to Metropolis Magazine, and on the Sustainability Task Force of the U.S. Department of Homeland Security. His new book, Walkable City: How Downtown Can Save America, One Step at a Time, is now available in print, digital, and audio format.

The TED Talk:


His book:


November 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Atlanta Braves Stadium Change Causes Controversy

I no longer follow Georgia news closely, but recently my Facebook feed lit up with multiple article postings and opinions about the Atlanta Braves' plan to build a new stadium in suburban Cobb County, abandoning Turner Field, which they've occupied for only 16 years.  Sentiment amongst my friends is running about 20 to 1 against the move. It even merited national attention from a Huffington Post blogger.  He brings up the not-unfamiliar criticism that Cobb County has no business spending $450 million on a new stadium when they're furloughing teachers:

Now it seems that Cobb County is one of the 100th wealthiest counties in America, and the 12th most educated. So $450 million must be chump change -- it's not like they're Philadelphia, slashing public school teachers in the face of massive budget cuts. Oh, wait... actually they are sort of like that: "Cobb County's school board approved a 2013-14 budget Thursday night that will result in five furlough days for all employees, the loss of 182 teachers through attrition and a slimmer central administration staff."

The cuts are the result of reduced state aid and lower property tax revenues -- although apparently the lower property tax revenues that are low enough to mean fewer teachers aren't so low that they can't BUILD A NEW BASEBALL STADIUM! For a team that already has what you and I might, sanely, consider a pretty new baseball stadium.

I'm friends with several local government lawyers, and my friend, law school classmate, and former member of the Georgia legislature Rob Teilhet rightly pointed out that building the stadium has no direct relationship to school funding.  But, as Land Use Prof chief blogger Matt Festa noted in a blog post he wrote in 2009 on stadium controversies generally, claims are often made that the overall economic development caused by the stadium will benefit the community generally.  This project is no exception

Jamie Baker Roskie

November 15, 2013 in Development, Economic Development, Georgia, Local Government, Planning, Politics, Suburbs | Permalink | Comments (0) | TrackBack (0)

Thursday, November 14, 2013

Applications open for GSU's Study Space VII: Barcelona: Beyond Affordable Housing: An Interdisciplinary Multinational Approach to Adequate Housing Options

The Center for the Comparative Study of Metropolitan Growth at Georgia State University College of Law in cooperation with Tulane University Law School’s Payson Center for International Development is pleased to announce our upcoming Study Space program, Beyond Affordable Housing:  An Interdisciplinary Multinational Approach to Adequate Housing Options.  This program is being offered at the University of Barcelona in Barcelona, Spain May 5-9, 2014. 

Study Space is a weeklong intensive workshop in which scholars, government representatives, and private sector professionals develop solutions to legal, social and policy challenges in urban areas.  Using Barcelona as a case study, participants will explore:  barriers to affordable housing such as zoning and land use laws; optimal siting of affordable housing; habitability and creating healthy environments; protection from forced eviction; housing discrimination; right to housing, and; homelessness.

Applications are currently being accepted online; the deadline to apply is February 7, 2014.  Please visit our website for more information and the online application:

If you have any questions, please contact Karen Johnston at

Download Study Space Barcelona Brochure

November 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Foster on Zoning Responses to Payday Lending

Sheila Foster (Fordham) has posted Breaking Up Payday: Anti-Agglomeration Zoning and Consumer Welfare, 75 Ohio St. L.J. ___ (forthcoming 2014).  Here's the abstract:

In the last decade, dozens of local governments have enacted zoning ordinances designed to limit the concentration of payday lenders and other alternative financial services providers (AFSPs), such as check-cashing businesses and auto title loan shops, in their communities. The main impetus for these ordinances is to shield economically vulnerable residents from the industry’s lending practices in the absence of sufficiently aggressive federal and state consumer protection regulation. This Essay casts considerable doubt on whether zoning is the appropriate regulatory tool to achieve the consumer protection and welfare goals animating these ordinances.  The author’s analysis of the aftermath of payday lending zoning restrictions in one state demonstrates that while such laws may play a role in reducing the number of payday lenders in the immediate urban area, they do not shield consumers from these lenders altogether.  Further, the economic literature on agglomeration economies suggests that there are costs to consumer welfare from limiting or breaking up retail agglomerations.  Such “anti-agglomeration” zoning restrictions can prevent consumers from capturing the benefits of the price and product competition that result from retail agglomerations.  This Essay concludes that if the main impetus behind anti-agglomeration zoning measures is to protect local residents from the high interest rates and loan terms associated with the payday industry, it might be that these measures are working against their intended purpose and actually harming consumers who lack viable financial services alternatives.  As such, in weighing the costs and benefits of payday lender agglomeration, lawmakers should consider more carefully the effects of anti-agglomeration zoning measures on consumer welfare.

Sheila has written terrific articles on social capital and urban geography.  I'm glad to see her confront, as a land use regulation problem, activities identified as detrimental to social capital and explore some of the same strategies used by communities to respond to the marketing of pornography.

Jim K.

November 14, 2013 in Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 13, 2013

Making Sense of Place film series featuring Phoenix, Cleveland, and Portland still worth a look

Several years ago, the Lincoln Institute of Land Policy and Northern Light Productions produced a series of films called Making Sense of Place.  I just had a chance to watch one of the films about Cleveland, which was filmed in 2006, and I would still highly recommend it.  Here is how the Lincoln Institute describes the three films:

Making Sense of Place is a documentary film and educational outreach project launched by the Lincoln Institute of Land Policy. The first film, Phoenix: The Urban Desert examined explosive, dispersed growth in the booming Southwest metropolis and the practical and environmental issues that have accompanied. The second film, Cleveland: Confronting Decline in an American City, traces urban decay, and efforts at revitalization, in what was once America's 5th largest city. The third film, Portland: Quest for the Livable City, explores innovation and conflict about growth and land use regulation, in Portland, Oregon.

If you haven't already watched these films, the Cleveland and Phoenix films are available on social media and linked below.  Grab some popcorn and enjoy!



Making Sense of Place: Phoenix, the Urban Desert from The Urban Commuter on Vimeo.





November 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Dagan on Justifications for Undercompensation in Eminent Domain

Hanoch Dagan (Tel Aviv) has posted his anthology entry entitled Expropriatory Compensation, Distributive Justice and the Rule of Law in Rethinking Public Interest in Expropriation Law (Mostert & Verstaapen eds., forthcoming 2014).  Here's the abstract:

This Essay examines the possible justification for providing less than full (fair market value) compensation for expropriation. One obvious justification applies in cases of public measures, where the burden is deliberately distributed progressively, namely, where redistribution is the desired goal of the public action or, at least, one of its primary objectives. Beside this relatively uncontroversial category, two other explanations are often raised: that partial compensation is justified by reference to the significance of the public interest, even if it is not redistributive, and that it can serve as a means for adjusting the amount of the compensation to the specific circumstances of the case. This Essay criticizes both justifications, arguing that the former is normatively impoverished while the latter affronts the rule of law. The notion of partial and differential compensation, however, can serve as a powerful tool for developing a nuanced expropriation doctrine that serves important property values, and also targets the potentially regressive effects of a uniform rule of full market value. The proposed doctrine draws careful, rule-based distinctions between types of injured property (fungible vs. constitutive) and types of benefited groups (local communities vs. the broader society).

One of the wonderful benefits of participating in the annual gatherings of the Association of Law, Property and Society is the opportunity to emgage with scholars from other countries.  A 2011 panel focusing on his book Property: Values and Institutions (Oxford Univ. Press, 2011), which Dean Dagan participated in personally, was one of the best discussions of property theory that I've ever had the chance to hear. 

Jim K.

November 13, 2013 in Comparative Land Use, Constitutional Law, Property, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 12, 2013

Maloney on the Promotion of Urban Agriculture through Zoning

Stephanie Maloney (Notre Dame Law Review) has posted her note entitled Putting Paradise in the Parking Lot: Using Zoning to Promote Urban Agriculture, 88 Notre Dame L. Rev. 101 (2013).  Here's the abstract:

This Note explores municipal zoning regulations related to urban agriculture and evaluates specific zoning mechanisms that can be implemented to efficiently promote the accommodation of urban agriculture and access to locally grown food. Consideration of the benefits and costs of urban agriculture, alongside the zoning practices of leading cities, will assist in developing zoning laws that meet the needs of American cities and citizens. Part I of this Note introduces the concept and history of urban agriculture, providing an overview of its benefits and challenges. Part II examines municipal zoning and the principle zoning restrictions that impact farming and gardening in a city. Part III reviews the varied efforts of municipalities to support urban agriculture by incorporating it into local zoning codes. Part IV concludes by offering recommendations for the municipal integration of agriculture into the urban fabric, with particular attentiveness to participatory policy-making in the form of food policy councils.

Jim K.

November 12, 2013 in Agriculture, Environmentalism, Food, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, November 11, 2013

Sackett (of Sackett v. EPA) arrested for alleged sex trafficking and embroiled in big-time contract disputes

As land use lawyers everywhere know, the Sacketts were the darlings of the libertarian land use set last year; the Pacific Legal Foundation represented the couple in Sackett v. EPA, a case that dealt with whether administrative compliance orders were judicially reviewable under the APA (well, PLF said the case was a "land grab" by bureaucrats, but that was the PR folks talking). 

The Sacketts had their moment of victory at the Supreme Court, but promptly managed to get in trouble with the law several times over since.  The Sacketts' latest troubles are not filling in wetlands, but allegedly involve sex trafficking and big-time contract disputes.  From the Bonner County Daily Bee:

A Priest Lake businessman embroiled in a high-profile wetland dispute with the U.S. Environmental Protection Agency has been arrested in North Dakota on a federal sex-trafficking charge.

Michael Thomas Sackett made an initial appearance in U.S. District Court in Bismarck on Tuesday and was held in custody until [last] Friday, court documents indicate.

Sackett, 47, attempted to entice an underage girl to commit a commercial sex act on Sunday in Williams County, N.D., a criminal complaint alleges.

United States District Judge Charles S. Miller Jr. granted Sackett a conditional release on Friday, ordering him to remain at a residence he keeps in Williston, N.D. However, Sackett will be allowed limited in-state travel with electronic monitoring. Sackett was further ordered to surrender his passport.

A Bismarck attorney representing Sackett in the criminal case, Jacob Rodenbiker, did not respond to a request for comment on Friday.

If convicted of the felony, Sackett could face a lifelong prison sentence.

Timothy Purdon, a U.S. Attorney for the district of North Dakota, moved to seal an affidavit of probable cause in the case to avoid compromising the ongoing criminal investigation or jeopardize the safety of undercover Homeland Security agents conducting the probe, according to court records.

Sackett made national headlines after suing the EPA in 2008 over the disputed wetland, which the agency accused him of filling while developing a home site near Priest Lake.

The case ultimately went before the U.S. Supreme Court, which unanimously ruled last year that Sackett had a right to challenge an EPA compliance order.

The case was remanded to Idaho’s federal court, where it pending amid a flurry of briefings.

Sackett and two Idaho businesses he owns — Priest Lake Storage LLC and Sackett & Sackett LLC — were  sued last year in U.S. District Court by the Cincinnati Insurance Co. over an alleged breach of contract involving a Granite Reeder Water & Sewer District construction project.

The Ohio-based insurance company is seeking a $559,000 judgment against Sackett.

Sackett and his wife, Chantell, filed notice in February that they were seeking protection under Chapter 7 of the U.S. Bankruptcy Code in February. A bankruptcy petition filed by the couple lists $2.3 million in business-related liabilities and assets of up to $500,000.

I can only imagine that the PR folks at the Pacific Legal Foundation must really hope this story does not get legs...

Stephen R. Miller

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

Fennell and Peñalver on Exactions Creep

Lee Fennell (Chicago)  and Eduardo Peñalver (Chicago) have posted Exactions Creep, 2013 Sup. Ct. Rev. ___ (forthcoming).  Here's the abstract:

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.


Jim K.

November 11, 2013 in Impact Fees, Judicial Review, Local Government, Property, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 5, 2013

Chicago becomes latest city to require benchmarking of large building energy use

Back in September, Chicago became the latest city to adopt an ordinance requiring benchmarking of energy use in its large buildings.  It is a notable accomplishment; only New York City, Philadelphia, Washington, D.C., Minneapolis, Boston, Seattle, Austin, San Francisco, California, and Washington State have similar ordinances. 

I do not see why these ordinances have not caught on more quickly:  the reporting is not terribly onerous; the upside for good actors in the market is huge; and operating costs of large office buildings seem like something that should have been a standard part of due diligence processes in real estate deals a long time ago.  It is likely only the realities of the triple-net lease, which typically require tenants to pay operating costs and maintenance of their space, that insulated building owners from worries about energy efficiency.  Hopefully more cities will jump on the benchmarking bandwagon and force building owners to bring energy efficiency back into the market price of their buildings.

Download Chicago Benchmarking Ordinance - Press Release

Stephen R. Miller

November 5, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, November 4, 2013

The Republican Party's "civil war": Will there be a land use fallout?

The New York Times has an interesting article today about how a small Iowa city--like other small cities around the country--is witnessing the influx of campaign money from the Koch bothers' libertarian Americans For Prosperity group.  The influx of outsider money is receiving a skeptical response in the liberal-leaning area.  For readers of this blog, perhaps of equal interest is what is buried deep in the article:  that the major issue in the community is debt the city took on through a tax-increment financed development.  From the article: 

A central issue in Coralville’s elections is the city’s decision to borrow tens of millions of dollars to turn a once-blighted stretch of riverfront into a development called the Iowa River Landing. The city retained ownership of some of the buildings, including a Marriott hotel and convention center and a brewery. City officials also lured a Von Maur department store to the development with as much as $16 million in incentives.       

“I don’t think government should operate private enterprise,” said Mark Winkler, a City Council candidate the citizens group has backed. “Government should own libraries, police stations.”       

Critics complain that the debt has prevented the city from lowering property tax rates. They also complain that the complex rules of tax-increment financing siphon property tax money away from the schools, leading the state to pay $2.5 million toward Coralville schools each year.       

But city officials argue that their investments have helped the economy boom — $757 million in retail sales last year, a more than fourfold increase since 1997 — and that the debt will be paid. They blame General Growth for stirring much of the criticism, saying the developer was upset that Von Maur went to the Iowa River Landing and not the mall.

To me, this raises the question of whether libertarian groups, like those funded by the Koch brothers, will aggressively go after public-private partnerships generally.  And if they do, will that raise the ire of traditioanl conservatives, such as those often found in the real estate and development communities who often need such public funding mechanisms to make large private projects a reality? 

Perhaps this will become one way in which the larger "civil war" within the Republican party plays out in land use issues.

Stephen R. Miller


November 4, 2013 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 3, 2013

EPA releases draft Climate Change Adaptation Implementation Plans for comment

Last Friday EPA released 17 draft Climate Change Adaptation Implementation Plans for comment, one for each region and also one for each program.  I looked at several and found them useful resource documents with land use issues discussed throughout the plans.  Comments on the drafts are due January 3, 2014.  From the press release...

The U.S. Environmental Protection Agency (EPA) today released its draft Climate Change Adaptation Implementation Plans for public review and comment. In support of President Obama’s Climate Action Plan and Executive Order on Preparing the United States for the Impacts of Climate Change announced today, the Implementation Plans provide detailed information about the actions EPA plans to take across the country to help communities adapt to a changing climate.

“To meet our mission of protecting public health and the environment, EPA must help communities adapt to a changing climate,” said EPA Administrator Gina McCarthy. “These Implementation Plans offer a roadmap for agency work to meet that responsibility, while carrying out President Obama’s goal of preparing the country for climate-related challenges.”

The impacts of a changing climate – including increased extreme weather, floods, and droughts – affect EPA’s work to protect clean air and water. The draft Climate Change Adaptation Implementation Plans recognize that EPA must integrate climate adaptation planning into its programs, policies, rules, and operations to ensure that the agency’s work continues to be effective even as the climate changes.

EPA released its draft agency Climate Change Adaptation Plan on February 9, 2013 for public review and comment, and expects to issue the final version this Fall. In 2009, all federal agencies were required to develop Climate Change Adaptation Plans by the federal Interagency Climate Change Adaptation Task Force. Under Executive Order 13514, the Task Force was charged with  developing recommendations for the President on how to increase the nation’s resilience to
climate change. The new Implementation Plans provide information about how EPA will meet the agency-wide priorities identified in the draft Climate Adaptation Plan released earlier this year.

The comment period on EPA’s draft Climate Change Adaptation Implementation Plans closes on January 3, 2014.

More information on EPA’s Climate Change Adaptation Implementation Plans:

More information on EPA’s draft Climate Change Adaptation Plan:

More information about EPA’s climate adaptation activities:

Stephen R. Miller

November 3, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, November 1, 2013

Boyd on Zoning for Apartments

Marie Boyd (South Carolina) has posted Zoning for Apartments: A Study of the Role of Law in the Control of Apartment Houses in New Haven, Connecticut 1912-1932, 33 Pace L. Rev. 600 (2013).  In it, she reviews building records and Sanborn maps to give her reader a complete picture of the restrictions placed on apartment development before and after New Haven's first zoning ordinance in 1926. Here's the abstract:

This article seeks to contribute to the legal and policy debates over zoning by providing a more detailed examination of the impact of apartments on both pre-zoning land use patterns and the zoning process during the formative initial stages of zoning in the United States than has been provided in the literature to date. Specifically, this Article analyzes the impact of apartments on both pre-zoning land use patterns and the zoning process in New Haven, Connecticut. It focuses on the period beginning with the selection of New Haven’s first Zoning Commission in 1922, and concluding with the passage of New Haven’s first zoning ordinance in 1926. Through this detailed historical account of the realities of zoning, this Article demonstrates how — due to delays in the enactment of zoning — New Haven’s first zoning ordinance, rather than shaping the future growth of the regulated area, was instead shaped by existing land use patterns and political considerations.

Jim K.

November 1, 2013 in Development, Downtown, History, Local Government, Nuisance, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)