Land Use Prof Blog

Land use articles posted on SSRN in January

I've been contemplating ways to get land use scholarship--legal and otherwise--onto the blog in a way that is not duplicative of the SSRN eJournals.  The list of "top 50" downloads for 2013 seemed to go over well, and so I've decided to inaugurate a monthly tradition of simply listing all articles posted to SSRN with the term "land use" in the title, abstract, or keywords.  If you want your article to show up on the list, simply put "land use" in the keywords section.  If I find a more robust way to do this search, I'll switch at that time and make it clear how the search terms change.

For now, here are all of the land use articles posted to SSRN in January listed in order of the number of downloads:

1		The Rebirth of the Neighborhood  Fordham Urban Law Journal, Vol. 40, pp. 1595-1609, 2013 J. Peter Byrne  Georgetown University - Law Center  Date posted:  09 Jan 2014 Accepted Paper Series 54 Downloads
2		Local Government Financing Platforms in China: A Fortune or Misfortune?  IMF Working Paper No. 13/243 Yinqiu Lu and Tao Sun  International Monetary Fund and International Monetary Fund (IMF)  Date posted:  07 Jan 2014 working papers series 36 Downloads
3		Zoning and Land Use Planning: Plans are Not Enough  42 Real Estate L. J. 240 (2013). , Touro Law Center Legal Studies Research Paper Series Michael Lewyn  Touro College - Jacob D. Fuchsberg Law Center  Date posted:  16 Jan 2014 Accepted Paper Series 23 Downloads
4		The Mortgage Interest Deduction and Its Impact on Homeownership Decisions  Review of Economics and Statistics, Forthcoming Christian A. L. Hilber and Tracy M. Turner  London School of Economics (LSE) - Department of Geography and Environment and Kansas State University - Department of Economics  Date posted:  07 Jan 2014 Accepted Paper Series 17 Downloads
5		Pain Without Gain: Land Assembly & Acquisition for Infrastructure Megaprojects the Indian Experience with the Bangalore International Airport  Kalpana Gopalan  Government of India, Indian Administrative Service  Date posted:  11 Jan 2014 working papers series 7 Downloads
6		Missing the Connection: How SRLU Policy Fragments Landscapes and Communities in NSW  Sherval, Meg and Graham, Nicole 'Missing the Connection: how the strategic regional land use policy fragments landscapes and communities in NSW' (2013) 38 (3) Alternative Law Journal 176-180. Meg Sherval and Nicole G. Graham  University of Newcastle (Australia) and University of Technology Sydney, Faculty of Law  Date posted:  21 Jan 2014 Accepted Paper Series 4 Downloads
7		Careful What You Wish For: Positive Freehold Covenants  (3) The Conveyancer and Property Lawyer 191-207, 2011 Pamela O'Connor  Monash University - Faculty of Law  Date posted:  10 Jan 2014 Accepted Paper Series 3 Downloads
8		Land Use Regulation and Productivity -- Land Matters: Evidence from a UK Supermarket Chain  Spatial Economics Research Centre Discussion Paper Series No. 138 Paul C. Cheshire , Christian A. L. Hilber and Ioannis Kaplanis  London School of Economics & Political Science , London School of Economics (LSE) - Department of Geography and Environment and London School of Economics (LSE)  Date posted:  10 Jan 2014 working papers series 2 Downloads
9		Using Development Financing Tools to Help Cover Costs of Adapting to Climate Change in Tornado Alley and Beyond  Carl J. Circo  Date posted:  30 Jan 2014 working papers series 2 Downloads
10		Women's Right to and Control over Rural Land in Wolaita Zone, Southern Ethiopia  Hussein Ahmed Tura  Ambo University, School of Law, Ethiopia  Date posted:  25 Jan 2014 Last revised:  30 Jan 2014 working papers series 2 Downloads
11		A Small Model of Equilibrium Mechanisms in a City  Andre de Palma , Stef Proost and Saskia Vanderloo  University of Cergy-Pontoise - Department of Economics , KU Leuven - Department of Economics and KU Leuven - Department of Economics  Date posted:  20 Jan 2014 working papers series 1 Downloads
12		Can Pakistan Have Creative Cities? An Agent Based Modeling Approach with Preliminary Application to Karachi  Malik, Ammar Anees, Andrew T. Crooks, and Hilton L. Root. 2014. “Can Pakistan Have Creative Cities? An Agent Based Modeling Approach with Preliminary Application to Karachi” 13. Pakistan Strategy Support Program (PSSP) Working Papers. ,  Ammar Anees Malik , Andrew T Crooks and Hilton L. Root  George Mason University - School of Public Policy , George Mason University and George Mason University - School of Public Policy  Date posted:  27 Jan 2014 working papers series 1 Downloads
13		Guest Editorial Rapid Motorization in Asian Cities: Urban Transport Infrastructure, Spatial Development and Travel Behavior  Jamilah Mohammad and Ryuichi Kitamura  University of Malaya and Independent  Date posted:  07 Jan 2014 working papers series 1 Downloads
14		Land Use Regulation and Productivity - Land Matters: Evidence from a UK Supermarket Chain  Spatial Economics Research Centre Discussion Paper No. 138 Paul C. Cheshire , Christian A. L. Hilber and Ioannis Kaplanis  London School of Economics & Political Science , London School of Economics (LSE) - Department of Geography and Environment and London School of Economics (LSE)  Date posted:  16 Jan 2014 working papers series 1 Downloads
15		Land Use Regulation: It Just Gets Worse  U. Balt. J. Land & Dev.1 (2012), Touro Law Center Legal Studies Research Paper Series Michael Lewyn  Touro College - Jacob D. Fuchsberg Law Center  Date posted:  31 Jan 2014 Accepted Paper Series 1 Downloads
16		The Role of Local Ecological Knowledge in Sustainable Urban Planning: Perspectives from Finland  Sustainability: Science, Practice, & Policy, Vol. 1, No. 1, 2005 Vesa Yli-Pelkonen and Johanna Kohl  University of Helsinki - Department of Biological and Environmental Sciences and Turku School of Economics  Date posted:  26 Jan 2014 Accepted Paper Series 1 Downloads
17		Contaminated Land Legislation in China: Status Quo and Challenges  Journal of Environmental Management and Tourism, Volume II, Issue 2(4), Winter 2011, 268-275 Xiaobo Zhao  Shanghai University of Finance and Economics  Date posted:  18 Jan 2014 Accepted Paper Series
18		Legislating for Sustainability: A Framework for Managing Statutory Rights, Obligations and Restrictions Affecting Private Land  (2010) 35(2) Monash University Law Review 233-61 Pamela O'Connor , Sharon Christensen and Bill Duncan  Monash University - Faculty of Law , Queensland University of Technology and Queensland University of Technology  Date posted:  11 Jan 2014 working papers series
19		Methodological Limitations in the Evaluation of Policies to Reduce Nitrate Leaching from New Zealand Agriculture  Australian Journal of Agricultural and Resource Economics, Vol. 58, Issue 1, pp. 78-89, 2014 Graeme J. Doole and Dan Marsh  University of Western Australia - School of Agricultural and Resource Economics and University of Waikato  Date posted:  14 Jan 2014 Accepted Paper Series
20		On the Origins of Land Use Regulations: Theory and Evidence from US Metro Areas  Journal of Urban Economics, Vol. 75, No. 1, 2013 Christian A. L. Hilber and Frederic Robert-Nicoud  London School of Economics (LSE) - Department of Geography and Environment and University of Geneva - Department of Political Economics  Date posted:  08 Jan 2014 Accepted Paper Series

Stephen R. Miller

Next City's 40 Under 40 Vanguard Conference: Applications due February 14

See info below and here...

Vanguard is an annual gathering of the best and brightest young urban leaders working to improve cities across sectors, including urban planning, community development, entrepreneurship, government, transportation, sustainability, design, art and media.

Each year, Next City selects 40 applicants whose bright ideas for cities, experience in the field and ambition for the future all show great promise to become members of the new Vanguard class. Vanguard members — non-profit directors, city council members,
 artists, private sector leaders 
and others influencing the direction of their cities — along with alumni, host city committee representatives and Next City staff gather for an intensive (and fun) series of presentations, workshops, neighborhood tours and more. The aim is to collectively learn and think about how to tackle challenges faced by the host city as well as cities across the country.

The conference now heads into its fifth year, and the impact is tangible. Spanning an ever-broader geographic reach (the 2013 Vanguard class was more geographically diverse than ever, with members hailing from 28 cities), this growing network of Vanguard alumni is catalyzing new collaborations and partnerships while spreading innovative ideas. Read about Vanguard alumni here, and click here for a recap of the 2013 Vanguard in Cleveland.

2014 NEXT CITY VANGUARD CONFERENCE

APRIL 24 – 26 | CHATTANOOGA, TENN.

2014 marks the fifth annual Next City Vanguard conference and the first time a Southern city has hosted the event. Chattanooga is a city in a state of renewal. Its legacy rail networks have made way for new industry in fiber optics. The conversion of a major bridge into a pedestrian walkway, the expansion of a riverside aquarium, and the construction of a new pier and park are just a few examples of how the city has reclaimed its riverfront and continues to redevelop its downtown. Chattanooga has become a home for tech start-ups, popups and incubators, attracting professionals and giving the city a new face.

Please note that there will be opportunities for the public to engage in the conference through free public events. Details will be announced in March.

Made possible with support from the Lyndhurst Foundation, the Benwood Foundation and the Footprint Foundation, next year’s Vanguard conference will gather 40 ambitious individuals under the age of 40 who have demonstrated the ability to have an impact on their city or on the national dialogue about urban issues. Selected applicants’ lodging and all conference programming costs will be covered. In addition, breakfast and lunch will be provided.

HOW TO APPLY

Urban advocates under 40 are invited to apply between now and February 14, 2014. Selected participants will be notified by March 10 and the 2014 Vanguard class announced by the end of March.

Application Deadline: February 14 at 6:00pm (PST)
Application Fee: $20 
Questions? Email [email protected]

Scroll down to complete the 2014 Vanguard Application. Please note, upon submitting your completed application, you will be required to enter payment info.

TENTATIVE SCHEDULE

(Details will be sent to participants)

Thursday, April 24
7:00pm Meet & Greet

Friday, April 25
8:30am Registration & Breakfast 
9:15am Rapid-fire introductions with entire group (includes breaks)
12:00pm Lunch
12:20pm Overview of Chattanooga 
1:30 Tours of Chattanooga 
4:30 Break
5:30pm Cocktail Hour
7:00pm Dine-arounds

Saturday, April 26
8:30am Welcome
9:00am Workshops
10:00am Break
10:15am Workshops
11:15am Break
11:30am Recap of Workshop Sessions
12:00pm Lunch
1:00pm Vanguard-led Unconference Sessions
4:30pm Closing

Fair Shake Environmental Law Services Resident Job Posting

I am now serving on the board of a new law firm incubator. We are recruiting residents and senior attorneys.  The resident job posting is below.  (If you, or someone you know, is interested in the senior attorney position you may message me on Facebook or LinkedIn for more information.)

Fair Shake Environmental Legal Services is designed to incubate legal services start-ups in the area of environmental law for underserved, modest means clients. The purposes of the organization include the education of attorneys in serving modest means clients, increasing equal access to justice, and community empowerment for the tri-state region of Pennsylvania, Ohio, and West Virginia. Fair Shake advances local, community decisionmaking about community health, environmental protection and cleanup, and development by providing access to justice for individuals and groups that are currently underserved.

In our start-up phase, Fair Shake will have offices in Pittsburgh, PA and Kent, OH. We anticipate opportunities for geographic expansion. Fair Shake staff will include the following positions: an Executive Director and 2 Senior Attorneys (1 heading each office), 4 Resident Attorneys (2 per office) in 2-year contract positions, and a single Administrator position to serve both offices.

Residents, selected by a rigorous application process that includes the provision of draft business plans, will be trained to start-up their own firms upon departure from Fair Shake ELS. The incubator is designed to put residents in the context of the practice that they will run themselves, including practical skills growth in client development, identifying potential business investors, billing and pricing, law office management, and budgeting. During the time that residents practice environmental law in the incubator, they will also refine their business plan and secure investors under the guidance of senior-level staff at the incubator. Due to the constant production of resident attorneys from the incubator who will start up environmental practices for underserved clients, the incubator will catalyze businesses that will fill the gap in environmental legal services in the region over time.

Resident Attorney Job Description

Fair Shake ELS is looking for bright, motivated attorneys who want to build small or solo environmental law practices for modest means clients in the Appalachian Basin region. We are hiring attorneys interested in increasing access to justice in environmental matters and public participation in environmental decision-making. Our Resident Attorneys enjoy collaborative case development, but also can work independently.

Resident Attorneys will be part of a legal team in either Pennsylvania or Ohio dedicated to providing environmental legal services to modest means clients. Residents will build a client base geared toward their own environmental practice goals while training in the business of a law practice serving modest means clients. Resident Attorneys will spend time every week on both case development and business planning. Resident Attorneys are expected to work to start-up their own environmental practices within the tri-state region of Ohio, Pennsylvania and West Virginia after spending 2 years at Fair Shake ELS. Options will exist for continued support from the Fair Shake staff after the 2-year residency period.

Resident Attorneys will work on a diverse scope of environmental matters, but may focus in areas of desired practice development. Anticipated case matters include permit appeals, civil litigation, citizen suits, permit and rule comments, administrative petitions, land use hearings, gas lease reviews and negotiations, compliance counseling, community educational presentations, and opinion letter development. Residents will fully engage in all aspects of case development.

Resident Attorneys will report directly to the Senior Attorney heading their office.

Desired skills and qualities:• Training and experience in the full spectrum of environmental and administrative legal issues;• Training in client interviewing and counseling, administrative procedure, and trial advocacy;• Experience and training in legal drafting, research, and effective communication;• A strong interest in starting a small environmental legal practice in the tri-stateregion;• Demonstrated effectiveness in both collaboratively- and independently produced work product and performances;• A commitment to: promoting fair treatment and meaningful involvement of all people,regardless of race, color, national origin, or income in the development, implementation, and enforcement of environmental laws, regulations, and policies; providing legal representation to allow equal access to the environmental decision-making process and to foster equal protection under the law for the health, preservation and restoration of natural, scenic, historic, and esthetic values of the environment; educating young attorneys in legal services entrepreneurship and incubating start-up legal services organizations to serve the environmental legal needs of underserved low- and middle-income clients; and empowering communities and stimulating economies in the Appalachian Basin region by providing environmental legal services and counseling to allow the underserved to make decisions about practical and innovative solutions to complex environmental challenges across the region.

Minimum Qualifications

Candidates should possess:• A minimum of 1-3 years of legal practice experience (experience in a clinical program during law school may count as 1 year of experience in legal practice);• Current Ohio or Pennsylvania Bar membership or willingness to become licensed in those states within 6 months from the date of hire. Resident Attorneys must be willing to travel across the State or Commonwealth and to other Fair Shake offices as needed.

Compensation & Benefits

Fair Shake offers a competitive non-profit salary commensurate with skills and experience as well as a comprehensive benefits package that includes 15 days paid vacation, medical, dental, life insurance, disability, and a retirement savings plan.

To Apply

E-mail a letter of interest, curriculum vitae, transcript, and a writing sample to Emily Collins, Executive Director, at [email protected] by March 31, 2014. The letter of interest should include the outline of a proposed business plan to serve modest means clients to meet their environmental legal services needs. Please include the proposed geographic scope of your practice, the particular areas of environmental law in which you would like to focus, a basic operational budget, and your practice goals. Fair Shake Environmental Legal Services is an Equal Opportunity Employer. We are committed to diversity in our workforce.

Takings and Conservation Easements

Like many nerds tech-savvy people, I have an alert set up with WestLaw to send me any new law review article or case that even mentions the phrase "conservation easement." It sends me a lot of fluff, but every now and then I find a gem that seems to have eluded the 5,000 SSRN lists I get. When I saw an article entitled "Environmental Preservation and the Fifth Amendment: The Use and Limits of Conservation Easements by Regulatory Takings and Eminent Domain," I just couldn't resist dropping everything and reading it immediately.

I was surprised that I didn't know the author (Beckett Cantley of Atlanta's John Marshall Law School) because well the conservation easement crew is a small one. Turns out that Cantley is an interesting combination of a tax law prof who also teaches property. As the title suggests, the article focus on standard 5th Amendment  takings analysis. Unsurprisingly, this involves a large focus on exacted conservation easements. As I am sure all none of you know, my 2005 dissertation was entitled Exacted Conservation Easements, and I have a small obsession with the phenomenon.

Cantley has an interesting take on the issue.

First, he asks whether there is a market for conservation easements. He contends that a landowner's ability to voluntarily sell a conservation easement constitutes an "economic use for regulated land that could help avoid a regulatory taking by lessening the economic impact of environmental and land use regulations." I assume the argument goes this way: The government entity enacts a land-use law that restricts development. The landowner argues that this violates the 5th amendment under a Lucas-style total deprivation of value argument. The government entity says no we haven't totally deprived you of value because you could still donate or sell a conservation easement on your land. Of course, it would be pretty tricky to find a willing buyer for such a conservation easement but probably not impossible to find someone willing to accept the donation (depending on the features of that parcel). But what would be the value of the donation? Would it be zero? Well the current regulations do not allow development, but conservation easements can extend regulations (making them more stringent, giving them certainty, extending the restriction in perpetuity). So the value of the conservation easement while low, is probably  not zero. Cantley suggests that such a conservation easement market would be so speculative that it would not be enough to defeat a Lucas-style takings claim.

Second, Cantley analyzes the ability of a government agency to create a conservation easement with eminent domain. This is a tricky issue. As a threshold, it would only work where the government entity had eminent domain power. Some states prohibit creation of CEs via eminent domain explicitly. In other places, it is just politically sensitive (not to mention potentially hard to calculate). The best example of this phenomenon was when the Highway Commission in Wisconsin exercised eminent domain over holdouts for scenic easements along the Great River Road. One of the confusing points for me here has to do with the fact that when a parcel encumbered by CE is condemned, most jurisdictions acknowledge the CE is compensable and they pay the CE holder for their lost property interest when they pay the underlying landowner just compensation for her property interest. Do such payment policies mean that the jurisdictions recognize CEs as something one could take via eminent domain without taking the fee title? Just an interesting way to do parcel by parcel regulation? Spot zoning with compensation? Something several folks have speculated about but few governments seem interested in pursuing just to amuse us academics.

Now, on the exacted CE front, Cantley notes that generally Nollan and Dolan analysis apply but in some places there is a bit of trickiness with what constitutes an "exaction" meriting Nollan/Dolan analysis (i.e., nexus + rough proportionality) versus just a regulatory act with the less demanding Penn Central balancing test. I have written about this weirdness before in New York where the case of Smith v. Town of Mendon held that conservation easements are not actually "exactions" even where they are er... exacted. As I speculated in a recent piece for the Environmental Section of the New York Bar Association, I think the broad definition of exaction in Koontz overrules Smith v. Town of Mendon and makes it pretty hard to argue that you can't exact conservation easements. One bone I have to pick with Cantley is his description of exacted conservation easements as being required donations. I think we really need to remove the donation language from our talk about such CEs. Landowners are sometime surprised that they can't (or well at least they shouldn't) get tax benefits from these exactions because they associate all CEs with tax breaks. It also looks to me like Cantley must have written his article pre-Koontz (unsurprising considering the pace of law review publication). I think that case may change his assessment that failed exactions are not cognizable takings... or maybe it depends on how/when we assess failure.

Interesting stuff! The artcle doesn't appear to be available for free on SSRN or elsewhere, but those of you with access to various legal databases can find it at

Beckett G. Cantley, Environmental Preservation and the Fifth Amendment: The Use and Limits of Conservation Easmeents by Regulatory Taking and Eminent Domain, 20 Hastings W.-N.W. J. Envtl. L. & Pol'y 215 (2014).

 

Should farm-to-plate dinners be permitted in exclusive farm zones?

As some of you know, my clinic is working with a rural county on an agritourism ordinance, which has me and my students delving deeply into ag law and food law.  One recent case out of Oregon seems to me a great example of how the new interest in food's origins--and being close to those origins--is colliding with traditional notions of rural ag uses inherent in zoning requirements.  

Take, for instance, the December, 2013 case of Greenfield v. Multnomah County, in which the Oregon Court of Appeals had to decide whether farm-to-plate dinners were permissible in the state's exclusive farm use zones.  The farm sought to offer “[f]ee-based farm-to-plate dinner[s], limited to a maximum number of 150 guests and limited to 45 events per year.”  The question was whether such uses were contemplated in Oregon's state zoning statute for exclusive farm zones, which limits non-agricultural uses but permits "farm stands."  After a fair degree of statutory interpretation I won't belabor, the court concluded that, indeed, the lower Land Use Board of Appeals had erred in finding that "outdoor farm-to-plate dinners are not within the scope of the statute's allowance of 'fee-based activity to promote the sale of farm crops or livestock sold at the farm stand.'"  The decision is here.

Independent of the court's holding, the fact that courts are now being asked to decide what type of use a farm-to-plate dinner is illustrates the rising tide of interest in getting back to the farm, but preferably with a glass of viognier in hand.  Ag lands adjacent to urban areas will, I believe, be facing a rising tide of such disputes in the coming years and should consider revising ag zoning districts to accommodate this growing interest in what's doing down on the farm.

Finally, since I know you're thinking about it, let's just get it out there that this case does recall this episode of Portlandia:

 

And while you're on YouTube, let's not leave Idaho out of the fun.  This hilarious new video from the Idaho Wine Commission provides one of the best chuckles I've had in awhile.

 

Stephen R. Miller

CFP: Comparative Urban Law Conference

Here's an interesting sounding one!

Call For Participation : Comparative Urban Law Conference
June 30, 2014, London, England

The Fordham Urban Law Center is pleased to announce a call for participation for the Comparative Urban Law Conference, which will be held on Monday, June 30, 2014 at Loyola Hall, University of London. The Conference will gather legal and other scholars for a provocative, engaging conversation about the field of "urban law" from an international, comparative, and interdisciplinary perspective. The Conference will focus on the nature and boundaries of urban law as a discipline, which participants will explore through overlapping themes such as the structure of local authority and autonomy and the role of law in urban policy areas such as environmental sustainability, consumer protection, public health, housing, and criminal justice, among others. The goal is to facilitate an in-depth exploration across sub-specialties within the legal academy to help develop an understanding of urban law in the twenty-first century.

PAPER SUBMISSION PROCEDURE: Potential participants in panels and workshops throughout the day should submit a one-page proposal to Professor Nestor Davidson at [email protected]. If you are already working on a draft paper, please include that draft with your submission, but participants do not need to have prepared a formal paper to join the conversation. The deadline for topic proposal submissions is Thursday, February 13. We will discuss potential publishing options available as a result of conference participation. Please contact Annie Decker at [email protected] with any questions.

ABOUT THE URBAN LAW CENTER: The Urban Law Center at Fordham Law School in New York City is committed to understanding and affecting the legal system's place in contemporary urbanism. See: http://law.fordham.edu/urbanlawcenter.htm for more information about our activities.

CFP: Land Trust Alliance Annual Meeting

The Land  Trust Alliance's annual conference (I love that they call it a Rally) will be September 18-20 in Providence. The call for papers went out recently and they usually have a wide variety of seminars and workshops. Proposals are due February 24th. More info about the call and the presentations and the conference itself available here. And let me know if you plan to go. I'll be there!

What to do when the historic district floods.

I just finished reading a new article by Jess Phelps in the latest issue of Environmental Law. In Preserving Perpetuity?: Exploring the Challenges of Perpetual Preservation in an Ever-Changing World, Phelps tackles some issues closely related to questions I research: what do we do about perpetual permanent restrictions in a world of constant change? Phelps takes a narrower tack  than my articles though, looking just at historic preservation easements. If you think that perpetual land conservation sound challenging, try fooling yourself into thinking that buildings are going to last forever. Well, okay we all know that perpetual restrictions have their usefulness even when we know that a perpetual building is not possible. What I like about Phelps' piece is that he cites me he takes a practical approach, providing specific plans for how to respond when natural disasters damage or destroy structures protected by historic preservation easements. It is a helpful read for land trusts or drafters of conservation easements thinking proactively about climate change impacts.

 

 

The Conventional Wisdom for Tenure Track Faculty . . . A Tool for Picking the Land Use Profs Fantasy League?

I was intrigued by Jessie Owley’s post earlier this week suggesting that we start a Land Use Profs Fantasy League.  I especially liked the idea because it implied that there were enough land use profs out there to form any sort of league at all.  I’d thought we’d have to settle for a bridge club. 

But presuming Jessie is right, and we have a quorum to start a league, I began to think about what we would use as our “stats.”  That led me to reflect on the ten or so young profs events I have been to in my two-and-a-half year career as a law prof in which I have received the conventional wisdom on how to succeed in legal academics.  Let’s call it the “Wisdom.”  Now, I have not followed the Wisdom to the tee, nor do I fully endorse it, but here is how I would distill the Wisdom as I have received it at these events and as applied to the young land use prof.  Note:  I have heard each of the following “pearls” of the Wisdom at least three times, so they must be true, or at least widely believed:

1. Write long law review articles and place them in Top 50 (or higher) journals.  It seems that at most schools, highly-placed, long law review articles are still what counts towards tenure, as well as for anyone wanting to go on the lateral market.  Yes, law review articles suffer from poor distribution; are not peer-reviewed; are not blindly-reviewed except at a few schools; are pilloried by U.S. Supreme Court justices; and have virtually no effect on legal practice.  Still, long law review articles are, as they invariably say at the young profs events, the “coin of the realm.”
2. Don’t place in specialty journals.  According to the Wisdom, no coins of the realm are given to those profs placing in specialty journals.  In the land use context, I suppose this means that the Wisdom would be that articles placed in journals like Harvard Environmental Law Review, Urban Lawyer, Ecology Law Quarterly, Environmental Law, the Journal of Land Use & Environmental Law, and the Fordham Urban Law Journal are at best “meh” come tenure time. 
3. Citations, citations, citations!  Another way to acquire coins of the realm is to get cited a lot.  The only way to get cited a lot before tenure given the turn-around time for law review publications is to write about what everyone else is writing about.  So, in the land use context, that means young profs who want to teach at major schools should only write about takings, fracking, and maybe climate change and avoid other subjects that may be cutting edge but that don’t have a legal academic following yet.
4. Don’t write casebooks.  This is purely after-tenure material, the Wisdom says, if even that.  No coins of the realm allocated for casebooks in the tenure process.
5. Don’t write symposium articles.  According to the Wisdom, these are a waste of time.  Not enough intellectual rigor.  No coins of the realm allocated for symposium articles.
6. Don’t write book chapters.  Waste of time, Wisdom says.  No rigor.  No coins of the realm allocated.
7. Don’t attend symposia unless you know someone more important than you will be in attendance.  I think you get the idea here.
8. Blogging isn’t a bad idea.  Although reluctantly admitted, the Wisdom acknowledges that blogging might be a way to reach a lot of people and get your name out there.  However, the Wisdom is that such blogging only matters if it can enhance other coin-of-the-realm-acquiring activities, such as citation acquisition.  Blogging in itself is not a coin-of-the-realm producing activity. 
9. Contact leaders in your field you wouldn’t otherwise expect to know who you are.  I find this interesting advice.  Any eminent land use professor who has made it this far in this blog post can expect to hear from me very soon.  
10. Court influence.  The Wisdom is that you are supposed to have an effect on the world beyond citation counts and long law review articles.  No one knows exactly how to get it, but you should make it happen somehow.

On a personal level, I have violated virtually every rule the Wisdom pronounces while also trying to follow it.  I juggle long law review articles with symposium pieces, book chapters, and heck, I even write op-eds for the Idaho Statesman and do community outreach!  What am I thinking?!  Plenty of other awesome land use profs do much the same and far more than me. 

But back to Jessie’s point:  how do we choose the Land Use Prof Fantasy League?  Do we want to use the Wisdom?  If not, how would we, as a land use prof community, alter the Wisdom to our own land use ends?

Maybe in our Land Use Prof Fantasy League we can choose to prioritize other things?  Vehicle miles traveled our scholarship or outreach has reduced?  Affordable housing units our scholarship or outreach has produced?  Acres of pristine wilderness our scholarship or outreach has preserved through conservation easements or TDRs?  I don’t know.  The problem our fantasy league faces, I think, is that while the Wisdom for getting tenure has its failings, when you try to go beyond the Wisdom, the alternatives have failings of their own.

And so, I am back to the drawing board on how to put together the fantasy land use prof squad.  What I know is that the old rules—the Wisdom—of success in the legal academy are still strong.  While I do a lot of things that the Wisdom tells me not to do, I still make sure I write those long law review articles to make sure the tenure gods smile favorably upon me.  I want the coins of the realm, too, I admit, almost as much as I want to be on the Land Use Prof Fantasy Team. 

I’d love to hear any thoughts on the Wisdom, its alternatives for land use profs, even a fantasy league.  Anyone else out there want to take a stab at it?

Stephen R. Miller

It's the small victories

I was very excited to learn that I am not actually at the snowiest law school. That honor goes to Syracuse!

While it seems like everyone in the Midwest and on the East Coast is dealing with their fair share of snow and winter weather this year, living in a perpetually snowed-in town does have interesting implications for land use decisions. Wandering around AALS in blizzard conditions this year reminded me that many cities don't have ample storage space for snow. As soon as November rolls around here in Buffalo, the campus closes off designated spaces (certain staircases, walkways, parking spaces) that are given over to snow repositories.

Hey, I'll still take snow over cold. Sorry Minnesota.

Is a Right-of-Way an Easement?

Turning old railroad lines into parks and bike paths seems like a great idea. When it results in things like NYC's Highline Park who can complain, but not everyone is happy about these rail to trail projects. In fact, it is the subject of a case currently pending before the Supreme Court. (This is not a case under the Rails-to-Trails Act but implicated perhaps thousands of miles of trails that came from rails).

Marvin Brandt is upset about the bike trail built by the Forest Service on an abandoned railway through his land. Brandt argues that the when the railroad abandoned the government-issued right-of-way, the feds did not have the right to create a new right-of-way in the form of the trail.

The tricky issue here is determining what exactly a railroad right-of-way is. When I hear the term ROW, I envision an easement. But as we all know there are some things out there that sound like easements but aren’t actually easements. The government argues here that these railroad ROWs were not easements in the traditional sense. However, nor were they fee simple strips of land given to the railroad. Instead they are some third category of property law that no one can quite figure out how to define. A surface defeasible fee subject to a reverter perhaps? Let’s break it down.

If it’s an easement: The federal government gives the railroad an easement through public land. The common law rules of easements apply. This means that when the railroad abandons the track in the 1980s (or whenever it was), the easement is extinguished and full unencumbered fee simple title goes back to the underlying landowner. This particular parcel is no longer federal land because the Forest Service swapped it with the Brandt family. Traditional run of the mill easement law tells us that the Brandt family (owner of the servient estate) should have this land with no dominant easement holder left around to bug them (or ride bikes through their property). This is what Brandt’s attorney argues. Not argued, but hinted at by Justice Sotomayor is that the easement holder was really the US and it temporarily transferred its easement rights to the railroad. Now that the railroad is done, it can keep using the easement for similar (transportation) uses through the Forest Service bike trail.

If it was a patent (i.e., fee simple absolute): The federal government gave the railroad a strip of land and the railroad owned that strip (or spaghetti noodle as the court seemed to like envisioning it). This would mean that the railroad owns the land for any purpose and once it stops using the railroad tracks for trains, it could use them for something else or it could sell them to the underlying landowner (or lose ownership via adverse possession if it stands by and does nothing while the forest service or underlying landowner makes use of the land). No one actually argues that the railroad had an unrestricted fee simple though. Instead, it might be that they had a type of defeasible fee (starting to give you flashbacks of your 1L property class yet?). That’s right, the railroad had a fee interest subject to the possibility of reverter. That is, the federal government had a reversionary interest and would get the land back if the railroad stopped using it for railroad purposes.

Now of course, it is not as simple as just reading over the grant to the railroad and figuring out what it said. Instead, we have several wrinkles. For example, there is an 1922 Act (postdating the grant to the railroad) explaining that when the railroad stops using the land for railroad purposes and it reverts to the feds, the feds should first use the land for roads and streets, then consider giving to municipalities, and if that doesn’t pan out give the land to neighboring landowners. There is a more recent statute adjusting that order of priority, but these statutes sure make it sound like the US had a reversionary interest. Of course, Justice Scalia pointed out that he doesn’t care very much about how a subsequent Congress interpreted the railroad’s property right. He is only interest in looking at the 1875 Act enabling grants of ROWs the railroad to try and figure out the property right.

There are some cases muddying the water including a 1942 case interpreting the 1875 Act, concluding that the railroad in question there had not gotten subsurface rights and instead had gotten something akin to an easement.  

There is also the tricky part of the land conveyance to the Brandts. The Forest Service swapped some land with Brandt’s father back in 1976. While the land conveyance noted the railroad’s ROW, it did not mention any reversionary interest. Leading the Brandts (quite reasonably) to believe that the ROW was just a standard run of the mill easement. Can an underlying federal law be in trouble where the forest service neglected to mention it in a land conveyance? Perhaps Brandt’s property lawyer should have researched more and tried to determine what was really going on…

The oral argument in this case is fun for land geeks, especially those of us who teach or study property and/or federal lands. The Court seemed particularly interested in figuring out how much lands the feds own and how much has been converted to other uses -- and what the implications of allowing such reversions would be. Several justices pushed the parties to try and explain how many acres or how many landowners were at stake. No one dared to put forth an estimate. I actually laughed out loud when the justices were shocked that the federal government didn’t keep good track of its land holdings and dispersals. They are so cute sometimes.

 

Land Use Profs Fantasy League

Over the weekend, I was listening to the NPR quiz show "Wait wait ... don't tell me!" There is a segment on the show called "Bluff the Listener." The game involves the reading of three news stories. Like the old game of dictionary, the contestant tries to pick the one true story amidst the two fake stories. This week, I was immediately able to spot the true news story because I could tell immediately that it was something that would appeal to acadorks like myself. The story described a Fantasy football like league for economists. You get to draft your own ideal Econ department and choose your faculty. What you want, of course, are faculty who publish and get cited a lot. Perhaps even some metric of how often they speak at conferences or whether their ideas are adopted by policymakers should be thrown in.

I immediately wanted to form my own fantasy law school league (anyone want to start a website with me :)). Do you think we could add blogging to the metrics?

Well let's see if I just wanted to start with Land Use profs, it would be a no brainer. I want Patty Salkin and John Nolon on my team! Who would you put on yours? What metrics should we consider (please don't say SSRN downloads)? Of course, we see that we can game the system by citing our own team members to improve their rank ... another motivation to publish?

Game on!

Weekend reading, land use and otherwise: The Best American Infographics 2013

Over the winter break I was traveling for almost three weeks straight for a variety of personal and professional reasons.  Along the way, I picked up one of the best travel books I have come across in a long time:  The Best American Infographics 2013.  The book is a collection of several hundred infographics published in 2013, almost any one of which is an instant conversation-starter.  

A number of the infographics also have land-use related themes.  For example, below is one infographic reproduced in the book that illustrates the distribution of tweets in and around Manhattan.  This reminds me of the old Foster Kleiser traffic maps used to determine advertising rates for billboards.  Might the distribution of tweets one day replace complicated traffic studies and the need to place traffic engineers at intersections counting cars?  We might not be too far off.

That is just one graphic.  As I say, the whol book makes for great conversation, land use and otherwise.

 

New Post Doc Position at DU Studying Access to Open Space

The Departments of Anthropology, History, Geography and the Environment, the College of Law and the Rocky Mountain Land Use Institute at the University of Denver have banded together and been awarded a grant to support a two-year postdoctoral fellow studying inequality in the provision of access to open space.  They will attempt to fill the position in the next few months. Applications are due by the end of February.

 “Depending upon the fellow’s interest and skills, the successful candidate might explore how open space legislation and its conservation partners have developed priorities for distributing funds around Colorado and the extent to which this funding has rectified, ameliorated, or aggravated inequity in the access to open space. A similar analysis might be conducted regarding bond measures or federal sources of funding, including the Land and Water Conservation Fund. In addition to post-dissertation research support, the postdoctoral fellow will have the opportunity to work with mentors toward providing a nucleus for a continued scholarly collaboration, interact with the faculty and graduate students in each of the sponsoring departments and divisions, and receive clerical and research support sufficient to allow the completion of a major research product during his or her time at DU.”

 “The ideal candidate would have training or a strong interest in spatial analysis, historical methodology, qualitative data analysis, and local government and land use planning policy and law. Candidates should be committed to working with diverse student and community populations. We do not expect the candidate to have experience in all areas of the fellowship, as training will be provided by the mentors. In addition, because of the value of lived experiences in the investigation and understanding of inequality, we especially encourage applications from historically underrepresented groups.”

For more info, contact Fred Cheever at Denver University.

Come Hang Out in Buffalo Next Year!

The Baldy Center for Law & Social Policy here at SUNY Buffalo is again accepting applications for Baldy Fellowships in Interdisciplinary Legal Studies (for 2014-15). This is just our third year of the program, and it has been a blast. We have had some promising up-and-coming scholars as well as established senior fellows come spend a semester or two with us. It is a good place to land both for folks planning to go on the academic job market and for people trying to find some place warm and sunny stimulating and friendly for a sabatical. Applications are due Feb. 3d.

More Info:

The Baldy Center for Law & Social Policy at the State University of New York at Buffalo plans to award several fellowships for 2014-15 to scholars pursuing important topics in law, legal institutions, and social policy. Applications are invited from junior and senior scholars from law, the humanities, and the social sciences. 

Fellows are expected to participate regularly in Baldy Center events, but otherwise have no obligations beyond vigorously pursuing their research. Fellows receive standard university research privileges (access to university libraries, high-speed Internet, office space, computer equipment, phone, website space, working paper series,etc.) and are encouraged to develop collaborative research projects with SUNY Buffalo faculty members where appropriate. Those who wish to teach a course to aid their research or gain teaching experience can be accommodated on a case-by-case basis. 

Post-Doctoral Fellowships are available to individuals who have completed the PhD or JD but have not yet begun a tenure track appointment. Post-Doctoral Fellows will receive a stipend of $40,000 and may apply for up to $2000 in professional travel support. 

Mid-Career and Senior Fellowships are available to established scholars who wish to work at the Center, typically during a sabbatical or research leave. Awardees will receive a living expense allowance of $1,500 per month during the period of their residence. 

Application materials include: 
(1) a description of the planned research (question, conceptual framework, method, possible findings,importance to the field), 
(2) a complete academic and professional resume, 
(3) an academic writing sample, 
(4) the names and contact information of three academic references (no letters yet), and 
(5) if a mid-career or senior applicant, the time period during which applicant would work at the Center. Completed applications are due no later than February 3, 2014. (Apply by clicking the button below). For further information, see our answers to frequently asked questions. Additional questions about the Baldy Fellows Program should be addressed to Assistant Director Laura Wirth,[email protected] or (716) 645-2581. 

The Baldy Center for Law & Social Policy is an endowed, internationally recognized institute that advances interdisciplinary research on law, legal institutions, and social policy at the State University of New York at Buffalo. More than 200 faculty members from numerous SUNY Buffalo departments participate in Baldy Center research, conferences, consortia, and publications. The Center maintains cooperative ties to other research centers and hosts distinguished scholars from around the world as visitors, fellows, speakers, and conference participants.

Save The Date: Jan. 21 EPA teleconference presentation: Hirokawa on Sustaining Ecosystem Services through Local Environmental Law

U.S. EPA Sustainable and Healthy Communities (SHC) Research Program Seminar Series Proudly Presents…

 

Keith H. Hirokawa

Associate Professor

Albany Law School

Albany, NY

 

Sustaining Ecosystem Services through Local Environmental Law

 

Tuesday, January 21, 2014

3:00 - 4:30 pm EST

 

---this talk is open to all interested audiences---

 

ABSTRACT:

In the early decades of modern environmental law, local governments retained their prerogative over community design and other essentially local matters, but were largely excluded from the debate on national environmental policy. More recently, environmental lawyers have reignited the question of how and where the local government regulation of land use impacts intersects with environmental quality. It is interesting to note that as the national dialogue has turned to the important role of local governments in achieving our environmental quality goals, there has been a corresponding emergence of an "ecosystem services" approach to understanding nature. It is more interesting to note how many of the stories of ecosystem services – successes, explanations, and illustrations – take place in local governments and in community decision making. Perhaps by coincidence, but likely due to design, local environmental law and ecosystem services have evolved in a complementary manner.

This article looks at the recent trends in recognizing and regulating ecosystem services at the local level. Local governments are adopting regulations aimed at capturing the benefits of functioning ecosystems by transcending aesthetic values of local nature and focusing on ecological processes and the services they provide. Section II introduces the topic by arguing that because of the manner in which local governments regulate environmental impacts, the value embedded in ecosystem services is commensurable with local regulation. Section III illustrates the relationship between local governance and ecosystem services, as well as the opportunities presented by this relationship, by examining some of the ways that local environmental law has embraced the advantages of an ecosystem services perspective. This article concludes that local governments are leaders in the implementation of ecosystems services-based regulation, that communities are the direct beneficiaries of such action, and that this is exactly as it should be.

BIO:

Professor Hirokawa joined the faculty at Albany Law School in 2009.  He teaches courses involving environmental and natural resources law, land use planning, property law, and jurisprudence.  Professor Hirokawa's scholarship has explored convergences in ecology, ethics, economics, and law, with particular attention given to local environmental law, ecosystem services policy, watershed management, and environmental impact analysis. He has authored dozens of professional and scholarly articles in these areas and has co-edited (with Patricia Salkin) Greening Local Government (forthcoming 2012, ABA). Prior to joining the faculty at Albany Law, Professor Hirokawa was an Associate Professor at Texas Wesleyan University School of Law and an Adjunct Professor at the University of Oregon School of Law.  Professor Hirokawa practiced land use and environmental law in Oregon and Washington and was heavily involved with community groups and nonprofit organizations. Professor Hirokawa studied philosophy and law at the University of Connecticut, where he earned his JD and MA degrees.  He earned his LLM in Environmental and Natural Resources Law from Lewis & Clark Law School.

To Access the Web Conference:

1. Click on the conference link and enter as a guest: https://epa.connectsolutions.com/shc_seminars/

2. Dial:  (866) 299-3188, then enter the conference code: 9195415646#

Metropolitan Revolution videos now on-line

 Bruce Katz and Jennifer Bradley's  The Metropolitan Revolution:  How Cities and Metros are Fixing Our Broken Politics and Fragile Economy is a must read for anyone interested in local government.  For those without the time to read, the book is accompanied by a series of videos that illustrate key concepts.  These videos are now available on-line here.  Several are embedded below:

 

 

 

Stephen R. Miller

Fordham's Urban Law Center hosting Smart Law for Smart Cities

Smart Law for Smart Cities: Regulation, Technology, and the Future of Cities

February 27–28, 2014 

Fordham Law School

The Smart Law for Smart Cities Symposium will explore the regulatory landscape for potentially disruptive advances in urban governance arising from innovative technology, sustainability, and "big data." The Symposium will focus on how contemporary urban life is marked and shaped by technology, as well as the law and regulatory complexities that are arising from this technological transformation. The Symposium will include panels examining changes to both the physical and non-physical landscape in urban life resulting from such changes.

Download program agenda.

The topics include:

Day 1: Thursday, February 27 • 9:15 a.m.–4:30 p.m.

• Transforming Local Service Delivery, on how technology is transforming traditional urban local-government services such as policing, education, planning and others
• Broadband and the New Digital Divide, on the physical changes in urban infrastructure to accommodate the demand for broadband, and challenges in equal access to this new market
• Regulating Big Data in Urban Governance, on the dueling relationship between the collection and deployment of large amounts of data needed for urban governance and privacy and other regulation concerns
• Perspectives from the Public Sector, with local leaders at the forefront of urban technology sharing their experiences

Day 2: Friday, February 28 • 9 a.m.–4:30 p.m.

• Resident Engagement, on how technology is reshaping the interface between residents and cities
• Energy and Infrastructure, on how with technological change comes the need for advances in energy usage and an urban infrastructure that can support it
• Cities and Surveillance, on the dichotomy between the need for safety in an urban atmosphere and risks such as crowd sourcing and false accusations in a post-9/11 and post-Boston Marathon bombing world
• Perspectives from Industry, with private-sector leaders sharing their perspectives on how industry is using new technologies to improve urban life

The Symposium will be held at Fordham Law School on February 27 and 28, 2014, and is co-organized by Fordham's Urban Law Center, Urban Law Journal, Urban Studies Program, Center on Law and Information Policy, and Center for Digital Transformation.

NY CLE: 7.5 credits available
This two-day conference is appropriate for newly admitted and experienced attorneys and is approved for a maximum of 7.5 transitional and non-transitional credit hours. Fordham Law School's financial aid policy for accredited CLE programs is applicable to this conference.

Op-ed re energy efficiency and benchmarking

I occasionally write op-eds for the Idaho Statesman.  I thought my most recent column might also be appropriate for this forum, as it makes the business case for energy benchmarking, doing away with the triple net lease, and making energy efficiency a part of a board director's fiduciary duty to shareholders.  While these changes are common sense and de facto real estate practice in places like San Francisco, they are still emerging principles in secondary markets, such as Boise.  In such locations, making the business case for green building is more effective than any discussion of climate change ever will be.  Here is a link to the op-ed, the text of which is reproduced below:

Should the price of a building incorporate its operating costs?

If you were a building owner, would you want a 7 percent return on investment or a 10 percent ROI where the only difference between the two is how much you pay the power company?

From a shareholder perspective, any board director that said the difference doesn’t matter should be fired immediately. Such indifference to return should be a violation of a director’s obligation to maximize shareholder profits.

As a lawyer, it should be malpractice in representing a client in a sale of real estate or in negotiating a lease not to warn a client that a beat-up water heater in the basement could make a drastic difference in return.

But few real estate deals — sales or leases — disclose or even discuss energy use.

Several legal inventions have made this peculiar reality possible. Foremost, the most common commercial lease since the ’50s has been the “triple net” lease, which requires the lessee to bear the cost of operations. The justification was that the lessee should have the ability to use the space with the intensity desired, and the landlord should not be able to interfere with the lessee’s business by restricting access to things like heat or other utilities.

That makes sense. The problem, however, is that this strategy also gives the landlord zero incentive to make improvements to building efficiency, primarily because any cost would be incurred by the landlord and the benefit would be to the tenant’s bottom line.

What if tenants and landlords could somehow share upfront costs and share returns?

Smart developers have long realized that landlords do not directly pass along all long-term costs to tenants but instead incorporate them into the market rent. If all the other landlords are running junky energy-hog buildings, a landlord that runs an energy-efficient building need only command market rents to recognize a significant bump in return on investment, which in turn should increase building price. The Banner Bank building in Boise is a prime example, and the subject of a documentary at vimeo.com/63124103.

So why do so many landlords and tenants fail to consider true operating costs? Because this method of throwing money out the window is, as they say in “Fiddler on the Roof,” “tradition.”

Common sense is starting to weigh in two important ways. First, in many markets, the triple net lease is increasingly a thing of the past. Other lease strategies developed over the past five years — admittedly more complicated — share risks and burdens of energy efficiency.

Second, an increasing number of cities and states are mandating that owners of large commercial buildings either disclose energy use on a yearly basis or at the time of sale. The requirement is known as benchmarking and is required in California, Washington state and eight large cities. Benchmarking makes it easier for buyer and seller, landlord and tenant, to have an informed conversation about operating costs. That has an important secondary effect: it makes it easier to make operating costs a part of the building price and the lease.

Idaho and Boise should consider such a policy as a matter of efficiency, but primarily as a matter of smart business. Without reporting requirements, the tradition of throwing money out the window — or more properly, giving it to the utility companies — will continue unabated. Reporting would provide valuable information to business, provide an incentive for landlords and tenants to work together to maximize returns and profits, ensure that buyers and sellers accurately reflect the price of a building, and reduce the need for more costly energy infrastructure. That’s good for all of our wallets.

Stephen R. Miller

Read more here: http://www.idahostatesman.com/2014/01/15/2971535/idaho-boise-should-require-reports.html#storylink=cpy

 

 

 

More on the Town of Hawley case

Stephen and I have both chimed in on the New England Forestry Foundation v. Hawley, Massachusetts. Nancy McLaughlin has now posted a more comprehensive description and analysis of the case on the Nonprofit Law Prof Blog.

As Nancy notes, the Appellate Tax Board (the lower appellate court in this case) presented a rather narrow conception of what should qualify as charitable land, relying on a 1966 case. Proetction of forest lands can provide many ecosystem services. Of course, it is still a tricky case because many landowner have properties providing ecosystem services, but that doesn't mean they get reduced property taxes (perhaps they should!). I also wonder about what this could mean for conserved properties. It seems like it could mean individual inquiries for each property detailing exaclty how much public and private benefit the land protection yields. A requirment to pay property taxes on conserved fee properties could significantly curtail landownership by land trusts.

Those of you who want to read more can see the court filings including some really interesting amicus briefs from the conservation organizations including The Nature Conservancy and the Land Trust Alliance.