Land Use Prof Blog

Professor's Corner on Koontz

This month's ABA Real Property "Professors' Corner" teleconference will focus on Koontz, the end-of-Term exactions that is one of the most significant Supreme Court property-rights cases in recent years.  (Jessie Owley has discussed it here, and Tim Mulvaney and others have weighed in around the net).  This Professor's Corner session should be a good one with several leading scholars participating.  Here's the announcement:

Professors’ Corner:  Wednesday, July 10, 2013:  Koontz v. St. John’s River Water Management District:  A Significant Victory for Property Rights?

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.   Members of the AALS Property Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).

Wednesday, July 10, 2013

12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.

Call-in number: 866-646-6488

Passcode: 5577419753

This program will feature a roundtable discussion breaking down the Supreme Court’s important June 25 decision in Koontz v. St. John’s River Water Management District. If “monetary exactions” have always seemed a little untamed to you, you’re not alone. The 5-4 decision in Koontz leaves a lot of room for analysis, and this month’s panel is prepared to guide you through it by parsing the decision and the dissent.  Our distinguished panel will include Professor Jonathan H. Adler, who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law; John D. Echeverria, Professor of Law at Vermont Law School; and David L. Callies, who is the Benjamin A. Kudo Professor of Law at the University of Hawai’i. 

For those that haven’t already seen it, here’s a link to the opinion:

http://www.supremecourt.gov/opinions/12pdf/11-1447_4e46.pdf

Please join us Wednesday for this great program!

Matt Festa

Professors' Corner, June 12

It's time once again for the "Professors' Corner" teleconference sponsored by the ABA's Real Property, Trusts, & Estates section.  This month's call features different recent cases to be discussed by John Orth (North Carolina), Tanya Marsh (Wake Forest), and yours truly (South Texas).  See the writeup below for details on the call-in and the cases.  Also, if you're a property or land use prof who might be interested in participating in future calls (I recommend it), get in touch with Tanya.

Matt Festa

Professors’ Corner:  Wednesday, June 12, 2013

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.   Members of the AALS Property Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).

Wednesday, June 12, 2013

12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.

Call-in number: 866-646-6488

Passcode: 5577419753

This month’s program involves some recent case developments on issues of interest to both Real Property and Trust and Estate practitioners.  Our featured speakers will be Professors John Orth, Tanya Marsh, and Matt Festa.

John Orth is the William Rand Kenan Jr. Professor of Law at the University of North Carolina School of Law in Chapel Hill, NC, where he has taught since 1978. He teaches Property, Advanced Property, Trusts and Estates, and Legal History. He has published extensively on the subjects of property, legal history, and state constitutional law. Prof. Orth is a contributing author to the treatise Thompson on Real Property for the subject of concurrent estates, and has served as an Associate Editor and a contributor to the American National Biography series.  Prof. Orth will be discussing Reicherter v. McCauley, a Kansas appellate decision addressing whether one joint tenant can effect a “secret severance” of a joint tenancy via a quitclaim deed to himself via a deed executed in anticipation of death.  Time permitting, he will also discussBridgeview Bank Group v. Callaghan, a recent Florida appellate decision addressing whether a creditor may introduce evidence to rebut the presumption that a deed to a married couple was intended to create a tenancy by the entirety.  Here’s a link to Reicherter:  http://www.kscourts.org/cases-and-opinions/Opinions/CtApp/2012/20120713/106622.pdf

And to Callaghan:  http://www.flprobatelitigation.com/uploads/file/4D11-631_op[1].pdf

Tanya Marsh is an Associate Professor of Law at the Wake Forest University School of Law in Winston-Salem, NC, where she began teaching in 2010, following ten years practicing real estate and corporate law in Indianapolis, Indiana. She teaches Property and Real Estate Transactions, and is a contributing editor to the Property Prof Blog. Prof. Marsh is the incoming Chair of the Real Property Division Legal Education Committee for the ABA Real Property, Trust & Estate Law Section.  She will be discussing In re Estate of Whalen, a recent Iowa Supreme Court decision addressing whether Iowa’s Final Disposition Act allows a surviving spouse to disregard the deceased spouse’s written burial instructions.  Here’s a link to the Whalen decision: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20130222/12-1927.pdf

Matt Festa is a Professor of Law at the South Texas College of Law in Houston, TX, where he has taught since 2007. He teaches and researches in the areas of property law and land use, state & local government, energy & environmental law, trusts & estates, legal history, and national security law. He is the editor of the Land Use Prof blog.  Matt will be discussing a Texas Supreme Court decision, Texas Rice Land Partners, Ltd. v. Denbury Green  Pipeline — Texas, LLC, in which the Court addressed whether a “common carrier” pipeline company with statutory authority to exercise eminent domain may do so for the construction of a private pipeline.  Here’s a link to the decision: http://www.supreme.courts.state.tx.us/historical/2012/mar/090901rh.pdf

Professors' Corner May 8--Commercial Leasing

As many of you know, the ABA hosts a free "Professors' Corner" teleconference each month, where we have the chance to discuss recent cases and hot topics with scholars and practitioners.  Courtesy of Julie Forrester, here is the info on this month's discussion, which focuses on commercial leasing:

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.   Members of the AALS Real Estate Transactions Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).

Wednesday, May 8, 2013

12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.

Call-in number: 866-646-6488

Passcode: 5577419753

This month’s program, moderated by Professor Jim Durham of the University of Dayton School of Law, features a roundtable on Commercial Leasing.  Our two featured speakers will be Professors Celeste Hammond and Professor Daniel B. Bogart, who are co-authors of Commercial Leasing: A Transactional Primer, now in its Second Edition and published by Carolina Academic Press.

Professor Hammond is a Professor of Law and the Director of the Center for Real Estate Law at the John Marshall Law School in Chicago.  Professor Hammond will be discussing “Green” issues in commercial leasing and the implications of this “greening” for landlords, tenants, and their attorneys.  Here is a copy (for your download and preview) of a Powerpoint presentation that will accompany Professor Hammond’s comments:  http://law.missouri.edu/freyermuth/hammondgreenleasing.pptx

Professor Bogart is the Daniel and Marjorie Bollinger Chair in Real Estate Law at Chapman University School of Law, where he serves as both the Associate Dean for Academic Affairs and as the Director of the Center for Land Resources.  Professor Bogart will be discussing some recent leasing decisions of note, including (click on the link for a copy of each decision):

J-Star Holdings, LLC v. The Pantry (Tenn. Ct. App. January 2013) (whether a commercial lease agreement requires the tenant to pay excise taxes imposed on the landlord):  http://www.tncourts.gov/sites/default/files/j-star_opn.pdf

Maida Vale, Inc. v. Abbey Road Plaza Corp., 96 So.3d 1027 (Fla. Ct. App. 2012) (whether a tenant who withheld payment of disputed CAM charges may be evicted for nonpayment of rent): http://www.4dca.org/opinions/August%202012/08-22-12/4D10-2203.op.pdf

Fairfax Portfolio, LLC v. Owens Corning Insulating Systems, 2013 WL 440726 (10th Cir. 2013) (whether a tenant that surrendered the premises without repairing significant property damage as required by the lease can be deemed to have held over while landlord effects repairs so as to permit landlord to collect rent during that period):  http://scholar.google.com/scholar_case?case=16297268405506062242&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Matt Festa

Talking Energy in Minnesota

It's been a whirlwind of conferences for me this month. Two weeks ago I was at GW. Last week, we had a conference at Buffalo. Now, I am sitting in sunny but snowy Minnesota attending the 2013 Consortium Annual Conference, entitled "Legal & Policy Pathways for Energy Innovation."

My co-author Amy Morris (of Aspen Environmental) and I presented one of our current works-in-progress (yes we have three). This one we are currently calling Mitigating the Impacts of the Renewable Energy Gold Rush. In this paper, we take a close look at the mitigation being done in association with the large-scale solar projects in the California Desert. One of the challenges has been just to untangle all of the agencies and laws at play. We have been particularly concerned with the mitigation projects and methods. Projects are approved (and indeed construction often begins) before mitigation projects are finalized or land identified. And of course, the use of exacted conservation easements is prevalent throughout... something that always makes me nervous.

Most of the mitigation projects are about endangered species protection and our paper focuses on that aspect. Thus, we were  not too surprised when we were placed on a panel about endangred species and renewable energy (with Kalyani Robbins and Jeff Thaler). It was one of the more contentious academic (they've got nothing on the land trust folks) panel presentations I have been a part of. It was a lively discussion about whether it makes sense to protect endangered species if the protection will in any way hamper development of renewable energy projects. Most folks agreed that climate change is likely to have bigger impacts on endangred species and ecosystem health than renewable energy development is. This raises big questions about tradeoffs with renewable energy projects and even introduced proposals to amend the Endangered Species Act!

And things are only getting started. Conference organizer extraordinare Hari Osofsky tells us that the recordings and videos of the conference will be available. You should contact her to learn more.

Conference Summary

The Legal & Policy Pathways for Energy Innovation conference will bring together leading scholars, practitioners, policymakers, and business people to address current energy law and policy challenges, particularly at the intersection of environmental law and policy. The panels will focus on four primary topics: (1) clean energy infrastructure; (2) environmental and energy governance; (3) climate, energy, and environmental justice; (4) sustainable regions and communities.

- Jessie Owley

 

The Big Thaw: Policy, Governance and Climate Change in the Circumpolar North

We are just starting day two of a conference here at Buffalo on climate change in the artic. We have participants from many fields (coming in person and electronically). This conference is also our first try at broadcasting our conferences via webinar. This enables folks to participate from all over the globe (not just by passively listening but also offering real-time questions and comments). It also seems a great way to do CLE.

I am including the information on the  conference below in case any of you have some free time today and want to join the webinar. Also, the papers steming from the conference will be available in a SUNY Press book on the issue coming out next year.

Conference Summary:

The Big Thaw: Policy, Governance and Climate Change in the Circumpolar North will bring together experts in science, law, sociology, and other fields to explore the pressing issue of climate change in the arctic. Conference participants will deliberate on international, national, and local perceptions of environmental, cultural, social and economic change in the arctic, interweaving the contexts of policy, legal, local and scientific models. Through its core focus on time, space, change and movement, this conference seeks common measures to the time scales of lived human experience in the arctic and sub-arctic region in a warming world.

The circumpolar North is a critical observatory for changing relations between human societies and the environment, and the policies that should accompany such change. The arctic and the sub-arctic are at the center of global debates on post- Cold War partnerships and issues of
post-colonial governance, strategy and regional sovereignty. For political and other reasons, the circumpolar North has only recently reemerged as a "region," revealing past connections and current common problems, and pointing to future challenges. Experts will gather and share thoughts on how we arrived at the current situation(s), where exactly things stand, and where to go from here.

 

Jessie Owley

Talking Energy at GW

Greetings from George Washington Law School where the 2013 J.B. and Maurice C. Shapiro Conference is wrapping up. Entitled Laying the Foundation for a Sustainable Energy Future: Legal and Policy Challenges, there has been an impressive array of panelists from industry, governements, NGOs, and academia.

My co-athour Amy Morris (of Aspen Environmental Group) and I presented some of our work on the land use tradeoffs involved in renewable energy projects. We have been looking at these issues through the lens of solar projects in California, but the issues come up in many contexts. To give you some broad strokes of the project: In California, we see development of main types of projects--utility scale and distrbuted generation. The large utility-scale solar facilities in the California desert have been under heavy scrutiny and criticized for their potential impacts on environmental and cultural values. In an effort to avoid pristine desert ecosystems, agencies and environmental groups have been championed the use of distrubed lands. Such lands are not completely controversy-free either. As a threshold question, we have to figure out what lands should qualify as "distrurbed." In some cases, it may be that we are too quick to label something as disturbed. Generally though the big categories are brownfields, former landfills and mines, hardscapes (parking lots and rooftops), and marginal agricultural lands. I won't get into here, but trust me each of those categories has a host of issues surrounding its use.

I've been feeling a little out of my league as the land use lawyer in the midst of the energy experts but have learned a lot and have been impressed with GW's organization of the conference. I also really enjoy attending conferences in Washington DC where the audience is always filled with a great mix of people from agencies and nonprofits.

- Jessie Owley

Professors' Corner teleconference on Legal Education and Uniform Laws

From Wilson Freyermuth (Missouri) via the property listserv comes the announcement for this Wednesday's Professors' Corner--the monthly free teleconference sponsored by the ABA's Section on Real Property, Trusts, & Estates.  This one looks really interesting.  See below for the info and dial-in instructions.

Matt Festa

Professors' Corner: Legal Education and Uniform Laws Group Call

April 10, 2013, 12:30pm Eastern/11:30am Central/9:30am Pacific

Call-in number: 866-646-6488

Passcode: 5577419753

The April 2013 program is entitled "Real Estate-Related Uniform Laws in Progress." This program will discuss the status of the two major uniform law projects related to real estate that are currently underway within the Uniform Law Commission (which we all used to know as NCCUSL).

The first project is a comprehensive revision of the Uniform Residential Landlord and Tenant Act. The URLTA was originally promulgated nearly 40 years ago and has been adopted, either in part or in whole, in approximately 20 states. During this month’s program, Professors Sheldon Kurtz (University of Iowa) and Alice Noble-Allgire (Southern Illinois University), who are the co-Reporters for this Act, will discuss the current status of this project and some of the key issues being addressed in this revision. These revisions will receive their "first reading" at this summer's annual meeting of the Uniform Law Commission in July 2013. In case you’re curious, here is a copy of the current draft of the Act: http://law.missouri.edu/freyermuth/JEBURPA/2013apr2_RURLTA_MtgDraft.pdf.

The second pending real-estate related uniform law project is a new project to produce a uniform act governing residential mortgage foreclosure processes. This project began earlier this year after extended study by the Uniform Law Commission, as well as a stakeholder meeting at which input was taken from both industry and consumer groups, as well as federal and state regulators. The Act proposes to address residential mortgage foreclosure processes and mortgagor protections in both judicial foreclosure and nonjudicial foreclosure. During the program, Professors James Smith (University of Georgia) and Alan White (City University of New York), who are the co-Reporters for this project, will discuss the status of this project and the key issues being addressed in this project. Here is a copy of the current draft of this Act, which will likewise receive its "first reading" at this summer's Uniform Law Commission meeting: http://www.uniformlaws.org/shared/docs/Residential%20Real%20Estate%20Mortgage%20Foreclosure%20Process%20and%20Protections/2012mar25_RREMFPP_MtgDraft_Clean.pdf.

Please join us on Wednesday for this month’s call!

ALPS Deadline extended to March 15

The Association for Law, Property, & Society (ALPS) annual meeting is coming up, and the deadline to register and/or submit paper or panel proposals has been extended to Friday, March 15.  From the CFP:

The ALPS 4th Annual Meeting, http://www.alps.syr.edu/meetingsandconferences.aspx, will be held at University of Minnesota Law School, April 26-27, 2013. Our annual meetings attract over 100 participants, approximately one third of whom come from outside of North America and a number of whom do interdisciplinary work.

A couple of additional draws this year: first, Professor Carol Rose will be the honoree and keynote speaker; second, the ALPS conference is immediately following a related conference in energy/environmental law onsite:

The Consortium on Law and Values in Health, Environment & the Life Sciences will be hosting a conference on Legal and Policy Pathways for Energy Innovation on April 24 and 25,
http://lawvalue.umn.edu/newsevents/conferences/lppei/home.html.

So, as someone on the listserv said, it's a Minnesotapalooza!  UM prof and ALPS leader Hari Osofsky is overseeing both. 

Remember, ALPS takes pride in hosting a collegial, accessible conference for scholars at all career stages and with various disciplinary interests.  Including, but not limited to . . .

· Civil Rights & Inequality (including Race, Gender, Religion, Income, Disability, etc)/Critical Legal Studies
· Economics and Property Law
· Energy/Environment/Climate Change
· History of Property
· Housing/Urban Development/Mortgages and Foreclosure
· Indian Law/Indigenous Rights Law
· Intellectual Property
· International Property Law/Human Rights and Property/Cultural Property
· Land Use Planning/Real Estate/Entrepreneurship
· Property and Personhood/Concept of Home
· Property Theory
· Takings and Eminent Domain
· Teaching Property

So if you haven't submitted or registered yet, now's the time to sign up for ALPS in Minnesota this April. 

Matt Festa

ALPS registration Friday March 1!

[Registration here].  Many of you know that the annual meeting of the Association for Law, Property, and Society (ALPS) has quickly become THE place to be for academic discussions in property, land use, real estate, IP, and local government and environmental law--in short, everything that is considered to be in the universe of "property" is more than welcome at ALPS.  It's been a really interesting, rewarding, and collegial conference in its first few years, and again, it's almost immediately become the central annual confab for property and land use profs.  To wit:

We welcome papers on any subject related to property law and from a diversity of viewpoints. Property related topics areas can include but are not limited to:

Civil Rights & Inequality (including Race, Gender, Religion, Income, Disability, etc)/Critical Legal Studies
Economics and Property Law
Energy/Environment/Climate Change
History of Property
Housing/Urban Development/Mortgages and Foreclosure
Indian Law/Indigenous Rights Law
Intellectual Property • International Property Law/Human Rights and Property/Cultural Property
Land Use Planning/Real Estate/Entrepreneurship
Property Theory • Property and Personhood/Concept of Home
Takings and Eminent Domain • Teaching Property 

The deadline for paper proposals is this Friday, March 1.  This year there is also the option to register to attend without a proposal, which makes participation even more accesible to everyone in the field.  

The link to register and for more information about the conference is here.  

I have to clear a couple of calendar items myself too, but I really hope to see all of you In Minneapolis on April 26-27 for ALPS.  And on behalf of the ALPS Membership & Outreach Committee, feel free to contact me with any questions.  

Matt Festa

Nolon et al., Towards Engaged Scholarship

John Nolon has posted Towards Engaged Scholarship, an article that is the result of last year's symposium by the same name that he hosted at Pace, which was a follow-up to 2011's highly successful Practically Grounded conference.  The meeting was really productive, and even though most of us were discussing engaged scholarship in land use and environmental law, the article has insights about the relationship between research, teaching, and practice that could be valuable to anyone in the field or law teaching generally.

The article is forthcoming.  Here are the contributors: John R. Nolon (Pace); land use guest-blogger Michelle Bryan Mudd (Montana); Michael Burger (Roger Williams); Kim Diana Connolly (SUNY Buffalo); Nestor M. Davidson (Fordham); Matthew Festa (South Texas); Jill Gross (Pace); Lisa Heinzerling (Georgetown); Keith H. Hirokawa (Albany); Tim Iglesias (San Fransisco); Patrick C. McGinley (West Virginia); Sean Nolon (Vermont); Uma Outka (Kansas); co-blogger Jessica Owley (SUNY Buffalo); Kalyani Robbins (Akron); guest-blogger Jonathan D. Rosenbloom (Drake); and Christopher Serkin (Brooklyn).  Here is the abstract:

The practice-oriented influences of the Carnegie Foundation’s Educating Lawyers and the report of the Clinical Legal Education Association, Best Practices for Legal Education, have been working on the academy for only five years; law teachers are just now learning how they can better prepare their students to practice law “effectively and responsibly in the contexts they are likely to encounter as new lawyers.” These reports have stimulated a vast literature on how law professors can improve their teaching methods, how law schools can alter their curricula, and how the legal academy as a whole can prioritize skills education.

Much less attention has been paid to the connection between legal scholarship and the practice of law. For many law professors, there is an intuitive link between their teaching and scholarship. Does that link apply to teaching law students to be more practice-oriented, and what precisely does that mean? Should our scholarship examine more regularly the problems that practitioners confront and the contexts in which they arise? This article addresses these pressing questions in the context of legal scholarship as a context and opportunity.

This article presents the reflections of sixteen law professors on linkages between scholarship and the legal profession. From these reflections, several themes are identified that lead to new perspective on legal scholarship in a time of dynamic change in the law school education. This article begins a dialogue on engaged scholarship and concludes with the some proposed directions for critical reflection on the roles of law professors as academics and as molders of the careers of their students.

The conference was great, both for the ideas that were shared and for the chance to discuss them with a group of both senior and junior scholars in our fields.  I think the article will advance the discussion of how to make scholarship both theoretical but also practically useful. 

Matt Festa

 

Conference Announcement: Class CritsVI

Last year, I attended Class Crits for the first time. It was a wonderful program and I met a lot of folks who are interested in the issues of class and economic (in)equality. I presented some of my ongoing work on neoliberalism and land conservation. The Call for Papers for the 2013 conference has just been released.

Check it out

- Jessie Owley

ABA Forum of Aff. Housing and Comm. Dev. Law Student Writing Competition-2013

Every year, the ABA Forum of Affordable Housing and Community Development Law sponsors a student writing competition.  The winner gets a $1000, plus an expenses-paid trip trip to DC in May for our Annual Meeting chock full of potential private and public-sector legal employers as well as a chance to publish the submitted piece in our Journal. 

As Editor-in-Chief of the Journal of Affordable Housing and Community Development Law, I wanted to make sure you and your students already knew about the Student Writing Competition.  Particularly if you know of a relevant student-written scholarly work (a note, a seminar paper or the like) that deserves consideration, encourage the student to submit the work to me at the email address below on or before Friday, March 8^th. 

 

Jim K.

[email protected]

Serkin on The State's Constitutional Obligations to Property Owners

Christopher Serkin (Brooklyn) has posted Affirmative Constitutional Commitments: The State's Obligations to Property Owners, Brigham-Kanner Property Rights Conference Journal, Forthcoming. The abstract:

This Essay, prepared for the 2012 Brigham-Kanner Property Rights Conference, argues that social obligation theories in property generate previously unrecognized obligations on the State. Leading property scholars, like Hanoch Dagan, Greg Alexander, and Eduardo Peñalver, have argued that the institution of property contains affirmative duties to the community as well as negative rights. This Essay argues that those affirmative duties are two-way streets, and that moral bases for social obligations also generate reciprocal obligations on the State to protect property owners. The social obligation theories rely upon a dynamic not static vision of property rights. The community’s needs change, the conditions of ownership change, and the appropriate allocation of benefits and burdens within a society changes over time. Therefore, a legal obligation that is justified and permissible at the time it is enacted because it is consistent with moral obligations may become impermissible over time, even if the content of the legal obligation does not change. At the extreme, the State’s failure to respond to certain kinds of changes in the world can lead to a regulatory taking.

An interesting and important take on some of the implications of progressive property theory.  Especially interesting is Serkin's appreciation for the changing social notions of property over time, and how that challenges static notions of property rights and obligations.

Matt Festa

Missouri Law Conference on Promoting Sustainable Energy through Tax Policy

The University of Missouri School of Law is hosting a Symposium on February 22, 2013, called Promoting Sustainable Energy through Tax Policy.  Sponsored by the Journal of Environmental and Sustainability Law and the Missouri Tax Law Society, the event will be introduced by Mizzou profs Michelle Arnopol Cecil and our own guest blogger Troy Rule, and features panels with Alexandra Klass (Minnesota), Steve Gaw (The Wind Coalition), Felix Mormann (Miami), Roberta Mann (Oregon), Robert Peroni (Texas), with a keynote by David Weisbach (Chicago).  Here's the info and link:

Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation’s reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation’s fledgling sustainable energy sector to a grinding halt.

This year’s Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.

Cost and Registration

The symposium is free and open to the public.
Registration is suggested by Friday, February 15.

To register, please contact:
Journal of Environmental and Sustainability Law
University of Missouri School of Law
12E Hulston Hall
Columbia, MO 65211
[email protected]

More Information on 2013 JESL Symposium

Matt Festa

Perpetual Conservation Easements Conference at Utah

This Friday afternoon the University of Utah College of Law will host a conference on perpetual conservation easements, organized by Prof. Nancy McLaughlin, whose work on the subject we have featured here on the blog.  [Note--Jessie posted this previously, but here is an update:] If you can't book a last-minute ticket to Salt Lake City, the good news is--you can watch it live on the Internet!!  Here's the info:

Perpetual Conservation Easements:
What Have We Learned and
Where Should We Go From Here?

Friday, February 15, 2013
12:00 - 5:00 p.m. MST

Watch Live Online!

The public is investing billions of dollars in conservation easements, which now protect more than 18 million acres throughout the United States. But uncertainties in the law and abusive practices threaten to undermine public confidence in and the effectiveness of conservation easements as land protection tools. This conference will explore these issues, with the goal of minimizing abuse and helping to ensure that conservation easements actually provide the promised conservation benefits to the public over the long term. Leaders in their respective fields will address (i) the federal tax incentives offered with respect to easements donated as charitable gifts to certain qualified holders, (ii) the state conservation easement enabling statutes, (iii) federal and state oversight of charities, and (iv) the role of state attorney general offices in the charitable sector and in the protection of charitable assets on behalf of the public. Read More >>.

The full conference agenda is available on the website. An abbreviated version is listed below.

12:00-12:20 p.m. - Introduction
12:20-1:20 p.m. - Federal Tax Incentives
1:20-2:20 p.m. - State Enabling Statutes
2:45-3:45 p.m. - Charity Oversight
3:45-4:45 p.m. - Working with State Attorney General Offices
4:45-5:00 p.m. - Closing remarks

For more information call 801-585-3440 or send an email to [email protected].

Matt Festa

Conservation Easement Symposium at Utah

I am bummed I can't make it out to Salt Lake City for what looks to be a fascinating half-day symposium on conservation easements. But organizer Nancy McLaughlin tells me that we can watch remotely. Right now, Utah will enable folks to watch the conference while it is happening. If they can get the presenters to agree, they will also record the presentations and make them available. Details below:

Friday, February 15, 2013, 12:00-5:00 p.m. MST
University of Utah S.J. Quinney College of Law

The public is investing billions of dollars in conservation easements, which now protect more than 18 million acres throughout the United States. But uncertainties in the law and abusive practices threaten to undermine public confidence in and the effectiveness of conservation easements as land protection tools. This conference will explore these issues, with the goal of minimizing abuse and helping to ensure that conservation easements actually provide the promised conservation benefits to the public over the long term. Leaders in their respective fields will address (i) the federal tax incentives offered with respect to easements donated as charitable gifts to certain qualified holders, (ii) the state conservation easement enabling statutes, (iii) federal and state oversight of charities, and (iv) the role of state attorney general offices in the charitable sector and in the protection of charitable assets on behalf of the public.

Introductory Remarks

Nancy A. McLaughlin, Robert W. Swenson Professor of Law,
University of Utah S.J. Quinney College of Law 

Federal Tax Incentives

• History - Theodore S. Sims, Professor of Law, Boston University School of Law; Formerly with the Treasury Department
• IRS Response to Abuses - Karin Gross, Supervisory Attorney, IRS Office of Chief Counsel
• Proposed Reforms - Roger Colinvaux, Associate Professor of Law, The Catholic University of America, Columbus School of Law; Former Counsel to the Joint Committee on Taxation

State Enabling Statutes

• History - K. King Burnett, Uniform Law Commissioner, Member of Uniform Conservation Easement Drafting Committee 
• Unintended Consequences of “Easement” Terminology - Michael Allan Wolf, Professor of Law and Richard E. Nelson Chair in Local Government Law, University of Florida Levin College of Law, University of Florida Levin College of Law; Editor of Powell on Real Property
• Reforms - Jeffrey Pidot, Former Chief of the Natural Resources Division of the Maine Attorney General’s Office (retired); Originator of Maine’s Enabling Statute Reforms

Charity Oversight

• Cases and Controversies - Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law 
• History - Marion R. Fremont-Smith, Senior Research Fellow, Hauser Center for Nonprofit Organizations, Harvard University 
• Limits of Self-Regulation - Melanie B. Leslie, Professor of Law, Cardozo Law School

Working With State Attorney General Offices

• Overview of Attorney General’s Role in Charitable Sector - Mark A. Pacella, Chief Deputy Attorney General, Charitable Trusts and Organizations Section, Pennsylvania Office of the Attorney General 
• Working With the Attorney General’s Office in New Hampshire - Terry M. Knowles, Assistant Director, Charitable Trusts Unit, Department of Attorney General of New Hampshire
• Working With the Attorney General’s Office in California - Darla Guenzler, Executive Director, California Council of Land Trusts

Concluding Remarks­­—Taking The Long View

Wendy Fisher, Executive Director, Utah Open Lands Conservation Association

Jessie Owley

ALPS Call for Papers

The Association for Law, Property, and Society (ALPS) has quicky become THE place to be each year for the leading conference on property, land use, and real estate, as well as environmental law and local government.  Hari Osofsky has posted the Call for Papers for this year's 4th Annual Meeting in Minneapolis in April. 

The ALPS 4th Annual Meeting, http://www.alps.syr.edu/meetingsandconferences.aspx, will be
held at University of Minnesota Law School, April 26-27, 2013. Our annual meetings attract
over 100 participants, approximately one third of whom come from outside of North America and
a number of whom do interdisciplinary work.

Registration and paper/panel submission is available through the conference website or directly at
http://www.regonline.com/Register/Checkin.aspx?EventID=1158517. The deadline for
submitting papers and panels is March 1, 2013, but registration for the conference will continue
to be available after that date. Please do not submit papers and panels after March 1, 2013 as part
of your registration without having emailed Hari Osofsky, [email protected] for permission to
submit late. We will do our best to accommodate late submission requests, but can only
guarantee that proposals submitted by the March 1, 2013 deadline will be able to be considered
for the conference.

This year’s registration includes an option to register to attend without presenting and an option
to submit complete panels in addition to individual papers. As in previous years, we will have
both draft paper panels and early works-in-progress panels dedicated to brainstorming scholarship
at its beginning stages. We also plan to support early-career scholars in their development and in
connecting to mentors through the conference events. A discounted early registration rate of
$145 is available until March 1, 2013; after that date, the registration rate is $175.

We welcome papers on any subject related to property law and from a diversity of viewpoints.
Property related topics areas can include but are not limited to:
· Civil Rights & Inequality (including Race, Gender, Religion, Income, Disability,
etc)/Critical Legal Studies
· Economics and Property Law
· Energy/Environment/Climate Change
· History of Property
· Housing/Urban Development/Mortgages and Foreclosure
· Indian Law/Indigenous Rights Law
· Intellectual Property
· International Property Law/Human Rights and Property/Cultural Property
· Land Use Planning/Real Estate/Entrepreneurship
· Property and Personhood/Concept of Home
· Property Theory
· Takings and Eminent Domain
· Teaching Property

The ALPS 4th Annual Meeting has been planned to immediately follow a conference on Legal
and Policy Pathways for Energy Innovation on April 24 and 25, 2013,
http://www.lawvalue.umn.edu/newsevents/conferences/lppei/home.html, sponsored by the
University of Minnesota’s Consortium on Law and Values in Health, Environment & the Life
Sciences. That conference also is currently accepting paper and panel proposals and offers
discounted registration to ALPS conference participants.
We look forward to welcoming you to Minnesota!

ALPS really is the place to be for any scholar connected with property and land use.  On behalf of the membership & outreach committee, we hope to see all of you there!

Matt Festa

Adler on Merrill on "Fear of Fracking"

Yesterday, Case Western Reserve University School of Law hosted a symposium called The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom.  As Steve noted on Property Prof, Professor Thomas Merrill (Columbia) was slated to give the keynote.  Case Western's Jonathan Adler was part of the event, and he posted an extensive commentary on Merrill's remarks over on the Volokh Conspiracy.  Looks like it was a fascinating talk with lots of observations on how to deal with the potential environmental impacts of fracking, and a perhaps counterintuitive suggestion on the possible upside of the gas boom with respect to climate change.  But here, I'll focus on some of Merrill's observations on why fracking developed in the U.S., because it may have a lot to do with property law and land use regulation.  As Adler describes:

Why did fracking arise in the United States? Contrary to some analysts, Professor Merrill does not believe it is attributable to federally funded research and development. . . .

Professor Merrill also doubts industry structure has much to do with fracking’s rise either. . . .

A more likely factor is the way U.S. law treats subsurface rights. The U.S. is something of an outlier in that subsurface minerals are the property of the landowner, and not the government. This results in decentralized ownership and control over subsurface rights facilitates experimentation and innovation in figuring out how to exploit and manage subsurface resources.

Further decentralization, and experimentation, results from the federalist regulatory structure. Different states have different regulatory approaches than others, creating opportunities for further innovation and the opportunity for jurisdictions to learn from one another. The existence of a few jurisdictions that will allow a new technology to be tried provides a laboratory from which others may learn, whereas under a more centralized regulatory structure such innovation is unlikely to get off the ground.

The existence of a relatively open infrastructure network – a pipeline system that is subject to common-carrier rules – also plays a role in facilitating entry into the market. These factors have a common theme: decentralization. Taken together, Merrill suggests, they are the most likely source of fracking’s rise in the United States.

Looks like another fascinating event, with participation from a number of land use, environmental, and energy scholars on the subsequent panels.  I look forward to the symposium isse in the Case Western Law Review. 

Matt Festa

The Quiet Revolution Symposium Issue--John Marshall Law Review

Last year we blogged about the then-upcoming Kratovil Conference on the 40th Anniversary of The Quiet Revolution in Land Use Control, the seminal 1971 book by Fred Bosselman and David Callies.  The conference was hosted by the Center for Real Estate Law and Practice at The John Marshall Law School in Chicago, and the Symposium Issue has just come out in the John Marshall Law Review.  The Conference blurb:

In 1971, the President's Council on Environmental Quality published The Quiet Revolution in Land Use Control. The book described in detail the innovative land use laws in nine states which returned the control of land use to a state or regional level, largely at the expense of local zoning.  This constituted the "quiet revolution."  The Kratovil Quiet Revolution Conference [brought] together national scholars and experts in land use to analyze the lasting impact of The Quiet Revolution in several jurisdictions around the country and examine the future of land use policy.

We've posted some of the individual articles as they came out on SSRN, but just last week I received the hard copy symposium issue in the mail.  As you can see from the program, this excellent issue includes a foreword by Celeste Hammond, center director, and pieces by leading land use experts Bosselman, Callies, Patricia Salkin, Daniel Mandelker, Edward J. Sullivan, Nancy Stroud, and John S. Banta. 

The whole issue is worth getting a hold of if you haven't already.  But wait, there's more!  Prof. Hammond notes in her cover letter that the entire conference is now available to watch on video!  Here's a link to the conference page with videos on the Center's website.  Check it out if you couldn't be there and are looking for a great excuse for end-of-semester procrastination!

Matt Festa

Professors' Corner--Title Insurance and Services

Tanya Marsh has the details for this month's teleconference at Property Prof.  As many of you know, the ABA Section on Real Property, Trust, & Estate Law has been hosting free teleconferences featuring law professors' discussions of recent cases and hot topics in the field.  This month's "Professors' Corner" will focus on recent developments in title insurance and title services.  Here is the info:

Wednesday, November 14, 2012
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a..m. Pacific)
Call-in number: 866-646-6488
Passcode: 5577419753

Tanya will moderate the discussion featuring Professors Joyce Palomar (Oklahoma), Barlow Burke (American), and Eileen Roberts (William Mitchell).  Check it out if you are able.  Some of us Land Users have had the opportunity to participate in past months' calls, and it's a great way to stay up to date.

Matt Festa