Friday, August 29, 2014

Do you have a land use law event coming up? Tell us about it!

We make every effort at the blog to publicize as many land use law events as possible.  Given the blog's readership, we tend to focus on events held at law schools and practitioner events that are national in scope.  That said, we know we are missing a lot.  

If you, your law school, or your professional organization is organizing a land use law event this fall, send me an e-mail (millers @ uidaho dot edu) with links and information, and we will make sure to get the word out.

Stephen R. Miller

August 29, 2014 | Permalink | Comments (0)

Thursday, August 28, 2014

Martin's new article: Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties

Benton C. Martin (unaffiliated) recently published, Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties, in the spring edition of Urban Lawyer.  Here is the abstract:

Cities possess a far greater ability to be trailblazers on a national scale than local officials may imagine. Realizing this, city advocates continue to call for renewed recognition by state and federal officials of the benefits of creative local problem-solving. The goal is admirable but warrants caution. The key to successful local initiatives lies not in woolgathering about cooperation with other levels of government but in identifying potential conflicts and using hard work and political savvy to build constituencies and head off objections. To demonstrate that point, this Article examines the legal status of local governments and recent efforts to regulate vacant property through land banking and registration ordinances.


August 28, 2014 | Permalink | Comments (0)

Tuesday, August 26, 2014

Historic Preservation During an Age of Fiscal Pressure

Funds for historic preservation programs, particularly those dealing with identifying, cataloguing, and managing historic resources, are typically slashed when the economy sputters.  Right now is such a time.  In my previous post, I discussed ARCHES--a free, online, user-friendly, open-source geospatial software system developed by the Getty Conservation Institute and the World Monuments Fund that is purpose-built to inventory and manage immovable heritage to internationally adopted standards.  Anyone can downloand and customize ARCHES to suit their needs.

Today I want to discuss a powerful, innovative but cheap technological tool that can aid authorities in their quest to create and/or update their historic resources digital inventory:  online crowdsourcing.  Simply put, online crowdsourcing allows someone to obtain needed services and/or content by soliciting voluntary contributions from the online public community rather than hiring employees or paying suppliers.  Online crowdsourcing has been an extremely effective tool for preserving cultural heritage in many countries.  For instance, the National Library of Finland is using online crowdsourcing to index its scanned archives.  Similarly, the University of Cape Town in South Africa is using online crowdsourcing to transcribe collections containing the Bushman’s language, stories, and way of life.  The National Geographic Society is using online crowdsourcing to analyze millions of satellite images of Mongolia showing potential archaeological sites in the hopes of discovering the tombs of Genghis Khan and his descendants.  And an English non-profit organization has utilized online crowdsourcing and online crowdfunding—funds donated by the interested public online—to provide both finances and labor for an expert-led excavation of a Bronze Age causeway composed of millions of timbers in the Cambridgeshire fens.  And perhaps most relevant to experiences of local governments in the United States, the City of Los Angeles has created a website,, that allows citizens to map and submit information about places of cultural importance to them which may not be architecturally significant (and thus escape the purview of preservation officials).   

Drawing on the crowdsourcing experience of others, local governments and cities in the United States could create an online portal attached to their own digital inventories, or create an appended website like MyHistoricLA.  This portal or website could offer training modules to citizens on cultural heritage recording practices and afterwards ask them to collect and upload descriptive information, statistics, pictures, videos, and maps on historic resources in their neighborhoods.  The information uploaded to this portal could be screened and vetted by authorities before permanently adding it to the digital repository, ensuring quality control.  In this way, local governments and cities could gather and preserve vast amounts of data related to their cultural heritage in a short period of time and at minimal cost.  Furthermore, such a strategy also fosters civic pride, a sense of community, and a deeper, more tangible connection to the city’s past, particularly for younger generations who are adept at using technology.  It also offers peace of mind knowing that if and when a disaster occurs that as much cultural heritage as possible has been preserved for future generations. 

August 26, 2014 in Comparative Land Use, Comprehensive Plans, Historic Preservation, History, Urbanism | Permalink | Comments (0)

Friday, August 22, 2014

Inaugural Idaho Symposium on Energy in the West - Nov 13-14 - CFP included


A Final 1 Color LogoInaugural Idaho Symposium on Energy in the West

November 13-14, 2014
Sun Valley Inn & Conference Center
Sun Valley, Idaho

2014 Symposium Topic

Transmission & Transport of Energy in the Western U.S. & Canada: A Law & Policy Road Map to 2050

This inaugural meeting of the Idaho Symposium on Energy in the Westseeks to provide a forum to investigate the future of basic—but vital—legal questions arising from western U.S. and Canadian energy production.  This return to basics is precisely to envision, and re-envision, the long-term infrastructure investments that the dramatic rise in energy production in the west now necessitates.  Three baseline questions guide the meeting:  What is the market demand for western energy?  Where is energy produced in the west?  How is energy transmitted and transported in the west?  After establishing this baseline in key western energy sectors, speakers will then provide a 2050 vision for each of these baseline questions, as well as a road map for how that future might, or should, be shaped by law and policy.  Energy sectors investigated will include:  oil and gas (conventional, hydraulic fracturing, and oil sands); coal; wind; solar; nuclear; and electricity markets.  The meeting is also expected to result in the production of short essays on the meeting topic, which will be published in the 2015 Idaho Law Review’s Natural Resources and Environmental Law edition.  In addition, one of the goals of the inaugural meeting of the Symposium is to identify an emerging energy law question to form the basis for a scholars’ roundtable to be held in the 2015-16 academic year. 

Call for Presentations and Essays

The University of Idaho, College of Law is pleased to issue this call for presentations and essays for the inaugural Idaho Symposium on Energy in the West.  The topic for this first meeting of the series is Transmission & Transport of Energy in the Western U.S. & Canada:  A Law & Policy Road Map to 2050.  This meeting will be held at the Sun Valley Inn and Conference Center in Sun Valley, Idaho, on November 13-14, 2014.  Reasonable travel expenses of participants will be covered.

To submit a proposal, please send a 250-word proposal and CV to Prof. Stephen R. Miller at [email protected] as soon as possible, but no later than September 15, 2014. While speakers will also be selected by invitation, we are committed to using the CFP process to fill at least several speaker positions. Please indicate which energy sector you would like to discuss and, in particular, your legal scholarship or experience with that sector.  Sectors to be discussed at the meeting are:  oil and gas (conventional); oil and gas (hydraulic fracturing); oil and gas (oil sands); coal; wind; solar; nuclear; and electricity markets.

We are especially interested in speakers that would commit to draft a 1,000 word essay based upon presentations at the Symposium.  Speaker essays will appear as a collection in the 2015 Idaho Law Review Natural Resources and Environmental Law edition.  Essay drafts will be due in Spring, 2015.

About the Symposium Series

 The Idaho Symposium on Energy in the West is a new interdisciplinary collaboration between the University of Idaho, College of Law Natural Resources and Environmental Law Programs, the Center for Advanced Energy Studies, and the Energy Policy Institute at Boise State University.  The collaborators intend to hold the Symposium on an annual basis.  In the 2014-15 academic year, and every other academic year thereafter, the Symposium will be a large, public-facing event suitable for scholars, industry professionals, and practicing lawyers.  CLE credits will be available both through in-person attendance as well as through an Internet broadcast of the event.  In the intervening years, the Symposium will convene primarily as a scholars’ event with a goal of providing a collaborative environment to advance law and policy scholarship on energy issues in the western U.S. and Canada.  Funding for the Symposium is generously provided by the Center for Advanced Energy Studies.



August 22, 2014 | Permalink | Comments (0)

Thursday, August 21, 2014

Rule's new book: Solar, Wind and Land: Conflicts in Renewable Energy Development

Troy A. Rule (Arizona) has a new book,   Solar, Wind and Land: Conflicts in Renewable Energy Development, just out from Routledge.  Here is the description:

The global demand for clean, renewable energy has rapidly expanded in recent years and will Rulelikely continue to escalate in the decades to come. Wind and solar energy systems often require large quantities of land and airspace, so their growing presence is generating a diverse array of new and challenging land use conflicts. Wind turbines can create noise, disrupt views or radar systems, and threaten bird populations. Solar energy projects can cause glare effects, impact pristine wilderness areas, and deplete water resources. Developers must successfully navigate through these and myriad other land use conflicts to complete any renewable energy project. Policymakers are increasingly confronted with disputes over these issues and are searching for rules to effectively govern them. Tailoring innovative policies to address the unique conflicts that arise in the context of renewable energy development is crucial to ensuring that the law facilitates rather than impedes the continued growth of this important industry.

This book describes and analyses the property and land use policy questions that most commonly arise in renewable energy development. Although it focuses primarily on issues that have arisen within the United States, the book’s discussions of international policy differences and critiques of existing approaches make it a valuable resource for anyone exploring these issues in a professional setting anywhere in the world.


August 21, 2014 | Permalink | Comments (0)

Rule's new article: Airspace in an Age of Drones

Troy A. Rule (Arizona) has just posted Airspace in an Age of Drones on SSRN.  The article is forthcoming in the Boston University Law Review.  Here is the abstract:

The growing interest in domestic drones is drawing new attention to unresolved questions regarding the scope of landowners' rights in the airspace above their land. Domestic drones are small, unmanned aircraft capable of delivering packages or capturing photos. Existing aerial trespass and takings laws, which were formulated prior to the advent of modern drone technologies, are ill-equipped to handle conflicts between domestic drone operators and landowners. To establish claims under these laws, landowners generally must prove that an aircraft flew within the nebulous "immediate reaches" of the airspace above their parcels and substantially interfered with their use and enjoyment of their land. The indefinite nature of landowner airspace rights under these rules is already generating confusion and controversy and hindering growth in the fledgling domestic drone industry. This Article applies basic principles of microeconomics and property theory to analyze the complex new property law issues presented by drone technologies. The Article ultimately advocates for legislation giving landowners strict rights to exclude aircraft from a clearly-defined column of low-altitude airspace directly above their parcels. Such legislation would clarify landowners' entitlements in low-altitude airspace and thereby promote more efficient governance of this increasingly valuable resource as drones become ever more common in domestic skies.

August 21, 2014 | Permalink | Comments (0)

UC Hastings hiring lateral/entry level Environmental and Natural Resources Law Professor

From David Takacs:

The University of California Hastings College of the Law is looking to hire an Environmental and Natural Resources Law Professor to start in the 2015-2016 academic year.  We are open to both lateral and entry-level candidates. While we will consider candidates from all sub-disciplines of U.S. Environmental and Natural Resources Law, we are particularly interested in candidates with expertise in Water Resources, Land Use, Coastal and Estuary Law, Energy Law & Policy, Public Lands & Natural Resources, and/or Constitutional Environmental Law (including Takings).  In addition to teaching courses in one or more of these subject areas, candidates should be able to teach some core 1L or upper division course(s), possibly including our 1L Environmental Law Statutory Analysis Elective.  

UC Hastings is a public university, and part of the University of California system; it is a separate, stand-alone campus with its own governing board.  We are located in the heart of San Francisco.  We will be interviewing at the AALS Conference in Washington D.C. in October.  Please feel free to direct informal questions to me at [email protected].  Formal expressions of interest should go to the Chair of the Appointments Committee, Richard Marcus, [email protected], UC Hastings College of Law, 200 McAllister Street, San Francisco CA 94102.

August 21, 2014 | Permalink | Comments (0)

Wednesday, August 20, 2014

Posting from New Orleans (No. 3) -- Forging Successful Non-Profit Partnerships Following Crisis and Disaster: O.C. Haley Boulevard's Story

This blog post follows-up a pair of August 5th and August 12th New Orleans posts.  Although I’m home in Atlanta getting ready to begin the new school year, I’m continuing an observance of Katrina’s 9th anniversary by ‘walking’ O.C. Haley Boulevard and looking at one of the city’s emerging post-storm neighborhood revitalization stories. 

At the outset of this post, it is important to note that there are many more neighborhood stories that deserved to be told, ranging from stretches of St. Claude, Carrollton, and Claiborne Avenues to Freret and lower Magazine Streets.  There are also many neighborhood corridors still struggling to come back all over the city, but particularly neighborhoods lying generally east and a little north of the French Quarter, including the vast area of New Orleans East as well as the Upper Ninth Ward and the Lower Ninth Ward. 

As the son of an architect, I’m always ready to begin discussion of any neighborhood transformation by flashing slides of the ‘bricks and mortar’ improvements.  Those are also the improvements that we as lawyers are most directly involved in supporting: the land acquisitions, the tax credit financings, the bridge loans, the condo documents, the parking easements.  But to get any neighborhood to the point where it can provide the social and economic buttressing to support significant private market transactions, there’s often a foundation of community activism and advocacy.  O.C. Haley Boulevard is no exception.   

Very rarely is any one individual or organization the sole ‘mover’ behind a neighborhood’s re-emergence.  Long before the levees and flood walls breached, non-profit, business owner, and neighborhood advocacy groups were working to lay the groundwork for O.C. Haley Boulevard’s resurgence.  Carol Bebelle, co-founder of the Ashé Cultural Arts Center, moved the Center onto the Boulevard in 1998 in order to sustain and nurture  the stories and traditions of New Orleans’ African American community.  The Cultural Arts Center’s historic building, an adaptive use of a former department store, became a foothold for the Boulevard’s resurgence, supporting non-profit office space, exhibit and meeting space, and 29 apartments.

About the same time, O.C. Haley Boulevard Merchants and Business Association gathered local businesses to spearhead creation of a strategic plan for the Boulevard’s revitalization. 

A couple of years later, in 2000, Café Reconcile opened across the street as an adaptive use of another large historic commercial building, housing a full-service restaurant dedicated to providing culinary training and life skills development to young men and women from the surrounding neighborhoods. 

Along the way, the Boulevard attracted key regional community development partners, and led them to call the Boulevard ‘home.’  These partners included Hope Federal Credit Union ( and Good Work Network (, both of which concentrate their resources on serving low and moderate income families and developing opportunities for minority and women-owned businesses. 

In short, the Boulevard’s momentum had already been triggered when Katrina’s storm surge filled-up 80 percent of city, leaving the Boulevard and only a handful of other major corridors navigable by car as opposed to boat.  (A relatively current map of the businesses that have grown-up on the Boulevard in the last fifteen years is found on the Merchants and Business Association’s website,

Lawyers – often community development lawyers – figure critically in these first stages of a neighborhood’s redevelopment, well before building projects begin ‘going vertical.’  Lawyers are counseling neighborhood groups and businesses on drafting their articles of incorporation and their bylaws or preparing their Form 1029 to seek IRS 501(c)(3) status.  They are helping review applications seeking funding from foundations for planning and predevelopment award monies.  They may be advising their clients to seek funds for a market study to help give current and future businesses a sense of where and how they might invest their capital and other resources.  Or, they may be advocating at city hall for stricter enforcement of health and safety code violations affecting vacant or abandoned properties.  Law students interested in pursuing urban and community development work should gain an appreciation in law school of these critical supporting and counseling roles that lawyers play for community groups.

Earlier this month, I visited with Kathy Laborde, President and CEO of the non-profit Gulf Coast Housing Partnership (GCHP).  Laborde, who has worked on the Boulevard for almost two decades, described the factors that convinced her and the neighborhood’s stakeholders that they could turn around the Boulevard’s fortunes.  GCHP has been a main driver of redevelopment on and around the corridor since Katrina.  In sharing her thoughts and recollections concerning the Boulevard’s rebirth, Laborde described not only the last nine years’ key redevelopment projects, but at the same time she highlighted additional pieces of the urban redevelopment ‘puzzle’ that successful urban and community development lawyers need to appreciate to serve their clients well.


(Photo:  Gulf Coast Housing Partnership offices (gray building) at 1610 O.C. Haley Blvd.)

Location is an essential consideration for any urban redevelopment project.  Against the essential backdrop of an engaged group of neighborhood stakeholders, Laborde outlined the following factors as critical:

  1. The O.C. Haley corridor’s historic status as the one of the chief commercial centers for the city’s African American community;
  2. The corridor’s proximity to New Orleans’ Central Business District (separated only by the elevated U.S. 90, The Pontchartrain Expressway);
  3. The corridor’s proximity to St. Charles Avenue, one of nation’s great historic streets, which runs just 3 blocks to the corridor’s southeast; and
  4. The presence of historic commercial buildings fronting O.C. Haley Boulevard and stakeholders’ initial investment in rehabilitation of those structures.

These four areas of strength formed a sort of superstructure for the corridor’s redevelopment; however, by themselves, these four factors were not sufficient to draw significant investment to the corridor.  The challenge for GCHP and the corridor’s stakeholders was how to connect O.C. Haley’s assets to the city’s surrounding areas of strength and investment while maintaining the corridor’s character.  It was at this juncture, nine years ago, Hurricane Katrina unleashed its destructive forces.

Katrina fundamentally altered the way those inside and outside New Orleans viewed the city.  To those living in New Orleans, the telltale watermark stains left by the epic flooding clearly distinguished O.C. Haley Boulevard as ‘high ground’ that did not flood.  To those outside New Orleans, particularly local and national foundations and philanthropies, O.C. Haley Boulevard bordered one of the city’s toughest neighborhoods with one of its deepest pockets of poverty.  Outsiders also appreciated that the Boulevard was surrounded by areas of significant strength, including the city’s wealthier Uptown neighborhoods, the Central Business District, St. Charles Avenue, and the former C.J. Peete (Magnolia) development which was a 1930s-era public housing development then-slated to receive millions of dollars in HUD funds for complete redevelopment into the new mixed-income Harmony Oaks community. 

Outside funders immediately saw the Boulevard in a new way.  It stood out not only as a neighborhood where the private foundations and philanthropic funders saw they could achieve programmatic goals of creating more equitable, inclusive, and prosperous inner-city neighborhoods, but also these private funders were buoyed by the fact that high levels of investment were occurring all around the Boulevard.  Further, just as foundations and philanthropies were looking to leverage their investments, so too was the New Orleans Redevelopment Authority (NORA), which was responsible for making decisions about deployment of a tranche of federal disaster block grant monies for commercial corridor investments.  It was a ‘no brainer’ for NORA to join the catalytic investments of the Greater New Orleans Foundation, Kellogg, Rockefeller, Ford, Surdna, and the J.P. Morgan Chase Foundations.

Make no mistake – even with this level of interest, the Boulevard was hardly awash in cash.  In a post-Lehman Brothers world, banks had a low temperature for risk, and in post-Katrina New Orleans where the levee and flood control system rebuilding was not yet complete, caution was the rule for commercial lenders.  But what the philanthropic and government funding accomplished was to make the development ‘math’ work for deals dependent on tax credits and tax exempt bonds.  A non-profit developer could run a development pro forma that now yielded at least a sliver of a development fee.  The challenge for those developers and their clients was to complete successful residential and commercial development projects that would help New Orleanians and visitors alike see O.C. Haley Boulevard as a safe place to live and work.  As Laborde explains, this was the “show me stage” of the corridor’s redevelopment.  Beginning in 2007, this is exactly what the Boulevard’s stakeholders began to do.

Over the last seven years, GCHP and the Boulevard’s other stakeholders have completed a steady stream of housing, restaurant, office and retail projects.  The first pivotal project was GCHP’s completion of The Muses, a 263-unit mixed-income apartment community, which opened in 2009.  This project brought hundreds of new residents to the Boulevard and helped bridge the three-block real estate market 'canyon' between St. Charles Avenue and the Boulevard.

Blog -- O.C. Haley & GCHP -- The Muses
(The Muses is located a block off of O.C. Haley at 1720 Baronne Street).

The tipping point project may have been GCHP’s redevelopment of almost an entire city block between Martin Luther King, Jr., Boulevard, Thalia Street, O.C. Haley, and Rampart Street.   GCHP convinced the New Orleans Redevelopment Authority to move its 45 employees from its downtown rented office space to become the anchor tenant of an office building with ground floor commercial space.  This office and retail building were funded with New Markets Tax Credits, NORA’s investment of $2 Million in disaster Community Development Block Grant (dCDBG) funds, and private financing.  The office building, in turn, helped secure financing for an adjacent 75-unit affordable senior housing development. 


(Photo: New Orleans Redevelopment Authority office building, 1409 O.C. Haley Blvd.; 75-unit senior housing development can be seen to the right and to the rear of NORA's building.)

Another important project was Café Reconcile’s expansion and rehabilitation of its existing restaurant and training space.

(Photo:  Café Reconcile restaurant and training facility at 1631 O.C. Haley Blvd.; the recently completed expansion occupies the two-story light tan brick building.)

Café Reconcile’s $6.5 Million expansion was funded by private donations, NORA dCDBG funds, and state and federal tax credits.

“Success in community development,” Laborde stresses, “is about getting people to follow.”  And they are doing so on the Boulevard.  More projects are just weeks and months from completion, including the adaptive use of an historic school as a grocery store and offices, the renovation of two large retail buildings into the Southern Food and Beverage Museum (SoFAB), including The Museum of the American Cocktail, as well as the first home of the New Orleans Jazz Orchestra (NOJO), including its 360-seat performance venue.  The projects soon coming on-line include:


(Photo: the former Myrtle Banks School at 1307 O.C. Haley Blvd., which is being redeveloped by Jonathan Leit of Alembic Community Development.)

The school’s $17 million renovation is financed by New Markets Tax Credits, historic tax credits, $1 Million from the City’s dCDBG-funded Fresh Food Retailer Initiative, $900k from the New Orleans Redevelopment Authority, and $300k from the Foundation for Louisiana.

(Photo:  Currently under construction are (left) New Orleans Jazz Orchestra (NOJO) Market at 1436 O.C. Haley Blvd. and (right) the Southern Food and Beverage Museum (SoFAB) at 1504 O.C. Haley Blvd.)

The NOJO Market and SoFAB redevelopment projects critically anchor two separate O.C. Haley Boulevard blocks where the Boulevard meets Martin Luther King, Jr., Boulevard.  NOJO’s development is financed by State of Louisiana historic tax credits, State of Louisiana theater, musical, and theatrical production tax credits, $10 Million from Goldman Sachs’ Urban Investment Fund, an $800k loan from NORA’s commercial revitalization gap loan fund, and a bridge loan from Prudential Insurance Company.  NOJO will open in the spring of 2015.  A ribbon cutting for the SoFAB redevelopment is set for September 29, 2014.

Next week we will wrap-up our discussion of O.C. Haley and Katrina’s 9th anniversary with a discussion of what urban redevelopment professionals are looking for in the attorneys they hire.   

John Travis Marshall, Georgia State University College of Law

August 20, 2014 in Affordable Housing, Architecture, Community Economic Development, Development, Downtown, Federal Government, Financial Crisis, Historic Preservation, Housing, HUD, Redevelopment, Teaching | Permalink | Comments (0)

Shell Scenarios launches New Lenses on Future Cities

Back in June, Shell launched a new project at its "Scenarios" site it is calling "New Lenses on Future Cities."  The project is essentially an effort to project multiple visions of how the next century could go related to energy, development, and land use.  One of the visions, "Mountains," assumes a strong government intervention to address climate change; another vision, "Oceans," assumes weak government intervention.  Regardless of whether one agrees with all of the predictions resulting from the assumptions--I did not--the project still seems a useful tools as a starting point against which to push or pull in forming one's own vision of how the next century might go in energy and land use.  Here is the set-up:

By 2050, around three quarters of the population is expected to be living in cities. The greatest growth in urban population over this period will be in China, India, Nigeria and the US. The most dramatic growth will come in thousands of smaller towns that will rapidly develop into cities. Much of the infrastructure for these new cities has yet to be designed. Booz & Company (in a study for the World Wildlife Fund) estimates that the total investment in urban infrastructure and operations in the next three decades will exceed a staggering $350 trillion.

The largest share of this will be in the emerging markets. Financing these investment needs will be a major challenge and will require significant innovations in global finance. If these needs can be met, it would constitute a major source of aggregate demand for the world economy for a long time to come.

Today, cities use 66% of the world’s total energy – and in the next 30 years this figure could increase to nearly 80%. City development in the past has been driven by assumptions that energy would be available at a relatively low price. The lack of a perceived need to secure energy supply and to develop planning policies has led to urban sprawl and energy inefficiency.

Here is the trailer:


Stephen R. Miller

August 20, 2014 | Permalink | Comments (0)

Friday, August 15, 2014

Burge, Trosper, Nelson, Juergensmeyer & Nicholas: Can Development Impact Fees Help Mitigate Urban Sprawl?

Gregory S. Burge, Trey L. Trosper, Arthur C. Nelson, Julian C. Juergensmeyer, and James C. Nicholas's article, Can Development Impact Fees Help Mitigate Urban Sprawl?, published in the Summer, 2013 edition of the Journal of the American Planning Association, became available online last week.  Here is the abstract:  

Problem, research strategy, and fmdings: Local governments often react to sprawl by adopting urban containment policies to limit fringe growth and encourage core development.  An alternative is to design impact fee programs accounting for the higher costs of providing services to remote locations. Zone-based impact fee programs carry this potential, but there is no empirical work investigating their effect on residential development. We explored the effects of a zone-based impact fee program on residential permits issued across the Albuquerque, NM, metropolitan statistical area using 21 years of data, identifying countervailing influences on density. The program mitigated sprawl by reducing the share of construction occurring near the urban fringe and by increasing the share in more centrally located areas, but there is no evidence the program increased core development. During a brief period when Albuquerque had impact fees but an adjacent community did not, we observed spillover effects that exacerbated sprawl.

Takeaway for practice: Planners managing sprawl can use zone-based impact fee programs that account for the higher costs of fringe development to effectively increase the density of residential construction, but it may be necessary to use regional programs or coordinated efforts to prevent spillover to adjacent communities.

Access at:  DOl 10.1080/01944363.2014.901116 (sub. req'd.).

August 15, 2014 | Permalink | Comments (0)

Thursday, August 14, 2014

The First (Forgotten) Principle of Preservation Planning

Historic resources—buildings, monuments, parks, street patterns, archaeological sites etc.—provide numerous economic, educational, psychological, and sustainable benefits to the cities in which we live.  Yet, planning and policies surrounding historic urban resources often fail a fundamental first principle that is simple in theory, yet bedeviling in practice:  know what you have.  This principle motivated the most famous resource survey in the world:  William the Conqueror’s Domesday Book.  


Nearly 1000 years removed from the Norman invasion—during an age of internet, selfies, Animal husbandrytelevision, digital pictures, and share-ware—there is not a single city in the United States boasts as complete a picture of its historic resources as William had of the farms, oxen, and pigs on subjugated Anglo-Saxon lands in 1086. 




How are we supposed to integrate historic resources into broader urban planning and economic development policies if we don’t know what resources are available?  The reasons for this gap are complex, ranging from disinterest in preserving historic resources in favor of new development to the difficulty of constantly updating a historic resources inventory that grows every year on a shrinking municipal budget.  Nevertheless, some states and many local governments have laws requiring them to catalogue and protect historic resources.  (If only our laws were coupled with medieval punishments for failure. . . .)

Cucking stool







To organize and manage historic resources, many state and local governments utilize some form of inventory or list.  Some of these are yellowed, wrinkled papers (with or without polaroids) in a dusty 3-ring binder.  Others, like Georgia’s Natural, Archaeological, and Historic Resources GIS (GNAHRGIS), are specially-produced, online, publically accessible inventories that are byzantine in design and useful only to the consultant who created it and irregularly updates it (if at all).

Despite municipal austerity, there is an exciting new development to aid cities of all sizes knowing the range and types of historic resources they have.  The Getty Conservation Institute and the World Monuments Fund have rolled out a free, easy-to-use geospatial software system—ARCHES—that is purpose built to help inventory and manage immovable historic resources to internationally adopted standards.  Any organization can download ARCHES, install it, and customize it.  The geographic information system (GIS) capabilities of ARCHES allow cities to layer information spatially on a digital map.  This means that in addition to pinpointing individual historic resources, you can perform a variety of functions:  group historic resources by zip code, county, or neighborhood; target an area according to the type of historic resource; create risk maps for particularly vulnerable historic resources; formulate plans to leverage historic resources.  (Imagine what we would know of 11th century England if Duke William had such capabilities!)

Currently, Los Angeles city officials are using ARCHES in a program called SurveyLA to create the first-ever, comprehensive survey of LA’s historic resources.  (Prior to SurveyLA, only 15% of the city had been surveyed for historic resources).  And ARCHES is also being used by towns and cities in other countries to document and manage their immovable heritage.  U.S. cities and towns now have the opportunity to create their own Domesday.  All that is required is a William.

William the Conqueror


Ryan Rowberry, Georgia State Univesity College of Law

[email protected] 

August 14, 2014 | Permalink | Comments (0)

Bill Fulton, California land use authority, to head Rice's Kinder Institute for Urban Research

For decades, California land use lawyers and planners have turned to Bill Fulton's books and newsletters on land use for authoritative guidance.  He is now leaving his current position as planning director of San Diego to become the director of the Kinder Institute for Urban Research at Rice University.  From the press release:

William “Bill” Fulton, a nationally recognized urban-planning expert, has been named director of Rice University’s Kinder Institute for Urban Research. Fulton’s appointment is effective this fall.

“We’re thrilled that Bill Fulton will be coming to Rice and Houston to lead the Kinder Institute,” said Rice President David Leebron. “He brings an extraordinary breadth of political, academic and urban-planning experience. The Kinder Institute is the lynchpin of our commitment to making a difference in the future of Houston, and I am confident that Bill, working together with our outstanding faculty, will enable it to achieve those aspirations and more.”

“We believe the Kinder Institute for Urban Research has the potential to be a premiere contributor to an understanding of the issues affecting Houston, as well as other cities in America and around the world,” said Rich Kinder, chairman and CEO of Kinder Morgan, one of the largest pipeline transportation and energy storage companies in North America. “We hope to build on the foundation of knowledge accumulated over the years by the Houston Area Survey, and we are delighted that Bill Fulton has accepted the challenge to lead our efforts in the coming years.”

A $15 million gift from Kinder and his wife Nancy funded the establishment of the Kinder Institute in 2010, which houses numerous urban research programs, including the Houston Area Survey. Now in its 33rd year, the survey tracks the city’s evolving demographic and socio-economic makeup and measures area residents’ response to urban issues such as traffic, crime and immigration. No other metropolitan region in America has been the focus of a research program of this scope and duration.

A prominent expert and commentator on urban planning in California, Fulton currently serves as director of the Planning Department for the city of San Diego. He leads a 120-employee department with a $24 million annual budget overseeing all long-range city planning, infrastructure financing and economic development efforts. He has also served since 2004 as a senior fellow in the Sol Price School of Public Policy at the University of Southern California. Fulton previously worked as a city councilmember, deputy mayor and mayor of the city of Ventura, Calif., vice president for policy development and implementation at Smart Growth America and as a principal in various urban planning and environmental consulting firms.

A prolific writer, he has authored hundreds of articles, dozens of reports and five books on urban planning in California, including Guide to California Planning, the state’s standard textbook on urban planning. In 2009, Planetizen, a public interest information exchange for the urban planning, design and development community, named Fulton to its list of “Top 100 Urban Thinkers.”

“The search committee conducted an extensive national search to find the right person to fill this position,” said former Rice Board of Trustees Chair Jim Crownover, who chaired the search committee. “We were so fortunate to find Bill, who has focused his whole career on positively impacting urban environments. He has done this in many ways — as a writer, educator, mayor and urban planner — and always with great success.”

“I’m incredibly excited about joining the Kinder Institute,” Fulton said. “The 21st century will be the century of cities, and Houston will be a major laboratory in the search to make cities more prosperous and livable. I’m looking forward to working with everyone at Rice — and everyone in Houston — to bring about a better urban future in Houston and translate those lessons to help other cities around the nation and the world.”

Born and raised in Auburn, N.Y., Fulton received a B.A. in mass communications from St. Bonaventure University, an M.A. in journalism from American University and an M.A. in urban planning from the University of California, Los Angeles. Fulton is a member of the American Institute of Certified Planners.

. . .

Rice University’s Kinder Institute for Urban Research conducts multidisciplinary scientific research, engages in public outreach and sponsors educational programs that advance the understanding of pressing urban issues and fosters the development of more humane and sustainable cities. Its programs are designed to further ongoing research initiatives at Rice and to serve as catalysts to foster informed decision-making and effective action in the Houston community and beyond. Scholars at the Kinder Institute study both macro changes in the economic, demographic and socio-cultural patterns of large metropolitan regions and the micro experiences of life in local neighborhoods and communities.

Stephen R. Miller


August 14, 2014 | Permalink | Comments (0)

Tuesday, August 12, 2014

"Plan C" for Colorado in battle over local control of fracking

NPR has the story...

From the lede:

Colorado Gov. John Hickenlooper has announced a last-minute compromise to avert a costly political battle over oil and gas drilling. As Dan Boyce of Inside Energy reports, the deal is meant to find a solution to disputes related to fracking — but it also serves the political interests of Colorado Democrats.

The story doesn't mention last month's Colorado district court ruling finding that the city of Longmont's ban on hydraulic fracturing and the storage and disposal of hydraulic fracturing waste in the city was invalid., discussed previously on the blog here.

August 12, 2014 | Permalink | Comments (0)

National Trust for Historic Preservation conference in Savannah - Nov 11-14

I attended and spoke at this conference when it was in Spokane.  Well worth attendance for those with an interest in historic preservation.  Early bird registration details here and below...



Early Bird Deadline–Fri., Aug. 15

Register by Friday, August 15 and save on PastForward rates. PastForward, the National Preservation Conference, is the premier educational and networking event for those in the business of saving places. Preservationists, architects, planners, developers, environmentalists, students and scholars come together at PastForward to ask questions, challenge assumptions, debate solutions, and learn new skills and new approaches. Make sure you’re a part of this experience and register today.

Want to save more? Become a Preservation Leadership Forum member during the conference registration process for the most savings. Not only do Forum members receive discounts on PastForward registration, but they receive exclusive member benefits throughout the year. Simply select "Non-Forum Member Becoming a Forum Member" on the registration form.

Field Studies Selling Out

Three of the PastForward Field Studies have already sold out since registration went live last month. Don’t miss out on this unique opportunity to get up close and personal with preservation in Savannah. Check out the following tours offered on Friday, November 14:

Register for PastForward before Fri., Aug. 15 and SAVE!

If you haven't already done so, sign up for regular conference updates, and be sure to join our Facebook Events page and follow the conference with the Twitter hashtag #presconf.

PastForward is brought to you by the National Trust for Historic Preservation in collaboration with SCAD: The Savannah College of Art and Design and in partnership with the Historic Savannah Foundation.


August 12, 2014 | Permalink | Comments (0)

Michael Pappas named Pace Environmental Law Distinguished Junior Scholar

From the press release:

Michael Pappas of the University of Maryland Francis King Carey School of Law has been selected as the 2014 Pace Environmental Law Distinguished Junior Scholar.  His scholarship explores the nature of property expectations, governmental responsibilities, and private rights in managing resources such as land, energy, water, wildlife, fisheries, and food, and this year was published in the Florida State University Law Review and Arizona Law Review.  He has also worked extensively to advance interdisciplinary teaching and research collaborations throughout the University System of Maryland, and he was voted Outstanding Faculty Member of the Year in 2014.  

August 12, 2014 | Permalink | Comments (0)

ELI seeks manager for its Professional Education Program

See detailers here and below.

Location: Washington, DC - Category: Publications and Associates
Status: Full Time
Date Posted: 08/07/2014


The Environmental Law Institute (ELI), a non-profit organization headquartered in Washington, D.C., is the leading center of environmental law research, policy, analysis, and training in the United States. Founded in 1969, ELI plays a pivotal role in the evolution of environmental law, management, and policy both in the United States and abroad. Support for the Institute comes from a mix of law firm, corporate, government, academic, and individual members as well as grants from private foundations, companies, and government agencies.


ELI seeks a person with exceptional organizational skills to take managerial and program development responsibilities for its professional education programs. These programs consist of roughly bimonthly webinars covering areas of environmental law, policy and management. The Manager collaborates with a wide variety of partners in the environmental policy and law realm to develop and execute 90 minute webinars tailored to the interests of ELI members and other environmental professionals. The Manager is responsible for helping to design programs and for recruiting faculty, managing the program itself, promoting the programs, and managing continuing legal education credits, if any are offered.

The Manager  reports to ELI’s Director of Professional Education.

Compensation and Benefits: $30,000-40,000, depending upon experience, with excellent benefits.


Candidates should offer significant organizational skills, creative thinking, and ability to be self-directed. Strong skills required include organization, events planning, oral presentation, a willingness to learn new skills, and personal qualities necessary for effective outreach to professionals in all sectors. A law degree and familiarity with environmental issues are strongly preferred.

APPLICATION INSTRUCTIONS:  Submit an application package via ELI’s online application system, at To be considered, your submission must include the completed online form, together with the following uploaded materials: (1) a cover letter; (2) a current resume; and (3) a list of references. Your cover letter should address your personal goals and interests, as well as your experience and interest in carrying out the duties outlined above.

Applications must be submitted to ELI no later than August 24, 2014. Please note: you must use ELI’s online application system. ELI is unable to consider applications submitted by email, U.S. mail, or hand delivery; nor can late applications be considered. No phone calls, please.  Please send an email to [email protected] if you have any technical problems complying with these application instructions.

The Environmental Law Institute is strongly committed to providing equal employment opportunity and to achieving an inclusive, diverse workplace that values every individual. Minority candidates are encouraged to apply.

August 12, 2014 | Permalink | Comments (0)

Monday, August 11, 2014

Posting from New Orleans (No. 2) -- Reviving Inner-City Neighborhoods: the Challenges of Teaching and Doing Urban Revitalization Work

This is the second in a series of posts from New Orleans. The first appeared last Monday, August 4th. As I promised in that first piece, today we’re just beginning to take a walk down one of New Orleans’ historic commercial corridors, Oretha Castle Haley Boulevard (O.C. Haley Blvd.), which is named after a leading local civil rights activist. Today’s post looks at the fortuitous intersection between post-Katrina federally-funded long-term recovery programs and the extensive pre-storm efforts of O.C. Haley Boulevard activists and stakeholders to reclaim this historic corridor.


Photo (2014):  O.C. Haley Boulevard looking northwest toward the Central Business District (CBD)

In the decades leading up to the 1960s, O.C. Haley Boulevard (formerly known as Dryades Street) was one of the principal shopping destinations for black families and also a pre-Civil Rights Era hub for the City’s best black musicians. During the 50 years since the mid-1960s, O.C. Haley withered a little more each passing year. First, the corridor lost in increasing numbers its shoppers; then its businesses began to close; and then families in surrounding blocks began to move away. Finally, in the years leading up to Hurricane Katrina, the Boulevard started losing its architecturally distinguished commercial structures – one by one.

Blog -- Research -- Photo of Burning Myrtle Banks School
Photo (2008):  Fire destroys the interior of another of the Boulevard's important historic structures, the circa 1902 Myrtle Banks School.

Earlier this spring, in his CityLab article, The Overwhelming Persistence of Neighborhood Poverty, Richard Florida tacitly suggests that O.C. Haley’s fate has been the fate of our oldest urban neighborhoods all across the country.  Florida’s article, citing a May 2014 study by Joseph Cortright and Dillon Mahmoudi, disclosed a number of fascinating tidbits about cities, but the statistic that really jumped out is this one: since 1970 “for every single gentrified [urban] neighborhood, 12 once-stable neighborhoods have slipped into concentrated disadvantage.”

That statistic about declining inner city neighborhoods stopped me in my tracks. As long as I can remember, I’ve been fascinated by two things: old inner city neighborhoods (my dad is a preservation architect) and the Red Sox (born and raised in Boston). This is to say that I'm easily captivated by box score style statistics, such as the one Florida cites.  I'm also no stranger to extended periods of adversity for the teams I love. But I clearly did not have an accurate idea of the extent to which so many inner city neighborhoods had faced such long odds for so long a period of time.

The statistic Florida cites concerning the decline of inner city neighborhoods got me to thinking about what I taught my land use students last semester. If our land use, local government, real estate finance, and community and economic development clinic students aim to work in cities, Richard Florida is telling us that they have their work cut out for them. The data suggests there are many hundreds of O.C. Haley-like Boulevards across the country.

Of course the problem of distressed inner city communities is not new. As we all know, lawyers have for years played critical roles in representing community groups, developers, banks, philanthropic funders, and local government clients on every side of urban revitalization deals. But Florida’s article reminded me how large the challenge of neighborhood revitalization looms for cities. There’s a lot of ground to cover in a basic land use class, but I found myself asking what my students and I learned this past semester that would help them do this work better or smarter. The short answer is that we squeezed in as much time as we could to study the redevelopment ‘tool box’ a city and its neighborhood organizations can use to stabilize and revitalize neighborhoods: land trusts, land banks, eminent domain, code lien enforcement, tax credits, etc. But thinking about Florida’s article reminded me that this approach is missing a key element. After all, most of these stabilization and revitalization tools were available to young lawyers and planners and community groups for the better part of the 45-year period that Florida observes the rapid evaporation of inner-city neighborhood vitality.

In thinking about the statistics Florida discusses and about the long decline of O.C. Haley Boulevard, it struck me that the conversation that I didn’t have this spring with the land use students is about the nature of urban revitalization work. It is often a slog. Some describe the work as being as slow and painfully incremental as ‘trench warfare.’ I prefer how some describe it as caring for a patient recovering from a debilitating life-threatening injury. That is, urban revitalization work concerns much more than strategic deployment of those redevelopment “tools.” It goes far beyond helping your client close on tax credit financing for a major catalytic redevelopment project. Rather, it also depends on the patient persistence of a diverse team of ‘caregivers’ over a long period of time. Some of those ‘caregivers’ are internal to the community. They are the local merchants associations and neighborhood advocacy groups. They are also the local community development corporations, code enforcement staff, city councilpersons, assistant city attorneys, philanthropic foundation program officers, and the law school clinics with neighborhood organization clients.  Neighborhood revitalization ordinarily requires keeping at least part of these diverse teams together for years – often more than a decade. In other words, it is worth discussing with our students that while they need to know the law and understand the nuances of the ‘tools’, the work of revitalizing a neighborhood is not usually just a transactional matter, but it is much more an organic process.

Kathy Laborde, is President and CEO of Gulf Coast Housing Partnership, one of Louisiana’s leading developers of commercial and residential projects serving low and moderate income communities. Beginning in the late 1990s as a community development banker, Laborde has worked with representatives of the O.C. Haley Boulevard neighborhood on redevelopment projects. Prior to Hurricane Katrina she also moved her development firm’s offices onto the Boulevard. Like the neighborhood merchants association and local community groups, Laborde knew O.C. Haley Boulevard had enormous potential to rebound – even as most New Orleanians ignored the corridor and consciously avoided it for fear of encountering the  crime for which the Boulevard had become known. Together with a strong and cohesive band of neighborhood advocates, she has long been a steadfast proponent of revitalizing the Boulevard. In a meeting in her office earlier this month, I asked her why, in the late 1990s, she and neighborhood leaders believed that they could turn around the Boulevard’s fortunes.

In the next blog post, we look at snapshots of the Boulevard's challenging 15 year journey through and beyond Hurricane Katrina to an active neighborhood renaissance that continues to catch the attention of both the city's visitors and long-time residents.

John Travis Marshall, Georgia State University College of Law

August 11, 2014 in Community Economic Development, Development, Economic Development, Historic Preservation, Real Estate Transactions, Redevelopment, Urbanism | Permalink | Comments (0)

Everyone's favorite topic: valuing conservation easements

The tax court cases on conservation easements are just pouring in these days. The most recent case again concerns overvaluation of conservation easements in Colorado. Schmidt owned a 40-acre property in El Paso County Colorado. While he originally intended to work with an adjacent landowner to develop a subdivision, in 2003 he instead donated a conservation easement over his property to the county, retaining the right to develop a single-family residence thereon. He then claimed a $1.6 million tax deduction, which the IRS felt should have only been $195,000. The discussion over the valuation is interesting because both parties’ auditors assumed that he would get planning approval for a subdivision. In fact, the County seemed to support that contention. Schmidt’s auditors just seemed to think that a subdivision would make the property worth $2 million and IRS auditors concluded it would be $750,000. They also had differing values of the land with the conservation easement in place but these values did not vary by as wide of a margin ($400,000 by Schmidt and $270,000 by the IRS). The tax court agreed with the IRS that the after value was $270,000 but sided closer to Schmidt about the value before the conservation easement, valuing it at over $1.4 million. This still led to an underpayment of taxes by over $447,000. But fortunately for Schmidt’s sake, the court found reasonable cause for the underpayment and did not assess any penalties. If you want to see lots of details about appraising conservation easements, check out the full case. For me this case highlights another example of how we always get different numbers in these valuation cases. Not often that you see a court accepting either parties appraisal outright and very rare to get a case that did not end in a conclusion of underpayment. Obviously, underpayment cases are the ones most likely to proceed through the tax court process, but it still doesn’t give me a lot of confidence in these tax benefits… [Schmidt v. CIR, U.S. Tax Court, Aug. 6, 2014, 2014 WL 3866066]

August 11, 2014 | Permalink | Comments (0)

Friday, August 8, 2014

Commissioner's Corner: Robert's Rules of Order and deliberative decisionmaking at the planning commission

In June, I was appointed to the Boise Planning & Zoning Commission.  I know:  the real world!  Since that time, I have been to three hearings, one of which was a seven-hour marathon that lasted into the next day.  I've loved the experience, and I thought I would occasionally write blog posts on the experience.  I will caption these posts with the header "Commissioner's Corner," with the idea that these will either be posts of the sort you will want to read...or avoid.

Of course, I will not comment on specific projects, fellow commissioners, or anything that would jeopardize the integrity of the Commission's work.  Nonetheless, I have had a flood of ideas arising from the experience and life is too short to write a 60-page article about all of them, so a blog post will have to do.  

And is my first reflection on being a Commissioner:

Robert's Rules of Order?!  Are you kidding me.  Yes, that's right:  Robert's Rules of Order is the procedural handbook for Boise's Planning Commission.  The last time I used Robert's Rules of Order, I realized when I heard this, was in the 11th-grade when I spent beautiful spring Saturdays locked inside at "Model-U.N." hearings, which, as I recall, were primarily an excuse to pass notes to other "countries" (read: friends) and plan how to built multi-country alliances to do something or another I cannot now recall.  What was the point of Model U.N. anyway?  Two decades later, I still don't know.

Suffice it to say that when I read the bylaws of the Planning Commission and noted that Robert's Rules of Order was the parliamentary foundation of the Commission, well, I thought of Mock-U.N. and I chuckled. But then I began to think about it more.  

Robert's Rules of Order are really complicated.  Admittedly, as a law professor, I kind of love them.  "Point of privilege," anyone?!  That said, I wondered if Boise was the only city that used Robert's Rules of Order for their parliamentary procedure.  No!  It turns out hundreds, maybe even thousands, of cities do the same thing, according to a quick Google search.  In fact, I realized that many of the jurisdictions where I had practiced prior to becoming a professor had also adopted Robert's Rules of Order...and I never knew!  Embarrassment ensued.  (I would not have publicly admitted this if I did not firmly believe that most other land use lawyers, much less land use law professors, had no idea that Robert's Rules of Order were the basis of most planning commission procedure.) 

There are several interesting issues arising from this.  First, I did a quick survey of case law and discovered only a small smattering of cases ever mentioning Robert's Rules of Order in the broadest search available (all state and federal cases, no date limit).  I think that is fascinating because, you would presume, since Robert's appears to form the background of procedure for many local government commissions across the country, planning and otherwise, there would be at least some attempts to use that procedure against a comission in a due process or equal protection claim.  It appears, however, that this has not been a popular line of attack.  I'm guessing that is primarily because (i) most attorneys have no idea that Robert's governs the local proceeding; (ii) most attorneys have no idea of the intricacies of Robert's and thus might not understand how a procedural violation might affect their client's interests; and (iii) a concern that challenging a Robert's Rules of Order violation on procedural grounds might be viewed by courts as, well, mere parliamentary doggerel not rising to a constitutional level.  But does it really end there?  I don't know.  

The second issue I thought about is whether Robert's is the appropriate parliamentary tool for Planning Commission hearings to yield the best outcome for cities and communities.  Planning typically works best when there is a give and take, but the parliamentary procedures of Robert's are not intended to provide for negotiation, much less conversation.  To wit, I wonder if there is a better way.  Might there be some other parliamentary procedure out there that might be better than Robert's for facilitating planning but that would also meet constitutional due process and equal protection minima?  

I would love to hear from others out there, especially anyone with a knowledge of other parliamentary procedures used by other cities that are not Robert's Rules of Order.  

Stephen R. Miller

August 8, 2014 | Permalink | Comments (3)

Hills & Schleicher's new article, "City Replanning"

Roderick M. Hills, Jr. (NYU) and David Schleicher (George Mason) have just posted "City Replanning" on SSRN.  Here's the abstract:

In this paper we provide a new defense for one of the most criticized ideas in land use law, that city plans should constitute settled deals about the proper uses of land that should be sticky against subsequent zoning amendments. In the middle of the last century, several prominent scholars argued that courts should find zoning amendments that were contrary to city plans ultra vires. But this idea was largely rejected by courts and scholars alike, with leading figures like Carol Rose, Robert Nelson and Bill Fischel arguing that parcel-specific zoning amendments provide space for the give-and-take of democracy and lead to the efficient amount of development by encouraging negotiations between developers and residents over externalities from new building projects. Their case against plans and in favor of deals suggested that zoning authorities act either as arbiters in land use disputes or as agents for existing residents to encourage negotiated solutions.

We argue, by contrast, that the dismissal of plans was shortsighted and has helped contribute to the excessive strictness of zoning in our richest and most productive cities and regions, which has driven up housing prices excessively and produced outcomes that are economically inefficient and distributively unattractive. In contrast with both planning’s critics and supporters, we argue that plans and comprehensive remappings are best understood as deals. Plans and remappings facilitate trades between city councilmembers who understand the need for new development but refuse to have their neighborhoods be dumping grounds for all new construction. Further, by setting forth what can be constructed as of right, plans reduce the information costs borne by purchasers of land and developers, broadening the market for new construction. We argue that land use law should embrace a version of plans as a procedural tool that packages together policies and sets of zoning changes in a number of neighborhoods simultaneously through procedures that make such packages difficult to unwind.

We conclude by arguing that modern property law scholarship has failed to recognize that real property law is now substantially a public law subject and should be studied using the tools of public law. Leading scholars, most notably Tom Merrill and Henry Smith, have developed sophisticated tools for analyzing the ways in which the common law of property is designed to reduce information costs, which we employ here. But the field has ignored the fact that the common law of property is far less important than it once was as a method for regulating real property ownership and use. Legislatures and administrative agencies at a variety of levels determine most of the rules governing how real property is used and purchased. In order to understand how today’s property law increases or reduces the information costs facing owners, users, potential purchasers and third-parties to property, the field must make an “institutional turn,” studying the likely effects on policy of different institutional arrangements and procedures.


August 8, 2014 | Permalink | Comments (0)