Land Use Prof Blog

March 4-6: Stanford 2015 Rural West Conference: Preservation and Transformation: The Future of the Rural West

The Stanford Bill Lane Center for the American West is hosting its annual inter-disciplinary Rural West Conference this March 4-6 in Troutdale, Oregon (just outside of Portland).  The theme this year is Preservation and Transformation:  The Future of the Rural West.  I'm delighted to be a participant in what I imagine will be some excellent dialogue.  Stop by if you can.  Here is a link to the schedule with the general outline reproduced below.

Wednesday, March 4

4:30–5:00 pm:  Registration

5:00–7:30 pm:  Informal welcome reception and data visualization talk by Geoff McGhee and Thomas Favre-Bulle

Thursday, March 5

8:15–8:30 am:  Registration (for folks who can't attend the Wed. night reception)

8:30-9:00 am:  Breakfast welcome with David M. Kennedy, Pulitzer Prize-winning historian and founding Faculty Director of Stanford's Bill Lane Center for the American West

9:15–10:45 am:  Panel 1: Fewer People Means Less Crime… Right?  The Unique Challenges of Policing the Rural West

10:45–11:00 am: Coffee break

11:00–12:30 pm:  Panel 2: Whose Land Is It, Anyway? Perspectives on Land Protection and Access in the 21st Century

12:30–1:50 pm:  Lunch 

2:00–3:30 pm:  Panel 3: Beyond Barren Farms and Empty Houses: The Rural Western Economy, Past, Present, and Future

3:30–4:00 pm:  Snack break

4:00 pm–5:30 pm:  Panel 4: Smart Phones and Hay Bales: Generation Z’s Future in the Rural West

6:00 pm–7:30 pm:  Dinner and Keynote speech by William Wyckoff

Friday, March 6

8:30–9:00 am:  Breakfast

9:00–10:30 am:  Panel 5: Conflicts and Intersections in Rural Western Cultures 

10:30–10:45 am:  Coffee break

10:45–12:15 pm:  Panel 6: A Western Wish List: Ideas, Rights, and Services that Could Transform the Region 

12:15–1:30 pm: Lunch and closing remarks by political scientist Bruce E. Cain, Faculty Director of Stanford's Bill Lane Center for the American West

 

March 3 - J.B. Ruhl to deliver Boehl Distinguished Lecture in Land Use Policy at U Louisville Law

A note on an upcoming event from Tony Arnold (Louisville):

Colleagues,

If you will be in the Louisville, KY, area on this coming Tuesday, March 3, please join us at the University of Louisville Brandeis School of Law for the Boehl Distinguished Lecture in Land Use Policy, which will be given by J.B. Ruhl of Vanderbilt University.  The Lecture is at 6 pm on 3/3 in Room 275 of the Law School (large lecture hall, 2nd floor, East Wing of Wilson Wyatt Hall), and is free and open to the public.  J.B. will be speaking on "Localism and the New Language of Nature."  I'm excited that J.B. will be joining us and sharing his keen insights with our community.  He joins an increasingly long list of distinguished scholars who have given Boehl Distinguished Lectures in Land Use Policy at the University of Louisville since 2007 (including a number of you on this list).  The Boehl Distinguished Lecture Series is supported by the Boehl Chair Endowment Fund, the Kentucky Research Challenge Trust Fund, and the Center for Land Use and Environmental Responsibility. 

Is this blog post "advertising"? California's bar proposes bright-line rule for regulating attorney blogs

California's bar has proposed a rule for whether attorneys' blogs must comport with rules that govern attorney advertising.  Here is the proposed test:

1. Blogging by an attorney is subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.

2. A blog that is a part of an attorney’s or law firm’s professional website will be subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.

3. A stand-alone blog by an attorney that does not relate to the practice of law or otherwise express the attorney’s availability for professional employment will not become subject to the rules regulating attorney advertising simply because the blog contains a link to the attorney or law firm’s professional website.

Read the entire proposed rule here.

Two upcoming RMMLF events: 61st Annual Institute (July 16-18 in Anchorage) and 17th Institute for Natural Resources Law Teachers (May 27-29 at Utah Law)

 

Two great events are upcoming from the Rocky Mountain Mineral Law Foundation.  Descriptions from RMMLF below:

61st Annual Institute

July 16-18, 2015

Anchorage, Alaska

Registration is now open for the 61st Annual Rocky Mountain Mineral Law Institute.  You can print a complete 12-page brochure and register for the Institute at our website: http://www.rmmlf.org.  Although you might have already reserved a hotel room, this is your first opportunity to register for the conference.

All sessions will take place at the Dena’ina Convention Center in Anchorage, within easy walking distance of most of our hotels.  Several of our properties are already sold out, but the Sheraton and the Hilton still have room availability at our discounted rates.  A detailed map is included in the brochure, along with information on things to do, discounted rental cars, and some fun events.

* * * *

Registration is now open for the 17th Institute for Natural Resources Law Teachers, May 27-29, 2015, at the University of Utah S.J. Quinney College of Law.  A complete brochure is below.  Online registration is available at http://www.rmmlf.org, along with information about discounted room reservations at the University House and car rentals. 

We have a great program in Salt Lake City, including a Wednesday field trip along the Great Salt Lake, to Antelope Island State Park, and up to Snowbasin Resort in the Wasatch-Cache National Forest. 

As you probably know, this Institute is co-sponsored and heavily subsidized by the Rocky Mountain Mineral Law Foundation, the Institute for Energy Law of The Center for American and International Law, and the Section of Environment, Energy and Resources of the American Bar Association.  In addition, the Energy & Mineral Law Foundation has rejoined us as a sponsoring organization.  We thank our co-sponsors for their continuing support of this conference over many years. 

Download NRLT15news

 

First Principles for Regulating the Sharing Economy

It seems like a lot of folks are writing about the sharing economy these days; I will hope to profile some of them in the coming weeks (feel free to send abstracts of your articles to me to post).  My offering on the subject was just posted to SSRN and is titled First Principles for Regulating the Sharing Economy.  Here is the abstract:

This Article posits ten first principles on which a regulatory response to the sharing economy must rest. Given the rapid differentiation in the sharing economy, the Article gives particular focus to the short-term rental market, typified by Airbnb, as one lens through which to illustrate these principles. The Article then turns to review existing regulatory responses to the sharing economy. Here again, the Article focuses on regulations related to the short-term rental market with a particular emphasis on the two strictest existing local government regulatory structures, which are those of San Francisco and Portland. The Article next proposes a response beyond such traditional regulatory strategies, which this article asserts are not well suited to regulating the sharing economy. Instead, this Article proposes a markets-based mechanism, transferable sharing rights, which is better suited to internalize externalities of the most daunting challenges in the short-term rental market. Finally, the Article examines the corporatization of the sharing movement and the implications for regulations as sharing evolves from a peer-to-peer enterprise to one where established market participants assert themselves in the sharing economy’s new domains.

I welcome comments.  This is a fast-moving area of law still very much in flux; for instance, just last month, a federal district court judge dismissed a lawsuit filed against the City and County of San Francisco's STR Market ordinance, and HomeAway is threatening to sue New York City if it enacts an STR Market ordinance.

Stephen R. Miller

Webinar on New Markets Tax Credits and rural CED: Thursday, Feb 26

I'm delighted to be part of a webinar next Thursday, February 26th on New Markets Tax Credits with the Montana Community Development Corporation's Dave Glaser.  The webinar sponsor is the Initiative for a Competitive Inner City, a non-profit started by HBS prof Michael Porter back in the Nineties.

Register here (the link in the graphic may not work).

Details below.

 

Update on Pace Law / Yale F&ES project on local governance of hydraulic fracturing

News from John Nolon about the Pace Law / Yale F&ES work on local governance of hydraulic fracturing:

Pace Law School’s Land Use Law Center and the Yale School of Forestry and Environmental Studies (F&ES) are collaborating to identify the distinctly local impacts of hydraulic fracturing and how local governments can respond where they are not satisfied that federal and state regulations properly mitigate these local effects.  The attached guest blog by Christopher Halfnight, F&ES '15, reports that this joint research team is “building a suite of tools to empower local government decision-making on a range of shale-related local governance challenges. The project’s stakeholder workshops and research to date have helped fashion the first significant resource in that toolkit: a comprehensive impacts framework cataloguing the potential local effects from shale oil and gas development. The research team developed this framework of fracking impacts to help orient communities to potential risks and benefits of shale development. The framework represents a major new resource to provide both a significant knowledge base for local government decision-making and a substantive legal foundation for regulatory and non-regulatory actions.” The full blog is here. 

Gorillas, Elephants and Local Regulation of Hydraulic Fracturing

The Supreme Court of Ohio weighed in this week on state versus local control of oil and gas operations, in a case, Morrison v. Beck Energy Corp, that included 3 separate dissenting opinions, one of which invoked gorillas and another of which invoked elephants in colorfully making their case. The concurring opinion likely means that the court raised more questions as opposed providing very many answers. However, the panoply of arguments in the opinions generate, at least to me, some fascinating thoughts on the line between zoning and state regulation of oil and gas operations, the topic of my recent law review article. I wish this decision had been released prior to the completion of my article!

Ohio R.C. Chapter 1509 gives the state government "sole and exclusive authority" to regulate the permitting, location, and spacing of oil and gas wells and production operations. The question raised is whether the Home Rule Amendment to the Ohio Constitution grants the city of Munroe Falls the power to "enforce its own permitting scheme atop the state system". The court ruled that it does not.

Ohio R.C. 1509.02 preserves local authority in two categories: control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts; and the power to grant permits to operate certain heavy vehicles on highways within the locality. However, these powers cannot be exercised in such a way as to discriminate "against , unfairly impede, or obstruct oil and gas activities and operations regulated" under the state code. The state regulations address well spacing, setbacks, proximity of the well to other wells and private dwellings, safety of the operation, protection of the public and private water supply, fencing and screening, waste containment and disposal, access roads and noise mitigation. Note that many of these issues are commonly addressed by zoning ordinances (see, e.g., Richardson, Local Regulation of Hydraulic Fracturing, 117 W.Va. L. Rev. 593 (2104).

Beck's permit contained 67 different conditions that related to, among other things, the designation of the site as a municipal wellhead protection area and "urbanized areas" protections, like noise mitigation and parking. Again, the "urbanized areas" conditions appear to be very much zoning provisions.

Soon after Beck began drilling, the city issued a stop-work order and filed a complaint for injunctive relief, alleging that Beck's operations violated multiple city ordinances. Five of those ordinances are at issue. The first requires a "zoning certificate" issued by the zoning inspector under the general zoning ordinance. The other four fall under an ordinance specifically regulating oil and gas drilling. However, even these ordinances relate back to zoning, with one requiring a conditional zoning certificate. The other three relate to the filing fee ($800), performance bond ($2,000 deposit required upon filing) and a required public hearing (at least three weeks prior to drilling), associated with the conditional zoning certificate.

Beck argued that the ordinances conflict with the state statutory scheme. The trial court granted the injunction and required Beck to comply with the ordinances. The court of appeals reversed, rejecting the city's argument that the Ohio Constitution's Home Rule Amendment allows it to impose separate permit requirements on oil and gas operations.

Are the ordinances a valid exercise of home-rule power (a consistent theme among oil and gas local regulation cases)? The amendments gives local governments in Ohio "broadest possible powers of self-government in connection with all matters which are strictly local and do not impinge upon matters which are of a state-wide nature or interest" [emphasis added].  However, the amendment does not allow local ordinances to conflict with general laws. The court set out the test of when a local ordinance must yield to a state statute as containing three prongs: (1) the ordinance is an exercise of police power, not local self-government; (2) the statute is a general law; and, (3) the ordinance is in conflict with the state statute. The city conceded that the ordinances are exercises of the police power.

Four conditions are required to classify a statute as a general law: (1) the statute must be part of a statewide and comprehensive legislative enactment; (2) the statute must apply to all parts of the state alike and operate uniformly throughout the state; (3) the statute must set forth police sanitary, or similar regulations, rather than purporting to grant or limit legislative power of a local government to prescribe regulations; and, the statute must prescribe a rule of conduct upon citizens generally. The city disputed only the second requirement, arguing that only the eastern part of the state has economically viable quantities of oil and gas. The court found that similar arguments had been rejected in earlier cases and rejected this argument.

Using the standard definition of conflict as meaning that the "ordinance permits or licenses that which the statute forbids and prohibits, and vice versa", the court found that the ordinances conflict with the state statute. The court found two types of conflicts. First, rejecting the city's argument that the ordinances and statute regulate "two different things", the court ruled that the ordinances prohibit what the statute allows. Secondly, the court found that the language of the state statute expressly preempts the local ordinances at issue. The judgment of the Court of Appeals was, therefore, affirmed.

A thoughtful concurring opinion seems to remove any force that the majority opinion would otherwise possess. The concurring opinion emphasizes "the limited scope of [the] decision", expressly limiting the decision to the five ordinances at issue. According to the concurrence, the appeals does not "present the question of whether [the state statute] conflicts with local land use ordinances that address only the traditional concerns of zoning laws, such as ensuring compatibility with local neighborhoods, preserving property values, or effectuating a municipality’s long-term plan for development, by limiting oil and gas wells to certain zoning districts without imposing a separate permitting regime applicable only to oil and gas drilling.". I'm not sure that I agree with this assertion. The ordinances at issue in this case sound a lot like zoning to me.

The concurring opinion presents a fascinating argument on preemption. Namely, the opinion states that "location" and "spacing" have specialized, technical meanings in oil and gas law, citing 1 Summers, The Law of Oil & Gas, Section 5.1, at 268 (3d Ed. 2004). These terms relate to maximizing efficiency and protecting correlative rights in the oil and gas realm. Interestingly, these are the state interests that I identified in my law review article as state interests that bans conflict with. I also acknowledge Alex Ritchie's excellent article, "On Local Fracking Bans: Policy and Preemption in New Mexico", 54 Nat. Resources J. 255 (2014), which also recognizes these concerns. I relied some of Professor Ritchie's cogent analysis (contained in an earlier version of his article) in my law review article. 

Justice O'Donnell goes on to reason that, since the state government's notion of "location" and "spacing" are based on different considerations than the local zoning ordinance's notion of "location" and "spacing" that both can co-exist without conflict. I'm not sure that such a fine line can be drawn, or that the state legislature considered this distinction in crafting the state statutes. However, the notion is intriguing. I'll have to think on this one more.

Justice Pfeifer dissented, opining that the state statute "leaves room for [local governments] to employ zoning ordinances that do not conflict with the statute". Justice Lanzinger also dissented, joined by Pfeifer and O'Neill, similarly thinking that the actual ordinances at issue do not clearly conflict with the state statute, and that zoning can co-exist with the state regulation. This dissent cites cases in New York, Pennsylvania and Colorado as supporting the dissent. Lanzinger's conclusion is notable, so I set out that paragraph in full.

"There is no need for the state to act as the thousand-pound gorilla, gobbling up exclusive authority over the oil and gas industry, leaving not even a banana peel of home rule for municipalities. I would reverse the judgment of the court of appeals and remand to that court for further proceedings."

Justice O'Neill's dissent is set out in full below. 

"I join Justice Lanzinger’s well-written dissent. Let’s be clear here. The Ohio General Assembly has created a zookeeper to feed the elephant in the living room. What the drilling industry has bought and paid for in campaign contributions they shall receive. The oil and gas industry has gotten its way, and local control of drilling-location decisions has been unceremoniously taken away from the citizens of Ohio. Under this ruling, a drilling permit could be granted in the exquisite residential neighborhoods of Upper Arlington, Shaker Heights, or the Village of Indian Hill—local zoning dating back to 1920 be damned."

Like the majority opinion in Robinson, which made a similar argument with respect to Act 13, I respectfully submit that Justice O'Neill's assertion may be possible in theory, but not in practice. As pointed out by dissenters in Robinson, the state statute has setbacks and the state agency imposes conditions. In this case conditions pertaining to "urbanized areas" were imposed. The parade of horribles here would never happen in reality. And, "to be clear", the wealthy residents of the neighborhoods listed by Justice O'Neill would never be subjected to oil and gas operations "in their backyards".

So what does this case mean? I'm not sure, but perhaps not much. The arguments may further blur the lines between local zoning regulations and state oil and gas regulation. I'm looking forward to pondering the opinions further and trying to figure it out.

Jesse Richardson

 

 

Spence and Fershee on Local Control of Fracking

For those interested in the local control of fracking, there is a nice article by David Spence in the Texas Law Review and a response by Joshua Fershee in the Texas Law Review See Also.  Details and abstracts below.

The abstract for David B. Spence's (Texas Law) The Political Economy of Local Vetoes:

The law is frequently called upon to resolve regulatory conflicts that arise when a majority mildly prefers policy X, and minority strongly prefers policy not X. Two emerging bodies of case law present this problem, both associated with the growing number of challenges to local restrictions on the use of hydraulic fracturing ("fracking") to produce oil and gas. One set of cases involves claims that these local restrictions are preempted by state oil and gas law; the other involves claims that, where a local ordinance survives preemption, it amounts to a regulatory taking. This article explores how the distribution of the costs and benefits of fracking drive the politics that provoke preemption and takings conflicts in the first place, and how the decision rules courts use to resolve preemption and takings claims try to address those distributional concerns. A close examination of the distribution of the impacts of fracking reveals that while most of the costs (especially the least speculative costs) and many of the benefits fall on locals, other, significant costs and benefits of production extend beyond local government boundaries. This suggests that since the state subsumes more of the impacts within its borders than does the local jurisdiction, the state is better situated to produce regulation that balances the costs and benefits of fracking. However, this line of reasoning does not account for the fact that locals and nonlocals have different preference intensities over this issue. If we want a decision process that accounts for preference intensities (rather than merely preference aggregation), then local government decision-making might do a better job of maximizing welfare, particularly if local governments can capture more of the benefits of production through taxation or other transfer programs. Finally, with respect to takings claims, it seems unlikely that the Supreme Court will adjust takings doctrine to permit the use of compensation schemes that produce efficient outcomes. Rather, it seems more likely that states or the private sector will allow local governments to capture more of the benefits of fracking directly, which offers another path to efficiency.

The abstract for Joshua P. Fershee's (WVU Law) response, How Local is Local?:  A Response to Professor David B. Spence's the Political Economy of Local Vetoes:

Professor Fershee responds to Professor David B. Spence’s article about local hydraulic fracturing bans: The Political Economy of Local Vetoes, 93 Texas L. Rev. 351 (2015). Professor Spence notes that the shale oil and gas debate provides an example of “an age-old political problem that the law is called upon to solve: the conflict between an intensely held minority viewpoint and a less intense, contrary view held by the majority.” In resolving such conflicts, Spence suggests that courts should resolve such “conflicts in ways that encourage states and local governments to regulate in ways that weigh both the costs and the benefits of shale oil and gas production fairly and fully.” 

This Response suggests the Professor Spence’s test for local control is a sound, but adds another factor contributing to local control. As noted above, another way of considering local control over oil and gas operations is to view local control as state-level control. This Response proceeds under the premise that each state should decide whether it wishes to allow its municipalities to exercise oil and gas related vetoes. In analyzing whether local vetoes are efficient under Professor Spence’s test, this article analyzes recent decisions in New York, Pennsylvania, and Colorado. 

This Response concludes that as long as state-level regulation is the primary basis for oil and gas regulation, Professor Spence’s overarching rule that state and local governments pursue regulations seeking to balance the costs and the benefits of shale oil and gas production “fairly and fully” is a foundation for good regulation. In this sense, local (meaning state or smaller subdivisions) vetoes are critical, but how “local” the vetoes are is less important. The key, then, is ensuring that courts and regulators are actually balancing costs and benefits.

Last Day for RMLUI Conference's Early Bird Prices

2015 Rocky Mountain Land Use Institute Conference   Last Day for Early Bird Prices Today is the last day to take advantage of Early Bird rates for RMLUI's 24th Annual Land Use Conference. After today, registrations costs will go up, so take advantage of the lower rates while they're still here. We have an amazing line up this year. A bonus workshop: Local Responses to Fracking. A keynote by noted author Timothy Beatley. 2 Plenary Lunches: The Genesis and Future of Federal Large Landscape Conservation Policy From Smart Growth to the New Urban Economics 2 Tours: Touring the Alliance Center: A Pioneering Sustainability and Collaboration Hub Touring Denver Union Station 8 Tracks, including our featured track on Resilient Communities 36 Sessions, covering everything from TOD to legal and planning updates to reclaimed water to new technology. Don't miss out! Visit RMLUI's website or download the conference app for more information. You can also download our event app to get program updates, speaker bios, and more.   Register today! The 24th Annual RMLUI Land Use Conference is brought to you in part by: The University of Denver Sturm College of Law is committed to providing facilities that are accessible to persons with and without disabilities. We encourage persons who require assistance to contact Lisa Bingham at [email protected] or 303-871-6319 for further information.

Jane Jacobs' Seoul

A study of walkability in Seoul proves that Jane Jacobs' Death and Life design principles have applicability beyond the shores of Manhattan.  Here is the abstract:

Jane Jacobs’s The Death and Life of Great American Cities (1961) had an enormous influence on urban design theories and practices. This study aims to operationalize Jacobs’s conditions for a vital urban life. These are (1) mixed use, (2) small blocks, (3) aged buildings, and (4) a sufficient concentration of buildings. Jacobs suggested that a vital urban life could be sustained by an urban realm that promotes pedestrian activity for various purposes at various times. Employing multilevel binomial models, we empirically verified that Jacobs’s conditions for urban diversity play a significant role with regard to pedestrian activity.

The article:  Hyungun Sung , Sugie Lee, & SangHyun Cheon, Operationalizing Jane Jacobs’s Urban Design Theory: Empirical Verification from the Great City of Seoul, Korea.  Journal of Planning Education and Research 1–14 (2015).  DOI: 10.1177/0739456X14568021.

 

NPR takes on new urbanism

Last week, NPR's Cities Project ran two interesting stories about a new urbanism community in Austin, Texas.  Both are worth a listen, here and here.

 

CFP: Land Policies in South Asia: Promises, Practices and Challenges

Thanks to Eran Kaplinsky (U Alberta Law) for bringing this conference to our attention.

 

Land Policies in South Asia: Promises, Practices and Challenges

First South Asian Regional Conference of the International Academic Association on Planning, Law, and Property Rights  

(1st SARC PLPR) 

1 - 3 September 2015

National Law School of India University, Bengaluru.

 

Call for Papers:

The land question is central to the South Asian development tale for at least two reasons: First, the majority of its population stills obtains their livelihood from agriculture and allied activities while landholding is highly skewed; Second, urban planning is facing unprecedented challenges due to a gush of migration to cities seeking livelihood resulting in bourgeoning property values. 

Responses to these challenges through laws and policies have been very high compared to the academic attention they have received. Yet, practices emerging from planning and policies have exposed limited reach on the extent of problems. This paradox calls for serious introspection and academic engagement.

The conference welcomes papers that provide theoretical analysis, economic/social analysis of planning, case studies of the implementation of planning and regulation instruments, practices related to law and planning, analysis of case laws in a selected segment. We particularly encourage students who can imaginatively approach the traditional issues even if their ideas are controversial.

Some of the tentative topics to which invitation is made are:

• Property Rights and Markets
• Informal Housing
• Environmental Laws and Regulations
• Land Acquisition Practices and Policies
• Property and Exclusion
• Forest Rights
• Second Generation Land Reforms
• Real Estate Developments and Regulation
• Corruption in Planning
• Illegal Construction and Mining
• Participation in Planning
• Smart Cities with innovative land and water management systems  

The last date to submit an abstract (300 words) is 31 March. All abstracts will be peer reviewed and decision about the inclusion of paper in the conference will be communicated in the last week of April 2015.

Visit http://www.plpr-association.org for further details

Water Down Under: A Report from Australia by Barbara Cosens: Post 4: The nature of the right to water

[The Water Down Under series of posts is by Barbara Cosens, who is in Australia this semester working on water law issues there.  See more about this series, and previous posts here, here, and here.]

In the first of three conversations with UIdaho 3L law student Claire Freund on adaptability of Australian and U.S. water law introduced in an earlier blog, we explore the nature of the right to water.  Adaptability in the face of the uncertainties created by the intersection of climate change and population growth requires an overlapping capacity to respond at multiple levels of water management including the individual.  Yet rapid response can be destabilizing if not carefully prescribed.  In the case of an essential and common pool resource like water, a balancing act between governmental discretion to manage and the certainty of individual investment in development of water must take place.  We see this play out in the various ways governments approach defining the nature of the water right – specifically (1) how much latitude does government have to regulate water allocation and use; and (2) how transferrable are individual water rights. Australia and the western U.S. are currently following very different trajectories on these issues.   The degree of latitude for government regulation depends on the how we define the property interest of the water user.  In both countries this issue is currently in the lower courts and (fortunately) not settled law. Both Australia and the U.S. began their process of defining that interest with adoption of the common law of England.  Aridity over much of Australia and that portion of the U.S. west of the 100^th Meridian, led to substantial divergence from English common law in both countries.  Both retain the concept that water is a public good, held by the state but with individual use rights. But, whereas Australia adopted a concept of shared shortage, the western U.S. rewarded investment by granting superior rights to those who developed first.  Currently, Australia defines water rights as subject to considerable regulation by the state.  Reductions due to drought or environmental needs of up to 70% of historic use in a process or registration of rights have not required compensation -- an outcome that would result in rebellion among water user communities in the U.S.  In contrast, U.S. lower courts currently view any reduction in beneficial use as the result of governmental regulation as compensable -- an odd outcome that results in government having less latitude to regulate use of a public good than it has to regulate land use.  Somewhere between the two viewpoints lies the most legally defensible as well as the most adaptable solution.  One in which government has the power to respond to drought and environmental needs within bounds that provide sufficient certainty for water users to plan.   Complementing the inquiry into adaptive capacity for government regulation, individuals must also have capacity to adapt, both because response is much quicker at the individual level and because it can be tailored to local needs.  This leads us to the question of transferability.  Transferability requires: clarity in definition of the right; authority to transfer; and because water is a shared public good, attention to third party impacts.   In the western U.S., water rights are defined by priority and application to beneficial use and the clarity of this definition has been aided in recent decades by adjudication and the corresponding creation of centralized water right databases.  Australia began addressing the transferability of water rights during the 15-year Millennium Drought (1995-2010) through a process of registration of water rights that included what is referred to as “unbundling”.  Unbundling separated the water right from the land, thus making it transferrable without sale of land.  It is in the attention to third party impacts (one of the greatest limits on transferability of water because of increasing transaction costs), that the two countries have taken very different approaches.  In the western U.S., an individual inquiry into third party impact takes place before any transfer is approved.  In Australia, the government may approve a transfer if it is consistent with the general water plan for the region.  The U.S. process increases transaction costs, but protects other uses of a shared resource.  The Australia process, reduces transaction costs, but substantially increases the possibility of third party impacts.  As with the definition of the property interest, a middle ground between the two approaches might be the best.  In a project with Mike Brady and Jon Yoder, economists from Washington State University, we are looking at definition of the consumptive portion of a diverted irrigation right as the presumptively transferable portion.  Australia’s process of unbundling, taken a step further to separate out the portion of the water right that crops actually consume, could accomplish this without altering the use right itself.  The individualized inquiry into third party impacts would be much faster for the consumptive portion of the right.  Its addition in Australia might then be less onerous.   In the face of increasing demand and drought, both Australia and the United States are wrestling with the same issues regarding the definition and transferability of water right.  In doing so, each would be wise to take a page from the other’s playbook.

Why are building inspectors so often on the take?

Here we go again.  Another line-up of building inspectors smiling for the camera...taking their mug shots.  New York City just raided its building department, charging 16 with taking bribes, as well as 31 others in the construction trades.  The NYT has the story here.  

Having practiced land use law in San Francisco in an era when the building department there was raided multiple times by the FBI, I can't help but be dismayed by this latest turn in NYC.  I wonder:  What is it about building departments that makes bribery happen so often?  Is it too naive to believe that complex building codes can exist, and be enforced, without expediters, graft, and kick-backs?

Stephen R. Miller

What makes people leave rural areas, and what makes them stay

Earlier this week, Joshua Hightree, a graduate student in the University of Idaho's Bioregional Planning Program, presented a really interesting work-in-progress to the Idaho Legislature.  The work is based upon a somewhat remarkable data-set:  7,000 rural individuals answered 212 survey questions in 26 community surveys taken between 2000 and 2014 in rural communities across the State.  The research paints a vivid picture of what is wrong, and what is right, with rural life in Idaho, and may be applicable more broadly.  

The studies found that there were three major trends in dissatisfaction with rural life:  the quality of K-12 education; housing availability; and housing condition. 

 

 

The study also found that the greatest areas of dissatisfaction with rural life focused around recreational opportunities, job variety and quality, and the lack of vocational- and post-secondary training opportunities. 

 

Areas of satisfaction with rural life included a number of aspects of social capital:

Mr. Hightree is still working on the final report and analysis, but was willing to share this information now. This data set and its analysis seems a potentially valuable contribution not only to understanding rural life in Idaho but perhaps would be applicable to understanding other areas, as well.

Stephen R. Miller

 

 

 

 

Citi, Wells Fargo, JPM defeat mortgage discrimination lawsuits

From Reuters:

A federal judge in California has dismissed lawsuits brought by the Los Angeles Unified School District alleging mortgage discrimination by three of the nation's biggest banks, ruling the district has not shown how it was harmed.

 

In three separate orders on Tuesday, U.S. District Judge Otis Wright rejected the school district's argument that it lost property tax revenue because of discriminatory lending by Citigroup Inc, Wells Fargo & Co and JPMorgan Chase & Co.

 

Local property taxes do not determine the school district's level of funding because state and local revenue are commingled in a single fund under state control, Wright said, agreeing with the banks' arguments.

 

Full article only on Westlaw link here right now.

The cases:  The school district's cases, all in U.S. District Court in California's Central District, are Los Angeles Unified School District v. Wells Fargo & Co et al, No. 14-cv-7370; Los Angeles School District v. Citigroup Inc et al, No. 14-cv-7368; and Los Angeles Unified School District v. JPMorgan Chase & Co et al, No. 14-7369.

Hat tip to Jonathan Rosenbloom...

Feb 26 - Trading High in the Sky: Transfer of Development Rights

THE STEVEN L. NEWMAN REAL ESTATE INSTITUTE of the Zicklin School of Business in association with the  New York City Department of City Planning presents TRADING HIGH IN THE SKY: TRANSFER OF DEVELOPMENT RIGHTS  A critical understanding of TDRs with a look toward change. KEYNOTE SPEAKER:  Carl Weisbrod, Chairman, NYC Planning Commission  There will be no charge for this event.  This important and timely forum will convene an influential group of national and local experts from government, the real estate industry, academia and the legal and planning professions, to survey existing TDR mechanisms, analyze their success, and explore various alternatives to reform their use.  Opening presentations will include a Keynote Address by Carl Weisbrod, Director of the New York City Department of City Planning and Chairman of the New York City Planning Commission. Panelists will include David Brown, Director of Real Estate, Archdiocese of New York; Kenneth K. Fisher, Partner, Cozen O’Conner; David Karnovsky, Partner, Fried, Frank, Harris, Shriver & Jacobson LLP; Jerold S. Kayden, Frank Backus Williams Professor of Urban Planning and Design, Harvard University Graduate School of Design; Michael Kwartler, President, Environmental Simulation Center; Margaret Newman, Executive Director, Municipal Art Society of New York; Rick Pruetz, Principal, Planning & Implementation Strategies; Richard J. Roddewig, President & Co-Founder, Clarion Associates, Inc.; David Schleicher, Associate Professor of Law, George Mason University School of Law; Robert I. Shapiro, Founder and President, City Center Real Estate; Dan Sider, Senior Advisor for Special Projects, San Francisco Planning Department; Robert Von Ancken, Executive Managing Director, NGKF, Capital Markets, and other industry leaders. Since the city enacted legislation more than 40 years ago to allow landmarks to transfer their unused development rights to adjacent sites, only a handful of properties have taken advantage of these provisions. While the City of New York has been a pioneer in TDRs with the creation of the Theater District, Grand Central Sub district, the South Street Seaport, and the West Chelsea Highline District to allow wider transfer of development rights to achieve specific policy objectives, individual landmarks have little flexibility to sell their unused development rights in order to fund maintenance and maximize value. Without debating the merits of landmarking, the conference will importantly explore new ideas for loosening the current regulatory controls to facilitate the transfer of development rights from landmarks.  Discussions will examine the legal and land use basis for the current regulations; issues related to the current regulatory framework, and proposals for wider transfers. The examination would cover issues related to public review, conflicts with other public policy priorities, and potential benefits to landmarks and the city. Critical questions considered will include: how far should development rights be allowed to transfer; what obligations, if any, should be imposed on the sellers and buyers of these rights; and how might these development rights be accommodated while ensuring that the physical character of the receiving neighborhoods is not undermined.  While much of the focus would be on the transfer of development rights from landmarks, potential areas of discussion will include wider transfers for significant sites under private and public ownership, as well as an exploration of how such transfers (along with bonus mechanisms) impact the City’s land use planning generally. Photo: CIM Group & Maclowe Properties

Location Information: Baruch College - Information & Technology Building (Library Building) 151 E. 25th St. Room: Atrium, Rackow Room and Lounge - Rooms 750 and 760

Contact Information: Name: Sara Hilska Taylor Phone: 646-660-6950 Email: [email protected]

Hat tip to David Schleicher for the heads up...

 

 

Homsy & Warner: Cities and Sustainability: Polycentric Action and Multilevel Governance

A very interesting article in the January, 2015 edition of Urban Affairs Review by George C. Homsy (Binghamton)  and Mildred E. Warner (Cornell) called "Cities and Sustainability: Polycentric Action and Multilevel Governance."  Here is the abstract:

Polycentric theory, as applied to sustainability policy adoption, contends that municipalities will act independently to provide public services that protect the environment. Our multilevel regression analysis of survey responses from 1,497 municipalities across the United States challenges that notion. We find that internal drivers of municipal action are insufficient. Lower policy adoption is explained by capacity constraints. More policy making occurs in states with a multilevel governance framework supportive of local sustainability action. Contrary to Fischel’s homevoter hypothesis, we find large cities and rural areas show higher levels of adoption than suburbs (possibly due to free riding within a metropolitan region).

Important empirical research for those of us (myself included) who advocate for "bottom up" planning processes.

Here is the cite:  Urban Affairs Review 2015, Vol. 51(1) 46–73; DOI: 10.1177/1078087414530545.

Fordham Urban Law Journal Symposium on Law, Urban Space, and the Future of Artistic Expression

I just got word of this conference announcement so it hasn't yet made it to the official list, but I am so bummed that I can't make it to NYC for this upcoming symposium. It features one of my favorite artists.

 

Law, Urban Space, and The Future of Artistic Expression

 

Thursday, February 26, 2015 9 a.m.—5 p.m.

 

The symposium will examine legal issues surrounding street art, such as intellectual property and private and public spaces. It will also explore different perspectives of urban artistic expression, like large scale metropolitan art, the role of street art in shaping and changing communities, and the role of performance art generally in an urban space.

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