Wednesday, January 28, 2015

Water Down Under: A Report from Australia by Barb Cosens: Post 2: Comparative Water Law: Australia and the western United States or Conversations with Claire

[The Water Down Under series of posts is by my colleague, Barbara Cosens, who is in Australia this semester working on water law issues there.  See more about this series, and Barb's first post, here.]

Barb's second post:

University of Idaho 3L student Claire Freund is doing an internship this semester with the Environmental Defender's Office of New South Wales (EDO NSW) in Sydney Australia.  To allow her to complete the requirements for the Natural Resources and Environmental Law emphasis, we are doing a directed study via Skype on comparison between Australian and western U.S. water law.  Three of my upcoming blogs will reflect our dialogue on areas of water law that may play a major role in the readiness of our respective water basins to adapt to the intersection of climate change and population growth.  For those of you wondering whether to follow this dialogue, here is a brief introduction to the three areas they will cover and why they may play such a large role in adaptation.  The first of these areas is the nature of the right to use water.  Clearly defined rights are essential to keeping conflict in the face of scarcity in check and to facilitating transferability.  At the same time, the certainty provided by clear definition of rights must be balanced against the ability of government to manage an essential and increasingly variable common pool resource.  The second area of comparison is the management and conjunctive management of groundwater.  Like the U.S. the advancement of technology for drilling and producing large water wells in the mid-twentieth century allowed farmers to supplement variable surface water supplies.  Yet, in both countries the development outpaced the understanding of the behavior of aquifers and the adjustment of water law accordingly.  As a result, over pumping of aquifers for agriculture in response to drought has caught water managers in both countries by surprise.  Similar to our own Palouse Basin in Idaho, Australia has aquifers with very limited recharge and has not yet developed the policy and legal framework to manage aquifer mining at a level that does not have irreversible consequences.  Finally, the colonial and frontier history of both countries had devastating impacts on indigenous populations.  Meeting the needs of formerly marginalized and therefore vulnerable populations is critical to the adaptability and resilience of water dependent communities.  Furthermore, increased diversity in the voices and values playing a role in water management may be a factor in enhancing our collective ability to respond to change.  Thus, the definition of indigenous rights to water and the role of indigenous communities at the water management table must be understood to assess adaptability.  I will explore how the western U.S. and Australia are handling these issues in three blogs which I will refer to as Conversations with Claire.  I will continue to intersperse other reflections on Water Down Under with the Conversations posts.  Until next time – G-day.

January 28, 2015 | Permalink | Comments (0)

APA Planning & Law Division's Smith-Babcock-Williams Student Writing Competition now accepting entries

From Alan Weinstein, here's the announcement:

The Planning & Law Division of the American Planning Association announces its 32nd
Annual Smith-Babcock-Williams Student Writing Competition. The Competition,
which honors the memory of three leading figures in American city planning law (R.
Marlin Smith, Richard Babcock, and Norman Williams) is open to law students and
planning students writing on a question of significance in planning, planning law, land
use law, local government law or environmental law.

The winning entry will be awarded a prize of $2,000 and submitted for publication in The
Urban Lawyer, the law journal of the American Bar Association's Section of State &
Local Government Law. The Second Place paper will receive a prize of $400 and one
Honorable Mention prize of $100 will also be awarded.

The deadline for submission of entries is June 5, 2015 and winners will be announced by
August 28, 2015. Please refer to the enclosed official rules for further details.
Our past experience has shown that teachers in planning, planning law, land use law,
local government law or environmental law are in an ideal position to stimulate student
interest in research and writing and to encourage participation in the Competition. Each
year, many of the entries appear to have been prepared initially for various courses or
seminars. We hope you will add your support to the Smith-Babcock-Williams Student
Writing Competition by encouraging your current and past students to submit entries.

Download APA-PLD Student Writing Competition 2015 Rules

Download APA-PLD Student Writing Competition 2015 ANNOUNCEMENT & RULES

January 28, 2015 | Permalink | Comments (0)

Monday, January 26, 2015

Jan 30 - Boston U Law - The Iron Triangle of Food Policy - AJLM Symposium

I'm delighted to be speaking at this conference.  Should be a great group.  If you're in the Boston area, stop on by...

The Iron Triangle of Food Policy
The American Journal of Law & Medicine Symposium


January 30, 2015
9:00 AM - 5:00 PM

Room 410
Sumner M. Redstone Building
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215

President Obama signed the FDA Food Safety Modernization Act into law on January 4, 2011. This law aimed to ensure the safety of the U.S. food supply by preventing contamination. This symposium will examine this law, and others, to consider how policy can impact access to food and food quality. Panels will discuss food insecurity, obesity, GMO’s and food purity, and issues with local sourcing and the access to and costs of organic food.


Kathryn BoysAssistant Professor, Virginia Tech

Paul A. Diller, Professor of Law, Willamette University College of Law

Andrea FreemanAssistant Professor of Law, University of Hawaii School of Law

Christine FrySenior Policy Analyst and Program Director, ChangeLab Solutions

Jacob Gersen, Professor of Law at Harvard Law School, Founder and Director of the Food Law Lab at the Petrie-Flom Center at Harvard Law School (Moderator)

Saby GhoshrayPresident, Institute of Interdisciplinary Studies,
Director, Research, and Compliance WorldCompliance Company

Sam F. HalabiAssociate Professor of Law, The University of Tulsa
College of Law

Emily Broad Leib, Lecturer on Law and Deputy Director of the Harvard Law School Center for Health Law and Policy Innovation (Moderator)

Stephen Miller, Associate Professor, University of Idaho College of Law

Abigail MoncrieffPeter Paul Career Development Professor and Associate Professor of Law, Boston University School of Law

Kevin Outterson, Professor, Boston University School of Law (Moderator)

Efthimios ParasidisAssociate Professor of Law, The Ohio State University Moritz College of Law

Joanna K. Sax, Associate Dean for Research and Faculty Development,
Associate Professor of Law, and Co-Director, Institute of Health Law
Studies, California Western School of Law

Stephanie Tai, Associate Professor of Law, University of Wisconsin Law School

Lindsay Wiley, Associate Professor of Law and Director, Health Law
and Justice Program, American University Washington College of Law

Diana Winters, Associate Professor of Law and Dean's Fellow, Indiana
University Robert H. McKinney School of Law

Samuel R. Wiseman, Professor, Florida State University College of Law

Kathy Zeiler, Professor of Law, Georgetown Law; Visiting Professor, Boston University School of Law (Moderator)

Please click here to register.

More information to follow. To learn more about the American Journal of Law & Medicine, please click here.

January 26, 2015 | Permalink | Comments (0)

Thursday, January 22, 2015

"Basic Human Right" to Farm Your Lawn?

A bill has been introduced into the Michigan legislature to allow urban dwellers to keep a "reasonable" number of livestock on their property. This article refers to the bill as guaranteeing the "basic human right" to farm your lawn. Really?

As many of you are probably aware, many cities across the country are confronting the dilemma of what to about allowing "urban agriculture" (an oxymoron in my mind- perhaps "urban gardening" is more appropriate) in light of state right to farm laws. Each of the 50 states have right to farm laws, prompted by the decision by the Supreme Court of Arizona in Spur v. Del Webb, 108 Ariz. 178, 494 P.2d 700 (1972). These laws were enacted to address housing developments leapfrogging, or even slowly growing, out into rural areas and basically makes "coming to the nuisance" a true defense, in certain circumstances.

There are many health and planning reasons to bar livestock in urban areas. However, there are also many very passionate fans of keeping livestock in urban areas. I come down on the side of banning livestock in urban areas, but allowing vegetable gardens. I hope I don't receive any threats. Should I mention raw milk to evoke more emotional responses?

Right to Farm laws, already heavily criticized and having been found to be a taking of private property for private use by at least two courts (Iowa and Washington) need to be amended to exclude urban agriculture from the protections of the act. The acts were passed to address a totally different context.

Jesse Richardson

January 22, 2015 in Agriculture, Food, Urbanism, Zoning | Permalink | Comments (0)

CFP: Fordham Law: Sharing Economy, Sharing City: Urban Law and the New Economy

This is going to be a great event on a major emerging area of land use law, and local government law, inquiry.  If it weren't for a personal schedule conflict, I would be there!  You should go!

Conference Announcement and Call for Participation

Sharing Economy, Sharing City: Urban Law and the New Economy

Friday, April 24, 2015, Fordham Law School, New York, NY

Abstract Submission Deadline: February 6, 2015

The Fordham Urban Law Center is pleased to announce plans for its annual conference, "Sharing Economy, Sharing City: Urban Law and the New Economy," which will be held on Friday, April 24, 2015 at Fordham Law School in New York City.

CONFERENCE DESCRIPTION: Trends in the sharing economy have spurred complex legal and regulatory issues that have moved to the center of urban policy debates, from Berlin to Seoul to New York City. As web-based, peer-to-peer companies challenge traditional regulatory paradigms, state and local governments are trying to respond creatively to rapidly changing digital and economic landscapes. This interdisciplinary conference will explore the relationship between the sharing (or "peer-to-peer") economy and economic and community development, consumption, ownership, mobility, and a shifting urban workforce. It will investigate diverse approaches to legal and regulatory issues facing city governments, entrepreneurs, workers, consumers, and residents in today's dynamic technological and built environments. The goal of the event, and anticipated edited volume following the conference, is to advance new possibilities for problem solving in this transforming area of urban law, technology and entrepreneurship.

TOPICS: Submissions that explore one or more of the following themes/areas are strongly encouraged:
- Regulatory and urban policy trends (as well as industry responses) in the transportation/ridesharing, homesharing and/or coworking sectors
- Ownership, property, urban space, real estate, fair housing
- Privacy, liability, fair business practices, consumer protection
- Labor, employment, workplace conditions (including immigrant labor and contracting)
- Global or comparative perspectives on the role of urban law or policy in the sharing economy

PROPOSAL CRITERIA AND SUBMISSION PROCEDURE: Prospective participants should submit a topic proposal (maximum length: 350 words) to (Subject: Conference Abstract/Paper Submission from [NAME]). The deadline for proposals is Friday, February 6, 2015. Selected participants will be notified of final decisions in early March.

We are accepting scholarly submissions from the legal field and related disciplines. Participants do not need to have prepared a formal paper to join the conversation. However, if you are interested in submitting a piece for a forthcoming edited volume, please include a draft paper with your proposal submission or, at the latest, by the conference date. Where proposals are co-authored, for purposes of conference presentations, we encourage the selection of a single presenter; we will consider requests for joint presentations by selected co-authors on a case-by-case basis.

HOW TO REGISTER: Please visit or email for registration details. Space is limited. The final conference agenda is forthcoming and will be available on the Urban Law Center website and conference webpage. The Center can assist panel participants with travel costs; the extent of support will depend on a participant's anticipated needs.

ABOUT THE URBAN LAW CENTER: The Urban Law Center at Fordham Law School in New York City is committed to understanding and affecting the role of law and legal systems in contemporary urbanism. The Center is a partner of the Fordham Urban Law Journal, Fordham Law School's second-oldest publication, and co-sponsors the State & Local Government eJournal on SSRN's Legal Scholarship Network.

For more information about the Fordham Urban Law Center, please contact Nisha Mistry, Director, Fordham Urban Law Center, at (212) 636-7241.


January 22, 2015 | Permalink | Comments (0)

Fennell and Peñalver on Exactions Creep

For those of you who have not already figured out exactly how land use planning officials are expected to proceed in the wake of the U.S. Supreme Court's 2011 decision in Koontz v. St. Johns River Water Management District, Lee Fennell (Chicago) and Eduardo Peñalver (Cornell) have posted Exactions Creep, __ Sup. Ct. Rev. ___ (forthcoming).   Rather than deny that the Court has aggravated the uncertainty faced by local governments, Lee and Eduardo explore the nature of the confusion in the Court's exactions jurisprudence and call for a significant revision.  Here's the abstract:

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

Jim K.

January 22, 2015 in Affordable Housing, Conservation Easements, Constitutional Law, Development, Impact Fees, Local Government, Planning, Property, Property Rights, Property Theory, Scholarship, Subdivision Regulations, Takings, Zoning | Permalink | Comments (0)

March 11-13: Rocky Mountain Land Use Institute's annual conference: Western Places/Western Spaces: Building Fair & Resilient Communities

Western Places/Western Spaces: Building Fair & Resilient Communities

Denver, CO 

March 11 – 13, 2015

The Rocky Mountain Land Use Institute’s annual land use conference presents a forum for land use academics, professionals, planners, lawyers and real estate developers to share their knowledge, network, and learn about cutting-edge issues.

Western Places/Western Spaces looks at how we can meet the many challenges of the future while better addressing issues of social and environmental justice. We will also explore the innovative tools, business models, and technologies that are helping planners, developers, and communities move forward in a smarter way.

Early Bird rates expire on February 13. Register now to take advantage of lower rates, and be sure to use the promo code WEST to receive a $25 discount.

If you have any questions about the event, please contact us at or 303-871-6319.

January 22, 2015 | Permalink | Comments (0)

Wednesday, January 21, 2015

Local Regulation of Hydraulic Fracturing

In my recent article, Local Regulation of Hydraulic Fracturing, 117 W.Va. L. Rev. 593 (Winter 2014), I review recent case law in New York, Pennsylvania, Colorado and West Virginia that delves into the extent of local authority to regulate hydraulic fracturing. I also list zoning and planning regulations and tools that may properly be implemented by local governments, and tools that should be reserved to state governments.

I conclude that the New York and Pennsylvania courts miss the mark. New York courts fail to distinguish between reasonable regulation of hydraulic fracturing and outright bans of the practice. Some questionable precedents in that state, one of which even a lower court labeled as "flawed", but felt obligated to follow, have skewed the results. New York also fails to acknowledge that bans are likely preempted, particularly where state statutes seek to prevent waste and protect correlative rights. Bans contravene both of those goals.

Pennsylvania oddly perverts the notion of Dillon's Rule to strike down a state regulation limiting local government action. My colleague, Joshua Fershee, perceptively breaks down the Robinson decision in "Facts, Fiction and Perception in Hydraulic Fracturing: Illuminating Act 13 and Robinson Township v. Commonwealth of Pennsylvania, 116 W.Va. L. Rev. 819 (Spring 2014). My analysis focuses on the Dillon's Rule issue, which the dissenting opinion correctly explains. Professor Fershee delves more deeply into that case, for those that are interested.

I conclude that, while local governments should not be able to ban hydraulic fracturing, many tools exist for local governments to employ. These tools include setbacks, common in zoning ordinances, impact fees and “adequate public facilities ordinances.” Zoning ordinances cover issues like noise, light and other visual impacts, road damage, blasting, dust, traffic, compatibility of the activity to nearby property uses, impact of the activity on property values in the area, adequate off-site infrastructure, adequate services (such as police and fire protection), affordable housing, the general health, the safety of the community, odors, potential groundwater contamination, methane emissions, habitat fragmentation, and degradation of environmentally sensitive areas. Local governments should not overreach their authority and infringe upon legitimate state interests, however.

I am presently working on a follow-up to that article, examining the environmental justice ramifications of the present state of affairs. Specifically, wealthy communities, like Santa Fe County, New Mexico can hire costly consultants to draft ordinances that purport to allow hydraulic fracturing, but present so many hurdles that the practice is essentially banned. On the other hand, poor communities, like Mora County, New Mexico, must rely on activist organizations that draft "Rights-Based Ordinances" that ban hydraulic fracturing, and are highly unlikely to withstand legal challenge. Although these organizations draft the ordinances free of charge, and sometimes will even represent the community in the court challenge, the communties are not protected from possible sanctions for frivolous court pleadings. In the end, wealthy communities can exclude LULUs like hydraulic fracturing, while poor communities will bear the burden. Although this circumstance is not new, the contrasts seem to be especially dramatic with respect to hydraulic fracturing.

Jesse Richardson

January 21, 2015 in Environmental Justice, NIMBY, Oil & Gas, Zoning | Permalink | Comments (2)

Jan 29: Standing Ground: Embracing the Power of Local Environmental Law (free event)


When: January 29, 2015
5:00 pm - 6:00 pm

Environmental Law Institute
2000 L Street, NW, Suite 620

Washington, DC (and via telecon)


This event is free and open to the public but you must register.

  • Please REGISTER HERE by January 27 (5 PM ET). Contact with questions.
  • There will be a short networking reception following the event from 6:00-6:30 PM.
  • Teleconference information will be emailed one business day prior to the event (your normal long-distance rates may apply to your call).
  • All times noted are Eastern Time. There is no CLE for this course. Questions?:

NOTE: All registrants for ELI events need to have an ELI "account." When you click on the above Register Here link, you will be asked to log in.

  • ELI members have accounts. If you don't remember your password, please click on the "Request new password" tab.
  • Non-members who have previously not set up an ELI account may click on the "Create new account" tab, complete the process, and then return to this page to register. While creating this account does not confer membership, it will allow you to register for this and future events.

An ELI Public Seminar

The role of local government in protecting the environment and fostering sustainable development is often unclear and misperceived. In his new book, Protecting the Environment Through Land Use Law: Standing Ground, Professor John R. Nolon highlights the critical role of local environmental law in balancing land development interests with natural resource conservation.

Standing Ground proposes creative solutions for overcoming jurisdictional barriers in environmental protection and sheds new light on what a productive partnership between local, state, and federal government looks like and how much more can be achieved when local legal authority is harnessed.

ELI invites you to join us for a discussion with Prof. Nolon and a panel of experts on the power of local environmental law. Drawing on the key principles laid out in Standing Ground, our panelists will discuss how local laws interact with hydraulic fracturing, total maximum daily loads (TMDLs), stormwater management, resiliency, and urban revitalization.

The discussion also celebrates the release of the book, co-published by ELI Press and the American Planning Association. Reception attendees may purchase the book on site with a 20% discount. ELI members receive a 15% discount on all ELI and West Academicpublications (contact for your discount code). For more information about or to order a copy of Standing Ground, please go HERE.

John R. Nolon, Distinguished Professor of Law, Pace University School of Law (moderator)
Julia Anastasio, Executive Director & General Counsel, Association of Clean Water Agencies (ACWA)
Eva Krause, Principal Planner, Washoe County Community Development and Planning Commissioner, The Tahoe Regional Planning Agency (invited)
Brenden McEneaney, Director, Resiliency, Urban Land Institute

January 21, 2015 | Permalink | Comments (0)

Tuesday, January 20, 2015

What exciting land use law events do you have going on this semester?

Let everyone know what you're up to:  send us info on your upcoming land use law events this spring semester (summer is okay, too), and we'll post it.  

You can send it to me at millers (at) uidaho (dot) edu, or feel free to reach out to any of the other blog editors, as well.

Here's to a fulfilling and stimulating spring semester!

January 20, 2015 | Permalink | Comments (0)

CFP: Sabin Colloquium on Innovative Environmental Law Scholarship


This 3rd Annual Sabin Colloquium will allow junior environmental law scholars to present early-stage work and receive constructive feedback from a panel of senior scholars and from each other.  

Eligible applicants are pre-tenure professors, fellows, visiting assistant professors, and other junior scholars in similar academic positions.  Papers on environmental law, energy law, natural resources law or water law are eligible. No junior scholar may participate in the Colloquium more than twice. 

The panel will select the proposals for discussion based on the degree of innovation they exhibit, the extent to which they point toward practical solutions to environmental problems, and whether, based on the scholarly and analytical quality of the proposals, they are likely to lead to high-quality work products.  

To enter, please submit a cover letter, an outline or concept paper of 5 -15 double-spaced pages, and a C.V. to by March 1.  If an article has already been drafted, please just submit a summary of no more than 15 pages.  Footnotes are not expected.  Articles that have already been accepted for publication are not eligible. This event is for early-stage work that can still be significantly shaped by the discussion at the Colloquium. 

Authors of selected papers will be notified by March 30.  All Colloquium participants will be expected to participate in the full program (the afternoon and evening of May 21, and all day on May 22) and to read and comment on each others’ proposals.  Thanks to the generosity of Andrew Sabin, the travel costs of all participants will be reimbursed.

The senior scholars who will be judging this year's competition and participating in the workshop will be: 

Jason Czarnezki -- Pace Law School

Michael Gerrard -- Columbia Law School

Lisa Heinzerling -- Georgetown Law School J.B. Ruhl -- Vanderbilt Law School James Salzman -- Duke Law School

January 20, 2015 | Permalink | Comments (0)

Monday, January 19, 2015

NYU Furman Center's "The Dream Revisited" project tackles causes and consequences of racial and economic segregation in schools and neighborhoods

See more at the link here.

About the project:

This fall, NYU’s Furman Center launched the Integration Research Initiative (IRI), a new project focused on racial and economic inequality and integration. Its goal is to develop a body of research addressing issues of inequality in neighborhoods and schools. Through this initiative, and in partnership with the NYU School of Law’s Straus Institute for the Advanced Study of Law and Justice, the Furman Center is hosting an interdisciplinary group of distinguished scholars from around the world to focus their scholarship and intellectual energies on economic inequality and integration.

January 19, 2015 | Permalink | Comments (0)

Assistant Professor of Water Policy - Tenure Track - U Montana Dept. of Society and Conservation

The Department of Society and Conservation in the College of Forestry and Conservation at the University of Montana seeks applications for a tenure track position as Assistant Professor of Water Policy to begin Fall semester of 2015.  We are interested in PhD or JD candidates with expertise in Western American water policy and the ability to integrate and apply this expertise to a range of contemporary real-world challenges in environmental management and governance.

The position will teach classes, advise students, and contribute academic leadership within the College’s Resource Conservation Program, an interdisciplinary undergraduate academic program that integrates faculty across all three Departments within the College. The successful candidate will help meet an increasing demand for policy-related coursework in the College and University and will have opportunities to work with a growing number of faculty across campus with expertise in environmental and natural resources policy, law and planning. The successful candidate will also have the opportunity to collaborate with a growing interdisciplinary faculty cohort focused on water resources and aquatic ecology in the College and University. The University of Montana is highly committed to building a culturally diverse environment. Women and minorities are encouraged to apply.

For more information, and to apply, go to



January 19, 2015 | Permalink | Comments (0)

"I have been to the mountaintop"

Listen for a few minutes while you do something else today...


January 19, 2015 | Permalink | Comments (0)

Sunday, January 18, 2015

SCOTUS weighs in on the Telecommunications Act of 1996

Law of the Land has a nice summary of T-Mobile South, LLC v. City of Roswell here.  I wrote about my experience of being a planning commissioner trying to deal with the TCA here.  

As I wrote in another forum, I don't find the Court's requirement that a planning commission's decision be in writing to be onerous; in my experience, most jurisdictions give written decisions of denial.  It is a best practice and should be done for all denials, in my opinion.

The trick to this case will be timing.  Many P&Z boards do not meet every week; in many cases, the P&Z board approves the written denial at the meeting after the denial, but that second meeting could be three weeks, or even a month, later.  As a result, it seems to me that P&Z boards will need to schedule the initial hearing on cell towers in anticipation of a denial, and thus ensuring that P&Z approval of the denial at a subsequent meeting would fit within the TCA deadlines.  City attorneys out there, is that right?

Stephen R. Miller

January 18, 2015 | Permalink | Comments (0)

Saturday, January 17, 2015

Do Conservation Easements Always Yield a Public Benefit?

I just stumbled across an interesting case from New Jersey. A church wanted to sell off some lots but need a variance to do so from the local planning department. In part of its proposal, the Church suggested placing a conservation easement over the steep slopes on the property to "protect them." The Church suggested that this slope protection was providing a public benefit and should help justify a variance. As one planning board member noted, it is hard to see the public benefit here particularly because local laws already prevented building on steep slopes. (The local development ordinance instructs on calculating developable areas taking into account features like steep slopes.) This case is interesting because it demonstrates the odd (often overly broad) view of conservation easements that many people have a trend toward folks using (or as here, trying to use) conservation easements to duplicate restrictions already embodied in other laws. Although the court did not sude with the Church, there could arguably still be some public benefit to using conservation easement here because as a perpetual restriction it will remain in place even as local ordinances change or variances are granted. That does not mean, however, that they should necessarily qualify as a public benefit in meeting standards for determining when to grant a variance. Perhaps some of you see  this differently?

RECTOR, WARDENS & VESTRYMEN OF ST. BERNARD’S PROTESTANT EPISCOPAL CHURCH  v. BERNARDS TOWNSHIP PLANNING BOARD, (Superior Court of New Jersey, Appellate Division,  April 30, 2014 --  2014 WL 7596809)

January 17, 2015 | Permalink | Comments (0)

Friday, January 16, 2015

Schleicher and Rauch on local regulation of the sharing economy

David Schleicher (George Mason) and Daniel E. Rauch (Yale) have just posted Like Uber, But for Local Governmental Policy: The Future of Local Regulation of the “Sharing Economy.”  Here is the abstract:

In the past five years, “sharing economy” firms like Uber, ZipCar, AirBnB and TaskRabbit have generated both huge market valuations and fierce regulatory contests in America’s cities. Incumbent firms in the taxi, hotel and other industries, as well consumer protection, labor and neighborhood activists, have pushed for regulations stifling or banning new sharing economy entrants. Sharing firms have fought back, using their popularity with consumers and novel political strategies, lobbying for freedom to operate as broadly as possible without government interference. But to date, both participants and observers of these “sharing wars” have relied on an unstated assumption: if the sharing firms win these fights, their future will be largely free from government regulation. Local governments will either shut sharing down, or they will leave it alone.

But this assumption is almost surely wrong. If sharing firms prevail in the current fights over the right to operate (and indications suggest they will), it is unlikely that cities and states ignore them. Instead, as sharing economy firms move from being upstarts to important and permanent players in key urban industries like transportation, hospitality and dining, local and state governments are likely to adopt the type of mixed regulatory strategies they apply to types of firms with whom sharing firms share important traits, from property developers to incumbent taxi operators. Using tools of agglomeration economics and public choice, this Article sketches the future of such policy regimes.

Specifically, local and state governments will adopt some combination of the following policies in addition to insisting on consumer/incumbent protections: (1) subsidizing sharing firms to encourage expansion of services that produce public goods, generate substantial consumer surplus and/or minimize the need for excessive regulation of the property market; (2) harnessing sharing firms as a tool for redistribution; and/or (3) contracting with sharing firms to provide traditional government services. The future of sharing economy regulation will be very different from its present, and the changes will pose profound legal, political and ethical questions for our cities.

Looks like a great piece on an area in need of much work.  I know several other profs working on sharing economy articles, so hopefully there will be a bevy of new ideas emerging in the coming months.  

Stephen R. Miller


January 16, 2015 | Permalink | Comments (1)

The only thing raising more ire than finding a parking space in a big city may be someone trying to sell you a parking space in a big city

LAT has the story:

Bay Area TV station KRON explains how the app works: "If you launch the free MonkeyParking app on your phone and click request a spot, monkey faces pop up. Those are street parking spots near you that other MonkeyParking app users currently have their car parked in but they are willing to sell. You can offer them $5, $10, $15 or $20 for that spot. If they accept, the two of you switch out your cars in the parking spot."

Not since Los Angeles and other cities announced that they would install sensors in on-street parking spaces that would reset the meter to zero when a car pulls out -- depriving the next motorist of the occasional extra few minutes left, and transferring the "extra" cash into city coffers -- has a parking story made my blood boil more. 

A screenshot of the MonkeyChimp app at the heart of the controversy:



Hat tip to Lee Dillion.

Stephen R. Miller



January 16, 2015 | Permalink | Comments (0)

Jan 24 - Los Angeles / Simi Valley - Federalist Society event on regulating the sharing economy

On January 24, 2015, I will be speaking at a conference on regulating the sharing economy organized by the Federalist Society at the Ronald Reagan Presidential Library just north of Los Angeles.  I'm looking forward to what I think will be a good discussion.  Come and join us (CLEs will be available).

Start : Saturday, January 24, 2015 10:00 AM
End : Saturday, January 24, 2015 05:00 PM
Add To Your Calendar


Ronald Reagan Presidential Library
40 Presidential Drive
(In the Presidential Learning Center)
Simi Valley, CA 93065

Government Regulation in the Sharing Economy
2:15 p.m. – 4:00 p.m. 

In the innovation economy, entrants often confront increased regulatory hurdles, particularly on a state level, as they enter the marketplace and disrupt previously tightly regulated industries, such as hospitality and transportation. In California, for example, legislators have proposed rigorous insurance requirements, drug testing, and new background checks on Uber and Lyft drivers that traditional taxicab drivers do not face. Airbnb faces scrutiny in New York, with critics accusing it of violating rent control laws by creating an underground rental market, threatening public safety and driving up rental prices. In New Jersey, Tesla sales have been shut down after licensing restrictions prevented direct-to-consumer sales of electric vehicles, bypassing franchised dealers. While the entrants contend that these restrictions only serve to restrain competition and protect special entrenched interests, the critics maintain that consumer protection and maintaining a level playing field are the true goals in their regulatory policies. What’s the proper balance between innovation and regulation? Will these new entrants incentivize innovation or will existing regulatory capture only succeed in maintaining the status quo? Are state regulations the greatest impediment to innovation, or do federal regulations also impede progress?


  • Evan Baehr, Co-founder, Outbox and Co-founder, Able Lending
  • Katie Biber Chen, Senior Counsel, Airbnb 
  • Andrea Ambrose Lobato, Policy Counsel, Lyft
  • Prof. Stephen Miller, University of Idaho School of Law 
  • Prof. Jordan Barry, University of San Diego Law School
  • Moderator: Hon. Carlos Bea, U.S. Court of Appeals, 9th Circuit

Closing Reception
4:00 p.m. - 5:00 p.m. 

Registration details:

Cost for Pre-registration:

  • Non-Students: $50 ($60 on-site) 
  • Students: Free ($10 on-site)

3.5 Credits of California CLE are available.

January 16, 2015 | Permalink | Comments (0)

Thursday, January 15, 2015

Leadership Counsel for Justice and Accountability attorney and advocate positions in Fresno

From the press release:

Leadership Counsel for Justice and Accountability, a Project of the Tides Center

Leadership Counsel for Justice and Accountability (LCJA) is a new organization created to fundamentally shift the dynamics that have created stark inequalities in California’s low income, rural regions. Based in the agriculturally rich San Joaquin and East Coachella Valley’s we work alongside the most impacted communities to advocate for sound policy and eradicate injustice to secure equal access to opportunity regardless of wealth, race, income, and place.

Our experience in rural regions of California has taught us that as long as the most vulnerable populations remain silent and silenced environmental degradation will continue, infrastructure will crumble, and the most basic of services and amenities will remain beyond the reach for those in need. And, state policies will continue to further disadvantage low income, rural communities through funding formulas and eligibility criteria that favor wealthier regions.

More details in the job descriptions here:

Download Leadership Counsel Attorney Position

Download LeadershipCounsel Policy Advocate Position

Sounds like some interesting CED and EJ work for a recent law grad.

Stephen R. Miller

January 15, 2015 | Permalink | Comments (0)