Monday, March 31, 2014

Land use articles posted on SSRN in March

This month we ontinue the newest tradition here at Land Use Prof Blog of listing all new land use articles posted to SSRN within the last month.   To wit, below are all of the new land use-related articles posted on SSRN in the month of March.  

As noted in previous months, this list was collected using the term "land use" in the SSRN search function.  There will be articles on the periphery of land use law that are not caught by this search.

There are lots of great articles from a number of familiar faces to check out.  And notably for the blog, two editors--Matt Festa and Jessie Owley--make appearances on the list this month.


1 Incl. Electronic Paper Homelessness at the Cathedral 
Marc Lane Roark 
The Savannah Law School 
Date posted: 
01 Mar 2014

working papers series

2 Incl. Electronic Paper Fractured Legal Institutions 
Iowa Law Review, Vol. 100, 2014, U Iowa Legal Studies Research Paper No. 14-08
Herbert J. Hovenkamp 
University of Iowa - College of Law 
Date posted: 
01 Mar 2014

Last revised: 
05 Mar 2014

Accepted Paper Series

3 Incl. Electronic Paper Property and Republicanism in the Northwest Ordinance 
Arizona State Law Journal, Vol. 45, p. 409, 2014
Matthew J. Festa 
South Texas College of Law 
Date posted: 
07 Mar 2014

Accepted Paper Series

4 Incl. Electronic Paper Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms, and the Local Food Movement 
Wisconsin Law Review, Forthcoming
Sarah Schindler 
University of Maine - School of Law 
Date posted: 
26 Mar 2014

Accepted Paper Series

5 Incl. Electronic Paper Planning for Fracking on the Barnett Shale: Urban Air Pollution, Improving Health Based Regulation, and the Role of Local Governments 
Rachael Anne Rawlins 
University of Texas at Austin 
Date posted: 
19 Mar 2014

working papers series

6 Incl. Electronic Paper Making ‘Conservation’ Work for the 21st Century – Enabling Resilient Place 
Jerrold A. Long 
University of Idaho College of Law 
Date posted: 
16 Mar 2014

working papers series

7 Incl. Electronic Paper The Value of Forest: An Ecological Economic Examination of Forest People's Perspective 
Trevor Fenning (ed), Challenges and Opportunities for the World’s Forests in the 21st Century. Springer. pp. 123-159., 
Debal Deb 
Centre for Interdisciplinary Studies 
Date posted: 
03 Mar 2014

Last revised: 
05 Mar 2014

Accepted Paper Series

8 Incl. Electronic Paper Wage Growth, Landholding, and Mechanization in Agriculture: Evidence from Indonesia 
World Bank Policy Research Working Paper No. 6789
Futoshi Yamauchi 
A member of the CGIAR Consortium - International Food Policy Research Institute (IFPRI) 
Date posted: 
05 Mar 2014

working papers series

9 Incl. Electronic Paper Dynamics of Urban Residential Land Markets: A Case of Bangalore City 
Centre of Excellence in Urban Governance, 2012
A. Ravindra Madalasa Venkataraman Narayan Edadan and Dinesh Kumar Masta 
Independent , IIMB Century Real Estate Research Initiative , Independent and Indian Institute of Management (IIMB), Bangalore - Department of Economics and Social Sciences 
Date posted: 
16 Mar 2014

Accepted Paper Series

10 Incl. Electronic Paper Historic Preservation Law 
Historic Preservation Law, Foundation Press (2012)
Sara C. Bronin and J. Peter Byrne 
University of Connecticut - School of Law and Georgetown University - Law Center 
Date posted: 
14 Mar 2014

Accepted Paper Series

11 Incl. Electronic Paper Land Use Regulation and Productivity – Land Matters: Evidence from a UK Supermarket Chain 
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: 
12 Mar 2014

working papers series

12 Incl. Electronic Paper Land-Use Intensity and Greenhouse Gas Emissions in the LURNZ Model 
Motu Working Paper 14-03
Levente Timar and Suzi Kerr 
Motu Economic and Public Policy Research Trust and Motu Economic and Public Policy Research Trust 
Date posted: 
01 Mar 2014

working papers series

13 Incl. Electronic Paper Do Land Use Policies Follow Road Construction? 
IEB Working Paper N. 2014/2
Miquel-Àngel Garcia-López Albert Sole-Olle and Elisabet Viladecans-Marsal 
Autonomous University of Barcelona , University of Barcelona and University of Barcelona 
Date posted: 
18 Mar 2014

working papers series

14 Incl. Electronic Paper How Equity and Custom Transformed American Waste Law 
Charlotte Sch. of Law Prop. Law J., Summer 2014, Forthcoming
Duane A Rudolph 
Davis & Gilbert LLP 
Date posted: 
19 Mar 2014

working papers series

15 Incl. Electronic Paper Do Land Use Policies Follow Road Construction? 
CESifo Working Paper Series No. 4672
Miquel-Àngel Garcia-López Albert Sole-Olle and Elisabet Viladecans-Marsal 
Autonomous University of Barcelona , University of Barcelona and University of Barcelona 
Date posted: 
20 Mar 2014

working papers series

16 Incl. Electronic Paper Adapting Conservation Easements to Climate Change 
Conservation Letters, 2014
Adena R. Rissman Jessica Owley Barton H. Thompson Jr. and M. Rebecca Shaw 
University of Wisconsin-Madison , SUNY Buffalo Law School , Stanford Law School and Environmental Defense Fund 
Date posted: 
29 Mar 2014

Accepted Paper Series

17 Incl. Electronic Paper Making Room: Why Inclusionary Zoning is Permissible Under Washington's Tax Preemption Statute and Takings Framework 
Washington Law Review, Vol. 88, No. 591, 2013
Josephine Ennis 
Date posted: 
12 Mar 2014

Accepted Paper Series

18 Incl. Electronic Paper Regional Development and Greenhouse Gases Emission: The Case of the Amazon Region 
58th Annual North American Meetings of the Regional Science Association International. Miami, USA - November 9th - 12th, 2011. , XXXIX Encontro Nacional de Economia, 06 a 09/12/2011, Foz do Iguaçu/PR. ,
Denise Imori Joaquim Guilhoto Leticia Scretas David Leopoldo Millan Gutierre and Caio Waisman 
University of Sao Paulo (USP) , University of Sao Paulo , University of Sao Paulo (USP) , University of Sao Paulo (USP) - Department of Economics and University of Sao Paulo (USP) - Department of Economics 
Date posted: 
08 Mar 2014

working papers series

19 Incl. Electronic Paper The Dialectical History of 'Jungle' in Pakistan: An Examination of the Relationship between Nature and Culture 
Dove, Michael R. 1992. The Dialectical History of 'Jungle' in Pakistan. Journal of Anthropological Research 48(3) 231-253.
Michael R. Dove 
Yale University 
Date posted: 
03 Mar 2014

Accepted Paper Series

20   Sustainable City Design: Developing Conceptual Planning Proposal for Eastern Fringe of Dhaka City, Bangladesh 
Jahan, N., Islam, S., Shakil, S. H., Nabin, M. H. H., Shanta, A. S., Hasan, A., … Akhter, S. (2013). Sustainable City Design: Developing Conceptual Planning Proposal for Eastern Fringe of Dhaka City. Presented at the Global Meet on Sustainable Development - 2013, Dhaka: Eminence Bnagladesh., 
Nusrat Jahan Sanjana Islam Shahadat Hossain Shakil Mohammed Hamidul Hasan Nabin Afia Sultana Shanta Arif Hasan Ishrat Islam and Mohammad Shakil Akhter 
Centre for Climate Change and Environmental Research (C3ER) , Bangladesh University of Engineering and Technology - Dept. of Urban and Regional Planning , University of Manchester , Prabashi Palli Group , Bangladesh University of Engineering and Technology (BUET) , BRAC , Bangladesh University of Engineering and Technology - Department of Urban and Regional Planning, BUET and Dept. of Urban and Regional Planning 
Date posted: 
17 Mar 2014

Accepted Paper Series

Stephen R. Miller

March 31, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, March 28, 2014

Next City's 2014 "Vanguard" class of up-and-coming urban leaders announced

Next City has announced its 2014 Vanguard class of urban leaders.  It's an impressive group, though notably absent are any academics.  See the full list here.    

Stephen R. Miller

March 28, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 27, 2014

Resilient Cities: A Conversation with Tony Arnold and Barbara Cosens

The Idaho Law Review's symposium, Resilient Cities:  Environment | Economy | Equity is fast ResilientCitiesapproaching.  It will be held this Friday, April 4, 2014, in Boise, Idaho and also live-broadcast for free on the Internet.  The full schedule is here and also reproduced below.

This year, we also decided to try something a little hi-tech for a bunch of law profs.  I convinced Tony Arnold (Louisville) and Barbara Cosens (Idaho) to have a chat with me about resilient cities; however, I was in Boise, Barb was in Moscow, Idaho, and Tony was in Louisville, Kentucky.  In addition, two radio hosts from Boise's Building a Greener Idaho also joined us.  Together, we created an hour's discussion broadcast as a Google Hangout, captured on You Tube below, and which will be edited for a radio show to air here in Boise the next few weeks.  

I'm not going to say it all went according to plan--we had some glitches with audio and video at times--but overall, the experience proved to me that this format can be a valuable way to bring together law profs--and disseminate ideas from the academy--in a cost-effective and potentially powerful manner.  

I owe many thanks to Tony and Barb for agreeing to give this a try the first time around.  I'm hoping that, should all go according to plan, there will be future hangouts integrating discussions of land use profs into this blog in the near future.



Here is the schedule for the Resilient Cities symposium on April 4, 2014 in Boise and also streamed live on the Internet (all times Mountain):

8:00 – 8:30 Registration and Continental Breakfast


8:30 –  9:00 Introduction and Welcome
Symposium Introduction:  Alexandra Grande; Tori Osler (ILR symposium student editors)
Welcome:  David Bieter (Mayor, City of Boise)
Dean's Welcome: Michael Satz (Idaho)
9:00 – 10:30

Disaster, Destruction, and Resilient Cities
Moderator: Dale Goble (Idaho) 
Kellen Zale (University of Houston Law Center) – Urban Resiliency and the Right to Destroy
John Travis Marshall and Ryan Rowberry (Georgia State) – Urban Wreckage and Resiliency: Articulating a Practical Framework for Preserving, Reconstructing, and Building Cities
Andrea McArdle (CUNY) – Imagining A Resilient New York After Superstorm Sandy

10:45 – 12:00 Social Aspects of Resilient Cities
Moderator: Anastasia Telesetsky (Idaho)
Palma Strand (Creighton) – Increasing City-System Resilience by Cultivating Civic Social Networks
Melissa Berry (University of Missouri) – Thinking Like a City: Grounding Social-Ecological Resilience in an Urban Land Ethic
12:00 – 1:30 Lunch with Keynote
Moderator: Barbara Cosens
Ken Alex (California Governor’s Office of Planning and Research)
1:30 – 1:45 Break
1:45 – 3:15 Resiliency, Equity, and Economy
Moderator: Jerrold Long
Christopher Odinet (Southern University Law Center) – Fairness, Equity, and a Level Playing Field: Land-use Goals for the Resilient City
Jeff Litwak (Columbia River Gorge Commission) – Implementing Resiliency: Urban Services Without Borders
Jon Rosenbloom (Drake) – Funding Resiliency
3:15 – 3:30 Break
3:30 – 5:00 Resiliency and Planning for City Growth
Moderator: Stephen Miller
Tom Bergin (Blaine County Land Use & Building Services) and Tom Wuerzer (Department of Community and Regional Planning Boise State University) – Fire Resilience Policy and Planning at the Wildland-Urban Interface: Impressions from Idaho
Keith Hirokawa (Albany) – Planning for Scarcity: Enabling Resilient Urban Water Planning Through Eco System Services
5:00 – 5:15 Concluding Remarks
5:15 – 6:15 Reception

 Stephen R. Miller

March 27, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

San Francisco study evaluates economic effects of formula retail controls

San Francisco has some of the most restrictive formula retail land use controls in the country.  It also is in the midst of considering amending those controls.  Entering into the fray is a February, 2014 report from the city's Office of Economic Analysis.  Read the full report here.  

Here are the report's "main conclusions":

• This economic impact report was prepared in response to a proposed ordinance (item #130788), introduced by Supervisor Mar in the Summer of 2013, which would expand formula retail controls in San Francisco. Formula retail controls limit the growth of chain stores within San Francisco.
• The proposed legislation would both expand the definition of formula retail, and require the Planning Commission to consider an independent economic impact report detailing how a proposed chain store would affect existing businesses.
• Formula retail controls primarily affect the economy by changing the retail prices paid by consumers, the amount of local spending by retail businesses, commercial rents and vacancy rates, and perceptions of neighborhood quality.
• In general, chain stores charge lower prices, but may spend less within the local economy, and can be unpopular with some residents because they can be seen to diminish the character of the neighborhood. On the other hand, limiting chain stores can reduce commercial rents and raise vacancy rates.
• Research by the Office of Economic Analysis suggests that local retailers may spend up to 9.5% more within the local economy than chain stores, but charge prices that average 17% more. On balance, the economic benefits of greater local spending by non-formula retailers are outweighed by higher consumer prices.
• Accordingly, the report concludes that expanding the definition of formula retail in the city will not expand the local economy. Moreover, while the proposed independent report would document the impact of chain stores on existing businesses, a new store could benefit the economy without benefitting existing businesses, by offering lower prices to consumers, for example.
• The OEA therefore recommends that the report instead consider the relative prices and local spending by proposed chain stores and existing businesses. In addition, the report recommends the Planning Commission explicitly consider the views of residents, and whether a proposed store could prevent blight.

Well worth a read for anyone interested in formula retail land use controls.

Stephen R. Miller

March 24, 2014 | Permalink | Comments (0) | TrackBack (0)

Festa on Property and Republicanism in the Northwest Ordinance

Our own Matt Festa (South Texas) has posted his new article, Property and Republicanism in the Northwest Ordinance, 45 Ariz. St. L. J. 409 (2014).  Here's the abstract:

Property rights were central to the political ideology of the founding era. The Northwest Ordinance of 1787 shows how the concept of property was part of both the liberal and the republican narratives of the revolutionary and constitutional eras. Conventional wisdom holds that property rights were key to the liberal argument, but that they must yield to the common good in the civic republican view. This Article shows that property was a key concept to both the liberal and republican ideologies at the founding by analyzing a critically important, but relatively neglected, founding document: the Northwest Ordinance.

The Northwest Ordinance -- one of the four most important American founding documents -- established governance in the unorganized territories of the new nation, and provided the blueprint for admitting new states to the union. A close reading of the Ordinance shows that it is fundamentally concerned with property rights, but is also thoroughly republican in character. It provides numerous rules about property ownership, in terms of inheritance, transactions, and political participation. It contains individual-rights precursors to the Constitution’s property clauses, including direct historical links to the Contracts Clause and the Takings Clause. It also envisions the role of property in an expanding republic. The property rights provisions in the Northwest Ordinance reflect a concern for not only individual liberty, but also for the promotion of the common good, through a virtuous society of individual property owners. The Northwest Ordinance shows that both the liberal and the republican narrative of the founding era rely on a fundamental consideration for individual property rights.

Jim K.

March 24, 2014 in Constitutional Law, Property Rights, Property Theory, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 18, 2014

Essays of city growth: n+1 and Harper's take on Boise 40 years apart

The uber-hip Brooklyn literary magazine n+1 just published a nice essay about the history of development of Boise as told through the personal story of a Boise native gone away to Brooklyn.  The piece is, I think, a nice bookend to the 1974 article Tearing Down Boise, which appeared in Harper's 40 years ago.  While the 1974 article foresaw the end of a city that almost tore itself down through flawed urban renewal processes, the 2014 n+1 article tells a story of a booming city that, ironically, is booming because of savvy urban renewal processes.  It's a land use lover's dream!

The two essays could be read as seminal pieces about how individuals relate to growth of a city and the effect of a city on an individual, much in the vein of Joan Didion's Goodbye to All That, which tells her story of leaving New York, or maybe more accurately, in the vein of Wallace Stegner's A Sense of Place, which speaks to the movement of westerners and how they frame identity. 

We need more stories of mid-sized cities, especially of those cities like Boise that are growing dramatically.  As many have noted, the future of urban growth is not in megapolitan cities with 10 million or more people, but these 500,000 - 2 million person cities that are popping up all over and need their day in the sun.

Stephen R. Miller

March 18, 2014 | Permalink | Comments (0) | TrackBack (0)

New SSRN State & Local Government eJournal

Land use folks might want to add the new SSRN State & Local Government eJournal to their distribution lists. Here is information on the new eJournal from a recent e-mail:


We [SSRN] are pleased to announce a new Legal Scholarship Network (LSN) Sponsored Subject Matter eJournal - State & Local Government eJournal, sponsored by Touro College Jacob D. Fuchsberg Law Center, and the Fordham Urban Law Center.

Touro College Jacob D. Fuchsberg Law Center Fordham University School of Law STATE & LOCAL GOVERNMENT eJOURNAL
View Papers:

Editors: Nestor M. Davidson, Professor and Director, Urban Law Center, Fordham University School of Law, and Patricia E. Salkin, Dean and Professor of Law, Touro College - Jacob D. Fuchsberg Law Center

Sponsors: Touro College Jacob D. Fuchsberg Law Center: Touro Law Center ( is an innovative law school located in Central Islip, NY that is dedicated to producing profession-ready graduates and to promoting social justice. It's rich state and local government offerings include: a disaster relief clinic and an institute on land use and sustainable development law that complement courses, externships and symposia. Touro Law faculty currently edit the Municipal Lawyer, a quarterly publication of the NYSBA Municipal Law Section. Fordham Urban Law Center: The Fordham Urban Law Center ( focuses on the many intersections between our legal system and contemporary urbanism. The Center conducts research into questions of urban law, convenes experts across a number of domains, and seeks to link scholarship to policy on the most pressing issues facing America's metropolitan areas.

Description: This eJournal includes working and accepted paper abstracts that examine urban, state, and local government law and policy. States and local governments have primary responsibility for much of the basic infrastructure of the law - from property, torts, and contracts to the foundations of criminal law - and provide the public services that are of most immediate importance to everyday life. This eJournal encourages submissions from scholars engaged in researching every aspect of the work of state and local governments, including papers also published in related topic-specific eJournals. It is the goal of this eJournal to foster dialogue about state and local government law, both within the legal academy and across cognate disciplines.

Advisory Board
The members of the State & Local Government eJournal Advisory Board are:

Michelle Wilde Anderson
Assistant Professor of Law; Executive Committee, Thelton E. Henderson Center for Social Justice at Berkeley Law School

Richard Briffault
Joseph P. Chamberlain Professor of Legislation, Columbia Law School

Julie M. Cheslik
Associate Professor of Law, University of Missouri at Kansas City School of Law

Lee Anne Fennell
Max Pam Professor of Law and Herbert and Marjorie Fried Research Scholar, University of Chicago Law School

Clayton P. Gillette
Max E. Greenberg Professor of Contract Law, New York University School of Law

John R. Nolon
Professor of Law, Counsel and Faculty Liaison, Land Use Law Center, Pace University School of Law

Ashira Ostrow
Associate Professor of Law, Hofstra University - Maurice A. Deane School of Law

Richard Schragger
Perre Bowen Professor of Law, Barron F. Black Research Professor of Law, University of Virginia School of Law

Kenneth Stahl
Associate Professor, Director, Environmental Land Use and Real Estate Law Program, Chapman University Dale Fowler School of Law

You can subscribe to the eJournal by clicking on the "subscribe" link listed above [this link may not work as copied into the blog.]

You can change your eJournal subscriptions by signing into SSRN User HQ. If you have any problems, please contact us for assistance by email: or by phone: 877-SSRNHelp (877 777 6435) in the United States, or +1 585 442 8170 outside of the United States. We are open Monday through Friday between the hours of 8:30AM and 6:00PM, United States Eastern.

SSRN's searchable electronic library contains abstracts, full bibliographic data, and author contact information for more than 535,500 papers, more than 248,400 authors, and full text for more than 439,900 papers. The eLibrary can be accessed at

SSRN supports open access by allowing authors to upload papers to the eLibrary for free through the SSRN User HeadQuarters at, and by providing free downloading of those papers.

Downloads from the SSRN eLibrary in the past 12 months total more than 10.4 million, with more than 73.8 million downloads since inception.

Searching on an individual's name in the author field on our search page at provides the best single professional directory of scholars in the social sciences and humanities. Complete contact information for authors, including email, postal, telephone, and fax information, is available there.

SSRN's objective is to provide rapid, worldwide distribution of research to authors and their readers and to facilitate communication among them at the lowest possible cost. In pursuit of this objective, we allow authors to upload papers without charge. And, any paper an author uploads to SSRN is downloadable for free, worldwide.

The Legal Scholarship Network (LSN) distributes other eJournals. You can subscribe to these eJournals through the SSRN User HeadQuarters at


Bernard Black and Ronald J. Gilson
Legal Scholarship Network

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Stephen R. Miller

March 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, March 14, 2014

Amicus brief sign-on request re affordable housing: Time-sensitive!

Please see the request from Tim Iglesias regarding an affordable housing amicus brief that sounds really interesting:

I am writing to invite you to sign on to an amicus curiae brief by housing scholars in an important inclusionary zoning case currently before the California Supreme Court. A draft of the brief is attached. I am also attaching a one pager with a brief description of the case, a summary of the argument of our brief, and the names of people who helped draft it.

 If you wish to sign on, please email me ( directly ASAP, but at the very latest by Tuesday, March 18th with the following information: Full Name, Title, your academic or other scholarly affiliation (for identification purposes only), and Address (street, city, state & zip code). 

Thank you very much for considering this request.  I am happy to answer any questions you might have about the litigation or the brief.


Tim Iglesias

Download 2nd Information about the Inclusionary Zoning Amicus Brief

Download 3.12.2014 ARGUMENT.LTMC and Housing Scholars

March 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 12, 2014

March 13-14: Rocky Mountain Land Use Institute Conference: Moving Beyond Recession: What Next?

Rocky Mountain Land Use Institute

For those in the Mountain West like me, the place to be this week will be Denver for the Rocky Mountain Land Use Institute's annual conference, which this year is entitled Moving Beyond Recession:  What Next?.  See the program here

I will be presenting at the conference on Friday at 1:15 on a panel called Planning in the Wild West:  Why Is It So Hard?.  My co-presenters will be the fabulous Angie Rutherford (Sonoran Institute) and Anna Trentadue (Valley Advocates for Responsible Growth).  Here is the blurb for our event:

Planning in the Wild West brings out debates based on raw emotion and talk of freedoms and rights. Sometimes, factual information that could inform planning decisions is ignored because of factors that have nothing to do with planning. However, these factors must be addressed to make progress and get meaningful public engagement. Language, culture, perceptions, and trust can often be more important than the message when talking about things like property rights. This session will look at the lessons learned in Teton County and share some hard-earned pearls of wisdom for planners working throughout the emotionally-heated debates of the West.

Stop by and see us if you are there.

Stephen R. Miller

March 12, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, March 10, 2014

Conservation easements and charitable trusts

There has long been debate fluttering around about whether conservation easements are charitable trusts. A recent opinion from Wyoming has me thinking about charitable trusts and conservation easements from a different viewpoint.

In Davis Foundation v. Colorado State University Research Foundation, the Supreme Court of Wyoming examined a transfer of property from the Davis Foundation and family jointly to CSU and University of Wyoming. The working ranchland was donated to the school as a way to provide a living laboratory for students to learn ranching and to provide revenue for the programs (through ranching revenues). In the process of conveying the land, the Davis Foundation also conveyed a conservation easement over  the property to The Nature Conservancy. The conservation easement purports to protect the scenic and historical resources of the property and restricts possible property uses to ranching, farming, and education.

Putting aside whether the conservation easement itself was a charitable trust (and without information about whether it was sold or donated to TNC I am not gonna make a call on that one), the court found the existence of the conservation easement integral in its analysis of whether the Davis Foundation created a trust when donating the property to the educational institutions. Basically, the schools now want to sell the land (subject to the conservation easement). If the donation was a gift to the schools, they have the ability to do with the land as they see fit (within their limits as state organizations or non-profits) BUT if it is a charitable trust, the schools actions with respect to the land are more limited. The Wyoming Supreme Court held that no trust was created. It reached that conclusion in part because of the existence of the conservation easements. The court explained that the conservation easement limited what the land would be used for, not the gift to the schools. Structures of donations like this are not unusual. We see examples in many states of landowners donating fee to one entity and a conservation easement to another. This may be particularly common where the fee is donated to a government entity. This case indicates that the presence of the conservation easement may serve as evidence that the donation did not create a trust. Of course, there are no blanket rules here and one would have to look at each conveyance to determine whether a trust was intended. I find this fascinating. If you donate parkland to a city but also put a conservation easement on the land because you don't totally trust the city, you may have made the donation look more like a gift than a trust (which may not have been your intention!).


March 10, 2014 in Agriculture, Caselaw, Conservation Easements, Land Trust, Property, Property Rights | Permalink | Comments (0) | TrackBack (0)

Sunday, March 9, 2014

The Passing of Joe Sax

I am sad that my first post after a one-month hiatus is to report the passing of Environmental Law giant Joe Sax. His work on the public trust doctrine and the protection of natural resources (public and private) has had a significant impact on land use. And of course, he has has a significant impact on land use scholars. As a Berkeley Law alum, I had the opportunity to have Joe as a mentor -- a role he continued into my post-law graduate program and during my efforts to become a law professor. I'm sure well see some fuller tributes in coming days on Legal Planet and Environmental Law Profs.

[As a random side note. I was surprised that Joe Sax doesn't have a wikipedia page. Hopefully someone more ambitious than I will remedy that.]

March 9, 2014 | Permalink | Comments (0) | TrackBack (0)

Get to know the neighborhood? There's an app for that.

I've had a long fascination with the return of the neighborhood, and that is probably why I am especially fascinated by Nextdoor, an app that bills itself as sort of a "Facebook for neighbors."  

Here is how it works:  you go to the app (or website), choose the neighborhood where you live, join that neighborhood's group, and when people post the post goes only to those within that neighborhood, not to all of your "friends" scattered around the world.  

I was skeptical at first, but I have to admit, I've come to really love it.  In Boise, where I live, the police and fire departments now use Nextdoor to send out alerts on crime and hazards, but mostly the site is filled with questions you typically want to ask neighbors about:  do you know a good roofer, who cleans gutters around here, someone beat up my kid at the park and did you see it, anyone have a good babysitter recommendation, and so on.  

Sometimes the posts border on the mundane, but it strikes me what a tremendous platform it is for community involvement and action.  Within the small urban neighborhood where we live over 200 people are on the site; I couldn't imagine there are more than a thousand homes in the defined neighborhood area.  A lot of people post often, but not too often, and everything has to do with something in the neighborhood.

With just a few months of experience, I have come to believe apps like Nextdoor will be a part of the way that people start to use technology to build neighborhood comraderie.  I should also add that the neighborhood where we live is also an extremely friendly area; my wife and I joke that some people are "aggressively friendly." The value of an app like Nextdoor is that it doesn't replace the traditional neighborhood structure but overlays on top of that traditional structure adding richness to it.

Some interesting facts from Nextdoor's press packet:

For dark backgrounds


Stephen R. Miller

March 9, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, March 7, 2014

Gallagher's The End of the Suburbs a good intro for the non-land use lawyer

If you're looking for the book to give that person in your family who doesn't understand what land use law is, you might consider Leigh Gallagher's The End of the Suburbs: Where the American Dream is Moving.  The book has been called "prophetic," though I'd note that it is, in many ways, a recounting of data any land use scholar has seen reproduced in numerous forms over the last several years (e.g., the Census).

And so, most land use scholars won't find much new here, but it is packaged in an easy to read way that might make that nagging family member understand why land use is the most fascinating area of law ever, as we all know it to be.


Stephen R. Miller

March 7, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 5, 2014

The final chapter of Cincinnati's Kelo fight draws near

Those who teach or care about the case of Norwood v. Horney, a 2006 Supreme Court of Ohio post-Kelo case that restricted the state's use of economic development takings, will be interested to know that there appears to be an end to the story that provides an interesting book-end to Kelo.  While the city won in Kelo at the U.S. Supreme Court, it lost the Pfizer plant it hoped to build in the poverty-stricken city.  In Horney, the city lost in court but, in the end, it got to build a complex called Rookwood Exchange.

To build, the developers paid the remaining holdout--er, property rights advocate self-styled as a Mrs. Kelo on the banks of the Ohio--$1.25 million for the boarded-up property below [updated:  previous image link stopped working]. 

Only three homes remain in a fenced-off area marked for construction in Norwood that was the planned site for the Rookwood Exchange development.

The project broke ground in 2011 and comes to full fruition this year.  Click here to see more of the Rookwood Exchange as built out

H/t to my sister, who stayed at the Marriott on the site and tells me it's quite nice. 

Stephen R. Miller


March 5, 2014 | Permalink | Comments (0) | TrackBack (0)

How common are mandatory state registries of special districts?

The Idaho Legislature is currently considering legislation that would require registration of all local special districts with state.  The registration would require, in part, the following information:

(a) Administrative information:

(i) The terms of membership and appointing authority for the governing board member of the local governmental entity;
(ii) The official name, mailing address and electronic mailing address of the entity;
(iii) The fiscal year of the entity;
(iv) Except for cities and counties, the section of Idaho Code under which the entity was established, the date of establishment, the establishing entity and the statute or statutes under which the entity operates, if different from the statute or statutes under which the entity was established.

(b) Financial information:

(i) The most recent adopted budget of the entity; and
(ii) An unaudited comparison of the budget to actual revenues and expenditures for the most recently completed fiscal year.

(c) Bonds or other debt obligation information:

(i) The cumulative dollar amount of all bonds or other debt obligations issued or incurred by the entity; and
(ii) The average length of term of all bond issuances or other debt obligations and the average interest rate of all bonds or other debt obligations.

I wonder how common such state registries of special districts are?  Are these ubiquitous, or would this be something new?  Anyone out there know?

Stephen R. Miller

March 5, 2014 | Permalink | Comments (2) | TrackBack (0)

Call for Participation: ABA State & Local Government Law section: Resilience-Oriented Development

In the aftermath of major storms such as Sandy and Katrina in the United States and the ravages of earthquakes, tornados, typhoons, tsunamis, and other natural disasters worldwide, the Section of State and Local Government Law (SLG) invites participation in a new program to address planning for resilience in anticipation of disasters, to include impacts on property rights, land use, development, public health, emergency management, and respective public and private sector roles and responsibilities.

SLG will sponsor and lead this initiative. We anticipate that this will be an interdisciplinary program across the ABA and will also involve related organizations such as IMLA and APA. Our goal is to develop education and outreach through a series of programs, presentations, and publications.

At the Section Council meeting in Santa Fe in October 2013, we developed an informal working group, including Ernie Abbott, Lai Sun Yee, Ed Thomas, Anita Miller, Rob Thomas, and Erica Levine Powers, and SLG Chair Andy Gowder (ex officio), to brainstorm these issues and report back to the Council at the 2014 Spring Meeting in Ashville, North Carolina.

If you would like to join our effort, please contact Tamara Edmonds-Askew,, so she can set up a working group conference call early in 2014.

Stephen R. Miller

March 5, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 4, 2014

March 14: Cal ARB lecture series webcast: Estimating the Costs and Benefits of Regulations: Lessons Learned from the Past 30 Years

Estimating the Costs and Benefits of Regulations: Lessons Learned from the Past 30 Years

Richard D. Morgenstern, Ph.D., Resources for the Future (RFF)


Photo of Dr. Richard Morgenstern

Friday, March 14, 2014, 
12:00 Noon PDT
Cal EPA Headquarters, 1001 "I" Street, Sacramento, CA

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icon of a video camera LIVE WEBCAST can be viewed the day of the event
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Federal, state and local environmental laws have achieved significant improvements in public health over the past several decades. The development of these regulations also resulted in growing scrutiny about the costs and benefits of environmental rules. Traditionally the costs and benefits of a regulation are estimated prior to implementation of a law or regulation (what is known as “ex ante’ analysis), but there is also an increasing push to retrospectively analyze the impact of a regulation after implementation, through what is known as “ex post” analysis. The question is: how do the two forms of analysis compare? How accurate are the anticipated ex ante analyses when measured against the actual, measured costs of the ex post analysis?

Dr. Richard Morgenstern will present and discuss his research on the evaluation of environmental regulations and compare the costs and benefits of federal environmental regulations estimated both before and after implementation. Dr. Morgenstern's work highlights pitfalls that can lead to inaccurate results and proposes a way to conduct retrospective analyses in the future--to ensure that the estimation of regulatory costs is as targeted and focused as the underlying environmental regulations.

Speaker Biography

Richard D. Morgenstern, Ph.D., is a Senior Fellow at Resources for the Future (RFF). Dr. Richard Morgenstern's research focuses on the economic analysis of environmental issues with an emphasis on the costs, benefits, evaluation, and design of environmental policies, especially economic incentive measures. His analysis also focuses on climate change, including the design of cost-effective policies to reduce emissions in the United States and abroad. 

Immediately prior to joining RFF, Dr. Morgenstern was senior economic counselor to the undersecretary for global affairs at the U.S. Department of State, where he participated in negotiations for the Kyoto Protocol. Previously he served at the U.S. Environmental Protection Agency, where he acted as deputy administrator (1993); assistant administrator for policy, planning, and evaluation (1991-93); and director of the Office of Policy Analysis (1983-95). Formerly a tenured professor at the City University of New York. Dr. Morgenstern has taught at Oberlin College, the Wharton School of the University of Pennsylvania, Yeshiva University, and American University. He has served on expert committees of the National Academy of Sciences and as a consultant to various organizations. 

Dr. Morgenstern received his A.B. degree in economics at Oberlin College and his Ph.D. in economics at the University of Michigan. Dr. Morgenstern has published dozens of articles on environmental economics and policy and he has authored/edited of several books, including New Approaches on Energy and the Environment: Policy Advices for the President (with Paul R. Portney) and Reality Check: "The Nature and the Performance of Voluntary Environmental Programs in the United States, Europe, and Japan" (with William A. Pizer).

Stephen R. Miller

March 4, 2014 | Permalink | Comments (0) | TrackBack (0)

WVU College of Law LL.M. in Energy and Sustainable Development Law 2014 - 2016 Fellowship applications now open

From the announcement:

West Virginia University College of Law’s Land Use and Sustainable Development Law Clinic is now accepting applications for the Land Use and Sustainable Development Law Fellowship. The fellowship combines the opportunity to work with attorneys, planners and students at one of the leading Land Use Clinics in the United States with the opportunity to obtain the WVU Law LL.M. degree in Energy and Sustainable Development Law. The LL.M. program provides a uniquely deep and balanced curriculum in perhaps the nation’s richest natural resource region.

Land Use and Sustainable Development Law Clinic

The Land Use and Sustainable Development Law Clinic (LUSD Law Clinic) provides legal services to local governments, landowners and non-profit organizations to develop land conservation strategies and practices. Legal services include, but are not limited to, title examinations, advising landowners and land trusts, drafting conservations easements, negotiating with mineral owners/lessees, working with communities to identify alternative wastewater solutions, drafting comprehensive plans and zoning ordinances, training local officials on land use issues, and facilitating public meetings.

LL.M. in Energy and Sustainable Development Law

The WVU College of Law LL.M. in Energy and Sustainable Development Law is the only LL.M. program in the United States that provides a balanced curriculum in both energy law and the law of sustainable development. Working with WVUCollege of Law’s Center for Energy and Sustainable Development, LL.M. students will develop the expertise to advise clients and provide leadership on matters covering the full range of energy, environmental and sustainable development law.

The LL.M. in Energy and Sustainable Development Law provides a broad and deep offering of courses, experiential learning opportunities, and practical training for every part of the energy sector. Our broad spectrum of courses allows our students to prepare to be lawyers serving energy companies, investors, environmental organizations, landowners, utilities, manufacturing companies, lawmakers, policymakers, regulators and land use professionals.

Land Use and Sustainable Development Law Fellow

This fellowship is a part-time (at least twenty hours per week), two-year position from August 2014 through July 2016. The Fellow will receive an annual stipend of $20,000 and tuition remission for the LL.M. program. The Fellow would take 6-7 credits per semester allowing time for part-time work at the Clinic.

The position involves policy and legal research and writing; facilitating public meetings and workshops; supervising law students in the LUSD Law Clinic; and administrative responsibilities as needed. Many of our clients and partners work throughout the state and some travel is expected.

The Fellow will support all aspects of the Clinic’s missions in the areas of land conservation, land use planning, alternative wastewater solutions and the education of law students in these areas. There is frequent overlap in the areas of energy and land use planning, including the reduction of vehicle miles travelled, energy siting, and energy efficient buildings. Efforts will be made to match project assignments with the Fellow’s interest.

Fellowship Qualifications

Candidates should possess a J.D.; a strong academic record; excellent analytical and writing skills; a demonstrated interest and background in land use and sustainable development law and policy; and admission to the LL.M. program at West Virginia University (application for LL.M. admission can occur concurrently with the fellowship application). Preference will be given to candidates who have relevant experience in law, land use, or sustainable development. Admittance to the West Virginia Bar is preferred.

Applicants should apply to Please submit a letter discussing qualifications and interests, a resume, a law school transcript, a recent writing sample and contact information for three references.

We are now accepting applications. The application deadline is June 1, 2014 or until the post is filled.

Visit our website at for more information about our programs.

West Virginia University College of Law is an equal opportunity employer and has a special interest in enriching its intellectual environment through further diversifying the range of perspectives represented by its faculty and teaching staff.

Stephen R. Miller

March 4, 2014 | Permalink | Comments (0) | TrackBack (0)

GSA building data for green energy geeks

Last week I had the chance to chat with a former General Services Administration regional administrator.  She mentioned that section 432 of the Energy Independence and Security Act of 2007 requires extraordinary disclosures of energy and resource usage in US government buildings, which are available at this Department of Energy website.  If you love green building, then the EISA 432 Compliance Data Warehouse is a dream come true.  Detailed energy and resource usage is trackable for GSA buildings and can be sorted by state, by agency, even by city.  A great resource for green building types...

Stephen R. Miller

March 4, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2014

Agritourism v. ag zoning: Virginia edition

Both houses of the Virginia General Assembly have passed legislation that would limit zoning of agritourism uses--even amplified concerts--in ag districts.  Will McAuliffe sign it?  More here

This appears just the latest salvo in the zoning of agritourism that is getting hotter all over the country.  See, e.g., the Oregon Court of Appeals' December, 2013 ruling in Greenfield v. Multnomah County and the Tennessee Supreme Court's January, 2013 ruling in Shore v. Maple Land Farms.

Stephen R. Miller

March 3, 2014 | Permalink | Comments (0) | TrackBack (0)