Land Use Prof Blog

Land use articles posted on SSRN in May

Here are all the land use-related articles posted to SSRN in the month of May (as always, search term "land use" limited to "last month" of posts).  I am admittedly cutting May short a day because, well, I'm headed out to Walla Walla for some sun, wine, and good food.  I'll double-check in June for any articles posted on May's last day and include any such articles in that month's list.

Here is May's list:

1		Agritourism at the Rural-Urban Interface: A National Overview of Legal Issues with 20 Proposals for Idaho  Stephen R. Miller  University of Idaho College of Law - Boise  Date posted:  11 May 2014 Last revised:  20 May 2014 working papers series 60 Downloads
2		Zoned for Injustice: Moving Beyond Zoning and Market-Based Land Preservation to Address Rural Poverty  Liz Clark Rinehart  University of Maryland Francis King Carey School of Law  Date posted:  11 May 2014 Last revised:  27 May 2014 working papers series 28 Downloads
3		The Energy Implications of City Size and Density  William D. Larson and Anthony M. Yezer  Government of the United States of America - Bureau of Economic Analysis (BEA) and George Washington University - Department of Economics  Date posted:  17 May 2014 working papers series 21 Downloads
4		Reducing Livability: How Sustainability Planning Threatens the American Dream  Policy Analysis No. 740 Randal O'Toole  Cato Institute  Date posted:  04 May 2014 Accepted Paper Series 16 Downloads
5		Billionaires, Birds, and Brawls: Reconceptualizing Energy Easements for Eco-Efficiency  University of Hawaii Law Review, Forthcoming Nadia B. Ahmad  University of Florida - Fredric G. Levin College of Law  Date posted:  03 May 2014 Accepted Paper Series 11 Downloads
6		Small Property, Adverse Possession and Optional Law  The Law and Economics of Possession, edited by Yun-chien Chang, Cambridge University Press, 2014, Forthcoming Shitong Qiao  Yale University - Law School  Date posted:  17 May 2014 Accepted Paper Series 11 Downloads
7		On the Waterfront: New York City's Climate Change Adaptation and Mitigation Challenge (Part 2 of 2)  25 Envtl. L. in N.Y. 101 (May 2014) , Touro Law Center Legal Studies Research Paper Sarah Adams-Schoen  Touro College - Jacob D. Fuchsberg Law Center  Date posted:  25 May 2014 Accepted Paper Series 8 Downloads
8		Efficient Classified Land Taxation  Erik B. Johnson and Jason Pearcy  Quinnipiac University - Lender School of Business and Montana State University - Bozeman - Department of Agricultural Economics and Economics  Date posted:  10 May 2014 working papers series 7 Downloads
9		The Economics and Politics of 'Green' Flood Control: A Historical Examination of Natural Valley Storage Protection by the Corps of Engineers  Resources for the Future Discussion Paper No. 14-07 Carolyn Kousky  Resources for the Future  Date posted:  04 May 2014 working papers series 7 Downloads
10		Fairness, Equity, and a Level Playing Field: Development Goals for the Resilient City  Idaho Law Review, Vol. 50, 2014 Christopher K. Odinet  Southern University Law Center  Date posted:  24 May 2014 Accepted Paper Series 6 Downloads
11		Towards a New Policy for Climate Adaptive Water Management in Flanders: The Concept of Signal Areas  Utrecht Law Review, Volume 10, Issue 2, May 2014 Peter De Smedt  Centre for Environmental and Energy Law, Ghent University (Belgium)  Date posted:  17 May 2014 Last revised:  29 May 2014 Accepted Paper Series 6 Downloads
12		Carbon Forestry and Sociospatial Difference: An Examination of Two Carbon Offset Projects Among Indigenous Smallholders in Costa Rica  Society and Natural Resources, Forthcoming David Lansing  University of Maryland Baltimore County  Date posted:  28 May 2014 Accepted Paper Series 4 Downloads
13		Race, Ethnicity, and Discriminatory Zoning  NBER Working Paper No. w20108 Allison Shertzer , Tate Twinam and Randall Walsh  University of Pittsburgh - Department of Economics , University of Pittsburgh - Department of Economics and University of Pittsburgh - Department of Economics  Date posted:  14 May 2014 working papers series 4 Downloads
14		Sustainability in the Three Dimensions of Society - Urbanization, Food Insecurity and Agriculture  OIDA International Journal of Sustainable Development, Vol. 07, No. 02, pp. 79-90, 2014 Maninder Singh Saini and Rishav Jain  Panjab University - University Institute of Legal Studies and Panjab University - University Institute of Legal Studies  Date posted:  26 May 2014 Accepted Paper Series 4 Downloads
15		The Remedy for a Nollan/Dolan Unconstitutional Conditions Violation  Vermont Law Review, Vol. 38, p. 701, 2014 Scott Woodward  Vermont Law School  Date posted:  24 May 2014 Accepted Paper Series 2 Downloads
16		Not in My Atlantic Yards: Examining Netroots’ Role in Eminent Domain Reform  Georgetown Law Journal, Vol. 100, pp. 263-293, 2011 Kate Klonick  Georgetown University Law Center  Date posted:  29 May 2014 Accepted Paper Series 1 Downloads
17		The Emperor’s New Clothes: Exposing the Failures of Regulating Land Use Through the Ballot Box  Notre Dame Law Review, Vol. 84, No. 4, 2009 Marcilynn A. Burke  University of Houston Law Center  Date posted:  24 May 2014 Accepted Paper Series 1 Downloads

Stephen R. Miller

Pace Law / Yale Center for Environmental Law & Policy project on fracking and local government

Earlier this week, EnergyWire had a nice article discussing the early stages of a promising project, coordinated by Prof. John Nolon, at Pace Law School's Land Use Law Center and the Yale Center for Environmental Law & Policy.  The project is taking a bottom-up approach to finding best practices for local governments facing oil and gas development through hydraulic fracturing.  From the article:

Legal scholars are embarking on a project to bridge a regulatory gap that has pushed many municipalities to ban hydraulic fracturing within their borders.

Rather than booting out the oil and gas industry altogether, the Pace Law School Land Use Law Center and the Yale Center for Environmental Law & Policy are proposing a solution that would merge community and industry interests to buffer residents from drilling's negative impacts while allowing them to reap its economic benefits.

"It appears that fracking is going to be going forward in most states, and in most states there are a lot of impacts of fracking that are not going to be regulated by the state agency or by the federal government," said John Nolon, a professor at Pace Law School. "So those are impacts that local governments are going to feel."

View the entire article here.  

This sounds like a great--and much needed--project in itself.  It also is illustrative of how land use clinics have tremendous power to help local governments both in a case-specific context and also by sharing knowledge in a way that helps multiple communities across a state and, perhaps, across the country.  This new project on fracking at Pace and Yale is certain to find a welcome audience in local governments across the country.

Stephen R. Miller 

Digging into the Detroit Blight Removal Task Force report

The NYT has a nice article today on the landmark blight study in Detroit--arguably the largest blight study ever--that recommends tearing down some 40,000 buildings.  The NYT article is here.

For the land use types that want to dig a little deeper, the report's recommendations summary is really fascinating, as it describes a variety of cutting edge approaches to blight, including everything from using a big data approach to mapping the blight and making it publicly available to the nuts and bolts of legal title, property tax reform, and beyond.  

The whole website of the Detroit Blight Removal Task Force is well worth a look.  For those like myself obsessed with big data's community empowering force in the land use context, be sure to play around with the mapping function.  And then there is this video, which almost makes land use planning look sexy:

 

Stephen R. Miller

 

Landscaping the suburban desert: A visit to Peoria, Arizona

Over Memorial Day weekend, I had occasion to visit Phoenix.  I took some time to tour that booming western fringe of Phoenix where armies of bulldozers plough over saguaro cacti to build the next town of subdivisions.  It's hard not to feel a pang for the loss of the desert; consider that a given.  

I was surprised, however, to see the landscaping of subdivisions in these new desert communities, which use almost no grass.  I found myself pulling up their planning code sections on landscaping this morning, and they are not a bad example for how the American lawn can be re-envisioned.

Take, for instance, Peoria, Arizona, which among its landscaping regulations, limits "turf," or the great American lawn, to just 20 percent of the lot area.  14-35-4(B)(2).  Or, consider Peoria's requirements for re-landscaping with native plants, which are illustrated by this image:

14-35-4(A)(2)(d).  For those interested in landscaping and new ways to conceptualize the American lawn, places like Peoria and other western Phoenix communities will provide some starting points. 

Stephen R. Miller

Oregon County Bans GMO Crops

In an interesting election twist, organic farmers in Jackson County, Oregon, spearheaded a county-wide ban on crops containing genetically modified organisms. You can read more in the Idaho Statesman, and on the environmental blog Grist.

Jamie Baker Roskie

UMKC seeks visitor to teach property and land use-related subjects

Hat tip to Jessie Owley for this one...

t
	Job Description
	The School of Law at the University of Missouri-Kansas City is seeking qualified candidates for a visiting faculty position to teach the first-year Property I & II courses and meet other curricular needs, especially in the property, land use, or environmental fields. The position is a three-quarter-time, benefits-eligible position and will require teaching courses scheduled from August 15, 2014 through May 2, 2015 with administration of a final exam following each semester, and the maintenance of regular office hours. The University of Missouri-Kansas City recognizes that a diverse faculty, staff and student body enriches the educational experiences of the entire campus and greater community. To this end, UMKC is committed to recruiting and retaining faculty, students and staff who will further enrich our campus diversity and making every attempt to support their academic, professional and personal success. UMKC is an Affirmative Action/Equal Opportunity employer. Women, minorities, veterans, and individuals with disabilities are encouraged to apply. Applicants who are not U.S. citizens must state their current visa and residency status. Pursuant to University policy, all final candidates will be required to successfully pass a Criminal Background Check prior to beginning employment.
	Minimum Qualifications
	J.D. Prior law school experience teaching Property or related subjects is strongly preferred. Commitment to student-centered, collegial learning environment is required.
	Full Time/Part Time
	This is a three-quarter-time position.
	Salary
	Salary is negotiable
	Application Deadline
	May 26, 2014
	Application Instructions
	The deadline for applications is May 26, 2014. A complete application includes a letter of application detailing desire and qualifications to teach Property and one or more other law school courses. The application should include a curriculum vitae reflecting the highest degree earned and previous teaching/research and practice experience. The application should be submitted to: UMKC Human Resources http://www.umkc.edu/hr. If you are experiencing technical problems, please call (855) 523-0002. For more information, please contact Associate Dean Barbara Glesner Fines 816-235-2380 or [email protected]

Ninth Circuit issues decision on the fate of the Salton Sea

The latest decision in the epic battle over the Colorado River came down this week in the Ninth Circuit's ruling on California ex rel. Imperial County Air Pollution Control Dist. v. U.S. Dept. of Int., 12-55856, 2014 WL 2038234 (9th Cir. 2014).  From the opinion:

The Salton Sea—the largest inland body of water in California—is a creature of accident. In 1905, water from the Colorado River breached an irrigation canal and flooded the then-dry Salton Basin. After the initial flood, irrigation runoff from the Imperial and Coachella Valleys—supplied by the Colorado River—sustained the Sea for more than a century. The Sea has become a unique attraction for water-based recreation in the harsh southern California desert.

The Sea's continued access to Colorado River water is in jeopardy. Over the last few decades Arizona and Nevada began to claim their full entitlements to the stream. California, which has long used more than its share, has been required to conserve. The affected California water districts ultimately agreed to transfer some Colorado River water from the Imperial Valley to urban areas in southern California. The Secretary of the Interior—who controls the delivery of River water—prepared an environmental impact statement (“EIS”), which, among other things, analyzed the effect of these agreements on the Salton Sea. Despite noting some potentially serious environmental consequences, the Secretary eventually approved the agreements and implemented a new water delivery schedule.

 

Plaintiffs Imperial County and the Imperial County Air Pollution Control District (the “Air District”) then sued the Secretary, claiming that the EIS did not comply with either the National Environmental Policy Act (“NEPA”) or the Clean Air Act (“CAA”). The Imperial Irrigation District (“Imperial Irrigation”), San Diego County Water Authority (“San Diego Water”), Coachella Valley Water District (“Coachella”), and Metropolitan Water District of Southern California (“Metropolitan”), parties to the transfer agreements, intervened as defendants. The district court granted summary judgment to the defendants, finding that neither plaintiff had standing to sue. We disagree as to standing, but nonetheless affirm the judgment, because the district court correctly found in the alternative that the Secretary did not violate NEPA; the record below also makes plain that the Secretary did not violate the CAA.

WVU Law LL.M. Fellowship in Energy and Sustainable Development: Applications due June 30

West Virginia University College of Law

Center for Energy and Sustainable Development

LL.M. Fellowship in Energy and Sustainable Development

West Virginia University College of Law’s Center for Energy and Sustainable Development is now accepting applications for a Fellowship in Energy and Sustainable Development. The fellowship combines the opportunity to work with attorneys, faculty and students at the Center for Energy and Sustainable Development with the opportunity to obtain the LL.M. degree in Energy and Sustainable Development Law.

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 will further the work of the Center by pursuing research on issues relating to energy and sustainable development law and policy, under the direction of the Center’s Director and the WVU Law faculty associated with the Center. The Fellow will be expected to generate policy-oriented written work to be published through the Center and other venues such as law journals. The Fellow will also assist with projects relating to the Center’s programs, including organizing conferences and other events, and public education and outreach efforts. Efforts will be made to match project assignments with the Fellow’s interest.

Candidates should possess a J.D.; a strong academic record; excellent analytical and writing skills; a demonstrated interest and background in energy, sustainability or environmental law and policy; and admission to the LL.M. program at West Virginia University College of Law (application for LL.M. admission can occur concurrently with the fellowship application).

 We are now accepting applications. The application deadline is June 30, 2014 (concurrent with the deadline for admission to the LL.M. program) or until the post is filled.

 Visit our website at http://energy.law.wvu.edu/ for more information about our programs.

The sharing economy meets local regulation

As some folks know, I have been working on an article on local regulation of the so-called sharing economy.  And so, I am intrigued by today's news that Airbnb will provide anonymous data on its users to the New York Attorney General.  

This Airbnb case is the tip of the iceberg.  The disruptive technologies of the sharing economy will revolutionize municipal licensing and tax revenue structures:  it is only a matter of how fast they do so.  Cities will need to start thinking creatively about how to permit innovation the sharing economy enables while also shoring up their regulatory and financial bases.  To get a sense of what's at stake, consider:  San Francisco's hotel tax is anticipated to generate some $273 million a year in Fiscal Year 2013-14.

Legal academics have--to my knowledge--given short shrift to this emerging topic.  There is, however, a nice primer of the legal issues in the latest issue of the Boston Bar Journal, which is available here.

More thoughts on this from me soon...

Stephen R. Miller

Twenty proposals for growing agritourism at the rural-urban interface

This academic year, my Economic Development Clinic at the University of Idaho College of Law's Boise campus worked with several counties at the rural-urban interface of Idaho's growing cities.  These counties were trying to find ways to help small farms stay in business despite urbanization's encroachment into country life.  After several listening sessions,  it became clear that there was substantial interest in agritourism among the small farmers in these counties.  In response, the Clinic set about to investigate what kinds of legal structures could be put in place to advance agritourism in these areas.  

What we found was a subject of surprising legal complexity and, moreover, a nsacent but rising tide of litigation and legislation in agritourism spurred by entrepreneurial small farmers, the rise of the food movements, and some unexpected consequences of growth in rural areas.  The Clinic's 184-page report, Agritourism at the Rural-Urban Interface:  A National Overview of Legal Issues with 20 Proposals for Idaho, is now available for free on SSRN.  The report covers a lot of legal ground, including a detailed investigation of four existing agritourism ordinances that local governments can use as models.

In the executive summary, the report also provides 20 proposals for growing agritourism in Idaho; in fact, these proposals would apply to most states.  I am reproducing them here for those across the country who might find interest in the subject:

Proposal 1.  Facilitate compliance with Idaho’s Agritourism Promotion Act by providing statute-compliant signage.  Idaho’s Agritourism Promotion Act provides agritourism operators with limited liability for injury or death of a participant resulting from the inherent risks of agritourism activities.  However, to obtain this “safe harbor,” the agritourism operator must post a specifically-worded sign with specific visibility requirements.  Virginia has a similar statute and, to assist agritourism operators in obtaining the safe harbor, a Virginia agritourism operators’ group offers a statute-compliant sign that agritourism operators can purchase.  Idaho, or an agricultural trade group in Idaho, should consider printing and offering, at cost, a similar statute-compliant sign.

Proposal 2.  Consider state statutes and regulations that would permit agritourism-promotion signs on at least state highways and, where possible, federal highways.  In the Clinic’s discussion with agritourism providers, a recurring request was for the ability to advertise on the state and federal highways.  Georgia and North Carolina currently allow signs on highways and provide models for statutes and regulations that would assist adoption with such agritourism-promotion signage in Idaho.

Proposal 3.  Consider starting a state-sponsored agritourism fund modeled on the agritourism revolving trust fund of Oklahoma.  Oklahoma’s revolving fund receives appropriations from its state department of agriculture and fund expenditures are authorized and approved by a majority vote of the five members appointed to and constituting a board that oversees the fund.

Proposal 4.  Consider starting a statewide agritourism operator-funded marketing fund, such as the ones started by Mississippi and Missouri. In Mississippi, the state created a fund within the state treasury for the benefit of agritourism, which is funded by an annual fee (currently $50) required of all agritourism professionals, which is placed in the fund and used to promote and publicize agritourism in the state.  Missouri operates a similar state fund to promote agritourism that is funded through registration fees (currently $100).

Proposal 5.  Draft an agricultural building and structures code that prioritizes both safety and access to authentic rural experiences.  One of the toughest challenges for beginning agritourism operations is re-purposing existing agricultural buildings—most of which are exempted from building code requirements—to meet building code standards for public access.  The state should consider drafting a building code that would provide guidance in assisting agricultural buildings being re-purposed for agritourism uses.  Such a code might also consider specific provisions for historic agricultural buildings and structures.

Proposal 6.  Consider a statute authorizing agricultural promotion districts as Texas has done.  A Texas statute permits the creation of special districts called “agricultural promotion districts,” which have the dual purposes of conserving and developing natural resources of the state and also creating economic development opportunities for agricultural enterprises, facilities and services of the district.  In Texas, the district permits the assessment of special fees upon those in the district.  Such a district permits those who wish to promote agritourism in their rural communities to provide themselves a revenue source for marketing similar to how business improvement districts operate within cities.

Proposal 7.  Align definitions of agriculture in state statutes to ensure that they are properly reflecting the state’s intents with regard to agritourism.  As this report details, several of Idaho’s agricultural statutes, such as its right-to-farm law, are ambiguous in their application to agritourism activities.  The State may wish to consider amending some of these statutes to explicitly include, or exclude, agritourism from the definition of “agriculture” in its state statutes. 

Proposal 8.  Create a statewide agritourism working group to form regional agritourism-based economic development models based on “bottom up” planning.  The State should consider a standing working group on agritourism, such as Virginia’s On-Farm Activities Working Group.  Further, the State should consider a “bottom up” plan for using agritourism as a means of economic development in rural communities.  A model for such planning could be Colorado’s Blueprint, which in 2011 sought to evaluate the weaknesses of the state’s economy generally.  In turn, a state team facilitated an economic development planning session in each of the state’s counties, which were then rolled up into fourteen regional plans that, in turn, were rolled up into a comprehensive, statewide economic development plan.  The viability of agritourism is tied to its local character, and it makes sense that agritourism planning should arise from a local source.

Proposal 9.  Encourage local governments, and counties in particular, to create permitting systems that rationalize agritourism’s relation to local government regulation.  A permitting system does not mean more regulation, necessarily; a good permitting system that assists farmers foresee the types of regulations necessary to change from agricultural to agritourism uses can help private parties better plan for the transition and leads to more transparency and accountability.  This report provides four model ordinances from Thurston County, Washington; Weber County, Utah; Tehama County, California; and Lawrence County, South Dakota to provide a range of options for local governments to consider.

Proposal 10.  Provide Idaho agritourism operators assistance in seeking federal program dollars that would assist agritourism’s growth in the state.   The Agricultural Act of 2014 (the “2014 Farm Bill”) presents new opportunities for economic development through agritourism.  First, the 2014 Farm Bill continues USDA Rural Development programs that support investments in the economy through grants, loans and loan guarantees.  The 2014 Farm Bill reserves 10% of certain programs for regional, long-term investments to better promote economic development through regional planning.  Also, the 2014 Farm Bill provides $30 million annually to the “Farmers Market and Local Food Promotion Program.”  In addition to providing funding for rural development and regional food systems, the 2014 Farm Bill also provides significant funding for organic farmers.  First, the 2014 Farm Bill provides for $57.5 million to help growers make the transition from conventional to organic farming.  In seeking to attract farmers to go organic, USDA is expanding organic price elections so that crop insurance will cover more crops.   Additionally, the 2014 Farm Bill provides for mandatory funding, $11.5 million annually, to assist organic producers and handlers with the cost of organic certification.  Further, the Bill provides for a $100 million, over the life of the Bill, for the Organic Agriculture Research and Extension Initiative; USDA’s primary organic research and grant program.  These are just some of the federal programs that could assist agritourism operators.  The State should consider assisting such smaller operators in seeking out funds such as these.

Proposal 11.  Provide more opportunities for small farmers to feed institutional communities, such as schools, universities, prisons, and hospitals, which are operated by the state or in which the state has an interest.  It was only a generation ago that local farmers routinely provided staples, such as eggs, butter, and meat—to the pantries of state and local institutions, such as the local school.  The mid-century federalization of some of these programs, such as school lunches, encouraged institutions to receive supplies from industrial producers.  Now, the trend is going the other way.  Idaho has already moved in this direction with its Idaho Farm to School program.  This is a commendable effort, and it should be built upon and furthered to other institutions throughout the state.  Since 2013, USDA has invested nearly $10 million in Farm to School grants nationwide that support schools as they purchase from local or regional sources.  Recently, the national Farm to School Program put seven new Farm to School Coordinators on the ground in regional offices to help build relationships between small and mid-sized farmers and ranchers.  One of the biggest priorities for this program is to create more opportunities for small and mid-sized livestock and poultry producers.  Idaho should further pursue such opportunities. 

Proposal 12.  Consider approaching agritourism planning through a foodshed approach to funding agritourism.  Farm and city used to be separate spheres; no more.  The urban environment has invited the country into its midsts:  many urbanites want chickens in their back yards and gardens in their front yards.  Urbanites flock to farmers’ markets.  At the same time, many urbanites also want a closer connection to rural life and, especially, an opportunity to experience how food is made.  This concept is increasingly referred to as a city’s “foodshed.”  Idaho should embrace this concept—in which there is a continuum of agricultural planning from the urban to the rural, from farmers’ markets in cities and zoning for urban animal production, to agritourism activities that permit urbanites to experience the farm and which also offer up secondary income to small farmers.     

Proposal 13.  Consider how agritourism could be used to preserve the best farmland.  Most cities were built adjacent to the best farmland in a region.  As cities grow, their development consumes that farmland.  Many of Idaho’s cities, especially in the Treasure Valley, are exploding with growth and, at the same time, paving over much of the State’s best farmland.  The COMPASS 2040 Communities in Motion vision map illustrates how, in just a few short decades, the drive from Boise to Caldwell will likely be completely paved over.  If Idaho wants to save any of the best farmland in the Treasure Valley, the time to act is now.  Promoting agritourism activities on the best farmland can be one way of helping retain farmland uses, both for purposes of maintaining food security for the region, but also as a way to provide a rural cultural resource for the new development of the valley.

Proposal 14.  Consider a tax credit, similar to Kansas' five-year tax credit for 20% of the liability insurance paid by an agritourism operator, to encourage agritourism operations.  Many states, such as Idaho, already provide some liability protection to agritourism operators.  Kansas’ tax credit further incentivizes agritourism by assisting with insurance premiums during the beginning years of an agritourism operation.

Proposal 15.  Consider a statewide registration of agritourism operations, such as required by Louisiana, to permit more coherent and knowledgeable marketing of the State’s agritourism operators.  Registration would permit the state to then better assist the growth of an agritourism industry.  For instance, it could assist with the development of marketing, such as “apps” or other social media that could facilitate customers visiting agricultural areas.

Proposal 16.  Consider starting an unclaimed property agritourism promotion trust fund.   Such a fund could be modeled on Colorado’s Unclaimed Property Act, which creates an unclaimed property tourism promotion trust fund from which 10% of the interest earned is used to promote agritourism.

Proposal 17.  Consider adding “culinary interests” to the existing Idaho Agritourism Promotion Act,  as well as future agritourism legislation, as Colorado has done.  Agritourism aligns well with the “food movement,” which prioritizes locally grown and organic fruits, vegetables, and meats, as well as artisanal food products.  Agritourism capitalizes on this movement through events such as farm-to-fork dinners, wine tasting rooms, and cooking classes in inspiring rural settings. 

Proposal 18.  Consider creating an agritourism division within a state agency, or as a working group between state agencies.  Kentucky created a Division of Agritourism in its Office for Agricultural Marketing and Product Promotion to develop a “statewide master plan” for agritourism.  As a result, Kentucky has one of the country’s most aggressive agritourism strategies, which is guided by these institutionalized state planning efforts.  Such a division could be located within the Department of Agriculture; however, other state departments, such as Commerce and Labor, might also contribute substantial knowledge.  It makes sense for the division to have inter-departmental reach, even if reporting only to one agency.

Proposal 19.  Consider clearly permitting agritourism as a permitted use for cooperative marketing associations.  Currently, cooperative marketing associations are permitted for “the production, marketing or selling of the agricultural products of its members,” a phrase which may include marketing agritourism activities.  The State may wish to consider explicitly permitting the use of cooperative marketing associations for agritourism.

Proposal 20.  Consider planning for agritourism as part of local governments’ agriculture component in the comprehensive planning process.  Beginning in 2011, Idaho Code section 67-6508(n) required local governments to include an agriculture component in their comprehensive plans.  Integrating agritourism into those agriculture components would ensure that local governments are planning strategically not only for the growth of their communities, but also for the retention of farms and growing rural amenities, such as agritourism, that so many urban residents seek.  

Each proposal is more thoroughly investigated throughout the report.  Appendix C in the report may also prove useful, as it provides a list of numerous agritourism resources identified by the Clinic, each typically focused on a specific region, across the country.

Many thanks for the great work of my three year-long students--Alexandra Grande, Caitlin Fuller, and Tyler Beck--who did a great deal of research for both this public report and our client-specific projects.  

I welcome feedback at millers at uidaho dot edu.

Stephen R. Miller

Columbia Law School’s Center for Climate Change Law hiring full-time Executive Director

Columbia Law School’s Center for Climate Change Law (CCCL), established in 2009, develops legal techniques to fight climate change; analyzes legal developments in the field, both domestic and international; carries out original legal and policy research; creates and posts databases on climate-related laws; and has an active program of publications and conferences.  CCCL works closely with the Law School’s Environmental Law Clinic and with the physical and social scientists at Columbia University’s Earth Institute.  Further information about CCCL’s activities can be found at www.columbiaclimatelaw.com. 

CCCL has now grown to the point that it is hiring a full-time Executive Director who will assist the faculty Director, Professor Michael B. Gerrard, in managing its operations.  The position will involve activities that are substantive (e.g. researching and writing publications), managerial (e.g. overseeing CCCL staff), and a combination of both (e.g. guiding and editing the work of lawyers and interns).

Specific Responsibilities:

•           Supervise CCCL’s staff of junior lawyers (fellows)

•           Oversee CCCL’s law student and undergraduate interns, including during CCCL’s summer program

•           Recruit and help select junior lawyers and interns

•           Oversee CCCL’s program of conferences and publications, as well as its social media platforms (blog, Facebook, Twitter)

•           Lead CCCL’s strategic planning initiatives, including the preparation of annual strategic plans, funding reports, and periodic progress updates

•           Work with CCCL’s visiting scholars from universities around the world to help them execute their research proposals

•           Research and write publications

•           Speak at conferences

•           Guest teach classes

•           Represent CCCL on various committees and working groups inside and outside the university

•           Prepare grant proposals and otherwise work on fundraising activities

•           Work to build new collaborations within Columbia and with local, national and international academic institutions, not-for-profit organizations and governments

 

Requirements:

•           J.D. or LL.M. degree

•           Substantial background in environmental or energy law

•           A record of publications, preferably in both scholarly and popular outlets

•           At least three years experience doing environmental or energy-related work in the academic, N.G.O., governmental or private sectors 

•           Experience managing other lawyers or interns

•           Public speaking experience and ability

 

Compensation:

$120,000/year starting salary plus full benefits

 

To apply:

Please send cover letter and C.V. to [email protected], or mail to:

 

Michael B. Gerrard

Andrew Sabin Professor of Professional Practice

Director, Center for Climate Change Law

Columbia Law School

435 West 116th Street

New York, New York 10027

 

 No calls, please.

The position will remain open until it is filled.

The position is also posted at the site below:

http://web.law.columbia.edu/climate-change/about-center/working-us

Stanford announces 1-year position researching China's solar-energy industry

Stanford University’s Steyer-Taylor Center for Energy Policy and Finance, a joint initiative of the Stanford Law School and the Stanford Graduate School of Business, seeks to hire a research manager for a one-year project that will produce a report exploring China’s solar-energy industry.

 The report, to be released publicly, will explore three key areas of change in China’s solar industry: its intensifying effort to produce technological innovation; its pattern of investment; and its cost structure. The report will assess what the changes in those areas suggest about (1) the comparative advantages and disadvantages of China and the U.S. in the globalizing solar industry, (2) policy and finance approaches that might allow the U.S. to better play to its strengths and that, as a result, might improve the economic efficiency of solar energy globally, and (3) approaches that Chinese executives and officials say they believe might allow China to better play to its strengths and that, as a result, might improve the economic efficiency of solar energy globally.

The Steyer-Taylor Center’s research focuses on economically sensible policy and finance solutions that advance cleaner and more secure energy. The research manager job is available immediately and is located at the Steyer-Taylor Center on the Stanford campus in California. The salary is competitive.

Applicants should have strong academic experience in a relevant technical area (in particular in energy innovation and in energy economics); strong writing skills in English; and experience managing a research project. Knowledge of the Chinese energy industry, particularly of the Chinese solar industry, and proficiency in Mandarin, are helpful.

 The research manager will work with Jeffrey Ball, scholar-in-residence at the Steyer-Taylor Center and director of the China project; with Dan Reicher, executive director of the Steyer-Taylor Center; and with graduate students who are working on the project. The job will involve research and writing at Stanford, travel to China, and coordination of the administrative aspects of the project.

Please send inquiries to [email protected] and [email protected].

Catch-22 and the ripeness of a takings claim: the Second Circuit weighs in

The Second Circuit's decision last week in the case of Sherman v. Town of Chester set a new standard for literary allusion in land use cases.  Here are the opening lines of the decision:

*1  Hungry Joe packed up his bags and wrote happy letters home. He had flown the 25 missions required to complete a tour of duty. But things were not so simple on Catch–22's Pianosa island. He soon discovered that Colonel Cathcart had just raised the number of missions to 30, forcing Hungry Joe to unpack his bags and rewrite his happy letters. At the time, Yossarian had flown 23 missions.

 

The Colonel later increased the number to 35. When Yossarian was just three away from that mark, the number was increased to 40, and then to 45. When Yossarian had 44 missions under his belt, the Colonel made the number 50. And later 55

 

When Yossarian reached 51 missions, he knew it was no cause to celebrate: “He'll raise them,” Yossarian understood. He appealed to squadron commander Major Major to be exempted from flying his four remaining missions. “Every time I get close he raises them,” Yossarian complained. Major Major responded, “Perhaps he won't this time.” But of course Yossarian was right. Colonel Cathcart raised the number to 60, then 65, then 70, then 80, with no end in sight.

 

Plaintiff Steven M. Sherman must have felt a lot like Yossarian in his decade of dealing with defendant Town of Chester. In 2000, Sherman applied for subdivision approval while he was in the process of buying a nearly 400 acre piece of land for $2.7 million. That application marked the beginning of his journey through the Town's ever-changing labyrinth of red tape.

 

In 2003, the Town enacted a new zoning ordinance, requiring Sherman to redraft his proposed development plan. When he created a revised proposal in 2004, the Town again enacted new zoning regulations. When he created another revised plan in 2005, the Town changed its zoning laws once more. And again in 2006. And again in 2007

 

On top of the shifting sands of zoning regulations, the Town erected even more hurdles. Among other tactics, the Town announced a moratorium on development, replaced its officials, and required Sherman to resubmit studies that he had already completed. When the Town insisted that Sherman pay $25,000 in consultants' fees before he could obtain a hearing, he might have thought, “The Colonel will just raise it again.” And he would have been right. After paying the $25,000, he was told he owed an additional $40,000, and that he would also have to respond to a lengthy questionnaire.

 

By the time this lawsuit was filed, over ten years had passed. In that time, Sherman became financially exhausted—forced to spend $5.5 million on top of the original $2.7 million purchase. The District Court (Edgardo Ramos, Judge ) ruled that Sherman's claim under the Takings Clause was not ripe under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), because Sherman had not received a final decision on his property and seeking a final decision would not be futile. The court reasoned that while Sherman may have to jump through more hoops in the future, he had not established that his application would definitely be denied in the end. To Sherman, this must have sounded a lot like: “Perhaps he won't raise the number this time.”

*2 We conclude that under these circumstances, Sherman was not required to obtain a final decision from the Town. Sherman's takings claim was ripe and adequately alleged. Accordingly, we REVERSE that part of the District Court's decision that dismissed the takings claim, and we REMAND for further proceedings consistent with this opinion.

Sherman v. Town of Chester, 13-1503-CV, 2014 WL 1978726 (2d Cir. 2014).  A fun, poignant, and pointed introduction to the opinion.

Stephen R. Miller

Notes on getting by in a small western town: A visit to Dubois, Idaho

In late April, my Economic Development Clinic traveled to Dubois, Idaho, a town of just 700 in eastern Idaho located in a county with just a few hundred more people in its census counts.  We were there to work on a project that I will discuss in greater detail in another post; however, I was taken with several aspects of the town, it's "never say die" attitude, and the unexpected vitality still there in a place that would otherwise be easy to miss.  Some of what we learned seemed to speak volumes about the future of small towns in America generally, and so I thought I'd share some of these facts, as they were told to me, which may prove of interest to those interested in the life and death of small towns.

The main street of Dubois has few businesses.  The town's heyday was almost a hundred years ago when the railroad had a turn-around here.  When the railroad left, the town withered.  But there are other, structural reasons to the town's hard times.  An hour's highway drive from Dubois is the largest city in eastern Idaho, which is called Idaho Falls.  An economic impact study found that $7 million a year leaves Dubois for Idaho Falls as almost everyone shops at the Wal-Marts, Targets, and Costcos that have sprung up in that larger city.  The loss of that revenue--and the tax based on that retail--impoverishes the local government to the benefit of Idaho Falls.  Of course, as in most places, Idaho Falls has no responsibility to share the taxes it generates from Dubois' citizens. 

While Dubois suffers at the hands of its municipal neighbor, there are pockets of industry here that are suprising.  The railroad still runs through this town and, several years ago, a hay farmer convinced the railroad to put in a new spur.  He now loads hay on cars parked on that spur, then ships the hay to China, where he has a buyer that pays twice the price he can get in Idaho. 

Another farmer has given up potato farming, which he was losing money on, in favor of the newly-hip grain barley.  Potatoes and barley generate about the same revenue but the barley costs much less to produce and thus produces a profit.

The folks on this high desert plain have also banded together in ways you might not expect in a place where libertarianism rules the political roost.  Several years ago, the community became fed up with the price of propane, which was over $4 per gallon.  The community started a propane cooperative and, last winter, prices from the cooperative never rose above $3 per gallon and were as low as $2.37 a gallon.  Across the mountain in Montana, prices still top $4 per gallon.

The impetus to a propane cooperative was spurred by a telephone cooperative that laid the first phone lines in this area some sixty years ago.  The cooperative never paid a dividend until about ten years ago.  When cell towers went into the area, the telephone cooperative had a chance to purchase a small part of a cell tower for $158.  Today, the cooperative still owns that sliver of the cell tower, a sliver that generates over $1 million a year in revenue to the telephone cooperative.  As a result, the telephone cooperative paid a 306 percent dividend last year for all of those folks living in the community in 2004.  That's right, for every dollar spent on a phone call in 2004, a participant in the telephone coop received $3.06 in 2014.  The dividend payment is delayed for a decade because the coop may need the funds for a large capital project; however, that cell tower investment turned out to be money well spent.

In a small town, you never know what business will come your way.  For Dubois, new business has several forms.  The first is rodeo.  It turns out there is a sizable Canadian rodeo market and many of the riders in Canadian rodeo come down I-15 on their way to American rodeos in Nevada and California.  They have a hard time finding a place to stop where they can keep their horses.  And so, the owner of the local gas station and convenience store is planning to convert a down-on-its-luck apartment complex into an extended stay hotel with one much-sought after amenity:  a big dirt lot where horses are welcome.

The second unexpected industry to come Dubois' way is climate change energy rules in Europe.  On the far end of town, a wood pellets factory is about to set up shop in a new energy park the State has established.  The investor is a European firm that plans to manufacture the wood pellets in Dubois, then ship them on a rail line to a ship that will transport the wood pellets to Europe where they will be burned instead of coal as part of European efforts to reduce greenhouse gas emissions.

And then there is the future.  The State wants to shut down the school because of low enrollment.  If they do, that would mean students would have to be bussed to a town almost an hour away.  Some with kids might stay, but most would probably leave for a larger town.

Dubois struggles, but it holds on and, in some unexpected ways, prospers.  The future of life in most small western towns--opportunities, spirit, and problems--are mostly permutations of what Dubois faces now.  It is seldom, though, to get such a close look at a place like Dubois, and I am thankful to all the great folks who invited us into their community and showed us around.

Stephen R. Miller

 

Water-related articles posted on SSRN within the last month

At the beginning of this year, I started a project listing, at the beginning of each month, all land use articles posted on SSRN in the previous month.  I am now beginning a similar monthly project, which is to list--on the 15th of each month--all water-related articles posted to SSRN within the previous month.  In other words, on May 15 (today), I am posting all water-related articles posted to SSRN from April 16 through May 15.  I am adding this to the blog in recognition that many land use scholars are writing about water issues, as the list below makes clear, and so it seems a list of water-related articles is a natural addition to the blog and a useful way to keep people informed of what's doing. 

As always, I want to be transparent in how the lists are generated.  The land use articles list is generated using the term "land use" in the SSRN database, while the water articles list is generated using the term "water" in the SSRN database.  I welcome your comments on this addition to the blog, or recommendations for other land use-related lists of use.

Without further ado, here are water-related articles posted to SSRN within the last month.  Note:  I have excerpted several articles that the search turned up that were not, in substance, addressing water-related issues:

1		'Stealth Licensing' - Or Antitrust Law and Trade Regulation Squeezing Patent Rights Nicolas Petit  University of Liege  Date posted:  20 Apr 2014 working papers series 101 Downloads
3		A Justice Paradox: On Climate Change, Small Island Developing States, and the Quest for Effective Legal Remedy University of Hawaii Law Review, Vol. 35, No. 2, 2013 Maxine Burkett  University of Hawaii at Manoa - William S. Richardson School of Law  Date posted:  20 Apr 2014 Accepted Paper Series 20 Downloads
5		The Value of Proximity to Water in Residential Areas Tinbergen Institute Discussion Paper 14-047/VIII Jan Rouwendal  , Ramona van Marwijk  and Or Levkovich  VU University Amsterdam - Department of Spatial Economics  , Kadaster  and VU University Amsterdam - Department of Spatial Economics  Date posted:  23 Apr 2014 working papers series 17 Downloads
6		Water - Its Control and Combination, Multifunctionality and Flood Defences Jurgen van der Heijden  AT Osborne  Date posted:  11 May 2014 working papers series 16 Downloads
7		AgTech: Challenges and Opportunities for Sustainable Growth Suren Dutia  Ewing Marion Kauffman Foundation  Date posted:  02 May 2014 working papers series 15 Downloads
8		Public-Private Partnerships and Contract Choice in India's Water and Wastewater Sector Sridhar Vedachalam  , Rick Geddes  and  Susan J. Riha  Cornell University - New York State Water Resources Institute  , Cornell University - Department of Policy Analysis & Management (PAM)  and Cornell University  Date posted:  20 Apr 2014 working papers series 14 Downloads
9		Public Private Partnerships: The Indian & International Experience Kalpana Gopalan  Government of India, Indian Administrative Service  Date posted:  26 Apr 2014 working papers series 9 Downloads
11		Did the Millennium Development Goals Change Trends in Child Mortality? Declan French  Queen's University Management School  Date posted:  15 Apr 2014 working papers series 7 Downloads
12		Minute 319: A Cooperative Approach to Mexico-US Hydro-Relations on the Colorado River Water International, Vol. 39, No. 3, pp. 263-276 (2014) Regina M. Buono  and Gabriel Eckstein  King's College London  and Texas A&M University (TAMU) - School of Law  Date posted:  27 Apr 2014 Last revised:  29 Apr 2014 Accepted Paper Series 5 Downloads
13		Water Contamination and Land Prices in a Mountainous Landscape John F. Chamblee  , Carolyn A. Dehring  , Craig A. Depken  and  Joseph R. Nicholson  University of Georgia - Department of Anthropology  , University of Georgia - Department of Insurance, Legal Studies, Real Estate  , University of North Carolina at Charlotte - The Belk College of Business Administration - Department of Economics  and Montclair State University - Economics and Finance  Date posted:  06 May 2014 working papers series 5 Downloads
14		Alabama's Water Crisis Alabama Law Review, Vol. 63, 2012, U of Alabama Legal Studies Research Paper No. 2429325 Heather Elliott  University of Alabama - School of Law  Date posted:  26 Apr 2014 Accepted Paper Series 4 Downloads
15		Book Review of Environmental Protection in Multi-Layered Systems: Comparative Lessons from the Water Sector, Edited by Mariachiara Alberton and Francesco Palermo Publius: The Journal of Federalism, pp.1-5, 2014, Vermont Law School Research Paper No. 9-14 Melissa K. Scanlan  and  Richard O. Brooks  Vermont Law School  and Vermont Law School  Date posted:  24 Apr 2014 Accepted Paper Series 4 Downloads
16		Remedying the Misuse of Nature Utah Law Review, Vol. 2012, No. 1, pp. 141-208, 2012, University of Washington School of Law Research Paper Sanne H. Knudsen  University of Washington - School of Law  Date posted:  26 Apr 2014 Accepted Paper Series 4 Downloads
17		Rights, Water Use and Technical Efficiency in U.S. Agricultural Production Andrew L. Zaeske  University of Umea - Centre for Environmental and Resource Economics  Date posted:  27 Apr 2014 working papers series 4 Downloads
18		Supra-Regional vs. Regional Regulators in the Water Pollution Mitigation: Optimal Exemption Policies François Destandau  , Anne Rozan  and Sandrine Spaeter  ENGEES  , ENGEES  and University of Strasbourg - Bureau of Economic Theory and Application (BETA)  Date posted:  30 Apr 2014 working papers series 4 Downloads
19		Adaptive Water Law Kansas Law Review, Vol. 62, p. 101, 2014 Craig Anthony (Tony) Arnold  University of Louisville - Brandeis School of Law  Date posted:  15 May 2014 Accepted Paper Series 3 Downloads
20		Can International Water Law Be a Tool for Water Diplomacy? Journal of International Law of Peace and Armed Conflict, Volume 27, pp. 17-25 (2014) Sharmila L. Murthy  Suffolk University Law School  Date posted:  08 May 2014 Accepted Paper Series 3 Downloads
21		Water Keren En Combineren, Functiecombinaties Bij Waterkeringen (Water - Its Control and Combination, Multifunctionality and Flood Defences) Jurgen van der Heijden  AT Osborne  Date posted:  12 May 2014 working papers series 3 Downloads
22		Millennium Development Goals for Health: Building Human Capabilities Bulletin of the World Health Organization: The International Journal of Public Health 2004; 82(12): 951-952 Jennifer Prah Ruger  University of Pennsylvania  Date posted:  22 Apr 2014 Accepted Paper Series 2 Downloads
23		The Late Embrace of Urban Water Service Privatization in India: A Political Economy Explanation Greg Pierce  University of California, Los Angeles (UCLA)  Date posted:  07 May 2014 working papers series 2 Downloads
27		The 100 Week Strategy: Turning Around the Western Australian Water Authority Workshops from a Loss to a Surplus Daryll Hull  Centre for Workforce Futures, Department of Marketing and Management, Faculty of Business and Economics, Macquarie University  Date posted:  25 Apr 2014 working papers series 1 Downloads
28		The Role of Transnational Corporations in Infrastructure in Developing Countries. Background Paper and Liiterature Survey Zbigniew Zimny  Academy of Finance and Business Vistula  Date posted:  08 May 2014 working papers series 1 Downloads
29		When Does Service Delivery Improve the Legitimacy of a Fragile or Conflict-Affected State? Mcloughlin, C. (2014), When Does Service Delivery Improve the Legitimacy of a Fragile or Conflict-Affected State?. Governance. doi: 10.1111/gove.12091 Claire Mcloughlin  University of Birmingham  Date posted:  13 May 2014 Accepted Paper Series 1 Downloads
30		Incentive Price Regulation in Presence of Cost Heterogeneity: Some Considerations on the Basis of Price Regulation of the Water Service in Italy Rivista Italiana degli Economisti, Vol. 1, April 2014 Francesca Stroffolini  Università Federico II di Napoli - Dipartimento di Scienze Economiche e Statistiche  Date posted:  25 Apr 2014 Accepted Paper Series
31		Public Water Supply and Individual Water Handling: Perceived Substitutes and Revealed Complements Elena Gross  , Isabel Günther  and Youdi Schipper  University of Bayreuth Chair Development Economics and BIGSAS  , University of Goettingen (Gottingen) - School of Law, Economics, Social Sciences  and VU University Amsterdam  Date posted:  29 Apr 2014 working papers series
32		Quantification of Goods Purchases and Waste Generation at the Level of Individual Households Journal of Industrial Ecology, Vol. 18, Issue 2, pp. 227-241, 2014 Robin Harder  , Yuliya Kalmykova  , Gregory M. Morrison  , Fen Feng  , Mikael Mangold  and  Lisa Dahlen  Chalmers University of Technology - Chemical Environmental Science, Chemical and Biological Engineering  , Chalmers University of Technology  , Chalmers University of Technology - Department of Civil and Environmental Engineering  , Uppsala University  , Chalmers University of Technology - Department of Civil and Environmental Engineering  and Lulea University of Technology - Department of Civil, Environmental and Natural Resources Engineering  Date posted:  17 Apr 2014 Accepted Paper Series
33		Risk and Return in Transportation and Other US and Global Industries Risk and Return in Transportation and Other US and Global Industries, Kluwer Academic Publishers, 2001 Stelios Markoulis  and Manolis G. Kavussanos  Independent  and Athens University of Economics and Business - Department of Accounting and Finance  Date posted:  19 Apr 2014 Accepted Paper Series
34		Using Analytic Narratives in Policy Analysis: An Explanation of the Implementation of the Water Reform in Italy (1994-2002) Journal of Comparative Policy Analysis, Vol. 16, No. 1, 2014 A. Asquer  University of London, SOAS, Department of Financial and Management Studies  Date posted:  27 Apr 2014 Accepted Paper Series
35		Women: Walking and Waiting for Water - The Time Value of Public Water Supply Elena Gross  , Isabel Günther  and Youdi Schipper  University of Bayreuth Chair Development Economics and BIGSAS  , University of Goettingen (Gottingen) - School of Law, Economics, Social Sciences  and VU University Amsterdam  Date posted:  29 Apr 2014 working papers series

 

Dickinson on Inclusionary Eminent Domain

Gerald S. Dickinson (Reed Smith LLP - Pittsburgh) has posted Inclusionary Eminent Domain, which was recently published in the Loyola University Chicago Law Journal.  Here is the abstract:  

This Article proposes a paradigm shift in takings law, namely “inclusionary eminent domain.” This new normative concept provides a framework that molds eminent domain takings and economic redevelopment into an inclusionary land assembly model equipped with multiple tools to help guide municipalities, private developers and communities construct or preserve affordable housing developments. The tools to achieve this include Community Benefit Agreements (“CBAs”), Land Assembly Districts (“LADs”), Community Development Corporations (“CDCs”), Land Banks (“LABs”), Community Land Trusts (“CLTs”) and Neighborhood Improvement Districts (“NIDs”). The origin of the concept derives from the zoning law context, where exclusionary zoning in the suburbs excluded affordable housing for the poor. Courts intervened, applying exclusionary zoning doctrines, which led to the enactment of inclusionary zoning programs to achieve a fair share of housing. Exclusionary eminent domain in urban areas, similarly, has displaced and decreased the stock of or denied access to affordable housing through the power of takings. Under an exclusionary eminent domain doctrine, courts would apply heightened review to condemnations in a locality that has less than its fair share of affordable housing. But in a post-Kelo era of takings, doctrinal solutions may not be enough. Analogous to inclusionary zoning, inclusionary eminent domain helps us rethink how to fix the exclusionary eminent domain phenomenon that displaces low-income residents. Indeed, this Article moves us beyond the doctrinal muddle and instead incorporates both the intellectual musings of takings and zoning law with an assessment of how innovative tools can be practically applied to construct and preserve affordable housing in eminent domain takings for economic redevelopment.

I look forward to reading this one (when the grading piles disappear).

Stephen R. Miller

Kelly on A Continuum In Remedies: Reconnecting Vacant Houses to the Market

 

James (Jim) J. Kelly Jr. (Notre Dame), a fellow blogger here, has just posted A Continuum In Remedies: Reconnecting Vacant Houses to the Market, which is out this spring in the St. Louis University Public Law Review.  Here is the abstract:

For decades, America’s older, undercrowded cities struggle with neighborhoods beset by vacant houses that seemingly have no connection with a functioning real estate market. A nationwide foreclosure crisis has brought even greater attention to the need for inner-city communities to address vacant house nuisances.

This paper argues that recent developments in property theory help us understand and complete reforms of legal remedies that address this continuing national need.

Traditional, in personam code enforcement remedies emanate from a legal understanding of real estate ownership as the strongest of property-rule-protected entitlements. Local government authorities hold owners directly accountable for any failures to address specific property problems through imposition of fines and threats of contempt. These work fairly well against owners amenable to such pressures and for properties in functioning neighborhood real estate markets. But, in areas that have many abandoned properties, owners are unable to obtain the resources to complete repairs and, even in healthier neighborhoods, owners may strategically evade conventional enforcement or be genuinely incapable of fixing up the property or transferring it to someone who can.

In situations where the property-rule entitlement itself prevents a solution, the ultimate real estate liquidation remedy of eminent domain may seem called for. This paper contends that condemnation, in that sense, should be set aside in favor of remedies that liquidate the owner’s interest based upon failure to meet code obligations and/or pay property taxes. Recent scholarship in legal procedures that make use of the boundary area between property-rule and liability-rule entitlements show us the advantages of and design parameters for reforms to existing tax sale foreclosure laws and enactment of in rem code enforcement remedies that will facilitate reconnection of vacant properties with inner-city real estate markets.

A recommended read for those seeking outside-the-box legal solutions in neighborhoods still beset by foreclosures and in shrinking cities generally.

Stephen R. Miller

Liveblogging ALPS 2014: Session 7 (Self Promotion)

I had the burden privilege of presenting twice at ALPS this year. Yesterday, I was on a panel with Fred Cheever, Nancy McLaughlin, and Buzz Thompson discussing conservation easements. We each presented separate papers, all related to issues arising with conservation easements as their use has grown. My own project was about the changes we are seeing to conservation easement documents over time, demonstrating the increasing complexities of the arrangements and the documents. Additionally, conservation easements appear to have increasingly permissive terms. That is landowners with land burdened by newer conservation easements can do more on their land generally than landowners with land burdened by older conservation easements. Our research group is still working on this project and exploring the implications, but welcome any comments and thoughts!

Today, Nancy, Fred, and I led a roundtable discussion on some of the developing debates about land conservation, charitable purposes, and the incoherent (and offensive) practice of Payments in Lieu of Taxes (PILTs/PILOTs). While it was probably the panel that drew the fewest audience members (thanks Christy and Shelley!), but the most fun and helpful for me. We are very excited to put together an actual paper in the coming months, but I will leave you with our official abstract:

New Battlegrounds in Local Property Taxation: From Universities to Retirement Homes to Conservation Land Owned by Land Trusts

Cash-strapped local governments throughout the United States are struggling to find ways to increase their revenues. One potentially lucrative source of revenue is property tax collected from nonprofit organizations. Localities are increasingly asserting the right to impose property taxes on land owned by a variety of nonprofits, from wealthy Universities such as Princeton, to upscale retirement homes that operate like five star hotels, to land conservation organizations—and the nonprofits are fighting back. Whether such attempts to raise revenue will be upheld by the courts, and whether voluntary payments in lieu of taxes (PILOTs) or services in lieu of taxes (SILOTs) offered to localities by some of the nonprofits will keep local assessors at bay remains to be seen. Federico Cheever, Professor of Law, University of Denver College of Law, Nancy A. McLaughlin, Robert W. Swenson Professor of Law at the University of Utah S.J. Quinney College of Law, Jessica Owley, Associate Professor of Law at SUNY Buffalo Law School, will discuss these new property tax exemption battlegrounds; the legal grounds on which localities are asserting the right to impose such taxes, the defenses offered by the nonprofits, the efficacy of PILOTs and SILOTs, and what property taxation may mean for different segments of the charitable sector. Central to this discussion is what we as a society consider to be a “charitable” use of property deserving of a tax exemption and how the definition of charitable evolves over time.

 

 

Liveblogging ALPS 2014: Session 6 (from the Moon to Zuccotti Park)

Day 2 of ALPS continues to be a fascinating and enjoyable romp through various property and land use topics.

In what has been the most amusing presentation so far, Wian Erlank (North-West University, South Africa) asked the question of who owns space and how/when we will make the rules. Creating the field (or at least coining the term) "Space Property Law," Wian asks who owns objects (both human-made and natural) in outer space. Current treaties declare that no one can own natural items (the moon, planets, asteroids) but you can own things that nations and individuals place there (satellites, space stations). But, as Wian points out it will be an interesting treaty to enforce. What happens when someone starts a business mining asteroids? Who will stop them? What laws will govern. I can't wait to see the Law & Geography approach to this question. It continually brought to mind for me the evolution of mining law in the United States where the miners developed their own rules and government blessed and adopted their approach (perhaps tying to a lot of the talks I have heard about property and violence this weekend).

Sjef van Erp (Maastricht University - Netherlands) spoke on problems with hierarchy. In the United States, this boils down to a combination of a federalism and choice of law. I thought that was complicated, but Sjef convinced me that it gets even trickier in the EU. As the member states think about harmonization, it raises complicated questions about which laws will apply. 

Nadav Shoked (Northwestern) presented on a project he is working on with David Dana who sadly didn't make it from the airport on time for his own presentation. Nadav and David are asking whether we can bring ideas from the doctrine of trespass by necessity into the First Amendment. Specifically, they explore the claim that some protests are place-dependant. The quintessential is the Occupy Wall Street movement, which got a lot of rhetorical strength by er you know.. occupying Wall Street. The subject matter of the protest was inextricably related to the place of the protest. At times, such locations will be on private property (indeed as was Zuccotti Park) and perhaps we could think about whether allowing such protests there could be advanced by a necessity defense. Nadav and David are not suggesting that the you can't keep a protester out of your living room but are suggesting that perhaps there is some areas where the strength of necessity could help justify or defend protester actions.

 

Liveblogging ALPS 2014: Session 4

Hmm.. I guess live blogging doesn't really work if the post doesn't go up.. Here is a summary of the afternoon session I attended yesterday.

 Having just finished off my Property Law class with discussing Stop the Beach, I was understandably drawn to Marc Poirier's talk on Harvey Cedars v. Karan. It's a story that is easy to get outraged about. Rich homeowners on an island in New Jersey protest (and sue) when the state wants to protect their homes with beach renourishment. The story has a relatively happy ending because although it may be taking of private properties, the damage calculation would have gotten offset by the value of the benefit of the renourishment to their property (the property owners settled for $1 plus attorneys' fees .. not the $700,000 they were asking). Can't wait to read the paper.

 Ngai Pindell (UNLV)  then gave a talk about gaming. This is an issue that I think about (perhaps more than I should) but from a different approach than Ngai. As a periodic teacher of Federal Indian Law, my students and I engage in many discussions of the role and ethics of gaming as we talk about the political and legal structures of indian gaming. Ngai's presentation presenting concerns regarding land use, local government, tax, and employment law. Those issues are of course present in Indian gaming concerns but with a different twist. While fascinated, my gut reaction was that it is even more complicated than I have been presenting it as and makes me tempted to drop gaming from my syllabus entirely!

Jacqueline Hand (Detroit-Mercy)

spoke on urban agriculture in Detroit with a focus on the intersection with Right to Farm laws. I was luckily enough to get a tour of some of the Detroit urban farming projects from Jacqui earlier this year and there is a lot of fodder law there for folks interested in land use. It'll be interesting to see what impact urban farming might be able to have on decaying Detroit.

I am always impressed by Nicholas Blomley (Simon Fraser, Geography) patience with engaging with law professors. As a leading voice in Law and Geography, Nick unsurprisingly discussed changing community landscapes. He is particularly interested in issues of exclusion and displacement. Many speakers have mentioned the right to exclude today but Nick draws on C.B. MacPherson to discuss the right not to be excluded.