Land Use Prof Blog

Commissioner's Corner: A safe harbor for land use administrative findings?

For the last few weeks, I've been thinking a lot about administrative findings because of my role as a planning commissioner.  You know:  findings of fact, conclusions of law, decision.  "Bridge the analytical gap."  All that.  

While major jurisdictions do findings with no sweat, a lot of small jurisdictions don't.  It makes me wonder:  why aren't there statewide "safe harbor" forms for land use decision administrative findings?  Do any states do this? 

Study Space IX: Cape Town: Revaluing the City: Land, Infrastructure and the Environment as a Catalyst for Change

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Study Space IX: Cape Town  View this email in your browser Study Space IX: Cape Town   Revaluing the City: Land, Infrastructure and the Environment as a Catalyst for Change   Monday, June 27-Friday, July 1 • Cape Town, South Africa Apply now for Study Space IX Africa is experiencing “an urban revolution” involving the most rapid urbanization in history, but amidst severe constraints. There are calls to grow local and national economies, enable employment, upgrade governance, improve global competitiveness, and reduce inequalities and poverty.  Problems of income inequality, economic exclusion, food insecurity, inadequate transportation networks, lack of urban services, environmental degradation, and climate change present novel challenges for cities across Africa. Transforming African cities on their own terms, and making urban formations sustainable and equitable is an unprecedented challenge.  Study Space IX will explore these urban growth issues in South Africa's oldest city, Cape Town, a profoundly unequal city from its days of slavery in the 17th century. Although labeled the continent’s least African city, Cape Town shares the ingredient of ‘slum urbanism’ with poverty and social stress in growing, sprawling informal settlements. There is relentless pressure to increase the density of residential land, and to revalue the city’s recreational, agricultural and public land, and ecosystem services.    During the course of the week, participants will develop a wider, ‘southern’ perspective on balancing issues related to urban growth with a focus on income inequality and economic exclusion. Topics include: Planning equitable and sustainable development Property rights and land use law Affordable housing and housing finance Taxation and infrastructure finance Cultural heritage and historic preservation Environmental law Climate change Study Space IX is a joint project with University of Cape Town's African Center for Cities, a leading think tank focused on solving Sub-Saharan Africa's urban problems through scholarship and the creation of knowledge networks across the continent. Program Cost The program fee is $1,300 and includes scheduled group meals, speaker honoraria and site visits. Hotel, airline tickets and airport ground transportation must be purchased separately. A block of hotel rooms will be reserved Sunday through Thursday nights at the Protea Hotel Breakwater Lodge and is estimated to be $550 plus taxes, including breakfast daily.    For more information, contact Karen Johnston (J.D. '08), assistant director for the Center for the Comparative Study of Metropolitan Growh, at [email protected] or 404-413-9175. Copyright © 2015 Georgia State University College of Law, All rights reserved.  Want to change how you receive these emails? You can update your preferences or unsubscribe from this list

 

Webinar lecture today on Pennsylvania constitutional provision at the heart of Robinson Twp. v. Commonwealth

From John Dernbach...

On Thursday, October 29, at 4 p.m. eastern time, Franklin Kury, the author and chief legislative proponent of Article I, Section 27 of the Pennsylvania Constitution will give a presentation here, entitled "The Environmental Amendment to the Pennsylvania Constitution: How It Came to Be and Where It is Going."  You can access the live webcast of his presentation at:http://commonwealthlaw.widener.edu/webcast/

As many readers know, this constitutional provision was at the heart of the landmark Robinson Twp. v. Commonwealth decision.

Idaho Law prof Miller to serve as principal investigator on $240,000 grant to address wildfire's effects on the built environment

I am excited to announce that I will be serving as the principal investigator for a three-year, $240,000 grant from the U.S. Forest Service to address wildfire effects on the built environment at the wilderness-urban interface.  I have been working on this grant for almost two years, but today is the official day when we really start substantive work on the project.

Wildfire is one of the major effects of climate change in the West, and finding solutions that are amenable to local communities will prove a difficult but exciting challenge utilizing land use planning and building codes.  I will be reporting key updates along the way on the blog.  

Here is the press release: 

 

Colleges Receive $240,000 Grant to Provide Solutions for Wildfire Hazards 

MOSCOW, Idaho – Oct. 22, 2015 — Wildfire’s threat to homes, property and livelihoods is growing rapidly as urbanized areas in Idaho develop into the wildland-urban interface (WUI).   University of Idaho faculty members will contribute to wildfire hazard planning in the WUI with a $240,000 grant from the U.S. Forest Service’s Landscape Scale Restoration Project and the Idaho Department of Lands.

Two UI faculty members – College of Law associate professor Stephen R. Miller and College of Art & Architecture professor Jaap Vos – will serve as principal investigators on the three-year grant. They will work in collaboration with Eric Lindquist, director of the Boise State University School of Public Service’s Public Policy Research Center, and Thomas Wuerzer, an associate professor at Boise State’s Department of City and Regional Planning.

“This interdisciplinary collaboration brings together faculty from four departments across two universities to work with the Idaho Department of Lands in addressing an ever-growing hazard risk for the state,” Miller said. “This collaboration of law, planning and social science will first help us understand local wildfire preparation throughout the state and then help local communities choose wildfire strategies that are right for them.”

The project has four major components over three years:

• Project members will conduct a comprehensive survey and review of adopted and proposed national and Idaho statutes, rules, ordinances and policies related to wildfire in the wildland-urban interface.
• Project members will distribute two risk-perception surveys, reaching approximately 40,000 households total. In addition, they will interview people who live in areas identified as a priority in the Idaho Forest Action Plan.
• The survey and detailed legal research will lead to a Wildfire Risk Planning Guide, scaled to fit local needs, to help local land-use planning efforts.
• Project members will design and conduct at least 12 no-cost, one-day, interactive workshops for volunteer and professional firefighters, planning directors, county and city administrators, and other interested parties in rural communities with the highest need.

Building Industry Seeks Cert in California Inclusionary Zoning Case

Earlier this summer Stephen Miller blogged about the California Supreme Court's decision in the California Building Industry v. City of San Jose case, in which the court held that San Jose's inclusionary zoning ordinance was a valid exercise of police power and not an exaction.  However, the folks at Perkins Coie are reporting on their California land use blog that the California Building Industry Association, through their counsel at the Pacific Legal Foundation, have filed a petition for cert.  The jury is still out on whether inclusionary zoning is an effective affordable housing tool, but if SCOTUS grants cert, the issue may be moot. Stay tuned.

Jamie Baker Roskie

Environmental Planning Position at SUNY Buffalo

University at Buffalo, State University of New York Faculty Position: 

Environmental Planning

 The faculty of the Department of Urban and Regional Planning invites applicants for a ladder (tenure track) position as assistant professor in the field of Environmental Planning.  Our faculty is part of the School of Architecture and Planning, University at Buffalo, The State University of New York.  The appointment is expected to commence in August 2016.

 Applications will be accepted now and will continue until an appointment is made. We anticipate that we will identify a short list and invite candidates for interviews on campus starting in November.

We are searching for applicants whose research and teaching interests focus on environmental planning, in any combination of the following:

•             Climate change

•             Ecosystem restoration

•             Environmental issues in central-city regeneration

•             Land use planning

•             Natural environment systems

•             Sustainable development

•             Related fields

By the beginning of the appointment in August 2016, applicants must hold a Ph.D. in planning or a related field. They should have a promising research agenda and a broad appreciation of planning as a profession. They must have a good ability to communicate effectively with students and evaluate student papers in written English. Salary will be commensurate with qualifications. 

The selected candidate may be given teaching responsibilities in any or all of our department’s degree programs, described below. We are especially interested in candidates who will become closely involved in the “Environmental and Land Use Planning” specialization within the Master of Urban Planning Program.

The duties of a faculty member involve a combination of research, teaching, and service. The teaching load is two classes per semester, at the graduate or undergraduate level in the general curriculum as well as in his or her area of specialization.  Up to two course-relief opportunities may be available during the tenure-track period. There is an also expectation of service to the department, school, university, and community.

Our Department: With thirteen tenured or tenure-track faculty members, the Department of Urban and Regional Planning is one of two accredited departments in a professional school of about 700 full-time equivalent students.  The Department offers five degree programs: the B.A. in Environmental Design with about 90 students; the accredited Master’s of Urban Planning (M.U.P.) degree with about 90 students; joint master degrees with Architecture, Law, and soon Public Health; and a growing Ph.D. degree in Urban Planning currently with nine students.  The department also participates in administering master’s level studies in historic preservation and real estate development. 

The department is expected to re-enter its fully restored nineteenth-century building on the university’s historic urban campus, by the summer of 2016. We are served by a fine Architecture and Planning Library, and have excellent computing facilities, with a variety of high-performing systems available in labs and studios.

Interdisciplinary Opportunities: The person hired for this position will be encouraged to become involved with the new and expanding “RENEW” Institute at the University at Buffalo, which conducts research and education related to energy, environment, and water. The Institute is university-wide and interdisciplinary, focusing on complex energy and environmental issues, as well as the social and economic ramifications. It helps develop and coordinate innovative research, education and outreach programs. (http://www.buffalo.edu/renew.html).  He or she is also encouraged to collaborate with faculty members in our neighboring Department of Architecture, with which we have close collegial relations, as well as with colleagues in the natural and social sciences and engineering.

The University: With 30,000 students, the University at Buffalo is a Carnegie Class I research university and a member of the Association of American Universities (AAU).  The university offers 90 Ph.D. and 135 master’s programs, and has outstanding supercomputing, library, and research facilities, including numerous interdisciplinary centers and institutes for faculty collaboration.

The Community: Near our campus is the University Heights neighborhood with coffee shops, eateries, bookstores, and a full array of commercial outlets and services.  The campus is highly accessible, situated on a subway and other transit lines.  Housing opportunities are abundant and affordable. 

With a combined population of 9.7 million, the binational Niagara region of Western New York and Southern Ontario offers a high quality of life and an exceptional setting for engaging planning issues.  The region spans an international border, and includes large cities, varied suburbs, dramatic landscapes, and quiet villages.  Our faculty has an outstanding history of engagement through research, studio teaching, and service with our region’s many communities.

Application: Inquiries and nominations are encouraged as soon as possible and may be submitted via email to [email protected].  Applications must be made via UBJobs at the following link:

www.ubjobs.buffalo.edu/applicants/Central?quickFind=58410

NOTE: THOSE INTERESTED IN THIS FACULTY POSITION ARE INVITED TO JOIN US AT AN INFORMATION SESSION AT THE ACSP CONERENCE, AT THE HYATT, IN HOUSTON, IN CONFERENCE ROOM 1, 6TH FLOOR, ON FRIDAY, OCTOBER 23, 5-7 PM.  We hope to see you there.  Please address inquiries about the position to Prof. G. William Page, Search Committee Co-Chair, at this custom address: [email protected].  Also please note below that actual application must be made via “UBJobs” at the link at the bottom of this announcement.  If you are just asking about the information session on Friday, please write to Ernie Sternberg at [email protected] 

The University at Buffalo is an Equal Opportunity Employer/Recruiter.  As such it does not discriminate on the basis of age, race, national origin, creed or religion, sex, sexual orientation, disability, or marital or veteran status.  Candidates with a disability may request reasonable accommodation to participate in the application process.  Women and minority candidates are encouraged to apply.

 

Cal. Air Res. Bd.'s archived webcast on land use in the next AB32 Scoping Plan

The California Air Resources Board has archived a webcast of its meeting last week regarding the next AB 32 Scoping Plan.  In particular, starting at approximately 2:31:00, the webcast turns to the presentation on land use and transportation planning.  Even those not dealing with land use issues in California will find it worthy of a listen as it highlights some of the more cutting edge land use and transportation legal structures being considered to address climate change.  See the video here.

Memphis Law Review Symposium--Submission Deadline Extended

The University of Memphis Law Review has extended its deadline for symposium abstract submissions until October 19th.  The revised call for papers below also clarifies that the full drafts will be due at the beginning of January.  

SYMPOSIUM TITLE:

The University of Memphis Law Review Annual Symposium

 

SYMPOSIUM DATE:

March 18, 2016 in Memphis, TN

 

ABOUT THE SYMPOSIUM

It is a pleasure to invite you to The University of Memphis Law Review’s 2016 Annual Symposium. The theme this year is “Urban Revitalization: The Legal Implications in Restoring a City.”  As the name suggests, we will focus our attention on the legal issues of cities that face large turnover, abandonment, and blighted properties. The University of Memphis Law Review, organizer of the event, will host Symposium sessions at the Cecil C. Humphreys School of Law at 1 North Front Street Memphis, TN 38103 on March 18, 2016.

 

The University of Memphis Law Review Symposium is held every spring on a topic of current interest to the student population, the legal community, and the city. The Symposium is a one-day CLE event. An issue of The Memphis Law Review will be published in conjunction.

 

This law symposium is unique in that it will be followed by a Community Summit at the Law School on March 19, 2016. The Summit is specifically designed for local, regional and state officials, civil leaders and others who put law and public policy into practice.

 

Topics of interest

With this symposiums focus on the legal implications of revitalizing distressed communities, neighborhoods, and properties, we are particularly interested in the intersection of law and policy as local government, together with community, institutional and philanthropic partners, deploy a wide variety of policies, strategies, and legal remedies to address blighted properties.  Our topic specifically covers the areas of municipal, real property, and environmental law.  Under this broad umbrella, we are particularly interested in articles addressing:

• Code enforcement laws and policies to defeat residential blight

• Mortgage foreclosure, bankruptcy and property abandonment

• Use of data in the fight against blighted property

• Criminal nuisance theory and procedure

• Health law and Healthy Homes theory and procedure

• Disparate impact in revitalizing neighborhoods

• Property rights in the light of community beautification projects

• Land banking functions, structures and legislative requirements

• Tax delinquency and issues of takings or eminent domain

• Disparate racial impact in neighborhood stabilization policies and practices

• HUD’s new affirmative fair housing policy in blighted urban neighborhoods

• Administrative versus judicial remedies in property revitalization

• Special purpose housing and environmental courts

• Public policies and programs for better health in homes and neighborhoods

 

Guide for authors

The deadline to submit abstracts is October 19, 2015. To submit your abstract, please click on the following link: http://law.bepress.com/expresso/

 

Click “Submit Now” and search for The University of Memphis Law Review. Follow the remaining prompts to upload and submit your article.  Please identify your submission as a symposium proposal so it will be sent to the correct editor.

 

You may also submit directly to The University of Memphis Law Review through email at [email protected]

Important Dates

Deadline for submission of abstracts: October 19, 2015

Notification of acceptance: November 1, 2015

Article due: January 1, 2016

 

Organizing committee:

For any additional questions about the event or about submitting an article, please email Kelly Masters Peevyhouse at [email protected].

 

I'm looking forward to the symposium in March.  I hope to see some of you there!

Jim K.

Memphis Law Review Symposium--Submission Deadline Extended

The University of Memphis Law Review has extended its deadline for symposium abstract submissions until October 19th.  The revised call for papers below also clarifies that the full drafts will be due at the beginning of January.  

SYMPOSIUM TITLE:

The University of Memphis Law Review Annual Symposium

 

SYMPOSIUM DATE:

March 18, 2016 in Memphis, TN

 

ABOUT THE SYMPOSIUM

It is a pleasure to invite you to The University of Memphis Law Review’s 2016 Annual Symposium. The theme this year is “Urban Revitalization: The Legal Implications in Restoring a City.”  As the name suggests, we will focus our attention on the legal issues of cities that face large turnover, abandonment, and blighted properties. The University of Memphis Law Review, organizer of the event, will host Symposium sessions at the Cecil C. Humphreys School of Law at 1 North Front Street Memphis, TN 38103 on March 18, 2016.

 

The University of Memphis Law Review Symposium is held every spring on a topic of current interest to the student population, the legal community, and the city. The Symposium is a one-day CLE event. An issue of The Memphis Law Review will be published in conjunction.

 

This law symposium is unique in that it will be followed by a Community Summit at the Law School on March 19, 2016. The Summit is specifically designed for local, regional and state officials, civil leaders and others who put law and public policy into practice.

 

Topics of interest

With this symposiums focus on the legal implications of revitalizing distressed communities, neighborhoods, and properties, we are particularly interested in the intersection of law and policy as local government, together with community, institutional and philanthropic partners, deploy a wide variety of policies, strategies, and legal remedies to address blighted properties.  Our topic specifically covers the areas of municipal, real property, and environmental law.  Under this broad umbrella, we are particularly interested in articles addressing:

• Code enforcement laws and policies to defeat residential blight

• Mortgage foreclosure, bankruptcy and property abandonment

• Use of data in the fight against blighted property

• Criminal nuisance theory and procedure

• Health law and Healthy Homes theory and procedure

• Disparate impact in revitalizing neighborhoods

• Property rights in the light of community beautification projects

• Land banking functions, structures and legislative requirements

• Tax delinquency and issues of takings or eminent domain

• Disparate racial impact in neighborhood stabilization policies and practices

• HUD’s new affirmative fair housing policy in blighted urban neighborhoods

• Administrative versus judicial remedies in property revitalization

• Special purpose housing and environmental courts

• Public policies and programs for better health in homes and neighborhoods

 

Guide for authors

The deadline to submit abstracts is October 19, 2015. To submit your abstract, please click on the following link: http://law.bepress.com/expresso/

 

Click “Submit Now” and search for The University of Memphis Law Review. Follow the remaining prompts to upload and submit your article.  Please identify your submission as a symposium proposal so it will be sent to the correct editor.

 

You may also submit directly to The University of Memphis Law Review through email at [email protected]

Important Dates

Deadline for submission of abstracts: October 19, 2015

Notification of acceptance: November 1, 2015

Article due: January 1, 2016

 

Organizing committee:

For any additional questions about the event or about submitting an article, please email Kelly Masters Peevyhouse at [email protected].

 

I'm looking forward to the symposium in March.  I hope to see some of you there!

Jim K.

Call for Papers: ALPS in Belfast, May 2016

Call for Papers for Association for Law, Property & Society 7th Annual Meeting

 

Queen’s University Belfast, Belfast, Northern Ireland, United Kingdom

 

May 20–21, 2016

 

The Association for Law, Property & Society (ALPS) is a scholarly organization for those engaged in scholarship on all aspects of property law and society. Its annual meeting brings together scholars from different disciplines to discuss their work and to foster dialogue among those working in property law, policy, and theory. Prior meetings have averaged approximately 150 participants from across the globe. ALPS will hold its 7th meeting at Queen’s University Belfast in Belfast, Northern Ireland, United Kingdom on May 20-21, 2016. An optional field-trip and opening reception are planned for the afternoon of May 19.

 

Registration and Submission Instructions

 

Submissions on any subject related to property law are welcome. ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged. ALPS accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 5 presenters). Submissions may be for full paper drafts or early works-in-progress. Submissions should include an abstract of no more than 250 words that indicates the name of the submitting scholar, the scholar’s institution, and an email contact for the scholar. If submitting a fully formed panel, please insure that an abstract for each paper is included in the submission and that each abstract clearly identifies the fully formed panel the paper is a part of.

 

Registration and paper/panel submission information is available at

http://www.law.qub.ac.uk/schools/SchoolofLaw/sites/ALPS-2016-belfast/

The deadline for submitting papers and panels is February 1, 2016, but registration for the conference will continue to be available after that date.

 

A discounted early registration rate of £110 (GBP) is available until February 1, 2016. After that date, the registration rate is £150 (GBP). The registration rate for full-time students (JD, PhD, or other program) is £30 (GBP).

 

Notification

ALPS will notify authors and panel proposers of acceptance of their individual submissions or proposed panel on a rolling basis, generally within three weeks after the date of submission.

After the submission deadline of February 1, 2016, ALPS will thematically group accepted papers and panels. Concurrent panels will be held on both days of the conference with each panel session lasting approximately 90 minutes and including both individual presentations and time for questions from the audience.

 

Inquiries

Please direct all inquiries to [email protected]

The far-right and the demise of the Land and Water Conservation Fund

On September 30, the Land and Water Conservation Fund was permitted to sunset, leaving to question whether one of the most important laws providing federal funds for popular urban parks projects will ever return.  Here is an excerpt from a Colorado newspaper:

But on Sept. 30, the 50-year-old fund — widely viewed as one of the nation’s most popular and most successful land conservation programs — was allowed to expire completely.

Despite broad bipartisan support and despite a deadline that was no surprise to anyone, Congress failed to take action to re-authorize it. That means that offshore oil and gas producers will no longer be paying into the chest that funds the program — and now that the funding connection has been broken, re-instating it will be very difficult, especially given the tone of this Congress. Instead, lawmakers will be dickering over how to divvy up former LWCF appropriations, which will now be going into the general treasury.

The expiration of the LWCF is unexcusable; indeed, those who sought its expiration--the far right--live in districts that have benefitted significantly from the LWCF.  For instance, here in Boise, LWCF funds paid for the city to turn its river-side chock-full of industrial parks and gravel pits into a beloved urban bike path along the river that now forms the spine of the city.  Here is a YouTube video of the "before of the Boise River (embedding of the video was disabled).  Here is the "after" video showing the Boise Greenbelt paid for with LWCF funds.

 

It is ironic that many of the most conservative cities will be those that have less park land to show for the failure of the far-right representatives they elect to reauthorize the LWCF.

New Report on Quantifying the Relationship between GHG Emissions and Land Use

The Federal Transit Administration's Transit Cooperative Research Program recently released its report, "Quantifying Transit’s Impact on GHG Emissions and Energy Use— The Land Use Component," which will be of great interest to lawyers and planners working in states intent on reducing GHG emissions and VMT.  Here is the report's summary:

Key findings of the research include the following:

• Effect on population densities. Taking the entire U.S. urban population in aggregate, gross population densities would be lower by 27% without transit systems to support compact development. In other words, U.S. cities would consume 37% more land area in order to house their current populations. The land use effect of existing transit makes U.S. cities more compact.

• Effect on VMT, fuel use, and transportation GHG. By providing more walking and biking opportunities and making some journeys by car shorter, the land use effect of transit produces land use benefits: an aggregate 8% decrease in VMT, transportation fuel use, and transportation GHG emissions in U.S. cities.

• Effect of transit trips replacing automobile trips. By transporting people on buses and trains who would otherwise travel by automobile, transit systems also produce a complementary ridership effect. In aggregate across U.S. cities, transit ridership reduces VMT, transportation fuel use, and transportation GHG emissions by 2%. This is a substantial change given that only 4% of passenger trips are currently made by transit in U.S. metropolitan areas.

• The land use benefit of transit. The land use benefit of transit varies across urban areas, ranging from a 1% to 21% reduction in VMT, transportation fuel use, and transportation GHG emissions compared to a hypothetical scenario without transit. Urban areas with higher route densities of transit, service frequencies of transit, and availability of light rail have higher land use benefits. Not surprisingly, higher land use benefits of transit are generally found in more densely developed areas.

• The land use effect of transit in a given region typically reduces GHG emissions more than the ridership effect. The average ratio of land use benefits to ridership benefits across all U.S. cities is 4:1, but the ratio varies substantially across different urban areas.1

• Adding a rail station to a neighborhood that did not previously have rail access is associated with a 9% increase in activity density (combined population and employment density) within a 1-mile radius of the rail station. The corresponding land use benefit is a 2% reduction in VMT (for households within the 1-mile radius), transportation fuel use, and transportation GHG emissions.

• Improving employment accessibility, by clustering new jobs around transit nodes or improving the bus and rail network in individual neighborhoods, can also have potent land use effects.

• An analysis of the Portland Westside light-rail extension found that the land use effect increased densities by 24% in the corridor area between 1994 and 2011. These changes correspond to a 6% household VMT reduction due to the land use effect and an additional 8% VMT reduction due to the ridership effect.

An Unprecedented Fracturing Ruling with Broad Implications for Federal Environmental and Land Use Law: A Guest Post from Hannah Wiseman

The following is a guest post from Hannah Wiseman, Attorneys’ Title Professor, Florida State University College of Law.

On September 30, 2015, the U.S. District Court for the District of Wyoming preliminarily enjoined the Bureau of Land Management from enforcing the BLM’s recently-promulgated rules for hydraulic fracturing (also called “fracking” or “hydrofracking”) on federal lands.  In other words, the court determined that the federal government may not regulate a key facet of oil and gas development that occurs on lands owned and managed by the federal government--at least not for the time being.  The BLM operates under a broad mandate to manage public lands for a “combination of balanced and diverse resource uses” by current and future generations of people.  Congress, in directing the BLM to protect federal lands for the purposes of recreation, resource extraction, and other uses, highlighted the importance of protecting “water resource . . .  values” on public lands.  This court decision prevents the BLM from fulfilling its Congressional mandates, and it does so on the basis of very shaky legal conclusions--including a fundamental misreading of my research. 

The fracturing rules that the BLM finalized in March 2015 are primarily informational.  (The “rules” are a variety of directives aimed at wells drilled and fractured on federal lands, and are contained within one final rule published by the BLM in March.)  They require operators--entities that drill and fracture oil and gas wells--to disclose existing conditions at wells, such as geology, and to describe their waste management and disposal practices.   The rules also require operators to disclose the chemicals that they used in fracturing, the amount of water that they used, and other information.  Operators may avoid publicly disclosing the chemicals used by submitting an affidavit to the BLM claiming trade secret status.  Additionally, before fracturing a well, operators must show that their wells have been adequately lined with steel “casing,” that this casing has been securely cemented into the ground, and that the casing can withstand the pressure of hydraulic fracturing.   Substantively, the rules prevent operators on federal lands from using open pits to store fracturing wastes, with certain exceptions.  This protects migrating birds, humans, and livestock from exposure to wastes in the pits, and it helps prevent both surface and underground soil and water pollution.

In commenting on the rules, many environmental and citizens’ groups argued that the rules were not adequately stringent, while industry and many states opposed the rules as too stringent and expensive or, alternatively, as duplicative of state regulation.  Many of the rules are not duplicative--most western states do not prevent fracturing wastes from being stored in pits, for example.  For the rules that are duplicative, a well operator that complies with the state rule can submit similar data to the BLM to prove that it has also complied with the BLM’s mandate.  Further, the BLM rules do not prevent states from enforcing their own regulations on federal lands within the state.  For example, if Wyoming and Colorado have more stringent rules for fracturing than the BLM does, these states remain free to enforce these rules at all wells on federal lands.   These states need not obtain any waiver or permission from the BLM--they simply may enforce their own rules.

The decision preliminarily enjoining the BLM from enforcing its fracturing rules on federal lands weakens the BLM’s ability to protect resources on behalf of the American public, including resources used for recreation, renewable energy development, grazing, and other non-oil and gas extraction purposes.  It also has broader implications for environmental and land use law.  In enjoining enforcement of the rule, the court--citing to and misconstruing my research, and ignoring my written and oral congressional testimony explaining my research--essentially concluded that Congress has exempted hydraulic fracturing from all federal regulation, and that the BLM therefore may not regulate fracturing on federal lands. In fact, Congress only exempted hydraulic fracturing from the definition of “injection” under the Safe Drinking Water Act (SDWA).  And the language exempting fracturing expressly indicates that it is only “[f]or purposes of this part,” thus making clear that the exemption is narrow.   This SDWA exemption did not stop the EPA from regulating certain aspects for hydraulic fracturing under other federal acts, including the Clean Water Act and Clean Air Act.  Nor should it stop the BLM from regulating fracturing under the Federal Land Policy and Management Act and Mineral Leasing Act.  Further, the BLM rules address many risks that are not directly addressed by the SDWA, such as protecting soils and surface waters from pollution. 

The court’s conclusion that the exemption of an activity from one part of one federal act impliedly exempts that activity from other federal regulation is, in my view, unprecedented, and it could affect numerous other environmental and land management laws.  For example, because the Clean Water Act exempts certain forms of pollution from agriculture and logging, does this prevent the BLM from regulating many impacts of grazing and logging on federal lands?  It would, it seems, following the court’s logic.   Although this is just a preliminary injunction, this ruling is likely to extend further because of the court’s finding that the entities challenging the BLM rules are likely to win on the merits.  

Announcing the Launch of NY Geographic Information Gateway website

The New York Department of State just launched the New York Geographic Information Gateway. The Gateway is a new educational, interactive and user-friendly website that identifies New York’s diverse land and offshore assets. It provides the public access to free and reliable geographic data, including over 400 datasets, a map viewer and interactive stories describing how the NY Department of State’s Office of Planning and Development uses geospatial information in its planning and development efforts. It offers real-time information, interactive tools, and expert knowledge on New York’s resources, including climate change and community resilience.

As described in the Secretary of State's press release, the Gateway will empower residents, businesses and local governments to improve resiliency, grow the economy and invest in New York State Communities.

Post by Sarah J. Adams-Schoen, Assistant Professor of Law and Director of Touro Law’s Institute for Land Use & Sustainable Development Law, and managing author of the blog Touro Law Land Use.

Just how much are those Grand Central Terminal TDRs worth?

The next story line in the Penn Central saga.  From Reuters...

The owner of Grand Central Terminal has filed a $1.13 billion lawsuit accusing New York City of effectively taking away his air rights over the landmark train station by letting the developer SL Green Realty Corp (SLG.N) build a giant skyscraper.

The complaint filed late on Monday on behalf of owner Andrew Penson is the latest chapter over Grand Central, which was declared a landmark in 1967, four years after the demolition of Pennsylvania Station sparked a movement to preserve significant architectural works.

Two of Penson's companies said the city rezoned the area around Grand Central to let SL Green build a roughly 1,400-foot tall tower - higher than the Empire State Building and Chrysler Building - known as One Vanderbilt across the street, if it also made nearby transit and pedestrian infrastructure improvements.

Rest of the story here.

Friday at the Movies: Land Use Edition

It's Friday, so why not grab that second cup of coffee and sit back with a couple of  these feel-good EPA videos highlighting the winners of the 2015 National Award for Smart Growth Achievement.  

 

 

 

 

 

The Nation on Community Land Trusts and Homelessness in Baltimore

The Nation has a new story today entitled "Can Community Land Trusts Solve Baltimore's Homelessness Problem?" written by Michelle Chen.  A community land trust (CLT) is a community-controlled nonprofit organization that holds land in perpetuity for the benefit of the local community.  Typically, CLTs act as stewards of subsidized homes that they have built or rehabilitated.  In areas where land values are high, CLTs can be an opportunity for low- and moderate-income residents to own homes that will also be affordable to similarly qualified future homebuyers.

Chen's article explores the possibilities for such a strong community stewardship model in the struggling inner-city neighborhoods of Baltimore.   I think the piece can be interesting for students and others who wonder why aren't vacant houses being made available to the homeless, but it also leads the reader to make connections between the many components that make for a strong neighborhood.

Sink or Swim: In Search of a Model for Coastal City Climate Change Resilience

New York City, like other major cities around the world, has acknowledged the problem of climate change, undertaken a comprehensive risk assessment, created a suite of adaptation and mitigation planning initiatives, and begun to implement policies to both decrease the city’s contribution to the problem and make the city less vulnerable to the effects of climate change. In an article published in the Columbia Journal of Environmental Law, I provide a detailed analysis of the city’s climate change resilience initiatives and conclude that many of the city’s initiatives provide a model for other coastal communities, but the city's initiatives nevertheless fall short of what is likely required to sufficiently moderate harm from dangerous interference with the climate system.

The city’s robust suite of initiatives put it ahead of the pack as compared to most other U.S. municipalities, especially with respect to comprehensive reform of zoning and building codes, integrated mitigation and adaptation planning, transparent climate change-related data analysis initiatives, and commitment to reduce GHG emissions 80% by 2050 from 2005 levels and progress toward that goal. However, the city also faces a host of wicked policy binds, ineffective regional structures, a lack of support at the federal level, and numerous conditions that constrain its ability to remain resilient. In light of this, the “toughness” theme that runs throughout the city’s plans risks undermining its robust data analysis and reporting initiatives by instilling in New Yorkers a false sense of security with respect to both the scope of the problem and their local government’s ability to protect them from it. The city faces an equally wicked policy bind with respect to waterfront development. Given the foreseeable risks of increasingly intensive and frequent coastal storms, flooding and storm surges, coastal municipalities must carefully evaluate their waterfront development policies to assure consistency with future climate risks and adopt regulations that curtail or eliminate waterfront development in high-risk areas, encourage or require relocation away from vulnerable areas, and take maximum advantage of opportunities to develop natural flood-mitigation infrastructure.

See Sink or Swim: In Search of a Model for Coastal City Climate Change Resilience, 40 Columbia J. Envt’l L. 433 (2015), available here.

 

Post by Sarah J. Adams-Schoen, Assistant Professor of Law and Director of Touro Law’s Institute for Land Use & Sustainable Development Law, and managing author of the blog Touro Law Land Use.

Sign Regulation after Reed: Suggestions for Coping with Legal Uncertainty

Alan C. Weinstein (Cleveland-Marshall) and Brian J. Connolly (Independent) have posted "Sign Regulation after Reed: Suggestions for Coping with Legal Uncertainty," which I imagine scholars and practitioners will both find of particular interest.  Here is the abstract:

This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. Practically, we note that Thomas's opinion leaves several questions unanswered and and the uncertainty is further compounded by the inconsistencies between Thomas and Justice Alito's concurrence. In light of these uncertainties, we advise local governments to consider how much legal risk they are willing to take in seeking to retain workable sign regulations.

Vermont Law Environmental Clinic Seeks Fellows

David Mears, director of the Environmental and Natural Resources Law Clinic at Vermont Law, has asked us to publicize the upcoming deadline for their fellowship. 

The Environmental and Natural Resources Law Clinic (ENRLC) is pleased to invite eligible candidates to apply for a two-year Clinic Fellow position from June 1, 2016 through May 31, 2018. The fellowship combines the opportunity to obtain an LLM degree in Environmental Law from one of the leading environmental law programs in the nation with the opportunity to work with experienced environmental attorneys and students in a clinic focused on public interest cases. 

This is an excellent opportunity for young lawyers interested in clinical teaching. Vermont Law has an unmatched program in environmental and land use law, with some of the leading scholars, teachers and practitioners on their faculty. Plus, they're just really great folks.  Please share this announcement widely.

Jamie Baker Roskie