Land Use Prof Blog

Tuesday, July 31, 2018

Seeking collaborators on Sustainable Development Code: Jon Rosenbloom

From Jon Rosenbloom:

Dear colleagues,

The Sustainable Development Code is a model local code providing the best sustainability practices to local governments. The Code focuses on local development practices that implicate a wide array of sustainability issues, including climate change, wildlife habitats, water quality, and affordable housing.

I am co-managing the Code with the University of Colorado at Denver, School of Architecture and Planning. We are working with practitioners, academics, and students from around the country.

Would you be interested in incorporating drafting Code provisions into your environmental, land use, energy law, water law, or state and local government course, as was done at several law schools last semester. Overwhelmingly, the response from those that have incorporated the Code into their courses has been that it provides excellent educational opportunities to understand local environmental issues, local regulations, and, more generally, federalism and decentralization. In addition, it is a good chance for students to hone their researching and writing skills.

The Code is divided into 32 chapters, covering topics such as “water supply quality and quantity,” “coastal hazards,” and “wind energy” (a list of chapters can be found in the prezi presentation linked below). Each chapter consists of 30-40 concrete policy actions local governments can take to become more sustainable in that particular area. Each action has a corresponding brief describing:

The specific recommendation;
The effects the recommendation is projected to have;
At least two local governments’ code provisions that have implemented the recommendation; and
4-6 additional local code citations and parentheticals with similar recommendations.

Drafting the briefs has been primarily incorporated into coursework. The idea is that the briefs will provide local governments with quick and easily accessible information that can be used to enact local legislation. The briefs were designed by a multidisciplinary group of experts and practitioners (a list of the Advisory Committee can be found in the prezi presentation). I’m glad to forward sample briefs.

If you would like additional information on the Code, in 5-7 minutes I could walk through the prezi presentation found at:

https://prezi.com/view/cdEnRwvramAieQGsIbWl/

I will make myself fully available to anyone interested in this project. We expect to launch the Code in summer/fall 2019.

I hope this project interests you and, if so, please contact me.

Jon Rosenbloom

[email protected]

July 31, 2018 | Permalink | Comments (0)

Saturday, July 28, 2018

POSITION ANNOUNCEMENT – ASSISTANT/ASSOCIATE/PROFESSOR OF LAW AND DIRECTOR OF THE DRAKE AGRICULTURAL LAW CENTER

By Stephen R. Miller

DRAKE UNIVERSITY LAW SCHOOL invites applications for a tenured/tenure-track position as Assistant/Associate/Professor of Law in the field of Agricultural Law and Director of the Drake Agricultural Law Centerbeginning in the fall of 2019. Applicants must hold a J.D. degree (or the equivalent) and should have outstanding records of accomplishment in scholarship, teaching, and service as well as substantial practice experience.

The successful candidate will teach agricultural law courses and serve as the Director of the Drake Agricultural Law Center. Drake was the first American law school to offer a specialization in agricultural law, offering courses not only on agricultural and food law but also on agriculture’s effect on social, economic, and political systems. Drake is the only accredited law school in the nation with a student-published legal journal, the Drake Journal of Agricultural Law, focusing solely on these issues.

Founded in 1983, the Agricultural Law Center provides opportunities for students to explore how the legal system impacts the global food system and the agricultural sector's ability to produce, market, and use agricultural products. The Center promotes and supports research and scholarship andhas hosted distinguished agricultural law scholars from all over the country and the world to teach students and share their unique cultural perspective on food and agricultural law. Students can earn a Food and Agricultural Law Certificate by completing 21 credits of coursework, a major legal research and writing project, and an internship.

The Agricultural Law Center also provides information and resources for American farmers, landowners, and agricultural entrepreneurs to help these key agriculture stakeholders make profitable and sustainable decisions regarding our nation’s land and agricultural production.

Applicants with backgrounds in all areas of Agricultural Law are welcome. Over 85% of Iowa’s land is used for agriculture. Drake’s location in central Iowa places it at the heart of a state that leads in production of soybeans, corn, eggs, and pork.

Drake University is an equal opportunity employer and actively seeks applicants who reflect the nation’s diversity. No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status.Diversity is one of Drake’s core values and applicantsneed to demonstrate an ability to work with individuals and groups of diverse socioeconomic, cultural, sexual orientation, disability, and/or ethnic backgrounds.

Confidential review of applications will begin in August 2018. Applications (including a letter of interest, a complete CV, teaching evaluations (if available) and the names and addresses of at least three references) should be sent to Professor Ellen Yee, Chair, Faculty Appointments Committee, Drake University Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: [email protected]

July 28, 2018 | Permalink | Comments (0)

Monday, July 23, 2018

John Nolon on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings

By Stephen R. Miller

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line. -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 8: Hot Topics in Takings

by John Nolon

While Stephen and Jonathan explore upcoming cases and concepts, my focus here is on the fundamental aspects of takings cases. I find that the basics are tough and need a patient hand to be turned so that students truly understand constitutionally protected property rights and remedies for their violation. I spend a lot of time on Lingle, which, along with Palazzolo, handle the basics well.

In Lingle, the majority dispenses with the two-part, disjunctive Agins test, including the incomprehensible notion that a regulation can be a taking if fails to substantially advance legitimate state interests. “Correcting course,” Mrs. Justice O’Connor, writing for the majority, properly characterizes that test as a due process standard. Understanding due process claims is as critical for students as understanding takings jurisprudence. Many, many of the cases in our book are disposed of on due process grounds, beginning with Euclid. These waters should not be cloudy and Lingle does an excellent job of separating due process from takings cases and explaining the prevailing rules of interpretation in each category.

The district court decision in Lingle held that a taking occurred because it found Chevron’s economist more credible than the state’s expert who argued that no state interest was advanced by the state’s control of rents charged to lessee-dealers by oil companies. It reasoned that the substantially advance test of Agins was violated because the law was ineffective and that a taking had occurred, even though no damages were proved.

This is a can of worms. If there are no damages, what is the remedy if the Constitution provides that just compensation must be paid for the taking by the offending regulating entity? What does the Constitution mean when it says no person shall be deprived of property without due process of law? How is that different from the provision that protects private property from being taken for a public use, without just compensation? What is a court doing choosing the plaintiff’s expert over the one relied on by the state legislature, to which it owes deference?. In addition to dispensing with the substantially advance rule for takings, O’Connor also reminds us that courts do not heavily scrutinize substantive due process challenges to government regulation?

Having clarified takings waters this much, the Justice further explains that there are four categories of takings including per se cases like Loretto and Lucas (“two relatively narrow categories”) and Penn Central, which articulates specific factors for resolving regulatory takings claims that do not fall within the other categories. The fourth type of takings case she mentions is “the special context of land-use exactions” that arise mostly in context of conditions imposed by adjudicatory bodies, like planning boards, as part of the project review and approval process. Although Koontz rendered this fourth category fundamentally cloudy, the categories themselves are clear enough to guide law students’ understanding of this field of law.

In explaining the Penn Central factors, Justice O’Connor refers us to the Court’s 2001 Palazzolo case, in which a developer was approved to build one residence on two dryland acres in a 20 acre tidal wetland site that he owned. He had asked the relevant agency for permission to build 74 homes on individual lots and claimed damages of over $3 million, which he claimed constituted a total taking under Lucas. The Court disagreed finding that “the petitioner failed to establish a deprivation of all economic value [one of the Penn Central factors] for it is undisputed that the parcel retains significant worth for the construction of a residence.” In other words, the Court considered the Lingle takings categories and placed this in the Penn Central rather than Lucas bucket. On remand, the Rhode Island Superior Court affirmed that there was no taking -- under Lucas there was no total taking and under Penn Central the petitioner’s investment backed expectations were not frustrated.

Although takings law is anything but free of nuance and ad hoc applications, there is a degree of clarity in these categories and the Lingle decision. . Most takings cases fall into the Penn Central category, rather than the relatively narrow per se categories, unless they involve an exaction. Within Penn Central, the Court imposes the burden of proving the taking on the challenger, defers to legislative discretion, and presumes the validity and constitutionality of its actions. If the other categories are narrow or specific and most takings cases are decided under Penn Central, one would expect that takings claims are hard to win. This is affirmed in a recent William and Mary Law Review article by Professors James Krier and Stewart Sterk who conduct “An Empirical Study of Implicit Takings.” They find that “takings claims based on government regulation almost invariable fail.”

If students can be taught this much, they will know more than land use attorneys who advise their clients that regulations that prevent the highest and best use of their properties are takings or that simple diminution of property values caused by regulations should be actionable under the takings clause. Unfortunately there are too many such cases, suggesting that lawyers don’t understand the basics or are misrepresenting the law to their frustrated clients.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2018-19 academic year. Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Land Use Book Image

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

Question 2: Teaching the 1916 NYC Zoning Ordinance and the Standard State Zoning Enabling Act [Rosenbloom | Nolon | Salkin | Miller]

Question 3: Teaching the Economics of Land Use Regulation and Ethics [ Salkin | Nolon | Miller | Rosenbloom]

Question 4: Teaching about the Comprehensive Land Use Plan [Salkin | Nolon | Miller | Rosenbloom]

Question 5: How to Create a Practical Context for Learning? [Nolon | Miller | Rosenbloom | Salkin]

Question 6: Introducing the Common Law and the Power of the Pen [Salkin | Miller | Rosenbloom | Nolon]

Question 7: How to Teach the Contract Transformation in Land Use Regulation? [Miller | Nolon | Rosenbloom | Salkin]

Question 8: Hot Topics in Takings [Miller | Rosenbloom | Nolon | Salkin]

July 23, 2018 | Permalink | Comments (0)

Monday, July 16, 2018

Jonathan Rosenbloom on Contemporary Issues in Teaching Land Use: Question 8: Hot Topics in Takings

By Stephen R. Miller

While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, and we are now up to Chapter 3. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line. -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom

Contemporary Issues in Teaching Land Use

Question 8: Hot Topics in Takings

by Jonathan Rosenbloom

Continuing Stephen’s line of inquiry, another hot topic in takings jurisprudence is whether a takings claim may be recognized against a local government for failing to adapt to climate change. Once the students review most of Chapter 5, I might ask them whether attorneys representing local governments should counsel those governments on potential takings claims based on the failure to adapt to climate change. While yet decided, these claims may have the capacity to result in massive damage awards and to encourage local action.

In Incentivizing Municipalities to Adapt to Climate Change: Takings Liability and FEMA Reform as Possible Solutions, 43 B.C. Envtl. Aff. L. Rev. 281 (2016), Professor David Dana (Northwestern) identified the following four potential takings claims against local governments based on the failure to adapt to climate change:

Inaction Claims: Takings claims against governments for failing to take action to adapt to climate change.
Ineffective Action: Takings claims against governments for taking adaptive actions that were insufficient to prevent property loss.
Counterproductive Action: Takings claims against governments for taking action that not only was ineffective in preventing property loss, but also caused greater losses than otherwise would have occurred.
Improper Diversion: Takings claims against governments for diverting the effects of climate change, such as flooding or fire, from one area/community to another, such that the latter area/community incurred greater property losses than it otherwise would have incurred, although the former area/community incurred less loss then it otherwise would have.

Id. at 285-86 (relying heavily on another excellent article, Christopher Serkin, Passive Takings: The State's Affirmative Duty to Protect Property, 113 Mich. L. Rev. 345 (2014) (Serkin argued that “passive takings” liability should be recognized whether a government acts or fails to act when it asserts regulatory control such that it is responsible for harm in the face of ecological change)).

Dana’s four potential takings claims set up a nice intellectual exercise for the students to explore the contours of the takings clause and whether it could fit a claim based on adaptation (Dana is skeptical of whether local action will change in the face of such a takings finding, see Dana, supra, at Section II). Compared to recent successes under federal substantive due process and public trust, see Juliana v. U.S., 217 F.Supp.3d 1224 (2016) (denying defendants’ and intervenors’ motions to dismiss), denying mandamus,In re U.S. v. U.S. Dist. Ct. for the Dist. Of Oregon, 884 F.3d 830 (2018), plaintiffs still, I think, have a way to go before not only finding success under the takings clause, but also encouraging or compelling local action on climate adaptation. Nonetheless, it is a developing area of takings jurisprudence and offers a good opportunity for students to explore the application of takings to new circumstances.

As a callous and inept federal administration fails to protect communities from a rapidly changing environment, local communities continue to suffer (see one of many federal administrative actions abandoning communities battling climate change, see, e.g. Christopher Flavelle, U.S. Disbands Group That Prepared Cities for Climate Shocks, Bloomberg (Dec. 4, 2017)). If local governments fail to address more-and-more foreseeable uncertain disasters, citizens will look for a remedy. And local governments just may be in the crosshairs.

The ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year. Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.